Levenspiel M v Gosford City Council and Brooks M H & Anor

CASES CITED: Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 20 August 2007 and 12 September 2007

APPLICANT: Mr P R Rigg, solicitor, with Mr M Levenspiel, in person SOLICITORS: Deacons RESPONDENT: Ms P J Wright, solicitor with LEGAL REPRESENTATIVES: Mr P Donnellan, solicitor SOLICITORS: P J Donnellan & Co by their City agentsWilshire Webb SECOND RESPONDENT: Mr J Johnson, barrister, instructed by Mr R Dawson, solicitor SOLICITORS: Conditsis & Associates

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10431 of 2007 - Max Levenspiel v Gosford City Council and Brooks M H & Anor

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Gosford City Council (the council) to refuse a development application to alter and add to a dwelling house at Lot 17, DP 19132, being No 36 Albany Street, Point Frederick. 2 I visited the land in company with the parties on the morning of the hearing and heard from Mr M H Brooks of No 38 Albany Street and Dr J B Ericson, neighbour at No 40 Albany Street. 3 I have concluded that with the design amended by lowering the roof to a maximum height of 10.40m AHD and with the new portion of the building setback, excluding the deck, at 11.2m and 13.8m from the mean high water mark (MHWM) the application should succeed. The land 4 The land is situated on the eastern side of Albany Street and has a water frontage to Brisbane Water. It has a frontage to Albany Street of around 14.9m and to Brisbane Water of around 15m and a depth of around 88m giving an area of some 1,353m2. The land slopes down towards the water at a slope of around 10%. 5 Erected on the land is a two-storey reinforced concrete house about 2m to 3m off the MHWM. Also, erected on the land is a garage structure that extends for some distance along the northern boundary of the land near the second respondent's dwelling at No 38 Albany Street. 6 There are residential dwellings to the north and south of the land. Most of these are setback from the MHWM around 15m to 20m or more. For example the two-storey dwelling at No 38 Albany Street is setback around 24.5m from the MHWM. Relevant planning controls Gosford Planning Scheme Ordinance, (GPSO) 7 Under the provisions of the GPSO that was gazetted 24 May 1968, the land is zoned Residential 2(a) and the proposal is permissible with consent. 8 Clause 10(4) of the GPSO states: 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 purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area. 9 Under cl 37(1) of the GPSO: (1) The responsible authority may by resolution fix building lines (in this clause called foreshore building lines) in respect of any land fronting any harbour, bay, river, ocean, lake, estuary or lagoon. (2) A foreshore building line shall, when fixed by the responsible authority, be marked upon a plan or clearly described in the resolution and hat plan or resolution shall be open for inspection by the public during the office hours of the responsible authority. (3) A building shall not be erected between a foreshore building line and the harbour, bay, river, ocean, lake, estuary or lagoon in respect of which the line is fixed. (4) The responsible authority may alter or abolish a foreshore building line where the level or depth of the allotment or other exceptional conditions of the site, make it necessary or expedient to do so. 10 Clause 37 of the GPSO is an example of a clause that relies on a plan within a plan. This earlier form of drafting is not often seen in later environmental planning instruments. The reason is that this type of clause is likely to cause confusion due to the making of a local resolution or in this case the gazettal of a development control plan, to fix the foreshore building line, (FSBL) in a plan. This gives the false impression that the GPSO has been amended to include a FSBL. However, only the Minister can amend the GPSO, since it was the Minister that prescribed, under the relevant Act, the original GPSO. In Gosford, the only control on the FSBL is that contained in the development control plan, being DCP155 see below. Thus there was no dispute between the town planning experts that a State Environmental Planning Policy No 1, (SEPP1) objection was not required to allow a building forward of the FSBL. Gosford Development Control Plan 159 - Character, (DCP159) 11 Under the provisions of DCP159 the land is within the Open Park Foreshores 1 locality. Development Control Plan No 155 - Single Dwellings & Ancillary Structures, (DCP155). 12 Under cl 9 of DCP155: Foreshore building lines are fixed such that; 9.2.2(a) Other than as specified in paragraph (b) no single storey dwelling house or appurtenant building shall be erected within six (6) metres or, in the case of a two or more storey portion of a dwelling house or appurtenant building - ten (10) metres, from the mean high water mark of any creek, bay, lake, lagoon, river or any other waterway, or unzoned land, or land zoned open space or reserved for waterfront public reserve; OR New buildings and additions will be required to generally comply with the foreshore building line established by adjoining existing development notwithstanding that such an established building line may be in excess of the general six (6) metre or ten (10) metre requirement and provided that; (i) The adjoining buildings appear to have a reasonable economic life, and (ii) The application of this provision does not create hardship to the applicant by reason of topographical impediment. 9.2.2(b) Where the building is a boatshed, the distance from the mean high water mark shall be two (2) metres. (Note: also refer to Brisbane Water Plan of Management) 9.2.2(c) Where the waterway is the Hawkesbury River or any of the tributaries, the distance from the mean high water mark shall be thirty (30) metres 9.2.2(d) Setbacks for land zoned 2(f) should be obtained from Council's Environmental Program. Note: Foreshore building lines do not apply to setbacks from beaches or cliffs fronting the open ocean or Broken Bay.

