Garvey v Mosman Municipal Council - [2022] NSWLEC 1134 - NSWLEC 2022 case summary — Zoe

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Garvey v Mosman Municipal Council

[2022] NSWLEC 1134

Land and Environment Court (NSW)|2022-02-09

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-02-09

Catchwords

(2018) 233 LGERA 170
[2018] NSWCA 245 Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338
[2019] NSWLEC 61 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256

Source

Original judgment source is linked above.

Catchwords

(2018) 233 LGERA 170[2018] NSWCA 245 Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338[2019] NSWLEC 61 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256

Judgment (26 paragraphs)

[1]

JUDGMENT

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Mosman Council on 23 September 2021 of development application no. 8.2021.273.1 for alterations and additions to a dwelling house and carport, construction of a new pool and landscape works at 29A Parriwi Road, Mosman (the site).
In exercising the functions of the consent authority on appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.
The hearing was conducted in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act) and commenced with a conciliation conference, which comprised a view of the site and discussions between the parties. No member of the public sought to be heard in relation to the matter. Agreement was not reached and the conciliation conference was terminated. The proceedings were consequently dealt with as a hearing (s 34AA(2)(b) LEC Act) and the parties consented to that which occurred at the conciliation conference being evidence in the hearing.

[2]

[6]

Mosman Local Environmental Plan 2012

This LEP applies to the site. The site is within the R2 Low Density Residential zone and alterations and additions to a dwelling house are permitted with development consent.
The site is not a heritage item and is not located within a heritage conservation area.
As required by cl 2.3(2) of the LEP, I have had regard to the R2 zone objectives in the determination of this appeal. Those objectives are: Zone R2 Low Density Residential 1. Objectives of zone • 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. I am satisfied that the proposed development is consistent with those objectives because the proposed alterations and additions will not infringe the objectives. The changes are in respect of an existing dwelling and will not materially alter the overall height and scale of the existing single dwelling which is already part of a suite of existing developments, which define both the existing and future character of the local area.
Clause 4.3 sets a maximum building height of 8.5 m for the site, which both the existing building and elements of the proposed building exceed.
Clause 4.3A sets a maximum wall height of 7.2 m for the site, which both the existing building and elements of the proposed building exceed.
Clause 4.4, in combination with cl 4.4A, sets a maximum floor space ratio of 0.5:1 for a building on the site. The proposed floor space ratio (FSR) is 0.52:1.
The application is accompanied by three written requests pursuant to cl 4.6, which seek to justify contraventions of the development standards in cl 4.3, 4.3A, 4.4 and 4.4A respectively. These requests are each considered in this judgment and have been determined favourably to the Applicant.
Clause 6.4 applies to the site, as the land is identified as Scenic Protection Area on the Scenic Protection Map. No contention has been raised by the Respondent with respect to this clause and I am satisfied that the requirements of subcl (3) (minimise visual impact and maintenance of existing natural landscape and landform) have been met.
Clause 6.6 applies to the land by reason of its R2 zoning and as such, the consent authority 'may refuse' to grant development consent unless the minimum landscaped area of the site is 35 per cent. Clause 6.6 is not a development standard. The proposed landscaped area is 33 per cent, a deficit of 9 m2. The Respondent no longer contends that the application should be refused on this ground and it is agreed, and I accept, that the objectives of the control are met notwithstanding the minor shortfall in area. I have previously noted that the site area is 500.2 m2. I observe that, had the site been less than 500 m2, the required minimum landscape area would have been 30 per cent (cl 6.6(3)(a)(ii)) which the proposed landscaping exceeds.

[14]

