Altschwager v Mosman Municipal Council

Land and Environment Court (NSW)|2021-02-12

Judgment

This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Mosman Municipal Council (Council) of development application No 8.2019.93 for the demolition of an existing two storey dwelling house and outbuilding and the construction of a new three storey dwelling house and associated development at 14 Cobbittee Street Mosman (site).

Proceedings

The proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). However, no agreement was reached and the matter proceeded to hearing.
Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy issued 1 July 2020. After a site inspection, including the hearing of oral submissions from two objectors from their places of residence, the hearing was conducted in a "virtual" courtroom arrangement under the Microsoft Teams platform.

Site and locality

I rely on Council's Statement of Facts and Contentions (Ex 1) and the Applicant's reply statement (Ex A) for much of the factual material in this and the following section.
The site is located on the western side of Cobbittee Street, between Cobbittee Lane and Dayrell Avenue. It is rectangular in shape with a frontage of 13.41m to Cobbittee Street and a secondary frontage of the same width to an unformed section of Pretoria Avenue. The site has an area of 689.2m² and has an approximate fall of 13.26m to the rear (west).
Surrounding development also consists of dwelling houses of varying heights and styles.

Proposal

The main features of the proposal are outlined in the table below (selected excerpt from Ex 1, par 1.2) Basement level 2 x car garage, Bedroom 5, rumpus room, rear terrace. Ground floor level Bedrooms 1-4, entry lobby, second entry. First floor Living room, kitchen and pantry, dining, upper terrace, formal lounge. Levelled lawn area. Rear yard Swimming pool. New rear entry with stairs and gate.

Various landscape treatments are proposed in the rear yard and terracing.

Statutory considerations

The site is zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (MLEP). Mosman Residential Development Control Plan 2012 also applies.

Issues

After conciliation and the conduct of the hearing; and by the point of the filing of final submissions from each party, the issues of concern to experts had been essentially addressed through significant plan amendments and agreed conditions. I need to interrogate certain of the particulars of the agreed positions of the experts in this judgment, in particular mindful of s 4.15(1)(d) of the EPA Act and the need for me to take into consideration objector submissions. Further, there is contravention of a building wall height control in MLEP which requires consideration in jurisdictional terms.
In turn, I find that the real issues for consideration in this judgment are: 1. Visual privacy and visual amenity impacts on 27 Pretoria Avenue 2. View loss and visual amenity impacts on 12 Cobbittee Street 3. Visual amenity impacts from the streetscape 4. Rear yard treatment 5. Building wall height - contravention of cl 4.3A(4) of MLEP as a jurisdictional gateway.

Visual privacy and visual amenity impacts on 27 Pretoria Avenue

Objections were raised in regard to: (1) proposed significant raising of ground levels to effect a terrace in the central area of the rear yard of the site, near the internal living areas at the south-east corner of the dwelling at 27 Pretoria Avenue and eastern courtyard area, (2) proposed pool at the rear which was also significantly elevated above ground level and directly in the line of sight of window openings in the key living area of 27 Pretoria Avenue (loss of natural light important in the room would be associated with keeping windows covered), (3) bamboo plantings along the side boundary and prospects for loss of natural light and the like, and (4) more generally the massing of the building and overlooking from terracing.
The amended proposal alters the intention for the rear yard area. The central grassed terrace would be generally at ground level, with a relatively small area of fill to square off the area. The swimming pool coping would also be lowered to a level near to existing ground level at the centre of the pool. The experts are satisfied that amended landscaping plans for the side boundary and terrace areas would provide reasonable visual privacy screening through additional dense planting and provide for a filtering of the visual massing from 27 Pretoria Avenue. A condition of consent (Condition 79) would be imposed requiring pruning and maintenance of bamboo which forms part of this screen. Additional planting is also proposed at the north-west corner of the ground floor and lower level to enhance the visual separation between the site and the dwelling at 27 Pretoria Avenue. Having had the opportunity to view the concerns raised by the objectors and the surrounding physical context (ie typical built form in the vicinity) I agree with the experts that these visual privacy and visual impact issues have been adequately addressed.