13 The objectives under cl 9.1 of DCP155, for setbacks for dwellings and ancillary structures are: (a) To standardise the building line applicable to properties in the City. (b) To provide a consistent view along street frontage and water frontage to promote a more open streetscape and waterscape. (c) To provide for the construction of car accommodation with due reference to building lines. (d) To ensure that buildings, particularly dwelling houses, constructed in the relevant rural zones and other environmentally sensitive areas are so located and designed so as to minimise any adverse effect on the existing natural environment. Other relevant planning controls 14 Other relevant planning controls include: · State Environmental Planning Policy No 71 - Coastal Protection, (DCP71). · Development Control Plan No 128 - Public Notification, (DCP128). The proposal and its history 15 Development application No 29373/200 was lodged with the respondent council on 20 December 2005 to alter and add to the existing dwelling on the land that is around 2m and 3m setback from the MHWM. The proposed additions excluding the deck over the roof of the existing building would be setback around 11.2m and 13.8m from the MHWM. The new deck would be around 8m setback from the MHWM at the closest point. 16 Thus, the new portion of the proposed dwelling would comply with cl 9.2.2(a) of DCP155 as it would be setback more than 10m from the MHWM. However, measured to the existing building on the land, the proposal would not comply with the 10m-FSBL. It would also not comply with the cl 9.2.2(a) of DCP155 FSBL established by constructing a line from the extremities of adjoining existing development, sometimes referred to as 'joining-the-dots'. No SEPP1 objection was lodged with the application. 17 The proposal would retain in a courtyard formed in the new portion of the proposed dwelling, the existing 20m-high mature conifer setback around 23m from the MHWM. Notification 18 The application was notified to nearby owners and occupants and exhibited from 11 January 2006 to 25 January 2006 in the 'Express Advocate' and the council received three submissions. 19 On 26 April 2006, the council requested the applicant to supply a detailed arborist report to assess the potential impact of the proposal on the mature Conifer located on the land. 20 On 11 May 2006 the council requested the applicant to submit further information relating to building design and plan details. 21 The applicant provided amended plans to the council on 15 May 2006. The council deferred the consideration of the application at the applicant's request. Further amended plans to raise the finished levels of the proposal were provided to the council on 24 October 2006. The council's decision 22 By notice dated 18 December 2006 the council refused the application for the following reasons:

1. The proposed additions do not comply with building line requirements of Clause 9.2.2 of DCP155 - Single Dwellings and Ancillary Structures.
2. The proposal is inconsistent with the provisions of DCP159 - Character. The hearing 23 The appeal was filed on 14 May 2007. 24 At the hearing the court heard evidence on behalf of the respondent council from: · Mr T Tuxworth, town planner, for the council; · Mr M H Brooks, owner of neighbouring property at No 38 Albany Street; and · Dr J B Ericson, neighbour at No 40B Albany Street.

25 On behalf of the applicant evidence was given by: · Mr D Kettle, consultant town planner for the applicant; and · Mr G Arnold, designer.

26 Mr A Ford, authorised officer of Gosford City Council prepared the statement of facts and contentions dated 8 June 2007. The first respondent's contentions 27 On 13 June 2007 the council filed a statement of contentions.

