Hart v Gosford City Council
[2011] NSWLEC 1073
•08 February 2011
Land and Environment Court
New South Wales
Case Title: Hart v Gosford City Council Medium Neutral Citation: [2011] NSWLEC 1073 Hearing Date(s): 8 February 2011 Decision Date: 08 February 2011 Jurisdiction: 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 PlansCases Cited: Texts Cited: Category: Principal judgment Parties: Katherine Hart(Applicant)
Gosford City Council (Respondent)Representation - Counsel: - Solicitors: Mr Mark Everingham, solicitor (Respondent)
Mr Robert Hart (litigant in person)File number(s): 10959 of 2010 Publication Restriction:
EXTEMPORE Judgment
The 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.
The 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.
By 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.
The 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 .
The 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.
The 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 ...
Clause 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.
The 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.
The 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.
Development 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."
The 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.
Provision 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.
Development 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
Clause 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.
The 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 .
For 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.
Contentions
The council contends that:
(1)the proposed development will have an unreasonable impact on the amenity of adjoining properties and the streetscape generally;
(2)the proposal is out of character with the locality;
(3)the proposal does not comply with the objectives of clause 11 of DCP 155
(4)non-compliance with the height restrictions of the DCP, in particular an exceedence of the four metres and building height plan.
(5)the private open space of adjoining owners is unreasonably affected and cannot be readily addressed without other unreasonable impacts.
The Council further contends that the proposal, while categorised by the applicant as being substantially the same as that approved, is a significant departure from the development approved, in that the changes alter the shape of the roof, add a third level to the building, and add a staircase structure to the roof level.
The Council considers the effect of the proposed changes causes the building to exceed the maximum height allowed for development of this type. The increase in height results in an unacceptable impact on the amenity of surrounding residents by directly impacting on the privacy of neighbours and indirectly by altering the streetscape of the locality.
The Council states the cumulative impacts resulting from the changes to the height and the roof, when taken in context with the additional concessions of non-compliance with other development standards, produces a planning outcome which is unsatisfactory for the development and its neighbours.
Evidence and Submissions
On behalf of the respondent council, Mr Fred Dodds senior town planner with council gave evidence and for the applicant, Mr David Kettle consultant planner provided evidence.
It was submitted on behalf of the council that the previous approval by the council had regard to the fact that the subject site is a small site and a former subdivision of an allotment and in approving the twostorey dwelling, there were noncompliances with respect to the setback where the control requires 6 m, the proposed dwelling is some 4 to 5 m setback and in the council's opinion, the s 96 application before the Court reactivates the original plans and the proposed development would have unreasonable privacy impacts on adjoining properties. The issue of precedent was also raised.
Mr Kettle proffered that the deck could be lowered into the roof by approximately half a metre. That is, the floor level of the deck could be set at RL 14.24 as opposed to 14.77 and it could be reduced in width to 2.3 m. He also said that the applicant would be prepared to erect a 1.55 screen, whether that be obscure glazing or timber batons and he suggested that the proposed deck would then have a minimal impact on privacy of adjoining neighbours. It was ascertained that the purpose of the upstairs deck is to obtain views to the headlands and natural landscape of the district.
Mr Kettle submitted that there is nothing in the draft LEP to prohibit third storeys or roof decks and previous approvals of council, as shown in photographs tendered, within this locality and other parts of the Gosford Local Government Area, demonstrate that third level decks had been approved by the Council.
Mr Everingham for the Council submitted that the visual impact of the dwelling is exacerbated by the stairwell and the roof deck, with the extension of the balustrade and that this would have an unreasonable impact on privacy of adjoining properties. In the council's opinion, the proposed deck represents a third level and this makes the dwelling and additional storey exceed the height limit and has the potential to create unreasonable impacts by the numbers of people that could gather on the deck, creating conflicts with other neighbours and thereby making this a poor neighbour and resulting in a building that is out of character because of its scale.
The proposed dwelling has a maximum relative level of 16.5 m and No. 23 is 13.65 m and No.27 is 15.7 m. The subject dwelling, excluding the stairwell to gain access to the rooftop deck, has an RL of 14.9 m
In my consideration I am satisfied the development is substantially the same as that approved by the council and therefore this threshold question is not an impediment to my merits assessment.
