Lavidis and Onr v Great Lakes Council

[2004] NSWLEC 518

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Lavidis and onr v Great Lakes Council [2004]  NSWLEC 518

PARTIES:
APPLICANT
Anthony Lavidis and Russel Pyke

RESPONDENT
Great Lakes Council

CASE NUMBER:      10275 & 10959
10959 of        2004

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Great Lakes Local Environmental Plan 1996

CORAM:        Brown C

DATES OF HEARING:          27/08/2004

EX TEMPORE DATE:          27/08/2004

LEGAL REPRESENTATIVES

APPLICANT
Mr J Hancock, agent

RESPONDENT
Mr P Rees, solicitor
SOLICITORS
Peter Rees Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

27 August 2004

10275 of 2004, 10959 of 2004        Anthony Lavidis and Russel Pyke v Great Lakes Council

JUDGMENT

1. COMMISSIONER: The proceedings relate to two separate but related appeals against the refusal by Great Lakes Council (the council) for alterations and additions to the existing unit at 1/166 Boomerang Drive, Boomerang Beach (the subject site). The unit is one of two attached two-storey dwelling units in a strata subdivided building. It is formally known as Lot 1 in SP 62913. The proceedings were conducted as an On Site Hearing at the subject site.

1. Appeal 10275 of 2004 relates to alterations and additions to the dwelling and Appeal 10959 of 2004 relates to the subdivision required as part of the alterations and additions.

1. The alterations and additions involve the construction of a third storey over a portion of the existing two-storey dwelling.  The additional storey will contain a fourth bedroom and ensuite shower room.  Access will be provided by an internal stair from the living area below.  The addition is similar in form and external materials to that of the existing building.  The additions will increase the overall height (at the ridge) of the building by 1 m.  The proposed extensions are largely outside the unit entitlement under SP 62913 (i.e., above the roof) so an amendment to the subdivision plan is also required.

2. The subject site is located to the eastern higher side of Boomerang Drive and is orientated with views over existing dwellings north along Boomerang Beach to the headland at the end of the beach.

1. The subject site is zoned 2-Village under Great Lakes Local Environmental Plan 1996 (the LEP).  The proposed development is identified as an addition to a "multiple dwelling" and is permissible within this zone. The LEP contains no relevant development standards.

1. Residential Development Control Plan No. 30-Residential Urban Areas (the DCP) also applies.  The DCP contains design elements to be considered and provides objectives, performance criteria and provisions for each element.  The relevant design elements are Design Element 4.4-Building Height and Scale, Design Element 4.5-Side & Rear Setbacks and Design Element 4.7-Views and Privacy.

1. The council filed a Statement of Issues containing six separate issues although the principal issue related to the impact on views from the properties to the rear in Headland Drive.

2. In considering this issue the Court had the benefit of an inspection of the property owned by Mr Wise at 9 Headland Drive.  It was generally agreed that the affectation of views was the most significant from this property although other properties were also affected.

1. The applicant erected height polls on the roof of the subject unit to indicate the level of the extension so the impact on views could be considered.  Mr Wises' architect produced computer-generated images of the extension that appeared to be larger than the area shown on height poles, although it was ultimately not necessary to rule on the accuracy of either depiction of the proposed extension.

1. The views from Mr Wises property provided views to the west of bushland areas, Boomerang Beach, the surf, the headland to the north and part of the ocean adjoining the beach.  Using the height polls, the effect on these views was tested from both a standing and seating position on different parts of the deck area and from within the lounge room and dining room of Mr Wises property.  The effect was to remove almost all the ocean views from a seating position in these locations with the exception of the narrower and less used part of the deck.  The area of ocean that could be seen was increased marginally if in a standing position from most positions.

2. In considering the view impact, the council planning controls have no numerical standards for relevant matters such as height or floor space ratio.

1. Clause 4.7 of the DCP addresses views and privacy.  Objective 1 encourages the "sharing of views whilst not restricting reasonable development potential of a site".  View Sharing Performance Criteria 1 accepts that “all property owners should be able to develop within established planning guidelines, however, existing views should not be substantially affected where it is possible to design for the sharing of views”.

1. Much of the panoramic views from Mr Wises property are retained even if the worst scenario of the depiction of the proposed roof extension is used (i.e., Mr Wises’ architects interpretation), however some of the more prominent and highly regarded aspects of the view will be lost, i.e., the ocean views and the interface with the beach.  I am not convinced that the proposed development satisfactorily addresses this important aspect of view sharing.  The concept of view sharing suggests that while one property may lose some of their views another property will realise some views.

2. In this case, Mr Wise will lose an important and scenic element of his view and the applicant will gain some additional views from the proposed bedroom but while maintaining the existing panoramic views from the first floor level.  In my opinion, the balance required by view sharing is tipped too much in favour of the applicant.  In saying this, I acknowledge the attempts made by the applicant to reduce the impact by minimising the height of the proposed extensions but the impact on views is still unacceptable.

1. Issues were raised over the compliance with the Building Code of Australia although I make no specific findings in this area.  I do however accept that the proposed height in the ensuite of the proposed extensions is not particularly desirable.

2. For the foregoing reasons, the Orders of the Court are:

   Appeal No. 10275 of 2004;

   1. The appeal is dismissed.
   2. Development Application 1173/03 for additions to the existing building at 1/166 Boomerang Drive, Boomerang Beach, is refused.

   Appeal No. 10959 of 2004;

   1.The appeal is dismissed.

   2. The subdivision associated with DA 1173/03 for additions to the existing building at 1/166 Boomerang Drive, Boomerang Beach, is refused.

____________

G T Brown
Commissioner of the Court