Hart v Gosford City Council [2011] NSWLEC 1073

Land and Environment Court New South Wales

Medium Neutral Citation: Hart v Gosford City Council [2011] NSWLEC 1073 Hearing dates: 8 February 2011 Decision date: 08 February 2011 Before: Murrell C Decision: The appeal is upheld Catchwords: DEVELOPMENT APPEAL: Modification application to a dwelling house approval to provide a roof-top deck. Impacts on privacy of adjoining dwelling; impacts on streetscape; inconsistent with character of the locality and precedential effect. Legislation Cited: Environmental Planning and Assessment Act 1979 Gosford Planning Scheme Ordinance Draft Gosford local Environmental Plan Draft Development Control Plan Development Control Plans Category: Principal judgment Parties: Katherine Hart(Applicant) Gosford City Council (Respondent) Representation: Mr Mark Everingham, solicitor (Respondent) Mr Robert Hart (litigant in person) File Number(s): 10959 of 2010

EXTEMPORE Judgment 1The applicant in these proceedings is seeking a variation to a development consent granted by Gosford City Council for the construction of a two-storey dwelling house on the property known as No. 25 Ensenada Road Copacabana. The s 96 modification application is to provide for the existing stairwell area to extend to the rooftop and provide for a rooftop deck. The roof top deck is some 4 m wide by 5 m long. 2The subject site is a relatively small lot of 315 sq m. Approximately half the size of nearby allotments and was created by the subdivision of an approved dual occupancy in 1992. The lot faces southeast and is approximately 250 m from the beach and there is currently an existing cottage on the site. 3By way of background, the council consented to the demolition of the existing cottage and the erection of a new two-storey dwelling in 2008 subject to conditions. The applicant has not commenced works and is seeking a modification to the approved dwelling. 4The Court met the parties on site this morning and these proceedings commenced as a s 34 conciliation conference. No agreement was reached and the parties consented to me determining the matter under s 34(4) of the Land and Environment Court Act . 5The Court had the benefit of viewing the subject property from the adjoining property at number 23 and also heard evidence from the owner of this property. She is concerned that the proposed deck would overlook her back yard and create additional noise. She pointed out that a deck had recently been constructed on the site next to the subject site and she has experienced increased noise from the large outside entertaining area raised above ground. She is concerned about the impact that the proposed decks, including the subject proposal would have on the resale value of her property. 6The council provided a Statement of Facts and Contentions that became Exhibit 5 and also provided extracts of the relevant planning instruments. The site is zoned 2A a under the Gosford Planning Scheme Ordinance and the objectives of the zone are: (a)to make provision for the orderly and economic development of suitable land for a variety of low-density housing forms which are essentially domestic in scale and which have private gardens; and (b)to provide for other uses ... 7Clause 10 of the Gosford Planning Scheme Ordinance provides at subclauses 3 and 4 that: (3) The council must not grant consent of the development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development. (4) The council must not grant consent for development, unless it has taken into consideration the character of the development site and the surrounding area, where, for the purposes of this provision, character means the qualities that distinguish each area and the individual properties located within that area. 8The council has exhibited a draft Local Environmental Plan 2009 and it was agreed that this is certain and is due to be gazetted by the middle of this year. As such it is a matter that I need to have regard to in my determination. I note that the site is zoned residential R2 low-density, with a height limitation of 8.5 m. It also contains a number of relevant definitions for this matter. 9The draft LEP via the Draft DCP (Chapter 3.1 - Single Dwellings) provides: The building line is set at 6 metres; No point in any structure shall be higher than 8.5 metres above ground level (finished), immediately below that point Privacy of neighbours be respected by avoiding use of elevated terraces or decks that overlook adjoining property. 10Development Control Plan 155 for single dwellings and ancillary structures , provides a height restriction of 10 m and the objectives of the height restrictions are: to maintain existing character and scale; to preserve landscape and streetscape character; to preserve views or provide for view sharing; to preserve privacy and reduce overshadowing; to preserve the amenity of adjoining properties; and to restrict buildings, which may dominate the streetscape. Clause 11.3 also states that: "Any structure, excluding eaves within the built upon area, shall not exceed a height plan projected at an angle of 45 above 4.5 m from natural ground level at a point on the boundary of the site. The vertical distance from the highest point of the floor of the topmost floor above the natural ground level is not to exceed 4 m. The projection of eaves beyond the height limit area shall not exceed 600 mm in a horizontal plane." 