View loss, visual privacy and visual amenity impacts on 12 Cobbittee Street

Objections were raised in regard to the loss of views currently available, particularly at the topmost level of 12 Cobbittee Street. There was also a concern about the visual impact of the massing of the building at this level. A factor here was the contravention of the building wall height control under MLEP.
There was an opportunity to undertake a site inspection and assess the potential impacts with the aid of the height poles. There are expansive views available from a standing position within the open plan living area and from a seating and standing position on an outdoor terrace at the upper level of 12 Cobbittee Street. These views are towards Balmoral Beach, Middle Harbour, and Clontarf and Balgowlah Heights.
There would be some reduction of the existing views, experienced from the open plan living area, when viewing across the site to the north and north-west towards Middle Harbour and Balmoral Beach. The best views would still be available from the outdoor terrace and the more western areas of the internal space. The experts agreed that the view affectation brought about by the proposal constituted reasonable view sharing, having a mind to Tenacity Consulting v Warringah (2004) 134 LGERA 24; [2004] NSWLEC 140, and MDCP provisions.
In consideration of the expert evidence and my findings below in regard to the wall height control contravention (see [26]-[48]), I accept the shared opinion of the experts that the view loss to 12 Cobbittee Street constitutes reasonable view sharing. The areas where the most significant view loss would occur are vulnerable due to the reliance on views across property boundaries, and the views which would remain after development of the proposal would be of very high quality.
The issue of visual privacy was also raised, in particular in regard to the proposed BBQ area and terrace at the first floor of the proposal. The proposal's design schema in that location (ie terrace to the west of the living area) is reasonable and consistent generally with the development at 12 Cobbittee Road itself. Given the potential for any privacy screening at the first floor of the proposal to exacerbate view loss, I am satisfied that the configuration is reasonable, and there is capacity for the owners of 12 Cobbittee to manage the sightline between the terrace and the first floor of the proposal should they wish to (ie through screening sensitive to view loss).
I also agree with the experts that the visual massing of the proposal is satisfactory with respect to 12 Cobbittee Street. In regard to reasonableness, important to me is the scale of development on 12 Cobbittee itself, having regard to the commentary from Mr Burrell (albeit in regard to view loss) on its own contraventions of built form controls (Ex 4, par 52).

Visual amenity impacts from the streetscape

Objections were raised in regard to the visual massing of the proposal as viewed from the west and north-west (in the Pretoria Avenue streetscape), and visual dominance in the streetscape more generally.
The points of concern were able to be viewed during the site inspection with the height poles enabling an impression to be had of the proposed building massing.
I agree with the experts that the proposal would not unreasonably dominate the local streetscape and would be better described as in-character with the streetscape setting. There were two key reasons cited in evidence. First is to recognise the other large dwellings presenting to the streetscape in this location, with the proposal presenting more as just another larger dwelling sitting in the local landscape than something particularly dominant. Second is the modulated and articulated architectural form employed in the design which would soften the visual impact.

Rear yard treatment

Council was concerned about proposed filling, earthworks and general landscaping intentions for the proposal. There was also a concern that the pool may affect the viability of a Cheese Tree located in the road reserve to the rear.
As introduced above, the amended proposal responds much moreso to existing topography. In addition, a report has been provided by an AQF level 5 arborist, satisfying Council's concerns in regard to the Cheese Tree (Growing My Way Tree Consultants dated 25 February 2021).
I accept the evidence of the experts that the revised landscape plans (Revision G) and proposed conditions provide for a reasonable treatment of the rear yard area.

Building wall height development standard contravention

There is no dispute that cl 4.3A of MLEP, which is titled "Height of buildings (additional provisions)", applies to the site. Subclause (4) provides as follows: A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres.
Clause 4.3A(5) of MLEP defines wall height as follows: wall height means the vertical distance between the ground level (existing) and the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest.
There is agreement among the experts that the proposed development would contravene the 7.2m control by some 640mm.
The Applicant is seeking an exception for the contravention of development standards under cl 4.6(2) of the MLEP which provides relevantly as follows: (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument...
The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)- (5): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [14]). The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
The Applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. This written request, dated 21 December 2020 and prepared by Kim Burrell, formed Attachment 4 to Ex 4 and was also filed on 2 March 2021 (Written Request).

