Plan 2000 Pty Ltd v Gosford City Council
[2006] NSWLEC 326
•30/05/2006
Land and Environment Court
of New South Wales
CITATION: Plan 2000 Pty Ltd v Gosford City Council [2006] NSWLEC 326 PARTIES: APPLICANT
RESPONDENT
Plan 2000 Pty Ltd
Gosford City CouncilFILE NUMBER(S): 10840 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Alterations to an attached dual occupancy dwelling, privacy loss, landscaping, height, minimum lot size LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Gosford Planning Scheme Ordinance
Development Control Plan No. 126 - Dual Occupancy
Development Control Plan No. 159 - CharacterDATES OF HEARING: 30/05/2006
DATE OF JUDGMENT:
05/30/2006LEGAL REPRESENTATIVES: APPLICANT
Dr S Beverling, barristerRESPONDENT
Ms P Wright, solicitor,
SOLICITORS
P J Donnellan & Co.
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
30 May 2006
JUDGMENT10840 of 2005 Plan 2000 Pty Ltd v Gosford City Council
This decision was given extemporaneously. It has been revised and edited prior to publication.
1 This appeal was lodged against council’s refusal of a development application for alterations to an attached dual occupancy dwelling located at 91 Scenic Drive, Terrigal. The details of the site and planning controls are contained in the Statement of Basic Facts on which I rely.
The site
2 The site is located on the lower north-eastern side of the Scenic Highway with a secondary frontage to Kurrawyba Avenue. It is described as Lot 4, DP 383283 and is an irregular shaped allotment having an area of 486.9 sq m. The land falls steeply in the north easterly direction away from the Scenic Highway frontage.
3 The site contains an attached dual occupancy building of brick veneer construction, 1 to 3 storeys in height.
4 This proposal is for alterations and additions to the existing dual occupancy dwelling comprising the following works:
- internal alterations to the lower three levels of the existing building,
- internal alterations to level 4 of Unit 1 to improve the layout of the kitchen/dining and living areas and an addition to enclose the existing balcony to add to the existing living space,
- additions to level 4 to create a new entry into the unit from the Scenic Highway together with the new laundry, en-suite and walk-in wardrobe for Bedroom 1,
- addition of level 5 to create a new double garage, associated driveway from the Scenic Highway and entry to Unit 1. The new double garage to replace the existing external car parking space fronting the Scenic Highway,
- inclusion of a rooftop terrace to service Unit 1 one modification to the design of existing pitch roof,
- the existing brickwork is to be rendered and painted to match the new section.
- Gosford Planning Scheme Ordinance .
5 Under which the site is located within the Residential 2(a) zone and the proposal is permissible with consent.
Development Control Plan No. 126 - Dual Occupancy ,
Development Control Plan No. 159 - Character
6 For the appeal a number of issues were identified, including:
- height of the proposal,
- density and setbacks,
- potential landslip,
- character the area,
public interest.
7 In response to these issues, a number of detailed reports were prepared in support of the application as follows:
- Mr Kettle prepared a detailed planning assessment report,
- Ms Slater prepared an architectural summary of the proposal,
- Mr Bradley prepared a detailed traffic report,
- Mr Davies prepared a geo-technical report,
- Mr Binns prepared a structural engineering report.
8 From the consideration of these reports and in response to a number of objections raised by the neighbours, amendments were carried out to the plans, resulting in consent orders being presented to the Court.
9 I understand that the objectors were notified of this morning’s hearing and there was an objection from Ms Moore, the adjoining neighbour to the west. She was particularly concerned about privacy loss from the proposed open terrace. However, the applicant has responded to this by providing a 2 m high acoustic screen along the adjacent boundary, together with a pergola which contains noise and reduces overlooking disamenity. The Court has been informed that she has expressed her satisfaction with these amendments.
10 A further objection was received from the neighbours of 89A. Their basic concerns were potential overlooking from the new terrace. But the applicant's response is to provide an additional privacy screen on the south-eastern portion of the open deck. The planners agree this is satisfactory to address the concerns.
11 Another concern raised by the neighbours from 89A concerns possible damage to the common boundary wall, due to excavations. However, the existing retaining wall is to remain undisturbed and there is to be a dilapidation report in respect of works at the front of the property adjacent of the driveway. I am satisfied that this matter can be reasonably addressed by the conditions of consent.
12 Concern was also expressed about the possible removal of a mature tree along common boundary. However the proposed works do not involve any interference with this existing tree, which is to be retained. Reference was also made about the relocation of power pole in Scenic Highway and the applicant agrees to comply with the relevant controlling authorities requirements for any relocation of the power pole.
13 In response to these issues, a detailed statement was presented from council’s senior planner Mr Eyre. I have considered the detailed assessment he has undertaken to deal with the issues to conclude that he is satisfied with the proposal.
14 In the absence of any objection to these conclusions, I accept they are reasonable on the basis of my understanding of the evidence and observations at the site inspection. I have observed the proposed building profile in terms of the streetscape impacts, because the new garage in effect represents an additional storey with its direct access off Scenic Highway. Nevertheless with its pitch roof, the ridge is well within the overall height limits, notwithstanding there is a minor non-compliance in terms of the eaves height. But Mr Eyre is satisfied in these circumstances that is satisfactory and on this basis, I accept that the streetscape impact is acceptable.
15 The other main concern is non-compliance with the site area requirements and this involves consideration of a SEPP 1 objection to the minimum lot size. However, from the SEPP 1 objection, I understand that when the dual occupancy was originally approved it was under a different set of controls whereby a smaller site area of 400 sq m for attached dual occupancy was permissible, now it is 550 sq m. But, the SEPP 1 objection deals with the objectives of the development standard and whether strict compliance is unnecessary or unreasonable in this case. A number of reasons were presented to justify the variation in this case and in the absence of any objection from council, I am satisfied that it is unreasonable and unnecessary to require strict compliance in this case, so that the SEPP 1 objection should be allowed.
16 For those reasons then I am satisfied the following consent orders should be granted:
2. That development consent is granted to Development Application No. 22406 of 2003 for alterations and additions to an existing dual occupancy building subject to the conditions annexed hereto and marked “A”.1. That the appeal is upheld.
3. That the exhibits be retained.
The Court notes the parties’ agreement of there being no order as to costs.
- R Hussey
Commissioner of the Court
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