Corben Architects v Gosford City Council Summary

Land and Environment Court

of New South Wales

CITATION: Corben Architects v Gosford City Council [2006] NSWLEC 500

PARTIES:
Applicant:
Corben Architects
Respondent:
Gosford City Council

FILE NUMBER(S): 10333 of 2006

CORAM: Roseth SC

KEY ISSUES: Development Application :-

DATES OF HEARING: 28/08/2006

EX TEMPORE JUDGMENT DATE: 08/28/2006

LEGAL REPRESENTATIVES: Applicant:
Mr S Kondilios, solicitor of Maddocks Lawyers
Respondent:
Ms P Wright, solicitor of P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

28 August 2006

10333 of 2006 Corben Architects v Gosford City Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Gosford City Council of a development application for alterations and additions to lot 245 DP 15679, known as 8 Macdonald Street, Killcare Heights. The issue in the matter was the view impact affecting Nos 70, 70A and 72 Manly View Road. Following the council’s refusal the parties negotiated with the result that the Applicant reduced the height of the building by 200mm. While the proposal does not fully comply with the requirement in Development Control Plan 155 (DCP 155) that the upper floor be a maximum of 4m above natural ground, this breach has no relevance to view obstruction. The roof of the proposal is much lower than the maximum of 10m above natural ground level required by DCP 155.

2 I have assessed the view impact from Nos 70 and 70A Manly View Road after hearing the evidence of Mr and Mrs Edema (NO 70A) and Mrs Aitken-Jones (No 70). I agree with the parties that the view impact is reasonable. I therefore agree to the request for consent orders.

Consent orders

1. The appeal is upheld.

2. Development application for alterations and additions to lot 245 DP 15679, known as 8 MacDonald Street, Killcare Heights is determined by the granting of consent subject to the conditions in Annexure A.

3. Exhibits 1 and A are retained.

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over the case of Corben Architects v Gosford City Council. The applicant, Corben Architects, appealed against the refusal by Gosford City Council of a development application for alterations and additions to a property located at 8 Macdonald Street, Killcare Heights. The primary concern of the case was the impact of the proposed development on the views from properties at 70, 70A, and 72 Manly View Road. The applicant sought consent orders to overturn the council's decision and grant approval for the development.

The legal issues at the heart of the case revolved around whether the proposed alterations and additions to the property would unreasonably obstruct the views from the neighbouring properties. The court had to assess the evidence presented by the applicant and the respondents, including the views of the neighbours, and determine if the proposed changes to the property would result in an unacceptable level of view obstruction. Additionally, the court needed to consider whether the applicant's proposed modifications to the development, which reduced the height of the building by 200mm, would address the concerns raised by the council and the neighbours.

In delivering the judgment, Senior Commissioner Roseth found that the view impact from the proposed development was reasonable after hearing the evidence from the neighbours. The court agreed with the parties that the modifications made to the development proposal had adequately addressed the concerns regarding view obstruction. As a result, the court granted the consent orders requested by the applicant. The appeal was upheld, and the development application for alterations and additions to the property at 8 Macdonald Street, Killcare Heights, was approved subject to the conditions outlined in Annexure A. The exhibits presented during the case were retained for future reference.

In summary, the Land and Environment Court of New South Wales found that the proposed alterations and additions to the property at 8 Macdonald Street, Killcare Heights, would not unreasonably obstruct the views from neighbouring properties at 70, 70A, and 72 Manly View Road. The court granted the consent orders sought by the applicant, Corben Architects, and approved the development application subject to the conditions outlined in Annexure A. The evidence presented by the neighbours was deemed to be sufficient in determining that the view impact would be reasonable.

Corben Architects v Gosford City Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Corben Architects v Gosford City Council [2006] NSWLEC 500
PARTIES:	Applicant: Corben Architects Respondent: Gosford City Council
FILE NUMBER(S):	10333 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :-
DATES OF HEARING:	28/08/2006
EX TEMPORE JUDGMENT DATE:	08/28/2006
LEGAL REPRESENTATIVES:	Applicant: Mr S Kondilios, solicitor of Maddocks Lawyers Respondent: Ms P Wright, solicitor of P J Donnellan & Co