Bellato L and Anor v Mosman Council

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

APPLICANT: Mr J E Hones, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Hones La Hood RESPONDENT: Ms J Hewitt, solicitor SOLICITORS: Home Wilkinson Lowry

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10337 of 2007 - Luigi Antonio Bellato and Teresa Anne Bellato v Mosman Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Mosman Council (the council) to impose certain conditions on a planning consent to alter and add to a dwelling at Lot 41, Section A, DP 2365, being No 23 Boyle Street, Mosman. 2 The original appeal was in relation to a curved roof proposal that the council had approved subject to conditions and the appeal now before the Court is for a low-pitched roof proposal that the council considers should be refused. The appeal in relation to the first proposal was in respect of conditions and was to be considered afresh by the Court. 3 I visited the land in company with the parties on the morning of the hearing and heard from local residents. The main concerns of these residents were the loss of views, privacy and overshadowing. 4 I have concluded that the application should fail, as there would be a significant view loss over Mosman Bay and Sydney Harbour obliquely over side boundaries from living areas of neighbouring dwellings. The land 5 The land is situated on the northern side of Boyle Street, between Spofforth Street and Orlando Avenue about 45m east of Spofforth Street. The land is rectangular in shape with a frontage to Boyle Street of 12.19m and a depth of 36.575m giving an area of some 445.84m2. The land falls about 6m from the rear down to the front or south, at an average gradient of around 16%. 6 Erected on the land is a single-storey dwelling with a single garage and understorey storage area. 7 Nearby development comprises single-storey and two-storey detached dwelling houses. Two-storey detached dwellings fronting Spofforth Street with rear yards elevated over Boyle Street. Views are afforded over the subject land from these properties to Mosman Bay and Sydney Harbour from elevated gardens, living areas and bedrooms. Relevant planning controls Mosman Local Environmental Plan 1998, (MLEP) 8 Under the provisions of the MLEP the land is zoned residential 2(c) and the proposal is permissible with consent. Clause 13(2) of the MLEP sets a maximum building height in the 2(c) zone of 8.5m and a maximum wall height of 7.2m. Clause 14 of the MLEP sets a floor space ratio of 0.6:1 for dwellings in the 2(c) zone. 9 At No 27 Spofforth Street on the corner of Spofforth and Boyle Streets around 35m from the land is a listed heritage item 'Montylene' House, [Note: Exhibit 1, Schedule 2, p 51]. 10 Other planning policies and controls of relevance are: · State Environmental Planning Policy No 1 - Development Standards, (SEPP1). · Draft State Environmental Planning Policy (Application of Development Standards) 2004, (DSEPP). · Mosman Residential Development Control Plan, (MRDCP). · Notifications Development Control Plan, (NDCP). · Mosman Transport Development Control Plan, (TDCP). · Mosman Section 94 Contributions Plan - Open Space, (s 94 Plan).

11 The relevant clauses of the MRDCP are, [Note: Exhibit 2]: · Clause 4.2, p 18 - siting and scale. · Clause 4.3, pp 23-4 - views. · Clause 4.4, p 26 - landscaping. · Clause 5.6, pp 48-9 - privacy and security. · Clause 5.8, p 53 - site facilities. · Clause 6.10, pp86-7 - Belmont and Belmont townscape.