11The DCP also contains provisions for consideration of views and privacy, and for the latter the objective is "to maintain the privacy of existing neighbouring properties from all new dwellings, and additions, alterations to existing dwellings". This is to be achieved by the following: Sub clause (d) avoiding use of elevated terraces or decks that overlook adjoining properties, (e) screening by the use of landscaping and other screening devices, (g) the provision of translucent glass in the windows. 12Provision 9.2.2 of the DCP is for building lines and in all residential zones, this is fixed at a distance of 6 m and buildings shall not be erected between the building line and any public place or public reserve and overhanging eaves may be allowed to infringe up to 600 mm. The setback for site boundaries is 900 mm. 13Development Control Plan No. 159 - Character Amendment No.1 provides detailed statements of desired character that are consistent with those matters for consideration in order to guide future development and the objectives are: (a) to protect and enhance environmental character that distinguishes Gosford City's identity; and (b)enhance the City's identity by development that displays improved standards of scenic, urban and civic design quality. Development applications must demonstrate consistency or compatibility with applicable statements of desired character. In the explanatory notes on what is character, the DCP states character has two components: (i) existing character relates to current patterns of natural and urban geography that can be observed on each development site and surroundings; (ii) desired character provides objectives for future development and emphasising important existing qualities or features that should be protected or enhanced; note that desired character also includes best practice approaches to scenic planning, urban design and environmental amenity, and are particularly important for locations where previous development practices have been unsatisfactory. Clause 3.8 refers to gardens and street verges and the DCP states: scenic quality and neighbourhood character is substantially influenced by the size of gardens and landscape design plus any landscape features of on-street verges the size of gardens and proposed landscaping provide a leafy settings for buildings gardens or courtyards that face rear or side boundaries designed appropriately and gardens and courtyards to promote private recreation. Existing Character of Locality The existing character is described as an established low density residential subdivision located on footslopes between wooded residential hillsides and the beachfront, visually prominent from surrounding hillsides plus the main access road to the village centre. Almost totally cleared of original vegetation, medium sized lots face a regular grid of wide streets, with narrow pavements flanked by partially-formed edges and wide grassed verges planted with occasional shrubs or small street trees. A wide drainage reserve with scattered trees surrounded by grass which lies behind the houses on the opposite side of Ensenada Road forms a central landscape feature in the neighbourhood, and discharges to the beach. The original modest timber framed bungalows are being replaced by larger one and two storey brick dwellings with wide frontages and a scattering of dual occupancies, forming continuous walls of buildings with uniform front setbacks along access streets. Small to medium sized gardens confined to the front and rear provide limited separation between neighbouring dwellings and support a scattering of shrubs and small trees. The neighbourhood is an open residential landscape where only the back yards are fenced, accentuating the distinctly casual coastal atmosphere. Desired Character of Locality The desired future character should remain low-density residential where existing streetscape quality and amenity should be enhanced by: Further 'greening' gardens and street verges with appropriate plantings Avoiding the appearance of a continuous wall of development along any street Provide at least one wide setback Plant clusters of trees and shrubs to screen buildings and driveways Limit width of driveways Minimise scale and bulk Provide gently pitched roofs to minimise ridge heights Use wide eaves to disguise scale of exterior walls Locate and screen balconies or decks to maintain existing levels of privacy enjoyed by neighbouring dwellings 14Clause 3.6 contains provisions for height, scale and construction of buildings and states that: Neighbourhood character and scenic quality are substantially influenced by the height and scale of buildings viewed from both public and neighbouring properties with an emphasis on the proposed development being compatible with the height, size and relative scale of surrounding buildings. 