George Kliendienst v Gosford City Council

[2004] NSWLEC 69

Land and Environment Court

of New South Wales

CITATION:

George Kliendienst v Gosford City Council [2004] NSWLEC 69

PARTIES:

APPLICANT
George Kliendienst

RESPONDENT
Gosford City Council

FILE NUMBER(S):

11181 of 2003

CORAM:

Brown C

KEY ISSUES:

Development Application :- use of part of an existing dwelling for a bed and breakfast establishment
noise
traffic
character
amenity

LEGISLATION CITED:

Gosford Planning Scheme Ordinance

CASES CITED:

DATES OF HEARING:

26/02/2004

EX TEMPORE
JUDGMENT DATE :

02/26/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Kliendienst, self represented

RESPONDENT
Mr P.J. Donnellan, solicitor
of P J Donnellan & Co

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11181 of 2003

Brown C

26 February 2004

George Kliendienst

Applicant

v

Gosford City Council

Respondent

Judgment

1. This is an appeal against the refusal by Gosford City Council of a development application to use part of the existing premises at 8 Spears Road, Point Fredrick (the subject site), for a bed and breakfast establishment. The appeal was conducted as an On Site Hearing.

2. The use is permissible in the 2(a) Residential zone under Gosford Planning Scheme Ordinance. Development Control Plan 110 - Bed and Breakfast Accommodation (DCP 110) also applies to the subject application.

3. The council filed a Statement of Issues containing four separate issues. These relate to the general areas of:

· amenity impacts on adjoining property,
· carparking/traffic,
· privacy and
· general impact on the character of the area.

4. A number of local residents lodged objections, attended the On-Site Hearing and pointed out their concern to the Court.

5. Expert evidence for the council, was provided by

• Mr Michael Evesson, a town planner, and
• Mr Louis Challis, an acoustic engineer

6. The applicant, Mr Kliendienst was self represented and provided a statement addressing the council’s concerns.

7. In terms of the amenity impacts, DCP 110 provides only little guidance. Objective (b) in cl. 6(2) states:

“ensure compatibility between bed and breakfast establishments and adjoining properties”

8. With the benefit of the inspection of the subject site and adjoining properties, the property at 10 Spears Road is the most likely to be affected by the proposed development. It is located between the subject site and Brisbane Water although at a lower level. The dwelling on the subject site essentially looks over the roof of 10 Spears Road.

9. The proposed rooms for the bed and breakfast establishment have balconies that have extensive views over Brisbane Water. They are located approximately 1 m from the boundary with 10 Spears Road. The dwelling on 10 Sears Road is some 3 m from the boundary. The rooms adjoining the subject site are bedrooms although at a lower level. An awning restricts any overlooking from the subject site into 10 Spears Road. An outdoor pool and spa area on the subject site also adjoins 10 Spears Road.

10. The owner of 10 Spears Road, Mr Cleary, expressed a strong concern over noise from the area where the bed and breakfast rooms are to be located because of the proximity to his dwelling. He advised of existing ongoing noise problems from this area. Mr Challis explained the dynamics of noise generated from this area and the high levels of sound reflectivity from the concrete construction of the dwelling on the subject site.

11. The test in DCP 110 is one of “compatibility” with adjoining properties. Based on the inspection of the proposed bed and breakfast rooms and from the Cleary property, I am not convinced that the proposed development satisfactory addresses this objective for a number of reasons.

12. Firstly, the balcony areas are likely to be highly valued by guests and used because of the expansive views. Secondly, the outdoor pool and spa area are also likely to be used because of their proximity to the rooms and the general lack of alternate facilities nearby. The facilities are significant features of the premises and are likely to be a major reason why people would use the establishment. Thirdly, and while Mr Kliendienst stated that the patronage has been limited to date, it is not reasonable to assume that this will continue. Fourthly, I accept that noise associated with the use of the premises from families and friends can be distinguished from noise associated guests using the bed and breakfast establishment. There is little doubt that greater consideration is likely to be given to the amenity of neighbours by family and friends rather than short term guests. Overall, I find that the proposed use is incompatible with the residential use of 10 Spears Road because of the close proximity of the bed and breakfast rooms to this dwelling. In my view, this is sufficient for the application to be rejected.

13. In terms of traffic, DCP 110 provides for stack parking. While Mr Evesson was critical of the grade and alignment of the road for cars exiting the subject site, I am not convinced that the application should be rejected for this reason alone. On the issue of privacy I accept that sufficient distance exists between some adjoining properties to provide a suitable level of privacy. In other areas, barriers could be located to restrict privacy impacts to a satisfactory level. Similarly the impact on the character of the area would not warrant refusal of the application. The rooms form part of an existing dwelling and the visual impact is not one that would support a refusal.

14. For these reasons, the Orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 20269/2003 to use part of the existing dwelling at 8 Spears Road, Point Frederick for a bed and breakfast establishment is refused.

________________________

Commissioner of the Court