Eastern retaining wall

The purpose of the wall is to retain the extended rear garden area to make it a useable level space. The wall will be set back from the eastern boundary by the width of the right of carriageway (approximately 3 m). As amended, the overall height of the wall will range in height from approximately 4 m at its northern end to 5.7 m at its southern end over a length of approximately 11 m. The wall is to be clad with sandstone. Above the wall it is proposed to erect a 1.2 m metal palisade fence, which will enclose the garden.
Both planning experts agree that there should be a step or transition in the wall to reduce its apparent scale and provide an opportunity for deep soil planting in the setback, so as to soften the wall's appearance.
The visibility of the wall will be extremely limited and will only be readily apparent to users of the private rights of way off James Street. This is because the wall is at a similar alignment to an existing concrete wall at the rear of the property immediately to the north and is lower than that wall by approximately 2 m in proximity to the common boundary. The neighbouring property to the east is screened by dense planting. Views from that property are to the east, away from the site, and it is unlikely that the screen would be removed over time.
The Applicant proposes that the wall step back to provide a 600 m planter bed. The planter setback would be approximately 3 m above the surface of the right of carriageway, with the inner wall then rising the remaining 1 m. A gate is proposed in the fence on top of the wall to allow maintenance of the planter.
The Respondent, through Mr Wells, maintains that the step should commence approximately 1.2 m above the surface of the right of carriageway. Mr Wells maintains this would allow planting of shrubs and trees at a lower level to better screen the wall and enable maintenance of the planter from ground level.
Mr Wells referred the Court to the DCP and objective O9, and Planning Control P22 in support of his position. These provisions are not numerically prescriptive but are intended to promote buildings which are sited to relate to the topography, preserve existing vegetation and promote new planting.
Mr Betros responds by arguing that locating the planter bed in proximity to the rear garden will enable a better relationship between the vegetation in the planter and the landscaped area above. He states that the construction of the wall will improve the useable area of the rear yard and that it will not be seen from any relevant viewing points within the neighbouring properties. Further, that it is not dissimilar in scale to the concrete retaining wall on the adjacent property to the north. He also expressed concerns that trees or shrubs planted 1.2 m above the level of the right of carriageway, as suggested by Mr Wells, may grow to impede vehicular access to the garage of the property to the south.

[16]

The location of the proposed southern infill wall

The alterations and additions include the enclosure of a void area at the lower two floors in the south western corner of the existing building. The upper floor currently overhangs this void area and is supported by a column, which is to be incorporated in the new curtain wall. Enclosure of the void area would create useable rooms and floor space in this location. The area to be enclosed is below the Parriwi Road level and would not be visible in the streetscape. There will be no shadow impact upon the neighbour to the south and the wall would not be visible from within that dwelling. The new wall will have no openings within it, so there will be no privacy impacts arising from its construction.
Of concern to the Respondent is that for a length of 2 m, the eastern end of the new wall would stand between 750 mm and 900 mm off the common boundary, which is the case for the existing wall of the upper floor above the void area. The new wall would be in vertical alignment with this existing wall.
For the Respondent, Mr Wells has drawn the Court's attention to Pt 4.2 of the DCP and to objective O6, which is to promote adequate side setbacks to provide spatial relief between buildings. Planning Control P8 sets a minimum side boundary setback of 900 mm for single storey, 1.5 m for two storey and 3 m for three storey. In the Rosherville/Wy-ar-gine Townscape area, which includes the site, the minimum side boundary setback is 1.5 m, but this is to allow views between buildings and deep planting. It is agreed that neither purpose is relevant to the location of the subject works.
Mr Wells is also critical of the unmodulated façade, which he believes would be created if the wall is constructed as proposed by the Applicant. He referred to Pt 5.1 of the DCP, objective O2, which is to control building bulk by incorporating facades that are well articulated. Expansive uniform elevations are to be avoided (Control P1). He is also concerned about the precedent which could be created for future development unless a minimum setback of at least 900 mm is imposed in this case.
In Mr Wells' opinion, the setting back of that section of the wall to 900 mm would provide modulation, because it would be indented from the wall above and that would be an acceptable outcome. He does not insist on the setbacks referred to in the DCP in this particular case.
In response, Mr Betros states that the space between the existing buildings on either side of the boundary acts as a service way, that the neighbouring building is closer at one point than 900 mm to the common boundary and that there are no amenity impacts caused by the location of the wall, and no objection from the neighbour to the south. He notes that the new wall will follow the line of the existing second floor wall and that, when consideration is given to the whole of the southern wall and not just the section of new wall, there is ample articulation due to the presence of a pronounced step in the existing wall approximately halfway down its length.
Mr Betros believes that it would detract from the design of the building if a 900 mm setback was imposed and would produce an unsightly and awkward visual outcome, as the indented new wall would make the existing upper floor appear top-heavy. Mr Betros draws attention to Control P2 and Control P4 of Pt 5.1 of the DCP: 'Extensive void areas under buildings are discouraged' and 'the design of additions and alterations to existing buildings should demonstrate architectural unity with the existing building'. It is Mr Betros' evidence that the wall location is compliant with these controls and that to require the wall to be set back a further 150 mm (reducing over a 2 m length) would provide no tangible benefit.
Both experts agree that the location and construction of the wall as proposed by the Applicant is compliant with the National Construction Code.