12 The 'Belmont' townscape boundary shown on the map includes the high side of Boyle Street and the unmade section of Orlando Avenue that is a park fronting onto Boyle Street, [Note: Exhibit 2, p 87]. The subject land is not within the conservation area. The proposal and its history 13 Development application No 8.2005.385.1 was lodged with the respondent council on 31 October 2005 seeking to alter and add to the existing dwelling house and to provide a new first floor under a curved roof. The maximum height of the proposed curved roof was 50.40m AHD. This compares with the main ridge of the existing Marseilles pattern tiled roof of 50.2m AHD. When the council approved the curved roof proposal a condition was imposed to lower the height of the ridge to 50.2m AHD and to the height of the existing ridge. The applicant appealed against this condition and others and maintained that if the curved roof were lowered 200mm it would render the design impracticable. However, before the proceedings commenced the applicant was granted leave of the Court to rely on amended plans for a pitched roof proposal. 14 Thus, the proposal now before the Court would comprise a new first floor with front and rear facing terraces, a pitched tiled roof and an enlargement of existing single garage to a double garage. This proposal would comply with the floor space ratio (FSR) and height controls of the MLEP. NUMERIC CONTROLS SUMMARY TABLE MLEP controls Control Proposed Compliance Site area 300m2 445.84m2 N/A Building height 8.5m 8.5m Yes Wall height 7.2m 7.2m Yes Number of storeys 2-storeys 2-storeys Yes Gross floor area, (GFA) 199.8m2 N/A Existing 267.0m2 Yes Proposed Floor space ratio, (FSR) 0.6:1 0.6:1 Yes Landscaped Area 119.9m2 131m2 N/A Existing 162.6m2 150m2 No Proposed MRDCP Controls Control Proposed Compliance Setbacks 2m 1.636m 10.814m N/A (existing) Basement - east/ west Ground floor - east 0.9m 1.63 -1.68m Yes First floor - east 1.5m 1.63 - 1.68m Yes Ground floor - west 0.9m 0.78 - 0.81m N/A (existing) First floor - west 1.5m 0.78 -1.5m No Parking No minimum 2 spaces Yes Garage/ Carport Width 40% of width of land or 4.88m 6m No Solar access to living and main 2 hours between >2 hours Yes private open space, (POS) 9.00 am and 3.00 pm

Notification 15 The original development application with a curved roof was notified to nearby owners and occupants from 18 November to 2 December 2005 and the council received several submissions. 16 In response to the concerns expressed in regard to issues of view loss, bulk and scale on 13 December 2005, the council requested amendments to bring the plans into compliance with the development standards of floor space ratio, (FSR), building and wall height. 17 The applicant submitted amended plans on 15 February 2006 and again on 1 March 2006 and the application was re-notified from 17 March to 3 April 2006 when the council received further submissions. The council requested further amended plans on 4 May 2006 to address view loss from adjoining dwellings. 18 Protracted negotiations were undertaken, and a revised design intended to address the council's concerns was submitted on 28 November 2006. 19 At its meeting of 20 March 2007, the council resolved to approve the development application with a curved roof, subject to conditions, some of which sought minor amendments to the design. One such condition required the overall height of the building to be reduced by 200mm so that the overall height of the building would not exceed 50.20m AHD. 20 On 18 June 2007 the applicant lodged with the council further amended plans seeking to change the design of the upper floor. As now proposed, the ridge of the pitched roof would be at 51.20m AHD and a north facing covered balcony on the upper floor is also proposed. These plans were again notified and five neighbours made submissions. The council's decision 21 By notice dated 20 March 2007 the council consented to the original application and the applicant appealed against Conditions 3, 4, 5, 7, 8, 9 and 11. The applicant originally sought to delete or amend those conditions on the basis that they are unreasonable and/or unnecessary. 22 In respect of the amended pitched roof proposal the council now contends that it should be refused. The hearing 23 The appeal was filed on 20 April 2007. 24 At the on-site hearing the Court heard from, [Note: Exhibit 10]: · Mr R Foster, resident of No 21A Boyle Street; · Mr D Le, resident of No 25 Boyle Street; · Ms D Feros, resident of No 21 Boyle Street; · Ms P O'Grady, resident of No 5 Spofforth Street; · Professor J and Mrs B Potter, resident of No 7 Spofforth Street.