1. The proposal breaches provisions regarding foreshore building lines. Particulars: (a) The objectives of the setback provisions contained in Clause 9 of Development Control Plan 155 - Single Dwellings and Ancillary Structures (DCP155) are, relevantly: 9.1(a) To standardise the building line applicable to properties in the City. 9.1(b) To provide a consistent view along street frontage and water frontage to promote a more open streetscape and waterscape. (b) Clause 9.2.2 of DCP155 provides that: Foreshore building lines are fixed such that; 9.2.2(a) Other than as specified in paragraph (b) no single storey dwelling house or appurtenant building shall be erected within six (6) metres or, in the case of a two or more storey portion of a dwelling house or appurtenant building - ten (10) metres, from the mean high water mark of any creek, bay, lake, lagoon, river or any other waterway, or unzoned land, or land zoned open space or reserved for waterfront public reserve; OR New buildings and additions will be required to generally comply with the foreshore building line established by adjoining existing development notwithstanding that such an established building line may be in excess of the general six (6) metre or ten (10) metre requirement and provided that; (iii) The adjoining buildings appear to have a reasonable economic life, and (iv) The application of this provision does not create hardship to the applicant by reason of topographical impediment. (c) The proposed additions have a building line from the waterfront, which varies from 8m on the southern boundary to 10.4m on the northern boundary. (d) Adjoining development in this section of Albany Street has a building line of 15m from the waterfront. (e) The encroachment of up to 7m on the foreshore building line is a significant encroachment, which will establish a new building line in the area to the disadvantage of existing homes.
2. The proposal breaches provisions regarding character. Particulars: (a) Clause 10(4) of the Gosford Planning Scheme Ordinance (GPSO) states, relevantly: 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 purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area. (b) The subject site is located within the Point Frederick 2: Open Woodland Foreshores precinct under Development Control Plan 159 (DCP159). (c) The desired character outlined in DCP159 states that the bulk and scale of buildings ought to be minimised and that they ought to: Promote a natural character for waterfront backdrops by avoiding structures that would visibly compromise the desired bushy foreshore character. (d) As a portion of the proposed additions are proposed over the top portion of an existing structure forward of its neighbours, the additions will create a building of bulky appearance. (e) From the water and areas of Point Clare, the building will present as three (3) storeys located very close to the water and without any vegetation to act as screening. The second respondent's contentions 28 In addition to the reasons advanced by the council in its statement of contentions, the second respondent contended, on 8 August 2007, that consent should not be granted to the development for the following reasons:
3. The Council has by resolution fixed a building line in respect of the land the subject of this development, by its resolution adopting DCP 155. Pursuant to cl 37(3) a building shall not be erected between the foreshore building line and the bay comprising Brisbane Water. The development is either prohibited or requires a SEPP1 objection to be upheld.
4. The development is inconsistent with Objective 9.1(b) of DCP 155 in that there would no longer be a consistent view along the water frontage to promote a more open waterscape.
5. The development would establish an undesirable precedent, which would conflict with the objectives of DCP 155.
6. The development is contrary to the provisions of DCP 89 (Scenic Quality) as it relates to the Gosford Central precinct.
7. The development is inconsistent with cl 8(d) of SEPP 71 because of its type, location and design and its relationship with its surrounding area.
8. The proposed development is unreasonably bulky and will have a significant impact on the intervenors' views to the southwest. 29 The salient issue was maintenance of water views over the land from No 38 Albany Street. Also, as the overall development would be forward of the foreshore building line whether an SEPP1 objection is required. The evidence and findings Water views 30 The retention of the water view from the living room and balcony of No 38 Albany Street was the main issue. From that dwelling water views over Brisbane Water are obtained towards the west over the waterfront gardens of that property and to the southwest over the subject land. Some of the view to the southwest is screened by vegetation growing along the foreshore. 31 During the hearing on 20 August 2007 the parties reached agreement on this issue on the basis that:
9. the overall height of the new section of the proposal would be reduced by around 600mm such that the maximum height of the roof over the new living room would be 10.45m AHD as shown in section in Exhibit E. That reduction is to be achieved by: (a) lowering the floor to ceiling height from 2,900mm to 2,700mm; (b) a reduction in the thickness of the new floor level by 400mm to 350mm.
10. establish a new roof line to the north of the stairs on the living room level by reducing the floor to ceiling height from 2,900mm to 2,200mm and by reducing the western edge of the bay window by one metre; and
11. the western extension from the new bay window is to be decked and incorporating a roof over the stairs as necessary.