[18]

Clause 4.6 - The need to observe the legal requirements

Clause 4.6 provides a defined pathway to development consent, notwithstanding that a development would contravene a development standard imposed by an environmental planning instrument such as the LEP. A development standard is defined in s 1.4 EPA Act.
Clause 4.6 has been the subject of consideration in a number of cases in the Land and Environment Court and the NSW Court of Appeal. These include Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118('Initial Action'); Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61('Baron'); Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 and RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 ('Rebel').
So far as is relevant, cl 4.6 in the LEP is in the following terms: 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 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.
The permissive power in cl 4.6(2) to grant consent to development that contravenes a development standard is subject to conditions that must be met before the power can be exercised (Initial Action at [13]; Rebel at [22]).
There are three conditions which must be met in order to enliven the power in cl 4.6(2).
First, the consent authority must consider a written request from the Applicant which is of a specified content. It must positively demonstrate two things: 1. That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)). This is usually done by demonstrating that the objectives of the standard are achieved notwithstanding the non-compliance (Initial at [17]). 2. That there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
The justification must focus upon the breach (the aspect or element of the development that contravenes the development standard) and not upon the development as a whole package (Initial at [24]). These matters are outcomes and not processes (Baron at [77]).
Second, the consent authority must 'evaluate' the written request (this is a different task to the obligation to 'consider' in cl 4.6(3)(a). The consent authority must form the opinion that it is satisfied that the written request has 'adequately addressed' the requirements in subcl 3 (cl 4.6(4)(a)(i)). The process leading to that state of satisfaction, or otherwise, will often require the consent authority to analyse whether it believes that the written request has, in fact, demonstrated each of the matters in cl 4.6(3). The request cannot 'adequately' address the matters required to be demonstrated by cl 4.6(3) if it does not in fact demonstrate those matters (Baron at [78]).
Third, the consent authority must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives of the zone in which the development is proposed to be carried out (cl 4.6(4)(a)(ii)).
With respect to cl 4.6(4)(b), although s 39(6) of the LEC Act enables the Court to grant consent without obtaining or assuming the concurrence of the secretary, the Court should still consider the matters in subcl 5 (Initial at [29]).

[20]

The floor space ratio development standard is exceeded

Clause 4.4 and cl 4.4A of the LEP set a maximum FSR for a building on the site of 0.5:1. Based upon the site area of 500.2 m2, the permissible Gross Floor Area is 250.1 m2. The building has a proposed FSR of 0.52:1, an exceedance of 0.02:1 or 12 m2.
The Applicant relies upon a written request dated February 2022 (Exhibit D) which seeks to address the requirements of cl 4.6(3) of the LEP to overcome the exceedance of the FSR development standard.
The request argues that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are achieved despite the non-compliance.
The relevant objectives of cl 4.4 of the LEP are as follows: 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential - (i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and (ii) to provide a suitable balance between landscaping and built form, and (iii) to minimise the adverse effects of bulk and scale of buildings, (iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,
Clause 4.4A applies to a building on land shown within 'Area 1' on the FSR Map. For a site, such as the present, with a site area of less than 700 m2, the maximum FSR is 0.5:1. There are no objectives stated for cl 4.4A, but it is reasonable to infer that the objectives in cl 4.4 are applicable to cl 4.4A.
The request relies upon a number of matters, including the following: 1. That the desired future character is fixed by the built form controls in the LEP and the existing built form, particularly on the eastern side of Parriwi Road. The proposed FSR variation will not generate any inconsistency with the desired future character. Its bulk and scale will appear similar to that of the existing dwelling and the surrounding dwellings. 2. The dwelling presents to Parriwi Road as a single storey development, whilst the height limit envisages a two storey height limit. 3. The minor nature of the FSR variation ensures that it will not generate any inconsistency with the desired future character. 4. The proposed built form will be within a landscaped setting, which will be enhanced by comparison to the existing extent of landscaping on the site. 5. Adverse effects of the bulk and scale of the building are minimised because the additional FSR is contained within a void space and does not generate any unreasonable bulk and scale impacts to the streetscape or surrounding properties. The glassline extensions to the rear are confined within existing masonry blade walls. 6. The proposed FSR variation does not generate any significant excavation and the alterations and additions are sited within the existing building footprint.
Next, the request relies upon a number of environmental planning grounds to justify contravening the development standard. These include: 1. The variation is minimal, being 12 m2. 2. The majority of the dwelling is concealed from the public domain and the alterations and additions which give rise to the FSR exceedance are sited below street level or concealed at the rear of the building. 3. The additional FSR does not generate any adverse visual or shadow impacts and does not alter the physical presence of the dwelling when viewed from the public domain or surrounding properties.