25 Also the Court received a position paper dated 20 July 2007 on behalf of the respondent council from Mr B Lusher, town planner Team Leader Development Services, Mosman Municipal Council, [Note: Exhibit 5]. 26 On behalf of the applicant Mr J Lovell, consultant town planner, filed a position paper on 24 July 2007 and was available to give evidence. 27 Mr Lusher prepared the statement of basic facts and contentions dated 30 May 2007. The contentions 28 On 17 July 2007 the council filed a statement of contentions in respect of the pitched roof design. 1 The proposal creates unacceptable impacts to views currently enjoyed by adjoining properties. Particulars (a) The proposal exhibits a pitched roof structure having an RL of 51.20 over the upper floor including the rear (north) facing which results in view loss to the properties at the rear of the site.

2 The proposal provides for an undercover balcony, which will have adverse amenity impacts, which are unacceptable. Particulars (a) The proposed balcony is provided with a substantial roof structure and screening structures on the eastern elevation which will obstruct views to Mosman Bay and the water from the adjoining properties at the rear. (b) Use of the north facing rear balcony will have unreasonable privacy impacts on the adjoining properties to the north and the rear yard of the eastern adjoining property. (c) This balcony area is superfluous. 3 The proposal provides for a south-facing balcony, which will have adverse privacy impacts on the western adjoining property, which are unacceptable. Particulars (a) The proposed south facing upper floor balcony is located directly adjacent to bedroom windows of the dwelling house on the western and will have unreasonable privacy impacts on this property.

4 Council reserves the right to raise a further contention relating to the height of the proposal. Particulars (a) As a result of the amended plans, it has become necessary for Council to take some further measurements of the ground levels at the Property. (b) Due to the absence of the Applicants, Council has been unable to gain access to The Property in order to take the required measurements. (c) After Council gains access to The Property and is able to undertake the required measurements, Council will advise of any further contention, if necessary, relating to the ground levels and height of the proposal.