Whether compliance unreasonable or unnecessary

Mindful of cl 4.6(3)(a) of MLEP, the Written Request initially seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The Written Request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of the standard. It is notable here that cl 4.3A does not have nominated objectives of itself. The Written Request uses the objectives of cl 4.3 of MLEP, which is headed "Height of buildings", for examination. It seems to me that this is a reasonable course in the circumstances (ie where the clauses have a commonality in their titles and cl 4.3A reasonably seen as involving "additional" provisions to the overall topic of Height of buildings. The objectives of cl 4.3 are, relevantly, as follows. (i) to share public and private views, and (ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and (iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and (iv) to minimise the adverse effects of bulk and scale of buildings
I am satisfied that the Written Request has adequately demonstrated that the development achieves the objectives of the standard.
The most critical aspect is in relation to the sharing of public and private views. The neighbouring property to the south, No. 12 Cobbittee Street, is the most affected. The Written Request argues as follows in respect to this (Written Request, p 7-8): "In my opinion, the view loss is not unreasonable in the circumstances of the case because the proposal provides a part two, part three-storey dwelling with a lower overall height than No. 12 and maximum building height below the 8.5-metre standard. • provides a two-storey dwelling in the street elevation, which is comparable to No. 12 and other dwellings in the street, with the height of the building rising as the topography falls away. • provides main living room floor planning of the first-floor which is comparable to No. 12. • provides a comparable floor depth to No. 12 - that is, the front and rear first floor building plans are similar and consistent with the View Sharing controls and accompanying diagrams of Council's DCP (see page 22 of DCP). • the general building envelope (determined by a combining wall height and building height in accordance with the DCP Siting and scale controls on page 12 & 13) is consistent with the expectations provided by the relevant controls. • the building bulk, scale and form and architectural treatment is consistent with the evolving character of dwellings in the locality in accordance with Site Planning and Design controls on page 35 of the DCP in particular: P1. New development should incorporate articulated facades to avoid a bulky appearance and to create proportions consistent within the streetscape. The use of elements such as recesses, modulation and setbacks in building walls, and varied materials is encouraged so as to avoid expansive uniform elevations P8. Flat roofs, when well designed, may be acceptable and allow for the retention of views from neighbouring properties and public views. Where flat roofs are selected, particular attention should be given to the detailing of the wall/roof junction. Parapet walls are discouraged where they contribute to the bulk of the building or have adverse amenity effects e.g. view loss, overshadowing. • any views lost from the front of the open plan room in particular its dining room are similar and/or comparable to those views at the rear of this room and the rear terrace. • facilitates view sharing by providing minimal floor to ceiling heights and other measures such as open balconies in accordance with P8 view sharing control on page 21 of the DCP and reiterated below: P8. Measures to be used to facilitate view sharing include building setbacks, gaps between buildings, minimal floor to ceiling heights, raked ceilings to upper floors, roof forms such as gables or hipped, splay corners and use of open materials for balustrades on balconies and decks.
Mindful of the arguments that: (1) the upper floor windows in No. 12's side elevation are vulnerable to view loss, (2) there is a reasonableness to the layout proposed at the first floor level of the proposal given what has been approved at No. 12 Cobbittee Street, and (3) there is very high quality to the views remaining; the Written Request satisfactorily demonstrate that there is a sharing of private views.
The Written Request also notes that the proposal would not have any impact on public views.
I am satisfied that the Written Request demonstrates that the first objective of the development standard, relating to the sharing of public and private views, is achieved.
The Written Request then moves through the other objectives of the development standard. In regard to minimising visual impact particularly when viewed from the harbour and surrounding foreshores, the Written Request notes the site's significant distance from the harbour and foreshores and that the form, scale and height of the proposal are consistent with nearby dwellings. In regard to ensuring compatibility with the desired future character of the area in terms of building height and roof form, the Written Request observes that the site is located within the Balmoral Townscape as defined by Section 7.4(1) of MDCP, and complies generally with the pertinent DCP controls in regard to built form, design, fences, landscaping, materials and finishes, streetscape and views. Evidence is provided of the proposal's consistency with the established building form and character in the locality. While noting the proposals inconsistency with the side setback control, this is seen to be acceptable because of the existing setback pattern in the locality. In regard to minimising adverse effects of bulk and scale of buildings, the Written Request refers to the quality of the architectural design and responses to amenity impacts.
The Written Request adequately demonstrates that the objectives of the development standard relating to building wall height have been achieved notwithstanding non-compliance with the 7.2m control. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Whether there are sufficient environmental planning grounds

