Land and Environment Court of New South Wales CITATION : Abdel - Sayed v Gosford City Council [2005] NSWLEC 208 PARTIES : H & P Abdel - Sayed v Gosford City Council FILE NUMBER(S) : 11447 of 2004 CORAM: Brown C KEY ISSUES: Development Application :- alterations and additions to an existing dwelling - view loss - impact on character Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Gosford Planning Scheme Ordinance CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 DATES OF HEARING: 26/04/05 EX TEMPORE JUDGMENT DATE : 04/26/2005 APPLICANT Ms M L Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Ms P Wright, solicitor SOLICITORS P J Donnellan & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 26 April 2005 11447 of 2004 H & P Abdel – Sayed v Gosford City Council JUDGMENT 1 This is an appeal against the refusal of Development Application No 18593/2002 by Gosford City Council (the council) for alterations and additions to an existing dwelling at 26 Helen Drive, Copacabana (the site). 2 The proceedings were conducted as an On Site Hearing. 3 The site is Lot 1 in DP 616953 and is a corner block with eastern and southern boundaries to Helen Drive. It is generally rectangular in shape but with irregular boundaries and a total area of approximately 700 square metres. Extensive views to the east and south over Copacabana and McMaster's beaches are available from the existing two-bedroom dwelling located on the site. 4 The area is characterised by residential dwellings, generally of two storeys but with some scattered three-storey dwellings depending on design and topography. 5 The proposal seeks a first floor addition to duplicate the existing building footprint, including a balcony to the east, the south and west elevations. The additions consist of three bedrooms, rumpus room and wet bar area. 6 The site is zoned Residential 2(a) under the Gosford Planning Scheme Ordinance (the Ordinance). The proposed development is permissible with consent in this zone. 7 Development Control Plan No.159 – Character (DCP 159) applies to the proposed development. The site is located within the Copacabana 7: Parkland Hillsides area. The Desired Character for this area provides for buildings to "enhance the scenic potential of hillsides that are visible from surrounding residential areas" and provide "lightweight construction and suspended floors and decks". 8 Development Control Plan No.155 –Single Dwellings and Ancillary Structures (DCP 155) applies to the proposed development. Clause 11 provides requirements for height and cl 17 provides requirements for the consideration of views. 9 The council filed a Statement of Issues containing three separate issues. The public interest (Issue 3) is addressed as part of the consideration of the other two issues. The loss of privacy (Issue 1(d)) was not pressed by the council. The remaining issues are: 1) loss of views (Issue 1), 2) impact on character of the area (Issue 2). 10 Mr Andrew Darroch, a town planner, provided evidence for the applicant and Mr Mark Wasson, an architect and Mr John Miles, a health and building surveyor provided evidence for the council. 11 On the issue of views loss, the applicant erected height poles to indicate the extent of the proposed first-floor additions. The height poles were then observed from four different properties that objected to the proposed development. These properties were: * 28 Helen Drive, owned by Mrs Szabo, * 30 Helen Drive, owned by Mr Dickson, * 8 Branga Avenue, owned Mr Huntington and * 10 Branga Avenue, owned Mr Wilson. 12 In considering the issue of view loss, the Court had the benefit of the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140. 13 Consideration of views is also addressed in cl 17 of DCP 155 where the objectives seek: (a) to maintain where practicable the primary views and outlook for existing dwellings and relevant ancillary structures, (b) to encourage the sharing of views whilst not restricting the reasonable development of the site. 14 With the benefit of the view of the adjoining and nearby properties it was generally agreed that the most significant impact on views was from Mrs Szabo's property. The impact was centred on the view from her south facing lounge room window and adjoining balcony. Using the height poles, the views to McMaster's Beach, the ocean interface with the beach and the southern headland would be lost. The views to the northern headland and glimpses of Copacabana Beach would be retained. 15 Mr Darroch's position was that orientation of the house towards the east and the retention of the northern headland view satisfied the requirement that the primary view was maintained. The view lost could be seen as less important as it was a view across side boundaries. 16 Mr Miles disagreed and concluded that the view lost was unacceptable and that a different design could achieve a more balanced outcome. Mr Wasson prepared an alternate dwelling design however this was rejected by Mr Darroch for a number of reasons. 17 In considering the planning principles in Tenacity Consulting it is necessary to assess the views affected by the proposed development. In my assessment, the views lost from Mrs Szabo's property are the primary and more highly regarded of the views of available from her property, even though they are not viewed when looking directly out of the dwelling towards its street frontage. Clearly, the dwelling has been designed to take advantage of these more significant views through the wraparound balcony and large window in the southern lounge room wall. 18 The principles in Tenacity Consulting also ask for a complying development (and this was not the case in this proposal) "whether a more skilful design could provide the applicant the same development potential and amenity and reduce the impact on the views of neighbours". In my view, the answer to this question is yes; although it need not be the form suggested by Mr Wasson. 19 Even though the proposed additions only breach the wall height requirement in DCP 155 and not necessarily in the area of the view loss, the effect on Mrs Szabo's property is significant. I do not accept that the concept of view sharing is appropriately addressed when one owner loses significant views and the other owner achieves additional unconstrained views, in addition to those already available. View sharing suggests a give-and-take approach, or balancing of different interests and I am not convinced that this has been achieved in this case. 20 For these reasons, the proposed development is inconsistent with the objectives in cl 17. 21 In relation to the impact on the character of the area, Mr Wasson highlighted the bulk and scale of the design, particularly because of its prominent and elevated location. 22 The breach of the height requirement in DCP 155 was difficult to quantify because of the reliance on natural ground level to determine the height. Mr Darroch calculates the breach to be in the order of 400 mm whereas Mr Wasson calculates 1.2 m. Even if the greater breach is taken to the correct, I am not convinced that it has a significant impact on the character because it occurs only over a small area of the dwelling. I am mindful that the proposed additions satisfy the other DCP 155 requirements. While the proposed design is not of high architectural merit, further amendments could be undertaken to improve its appearance. As an example Mr Wasson suggested amendments to the heavy balustrading. I accept this, and other minor changes could improve its appearance and reduce the perception of bulk and scale to the point where the application could not be refused for the reason of impact on the character of the area. 23 The Orders of the Court are: 1) The appeal is dismissed. 2) Development Application No 18593/2002 for alterations and additions to an existing dwelling at 26 Helen Drive, Copacabana is refused. 3) The Exhibits are returned with the exception of Exhibits 3 and 4. __________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.