Court approves five-storey plan after council agrees
The Land and Environment Court has approved a five-storey development for 227-233 Ocean View Rd, Ettalong, upholding an appeal by the applicant Jedaclew Pty Ltd.
The decision came after Central Coast Council reached an agreement with Jedaclew in a conciliation conference.
The approval follows an earlier refusal of the five-storey proposal, DA 57779, by the Local Planning Panel, after 67 submissions were received opposing the development.
Council planning staff had recommended to the Panel that the proposal be approved.
In the conciliation conference, Senior Commissioner Susan Dixon SC stated: "As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the parties' decision."
Ms Dixon said: "During the conference, a further set of amended plans was produced which the Council's experts agreed resolved the issues between the parties and reduced the impacts on the adjoining sites.
"Subject to the application being amended to reflect the new plans the parties informed me that they had reached agreement."
Ms Dixon tabulated the differences between the original six-storey proposal, the five-storey proposal and the amended plans.
The amended plans had greater setbacks to the fifth floor.
She said the building exceeded the 17 metre height limit in several respects: the ridge was 17.31 metres (1.8 per cent more), a balustrade 18.41 metres (8.3 per cent) and a stair cover 19.28 metres (13.4 per cent).
"Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the development nonetheless achieves the objectives of the standard," she said.
'I accept that the nominated height is commensurate with the height of recently approved mixed use buildings in the Ettalong Beach B2 Local Centre zone including a five-storey mixed use at 237-245 Ocean View Rd which is located 15 metres from the site.
"This development has a ridge height of 18.20 metres, so the requested 17.31 metre ridge height is comparable with the height limit in the Ettalong Town Centre.
"The urban form is of high quality having been prepared by an urban design team and architectural firm.
"Importantly, the variations are negligible in context, and as the applicant submits (and the Council agrees) the breaches do not result in unacceptable adverse amenity impacts to neighbouring sites - beyond that of a compliant height of building footprint-building envelope.
"While I accept that the variation entails a marginal increase in shadowing toward the street and neighbouring sites, I accept the submission that the adjourning lots have lower building height limits; this will ensure that neighbouring sites/buildings and public areas will continue to receive sunlight.
"The written request records that the amended mixed-use building has been designed to ensure that the overshadowing impacts of the development area are acceptable in nature, in particular maximise solar access to surrounding public open spaces.
"The Council's consultant planner is of the expert opinion that this has been achieved in the amended design and I accept his expert assessment."
Commissioner Dixon said she was satisfied that the amended proposed development was consistent with the objectives of the zone.
"It will provide for the housing needs of the community within a high-density environment and provide a sufficient building separation to the lower density zone as illustrated on the site plan and elevation plans and landscape plans.
"The proposed development contributes to a variety of bouquet commercial and housing types including in a high density environment.
"The proposed development also maximises public transport patronage by providing residential accommodation in an accessible location lose proximity to bus and cycling routes."
She said: "The amended proposal is consistent with the Central Coast Affordable and Alternative Housing Strategy as this development provides smaller (affordable) residential housing located around a town centre.
It was "also consistent with other relevant strategic policies for the smaller town centres on the Central Coast, including the Central Coast Regional Plan 2036 and draft Central Coast Urban Spatial Plan".
"I accept the Council expert's merit assessment that the recent amendments to the proposal adequately addresses the zone boundary interface which was a particular concern of the local objectors."
SOURCE:
Judgement, 8 Sep 2022
Jedaclew Pty Ltd v Central Coast Council, [2022] NSWLEC 1470