32 Mr Tuxworth for the council, Mr Kettle for the applicant, and Mr Arnold the designer signed this agreement. 33 The object of this agreement was to ease the views over and around the proposal of the significant views from the living areas and balcony off the living room from the Brooks' residence at No 38 Albany Street, Point Frederick. As a point of reference the handrail of the balustrade around the balcony on that property has been surveyed at 10.33m AHD. 34 Mr Johnson, for Mr and Mrs Brooks the second respondents, asked the Court to adjourn the matter to allow the plans to be redrawn to reflect the above agreement and for the matter to be decided on the papers after the plans are filed and served by close of business 27 August 2007. The Court acceded to that request and the plans in Exhibit 7 were the result. These plans further amended the proposal to show the maximum height of 10.40m AHD. 35 I was satisfied that despite the proposal being forward of the FSBL by the joining-the dots-method, its height would be reduced such that the impact on views from the Brooks' residence would be acceptable. 36 In Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 Dr Roseth, SC, stated: The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the some development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 37 Applying this planning principle to the amended application I have concluded:

1. The view over Brisbane Water to the west and south west is significant for its natural beauty and ecology, even if not as iconic as the Opera House on Sydney Harbour;
2. The view would be partly over the side boundary of the subject land and the existing and proposed dwelling would be forward of the FSBL. Against this that part of the building forward of the building line already exists. The only new encroachment of the 10m FSBL would be for the deck and the applicant has agreed to lower both the deck and the new portion of the proposal to allow some views over the top.
3. The impact is of loss of water views to the southwest over the subject land and some of this view is already screened by foliage. There would remain, if the present proposal were erected, some water views to the west and over the top of the proposal to the southwest.
4. I consider that the view impact would not be unreasonable in the circumstances of this case. Although I would have preferred the maximum height of the proposal to be limited to 10.33m AHD the height of the handrail on No 38 Albany Street, there are structural difficulties in achieving this. SEPP1 objection? 38 Under Issue 1 the second respondent suggests that without an SEPP1 objection to the FSBL the application must fail. This is because under cl 37(3) of the GPSO a building shall not be erected between the FSBL and the bay, comprising Brisbane Water. However, under cl 37(4) the responsible authority, being the Court on appeal, may alter or abolish a FSBL where the level or depth of the allotment or other exceptional conditions of the site, make it necessary or expedient to do so. I am satisfied that the presence of the existing building on the land is an exceptional condition of the site and I invoke cl 37(4) of the GPSO. If I were wrong in this assumption, I consider an SEPP1 objection is not required as a result of the construction of the GPSO. In effect the FSBL is fixed by a development control plan and it is thus not a 'standard'. 39 I am satisfied that provided the setback objectives of the FSBL are met. I have assessed the application under s 79C of the Act and I am satisfied the objectives of that part of DCP155 would be met by the amended proposal. 40 The objectives of DCP155 in respect of the FSBL are set out in para 12 above, however, the parties have agreed to design amendments and that the proposal would be satisfactory having regard for the fact that there is an existing building on the land, located about 2m to 3m from the MHWM. 41 The proposal (including the existing dwelling and the proposed addition) despite being in advance of the 10m-FSBL or by joining-the-dots being the extremities of adjoining buildings, would not detract from the council's aim to standardise the building line applicable to properties in the City. The FSBL in the area would remain unchanged and the new part of the proposed dwelling would be setback a distance of between 11.2m and 13.8m (excluding the deck) and would comply also with the numerical requirements of cl 9.2.2(a) of DCP155. 42 The proposed design amendments involving the lowering of the facia and roof of the proposal to 10.40m AHD would provide for a standing view over the top of the proposal along the water frontage and would tend to promote a more open streetscape and waterscape as required by the council's setback objectives. Such a lowering also recognises the presence of the existing structure on the land that is presently used as a compact dwelling and that would be connected to the proposed additions. 43 The other objectives are not particularly relevant to the present proposal. The car accommodation that exists on the land has been approved by the council, presumably with due reference to building lines. 44 The foreshore of the Brisbane Water must be considered as an environmentally sensitive area and I am satisfied that the proposal incorporating the existing building would be located and designed so as to minimise any adverse effect on the existing natural environment. Although there is little planting in front of the proposal, the Conifer is to be retained in a courtyard and this would maintain the treed ambiance. In this regard I am satisfied that the amended proposal would meet the character objectives of DCP159 and the GPSO. 45 For the above reasons, the appeal is upheld. Conditions 46 The conditions are those in Exhibit 4 as amended during the hearing. Orders 47 My orders are:

2. Development application No 29373/200 lodged with the respondent council on 20 December 2005 to alter and add to the existing dwelling at Lot 17, DP 19132, being No 36 Albany Street, Point Frederick, is approved subject to Conditions 1 to 35 in Annexure A.

3. The exhibits except for Exhibits A, B, C, 1, 2, 4, 6, 1A and 4A are returned.

S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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