[21]

The overall height standard is exceeded

Clause 4.3 of the LEP sets an overall height limit of 8.5 m for the site. The existing maximum height limit is 9.14 m, measured at the centre of the main ridgeline. The proposed alterations and additions do not exceed the current maximum height of the existing building.
There are three elements of the alterations and additions which exceed the height limit: 1. The corner of the re-aligned carport roof (approximately 300 mm). 2. Two skylights in an area of the main roof already above the 8.5 m height limit. 3. A privacy screen on the southern side of the upper deck which, when erected, will remain below the level of the existing roof above it.
The Applicant relies upon a written request dated December 2021 (Exhibit E) which seeks to address the requirements of cl 4.6 of the LEP to overcome the exceedance of the overall height standard.
The request argues that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are achieved despite the non-compliance.
The relevant objectives of cl 4.3 are: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential - (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.
The request relies upon the following matters in support of its claim that the proposal achieves the objectives of the development standard: 1. Those elements which exceed the maximum height limit do not compromise public and private views because they are contained within the envelope of the existing building. The additional components beyond that which exist are limited to the altered carport roof, which will generally be lower than the existing carport roof, two skylights which will protrude only marginally above the existing roof and the privacy screen on the southern side of the upper level balcony which will be below the existing roof overhang and which will maintain and improve privacy. 2. The visual impact of the building, particularly when viewed from the harbour and surrounding foreshores, will be unchanged from the existing structure. 3. The building will remain compatible with the desired future character of the area in terms of building height and roof form, because its building height will remain unchanged and its roof form (over the carport) will generally be lower than the existing carport roof, except in the south eastern corner, which will be 300 mm above the existing roof in that location. 4. The adverse effect of bulk and scale of the building is minimised because the components of the proposed built form above the height limit have no adverse visual impact when viewed from public or private domain. They will not change the existing bulk and scale of the building.
The request identifies a number of environmental planning grounds to justify contravening the development standard. These include: 1. The alterations which penetrate the 8.5 m height limit have no visual, acoustic or other amenity impact. 2. The re-design of the carport roof results in the height of the roof closest to the street front being reduced, which is considered to have a positive streetscape outcome. 3. The skylights retain solar access to the property's primary living areas and the privacy screen on the upper balcony removes the opportunity for overlooking of the neighbouring property to the south which currently exists. 4. The relevant alterations retain views from public and private vantage points notwithstanding the height variation.

[22]

The wall height standard is exceeded

Clause 4.3A(4) of the LEP sets a maximum wall height of 7.2 m for a building on the site. The existing building already exceeds this control at a number of locations.
The eastern wall to the proposed second floor dining and lounge room is to be relocated approximately 600 mm to the east of the existing glassline. The extension is beneath the existing main roof and the overall eave height will not change.
The Applicant relies upon a written request dated February 2022 (Exhibit F) which seeks to address the requirements of cl 4.6 to overcome the exceedance of the wall height development standard.
The request argues that compliance with the standard is unreasonable or unnecessary as the objectives of the standard are achieved despite the non-compliance.
There are no objectives specified for cl 4.3A but it may be assumed that the objectives for cl 4.3, which are set out above, are relevant. It is likely that the 7.2 m wall height control is intended to encourage a pitched roofed building. It is noted that the buildings on the eastern side of Parriwi Road generally do not have pitched roofs.
The request argues that compliance with the standard is unreasonable or unnecessary as the objectives of the development standard are achieved despite the non-compliance.
The request relies upon the following matters in support of this claim: 1. There is no increase to the existing overall wall height of the building and the movement of the existing glassline in an easterly direction is shielded by existing masonry blade walls, and the extended glassline will not impact upon public or private views and is visually recessive when seen in the context of the existing building, which must be seen as compatible with the desired future character of the area, because that character includes the existing buildings in proximity to the site. 2. The views from the buildings on either side of the subject site are oriented to the east, away from the area of the extended glassline.
The request relies upon a number of environmental planning grounds to justify the contravention of the development standard. Most relevantly, the request argues that the re-alignment of the glazing to the eastern façade does not add any appreciable bulk to the dwelling and will be concealed behind the existing blade walls to the balcony. Further, the re-alignment of the glazing by 600 mm will have no adverse impact upon public or private amenity. It will be largely invisible from any vantage point and will remain below the existing roof line.

Garvey v Mosman Municipal Council

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Judgment (26 paragraphs)

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