Burley Katon Halliday Pty Ltd v Mosman Council

Statutory framework

1. The site is zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (LEP). The development is permissible with consent.
2. Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 8.5m. Under cl 4.3A, a building in a residential zone where a maximum height of 8.5m applies, must not have a wall height greater than 7.2m. Under cl 4.4 and the Floor Space Ratio (FSR) Map the maximum FSR is 0.5:1. The site is in "Area 1" on the FSR Map and has a site area greater than 700sqm, therefore a under cl 4.4A the maximum FSR is 0.47:1. The proposal does not comply with the height and FSR controls and the applicant has submitted written requests to vary these standards under cl 4.6 of the LEP which provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (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. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence.
3. Under the LEP, the Walkway is identified as a Heritage Item (Item No. 1398) (cl 5.10), a Foreshore Building Line applies to the site (cl 6.3), it is within a Scenic Protection Area (cl 6.4) and a minimum landscape area is specified (cl 6.6). Council did not raise contentions in relation to these provisions.
4. Mosman Residential Development Control Plan (DCP) is relevant. The site is within the Sirius Slopes Townscape (Part 7.23), and the DCP includes Objectives and Planning Controls relevant to the Contentions, including Siting and scale (Part 4.2) and View sharing (Part 4.3).
5. Deemed state environmental planning policy, Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Deemed SEPP) is relevant. It provides Aims (cl 2) and matters for consideration including Foreshore and waterways scenic quality (cl 25) and Maintenance, protection and enhancement of views (cl 26).

The evidence

1. The Court heard planning evidence from Mr D Smith, for the applicant, and Mr K Nash, for the council. Mr A Williams, the designer of the proposal, also provided oral evidence on behalf of the applicant. The planners had agreed that the development application that was lodged with council on 28 May 2015 (Original Application) would have resulted in some loss of views from the top balcony of 11 Curraghbeena Road. During their site inspections they agreed that the proposed pop up roofs and fixed awning should be removed to maintain acceptable view sharing. These and other minor changes were incorporated into amended plans and the planners prepared a joint report (Exhibit 5) which reviewed how the amended plans addressed the contentions.
2. The Court visited the site and heard from Mr D Liddy, on behalf of the owners at 11 Curraghbeena Road. Their main concerns were the loss of water views from their property and from the Walkway. They considered this to be unreasonable as it resulted from a development which did not comply with relevant planning controls. They considered that non-complying alterations and additions to the dwelling had previously been approved and constructed and the proposal further exceeded the controls and added to the bulk and height of the building and impacted on views. They proposed that the eastern most 3m portion of the proposed flat roof over of Level 1 should be lowered by 850mm with a ceiling height of 2.4m over the living/dining/kitchen, to better comply with the height limit and retain their views. They acknowledged the changes that had been made to the Original Application, including the deletion of the fixed awning, but were concerned that it would be possible to erect a non-fixed awning, which would result in further view loss.
3. The planners did not consider that it was necessary or reasonable to lower the roof, as suggested by the objectors, as appropriate view sharing had been achieved through the amended plans. Furthermore, the suggested changes would result in a ceiling height of 2.4m over a living/dining/kitchen area and provide poor amenity.
4. In response to the evidence of the objectors and the site view, the Court raised concerns about the potential impact on views from the Walkway to the land water interface to the south and the opposite side of the harbour. Although the planners had agreed that there would be no adverse impact on public views this was not supported by any analysis of the views from the Walkway or the potential impacts, similar to the analysis that had been provided in the assessment of the impact on views from 11 Curraghbeena Road. The hearing was consequently adjourned to enable further view analysis from the Walkway to be undertaken.
5. At the resumed hearing the applicant sought and was granted leave to rely on amended plans (Exhibit F with further plans filed on 12 July 2016), prepared in response to the view analysis. These plans lowered the roof structure for a distance of 3m from the east end of level 1 by 300mm this reduced the parapet height of the north, south and east elevations from RL28.74 to RL28.44.
6. Mr D Smith and Mr K Nash prepared a further Joint Report, which included the view analysis (Exhibit 8) and an assessment of the views in accordance with the principles in Rose Bay Marina Pty Ltd v Woollahra Municipal Council and Anor [2013] NSWLEC 1046 and Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The planners concluded that: The proposed development which has been the subject of substantial amendment to the roof structure and the deletion of the fixed awning over the balcony leading from the main living area now represents a proposed built form which does not result in adverse view loss from any member of the public utilizing the public pathway that abuts the subject property immediately to the north. Any view loss is considered minimal and the principal views to the harbour foreshore and Sirius Cove are retained.
7. A further joint report was filed on 19 July 2016 to address Contention 4 in relation to wall height. In summary, the planners response to the Contentions concludes that the height, bulk and scale of the proposal is compatible with existing dwellings within the locality and with the desired future character and that, with the amendments, the development would achieve appropriate view sharing and privacy. They noted that there would be no adverse impacts on the views to the interface of the water and foreshore in both and easterly and southerly direction from 11 Curraghbeena Road. Furthermore, the retention of the front fence to 1.2m would permit filtered views to Sirius Cove from the road and the changes would retain views from the Walkway.
8. Mr Smith prepared written requests under cl 4.6 of the LEP to vary the Height of Buildings (cl 4.3 and cl 4.3A) and FSR (cl 4.4 and cl 4.4A) standards. The Requests conclude that compliance with the standards is unreasonable or unnecessary principally because the proposal meets the objectives of the standards and there are sufficient environmental planning grounds to justify contravening the standards. Mr Nash accepted that the Requests adequately address the requirements of cl 4.6.