The Written Request refers to the relatively minor nature of the wall height contravention and the fact that it is a result of "a sudden fall in slope of the land" (Written Request, p 10). It also observes that the building complies with the maximum building height control overall (ie the 8.5m control under cl 4.3 of MLEP). These factors, and the Written Request's argument that a compliant proposal would have no greater view loss or other relevant environmental concerns, are sufficient environmental planning grounds to justify contravening the development standard.
Together, the above findings mean the Written Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of MLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the wall height contravention.

Public interest

I now turn to the test at cl 4.6(4)(a)(ii) of MLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the wall height standard and the objectives for development within the R2 zone.
The term "consistent" has been considered in many judgments of the Court. Here, I generally rely on the summary prepared by Tuor C in Moskovich v Waverley Council [2016] NSWLEC 1015 at [53]: "…The term consistent … has been interpreted to mean "compatible" or "capable of existing together in harmony" (Dem Gillespies v Warringah Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190) or "not being antipathetic" (Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21) Whichever interpretation is adopted the test of "consistency" is less onerous than that of "achievement."
I agree with and rely on the Written Request's demonstration that the proposed development is consistent with the objectives of the wall height standard as considered above.
The zone objectives are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain the single dwelling character of the environmentally sensitive residential areas of Mosman. • To maintain the general dominance of landscape over built form, particularly on harbour foreshores. • To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. • To ensure that development is of a height and scale that seeks to achieve the desired future character. • To encourage residential development that maintains or enhances local amenity and, in particular, public and private views. • To minimise the adverse effects of bulk and scale of buildings.
The proposal provides for a single dwelling house and as such is clearly consistent with the first and third objectives. I am satisfied that, with the proposed landscaping, and given the landscaping backdrop to the local area more generally, the proposal is not antipathetic to the fourth zone objective of maintaining the general dominance of landscape over built form. I can consider the final three objectives together. I am satisfied that the proposal: (1) is of a height and scale that aligns with the desired future character as established through the applicable planning controls, (2) reasonably maintains local amenity and public and private views as considered more broadly in the judgement, and (3) is consistent with the objective of minimising adverse effects of bulk and scale as a consequence of its form and architecture. The second and fifth zone objectives are not relevant to this proposal. On the basis of the above I find the development consistent with the R2 zone objectives.
Based on my findings above, the proposed development will be in the public interest because it is consistent with the objectives of the wall height standard and the objectives for development within the R2 Low Density Residential zone of MLEP.
On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of RLEP are met in regard to the wall height contravention.

Conclusion - wall height contravention

I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of MLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.
The states of satisfaction required by cl 4.6 of MLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the minimum lot size standard.
With my findings at [42] and [49], the states of satisfaction required by cl 4.6 of MLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the wall height standard.

Conclusions

Given my findings above, it is appropriate that the application be approved in accordance with consent conditions referenced in the Orders below.

Orders

The Court orders that: 1. The Applicant is granted leave to amend the application to rely on the plans and documents as listed at Condition 1 of Annexure "A" and the written request pursuant to cl 4.6 of Mosman Local Environmental Plan 2012, dated 21 December 2020 and prepared by Kim Burrell. 2. The written request pursuant to cl 4.6 of Mosman Local Environmental Plan 2012, dated 21 December 2020 and prepared by Kim Burrell is upheld. 3. Development application No. 8.2019.93.1 for the demolition of existing structures, construction of a new dwelling, inground pool and associated landscaping is approved subject to the conditions included at Annexure "A". 4. The Exhibits are returned with the exception of Exhibits 1, B and C.

Commissioner of the Court Annexure A (244237, pdf) Plans (19963092, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2021

(2018) 236 LGERA 256

(2007) 156 LGERA 446

(2002) 124 LGERA 147

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