In my overall merits assessment, I have had a holistic reading of the documents in terms of the council's planning regime including the draft LEP and the draft DCP. In my assessment the proposed development to provide for a roofed stairwell and access to a rooftop terrace is not inconsistent with the council's Development Control Plan objectives, or the objectives of the 2(a) zone and on its merits and I am satisfied that a rooftop deck at a lower RL and smaller in size than proposed is satisfactory.
Furthermore in my assessment this would not create a precedent and every application must be assessed on its merits. It is clear that rooftop terraces have the potential to create overlooking of adjoining properties and cumulatively, the issue of noise must be considered. In my assessment of this development application, the rooftop terrace is to be contained such that it is a maximum of 2 m wide by 4 m in length and lowered into the roof, such that the maximum relative level of the deck is to be 14.24 for the floor of the deck with a 1.55 m screen is to be erected at the rear and returned at the side for a suitable distance where it adjoins No. 23 to ensure privacy to the rear yard of that property.
Council's planning regime has an emphasis on urban design and streetscape, as well as maintaining privacy for adjoining properties. In my assessment, the proposed rooftop top deck can be accommodated as an integral part of the architectural design of the dwelling, which is an important consideration, in terms of presentation to the streetscape and adjoining properties. It could be seen that some rooftop decks, are not integral to the design of buildings and provide an awkward fit, when viewed from the public domain, or adjoining private properties.
On balance, I am satisfied that the objectives of the various DCP controls are satisfied, despite the fact that there is an exceedence to the 8.5 m height as contained in the draft LEP. However, the proposal complies with the current 10 m restriction in the DCP. The maximum height of the stairwell protrusion is 9 m towards the front and 8.2 m at the rear.
In terms of the 6 metre setback control for the dwelling, the dwelling as approved varies between 4 and 5 m, and I am satisfied that the rooftop terrace designed into the roof while visible from the public and private domain will not be dominant in the streetscape. I also note that the small stairwell roof element exceeds the 4 m requirement and is some 7.2 m however, on a merits assessment this would not warrant refusal of the application to modify the consent.
I am satisfied that while there are numeric noncompliances the proposed the reduced rooftop deck is consistent and compatible with the desired future character and the objectives of the current and proposed planning regime.
I am also satisfied that the privacy and amenity of adjoining properties is reasonably maintained by the amended proposal. The height of the proposed dwelling is of a domestic scale, and while there is an exceedence in the 0.5:1 floorspace ratio by some 10% this does not lead to unreasonable impacts. The proposal, in my assessment, will retain the low-density residential desired future character with appropriate landscaping to be detailed in an amended landscape plan consistent with the desired character. The proposal also "provides for the screening of the deck to maintain existing levels of privacy enjoyed by neighbouring dwellings."
On balance, I am satisfied the proposed modification provides an appropriate built outcome and does not adversely impact on adjoining properties while at the same time provides amenity and the opportunity to gain district views.
The concern of precedent is a relevant matter for consideration, however I am satisfied this would not warrant refusal of the reduced roof-top deck where the detailed design has regard to relevant objectives. The Council is correct in its concern about the proliferation of large roof top terraces and decks and the issue of precedence must be given serious consideration. However, I am satisfied that the proposal is satisfactory on its merits and cumulatively and in isolation would not warrant refusal.
I have determined the application should be approved and on receipt of an amended architectural plan to reflect the changes required above to the size and relative level of roof-top deck and an amended set of consolidated conditions, the formal orders of the Court will be issued.
Following the onsite hearing and my findings above the applicant submitted amended plans and the respondent has provided a consolidated set of conditions consistent with my determination and I am now in the position to make formal Court Orders as follows and these were made at a mention 11 March 2011:
(1)The appeal in respect of the property known as No. 25 Ensenada Road Copacabana, is upheld.
(2)The section 96 modification application submitted to Gosford City Council and as amended, is determined by the granting of consent, subject to the conditions contained in Annexure 'A'.
(3)The amended plans and the amended conditions are retained for the Court file.
JS Murrell
Commissioner of the Court
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Annexure One
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