29 The salient issue was view loss. Other issues were related to privacy and overshadowing. The evidence and findings 30 The council maintains that a more skilful design would promote a greater degree of view sharing whilst maintaining the proposed accommodation. View loss 31 Mr Lovell for the applicant, who had not had access to either Nos 5 or 7 Spofforth Street when he wrote these words, described the view loss resulting from the latest amended plans as 'moderate'. He continued, [Note: Exhibit F, p 13: A proportion of the existing views will be lost, however the land/water interface and Robertson Point Lighthouse will remain visible from No 5 Spofforth Street, and Clarke Island and the eastern suburbs land/water interface will remain visible from Nos 5 and 7 Spofforth Street. The portion of the building impacting upon the existing views complies with all the relevant numerical controls applying to the site, and none of the view loss can be attributed to a non-compliance with the planning controls. Further, the floor to ceiling height at the first floor level has been kept to a minimum 2.4 metres, and the roof pitch has been minimised, with a combination of gables and hips functioning to lower the overall roof profile, and reduce the length of the upper ridge line. 32 Mr Lusher maintained in his position paper, [Note: Exhibit 5, p3], that it remains the view of the council that the application should be refused for reason that "…in its current form the unacceptable roof design leads to significant impacts on views enjoyed by neighbouring properties and would fail the test under the relevant planning principle". 33 Mr Lusher continued: The applicant has demonstrated by way of its former plans that a more skilful design could minimise view loss to the adjoining properties, which was acknowledged by Council in granting their consent to the applicants former proposal with the condition that the maximum roof height be reduced from RL 50.4 to RL 50.2 and RL 49.96 on the eastern and western edges of the roof and to RL 49.1 on the eastern and western skillion roof sections. It remains Council's position that a roof design, which complies with the conditions imposed initially in its development consent, would be a more reasonable outcome in the circumstances. 34 Mr Lusher supported the council's position that a more skilful design could minimise view loss. 35 To assist in the assessment of the view loss from neighbouring dwellings the applicant's surveyor had erected staves at strategic locations to indicate the height and position of the pitched roof proposal. 36 Both parties referred to the Senior Commissioner planning principles for view loss in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140. In that judgment Dr Roseth 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 In respect of the first step, I consider the views from both Nos 5 and 7 Spofforth Street are iconic and of water and include the interface between land and water. There was agreement between the parties on the extent of the water views. 38 In respect of the second step the views from both Nos 5 and 7 Spofforth Street are from living areas. In the case of No 5 that part of the property from which the view is obtained is a conservatory and living room on the first floor of that dwelling. In the case of No 7 Spofforth Street the view is from a living room on the ground floor and open deck off bedrooms on the first floor. As a result of the subdivision pattern in this part of Mosman the views from both these properties is partly across the side boundary and partly from rear towards the front or south of the subject land and the views are enjoyed from a standing or sitting position within living areas. 39 Mr Hones, for the applicant, submitted that as the present living room off the conservatory of No 5 Spofforth Street was originally approved as a bedroom any loss of view from that room should be discounted. I prefer to consider the present use of the room as relevant and important. I would not discount that view. 40 The next step is to assess the impact of the proposal on the views that are obtained from a neighbouring dwelling. It is necessary to assess the views from different parts of the dwelling. In the case of No 5 Spofforth the only view is from the conservatory, the small deck off the conservatory and from the living room near the conservatory on the first floor. From No 7 Spofforth Street the living room views are from the ground floor and there are other views on the first floor from a balcony off the bedroom. The views are not directly across side boundaries and are enjoyed from a standing or sitting position. I consider the extent of the impact from No 5 Spofforth Street to be 'significant' as qualitatively the view loss would be 'severe or devastating'. I consider the view loss from the living room of No 7 Spofforth Street to be 'severe'. Mr Lovell considered the view loss impact from both properties to be 'moderate', [Note: Exhibit F, p 7, para 2.15]. Mr Lusher sought a more reasonable view-sharing outcome than proposed. 41 The fourth step is to assess the reasonableness of the proposal that is causing the view impact. In this case the proposal would comply with most of the council's planning controls. In particular, the proposal would comply with the FSR and height, both of which impact on the views. However, in respect of the proposal's bulk the covered deck on the northeastern corner of the first floor would obscure some views and might be seen as unreasonable as it would not enclose internal space. This is a complying proposal in terms of Tenacity and the question that should be asked is whether a more skilful design could provide the applicant with some development potential and amenity and at the same time reduce the impact on the views of neighbours. 42 The applicant's first proposal with the curved roof must be assumed to be a design that at one time satisfied the applicant's needs for an addition to the dwelling. That design even at the ridge height of 50.40m AHD as originally proposed, would allow for a greater view sharing than the present proposal with a ridge height of 51.20m AHD. If the ridge height of the curved roof proposal were reduced by 200mm, as proposed in the council's condition, so that the overall height of the building would not exceed 50.20m AHD more of the view would be seen from both Nos 5 and 7 Spofforth Street than as now proposed. This is discerned by viewing the photomontages in Exhibits, D, 7, 8 and 12. 