15The subject site is in Locality 2 - Copacabana . That is, 'open parkland' and the desired character states that: These should remain low-density residential neighbourhoods where existing streetscape quality and amenity are enhanced substantially by further greening of gardens and street verges, enhancing the present leafy settings around each dwelling. ... Plantings in front gardens and along street verges should include some taller trees that are indigenous. Minimise scale and bulk by stepped floor plans and building forms or rear facades that are taller than neighbouring dwellings should be screened by balconies, verandahs, stepped forms or extra setbacks. Construction should be predominantly brick and tile, varied by some board or sheet cladding. All dwellings should display a traditional street address with verandas or decks ... locate and screen all balconies or decks to maintain the existing levels of privacy and amenity that are enjoyed by neighbouring dwellings . 16For the existing character of this locality the DCP states: An established low-density residential subdivision located upon foot slopes between wooded residential hillsides and the beachfront and visually prominent from surrounding residential hillsides plus the main access road to the village centre. Almost totally cleared of original vegetation, medium sized lots face a regular grid of wide streets, with narrow pavements flanked by partially formed edges and white grassed verges planted with occasional shrubs or small street trees. ... Modest timber framed bungalows are being replaced by larger one and 2 story brick dwellings with wide frontages and a scattering of dual occupancies, forming continuous walls of buildings with uniform front setbacks along access streets. Small to medium-sized gardens confined to the front and rear provide limited separation between neighbouring dwellings and support a scattering of shrubs and small trees. This neighbourhood of closely spaced buildings sits in an open residential landscape where only the backyards are fenced, accentuate in a distinctly casual coastal atmosphere. Council contends that by definition the top most floor is the floor at the top of the stairs to the roof deck. The plans show ground level at RL 7.000 and the floor at the top of the stairs at approximately RL 14.200. That vertical distance exceeds 4 metres above natural ground level by 3.2 metres or 80% when expressed as a percentage. The proposal shows at least two projections beyond the height limit area of the building envelope. 5 PRIVATE OPEN SPACE The excessive FSR has resulted in a reduced open space area available to the occupants of the dwelling. If the upper storey decks are excluded from the open space calculation the approved dwelling is not provided with the minimum open space requirement of 40% of site area. This contributes to the impacts of the development on the amenity and character of the area. The proposal to increase the open space of this development at a level other than ground level is considered excessive development, particularly when an altemative dwelling design which reduces the building footprint would be more consistent with the desired character of the locality and create less impact on adjoining properties and the locality generalIy. 6 SETBACK The building line in the Residential 2(a) zone is 6 metres (DCP 155, cI 9.2.2). The approved building is located on a front setback of 3.7 metres. This does not generally conform to the building line with other dwellings facing Ensenada Road and is out of character with adjoining development. Council has approved the proposal which encroaches on the building line because it follows the building line of the existing building. However, Council contends that the cumulative effect of the encroachment combined with the infringement of the floor space ratio and height standards produces a development which is excessive, out of character and which should not be approved. 7 RESIDENTIAL AMENITY The neighbourhood consists of dwellings with living areas generally adjacent to the main private open space areas which are at ground level and not located on a second storey as has been designed. With good dwelling design bedrooms should be located away from driveways and parking areas. Negative impacts can be minimised by locating open space areas adjacent to living areas and away from quiet areas such as bedrooms. The current proposal demonstrates a general disregard for these basic design principles. An additional deck on the roof top would move the private open space up to a level that further increases the impact of noise to an unreasonable level and impacts on other quiet areas within nearby residential dwellings. Council received one submission objecting to the Section 96 application on the grounds of privacy and noise. Council contends that the privacy of the nearby dwelling will be adversely affected to a point where the application should not be approved. In addition the acoustic impacts from regular gatherings on the proposed deck/terrace area would also impact unreasonably on the adjoining property. The design and lot position of house number 84 Del Rio Drive (to the rear of the subject lot) allows for current private open space to the rear and rear side of the dwelling. The proposed roof top deck will allow direct downwards views into the majority of this private open space, resulting in an unreasonable loss of privacy for that dwelling which is considered unacceptable. Also the design and lot position of neighbouring house 23 Ensenada Rd allows for current private open space to the rear of the dwelling. The roof top deck will allow almost unabated direct downwards views into the majority of this private open space which is considered unacceptable for similar reasons of loss of privacy.