Findings

1. Clause 4.6 of the LEP is a pre-condition that must be satisfied before consent may be granted. I am satisfied, as required by cl 4.6(4)(a), that the written requests have adequately addressed the matters required in cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the zone. In particular, the Requests note that the majority of the existing dwelling is within the height standard, including the wall height, but it is exceeded in some locations largely as a result of the steep topography of the site, which has been significantly modified. The proposal will in part reduce and in part increase the height of the building and the wall height but will result in no material impacts and will provide a built form that is compatible with the built form of other dwellings within the locality. In relation to the FSR standards, the Requests note that the increase in FSR is largely a result of internal reconfiguration and from a covered walkway with no increase in the footprint or the bulk of the dwelling. The proposal is also consistent with the objectives of the standards and the zone cl 4.6(4)(b). I am therefore satisfied that the requirements of cl 4.6 are met and accordingly there is power to grant consent to the development application.
2. The amendments to the application have resulted in appropriate view sharing from 11 Curraghbeena Road and from the public domain. I note the proposed 300mm reduction in the eastern end of level 1 is shown in the plans but that the parapet scales at 200mm and the floor to ceiling height is not dimensioned. During the hearing the experts expressed reservations about whether there would be adequate depth for the roof structure. It is therefore appropriate to include a condition which limits the height of the roof structure and parapet to RL28.44 to ensure that if greater depth is required for the structure that this is achieved by a reduction in the floor to ceiling height and the height of the doors rather than by an increase in the height of the parapet and the roof. The experts also agreed that the removal of the fixed awning improved views from 11 Curraghbeena Road. The objectors were concerned that this would be negated if temporary awning were to be provided, particularly as this may be able to be erected without the need for a development consent. To address this issue, I have included a condition which requires a development application be approved for any awning to the level 1 balcony.
3. I am satisfied that the contentions between the parties have been adequately addressed and are resolved and that the objectors' concerns have been properly taken into account. Consequently, I am satisfied that it is lawful and appropriate to approve the orders sought by consent of the parties.

Orders

1. By consent, the orders of the Court are: (1) The appeal is upheld; (2) Development consent is granted to development application no. 8.2015.84 for the erection of alterations and additions to a dwelling at Lot 1 DP933341 (No. 9) Curraghbeena Road, Mosman, subject to the conditions in Annexure A; (3) The Applicant to pay the Respondent's costs thrown away pursuant to s 97B of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed in relation to the amended plans (for which leave was granted) as referred to in the affidavit of Paul Nicholas Vergotis sworn 25 May 2016; and (4) The exhibits, other than Exhibits 1, B and F, are returned. Annelise Tuor Commissioner of the Court 151686.16 Tuor (C) (284 KB, 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: 26 July 2016