43 Exhibit 7, Sheet 1, shows the standing view loss from No 7 Spofforth Street, caused by the pitched-roof proposal, of the waters of the Harbour and the opening to Mosman Bay. It shows that the Robertson's Point Lighthouse would be obscured from view. Other sheets show the sitting view loss from No 7 Spofforth Street and the loss of the view of the ferry. 44 Exhibit 8, Sheet 1, shows the standing view loss from No 5 Spofforth Street, caused by the pitched roof proposal, of the Curraghbeena Point, Mosman, and the boats in Mosman Bay. From a sitting position only the top of the Robertson's Point Lighthouse would still be visible over the proposed roof. 45 By comparison, more view would be obtained over the original curved roof proposal as conditioned with the ridge at 50.2m AHD, at the height of the existing ridge. 46 Whether or not the curved roof proposal could be classified as a more skilful design is a matter of conjecture, but the fact is, that it would provide a greater amount of the view to the southeast at an oblique angle of the land/water interface, over the subject land towards Mosman Bay, Cremorne Point, and Robertson's Point Lighthouse, and across the Harbour towards Clarke Island, Darling Point, Point Piper, Rose Bay. There might be other complying designs, perhaps at the same or with less, floor space, that would protect the views over the subject land to an even greater extent. 47 Despite the difficulties in maintaining the views across the land from Nos 5 and 7 Spofforth Street, I consider these views should be protected to the greatest extent possible. I have concluded that the applicant's desire for more space could be satisfied by a development that protected a greater extent of view by more skilful design. As a result, I consider the application should fail for lack of reasonable view sharing as required by Part 4.3 of the MRDCP pp 23-4. Undercover balcony 48 The proposed undercover balcony on the first floor northeastern corner of the proposal is off a corridor and a bedroom and is in the place of a former bedroom in the curved roof proposal. Despite the FSR of the proposal now being in compliance, the bulk of the structure enclosing the first floor terrace would be likely to cause additional overshadowing of the dwelling at No 21A Boyle Street, [Note: Exhibits 9 and E]. In a redesign of the proposed first floor addition, it would be expected that this covered balcony would be reduced in size or eliminated in order to reduce its overshadowing impacts. It is noted that the curved roof proposal being lower of height at the eave, despite being closer to the boundary, would have caused less overshadowing impact. Privacy 49 Mr Le of No 25 Boyle Street was satisfied that the overlooking impacts of the southwestern first floor balcony of the proposal would be mitigated were a glazed privacy screen to 1.8m in height erected along two-thirds of the western side of that balcony. If approval were contemplated a condition to that effect could be imposed. 50 Besides being concerned for overshadowing Mr Foster, resident of No 21A Boyle Street, was also concerned for his visual and aural privacy as a result of the potential use of the room-sized balcony in the northeastern corner of the first floor of the proposal. The applicant agreed to erect opaque glazed privacy screens along the eastern side of the balcony to a height or around 1.6m. This would assist in mitigating most overlooking however such a screen would increase overshadowing of Mr Foster's rear yard and kitchen in the afternoons. 51 Ms D Feros, recent purchaser of No 21 Boyle Street was concerned for the visual and aural privacy presently enjoyed by the occupants of that dwelling in the ground level entertaining area near the pool. The applicant agreed that there would be the potential for people standing on the rear balcony to be able to see into No 21 Boyle Street garden area at an oblique angle despite the applicant agreeing to a condition for a privacy screen along the eastern side of the proposed balcony. In any redesign of the proposal these privacy impacts should be addressed. Bulk and scale 52 The bulk and scale of the proposal when viewed from No 21 Boyle Street could be gauged by viewing the surveyed height staves that had been erected in preparation for viewing on the site inspection. The proposed two-storey structure would be set off the boundary 782mm with the balcony over a single storey section of the proposal setback at 1,500mm. The balcony at this point is to be screened by a 1.6m high opaque glazed screen that would add to the bulk when viewed from the neighbour's entertaining area around the pool. 53 A first floor balcony off bedrooms was proposed at the same level in the curved roof design, however that balcony would have been inset further and limited in area so as to be not 'room-sized' as now proposed. The former design would have reduced the impacts of bulk and scale and this is to be preferred. There might be other designs that would maintain a bulk and scale and be more sympathetic in the streetscape than the curved roof design. There is a listed heritage item nearby that exhibits a bulk and scale that is most appropriate in this area and nearby development should bear a sympathetic relationship to such items. Garage width 54 Under the MRDCP the width of the garage would be limited to 40% of the width of the frontage of the land. The width of the proposed garage would be 6,000m and the allowable width is 4.88m. Should the application be redesigned this aspect of the design might be brought into compliance, perhaps with a tandem garage as was provided at No 21 Boyle Street. 55 For the above reasons, the appeal is dismissed. Orders 56 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 8.2005.385.1 lodged with the respondent council on 31 October 2005, as amended, seeking to alter and add to the existing dwelling house and to provide a new first floor at Lot 41, Section A, DP 2365, being No 23 Boyle Street, Mosman is refused consent.

3. The exhibits except for Exhibits A, C, D, E, H, 3, 4 and 10 are returned.

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