Hazouri v Mosman Municipal Council - [2021] NSWLEC 1196 - NSWLEC 2021 case summary — Zoe

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Hazouri v Mosman Municipal Council

[2021] NSWLEC 1196

Land and Environment Court (NSW)|2021-03-26

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Court

Land and Environment Court (NSW)

Decision date

2021-03-26

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Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Judgment

COMMISSIONER: 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 8.2020.164.1 for the demolition of an existing dwelling house and construction of a new four level dwelling house and associated development at 20 Stanton Road, Mosman (site).

[2]

Site and locality

I rely on Council's Statement of Facts and Contentions (Ex 1) for much of the factual material in this and the following section.
The site is legally described as Lot 6 DP 8983. It is located on the southern side of Stanton Road, which is the low side of the road. The site has an angled frontage of 16.46m to Stanton Road and an angled rear boundary dimension of 15.48m. The western side boundary dimension is 48.125m and the eastern side boundary dimension is 51.725m. The total site area is some 763m2.
The site falls approximately 13m from the street to the rear. The site contains a number of trees, most of which are located in the rear yard.
The locality more generally is also reasonably steep, and there are views available from public and private vantage points, given the setting in the immediate environs of Edwards Beach and Sydney Harbour.
The adjoining property to the west, 22 Stanton Road, is occupied by a three storey dwelling. The dwelling is designed to have its living areas and balcony oriented to the east to take advantage of views over the side boundary of the site, to the rear of the existing dwelling, and properties to the east.

[8]

Building height and wall height development standards contravention

The proposal would provide for a contravention of MLEP in two ways, each relating to its height:

Clause 4.3 provides that the height of a building on the site "not to exceed the maximum height shown for the land on the Height of Buildings Map", which in this case is 8.5m.
Clause 4.3A provides that a building on the site must not have a wall height that exceeds 7.2 metres.

The Applicant is seeking exceptions 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) of the MLEP 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 up the possibility of application of cl 4.6(2) of the MLEP in this matter by submission of written requests seeking to justify each of the contraventions. These written requests, each dated 25 March 2021 and prepared by Boston Blythe Fleming were tendered together as Ex O in proceedings (leave granted 26 March 2021). Henceforth I will refer to the written requests as follows: the written request referring to the wall height contravention will be referred to as WR1 with the written request referring to the building height contravention referred to as WR2.

[11]

Sharing of public and private views

WR1 undertook a view sharing assessment based on the approach adopted in s 4.3 of MRDCP from viewer positions at 19, 22, 24 and 26 Stanton Road. I can say now that I accept WR1's arguments that view loss to 19, 24 and 26 Stanton Road would be negligible or that there would be no impact.
In part as an aside, I will also note here that while the decision on "satisfaction" with regard to the tests in cl 4.6 of MLEP, are mine alone, it can useful to me in coming to such decision to have a mind to the views expressed in expert evidence. In respect to the point under consideration here, I note that the planning experts agreed that, having inspected surrounding properties, the view loss contention before the hearing should be limited to that experienced at 22 Stanton Road (Ex 3, par 118).
Turning to 22 Stanton Road (ie the property most at risk from view loss), WR1 made reference to a computer-aided view assessment, using surveyed height poles, which was prepared on behalf of the owners of 22 Stanton Road (Attachment A to Ex O, also provided in part within Council's bundle (Ex 2, Tab 6)). The planning experts in the case agreed in evidence that this study provided an accurate representation of the view impacts of the development from 22 Stanton Road (Ex 3, par 119).
WR1 found that (Ex O, p 88): "Given that the view analysis has identified that the proposal will have a negligible impact on views towards Middle Harbour, North Head, Middle Head and Balmoral Beach horizontally to an observer standing 1 metre from the living room window and adjacent balcony edge, I consider that a view sharing outcome is achieved and that the proposal, notwithstanding the building height breaching elements, is reasonable."
The above reference to "an observer standing 1 metre from the living room window and adjacent balcony edge" is a reference to the controls in MRDCP.
While I do not need to follow, in any precise way, particular development control plan provisions when evaluating the contravention of a local environmental plan's development standard, I do agree with WR1's conclusions here. Apart from what was readily observable to me on site, my reasons for this include that: (1) Council's expert (Ms Gordon) also agreed that the amended proposal was reasonable on view sharing terms and (2) a planning expert, engaged by the owners of 22 Stanton Road, who was present during the site view, was also satisfied with the amended proposal in regard to view sharing (Ex 9).
In regard to the maintenance of public views, WR1 noted the lower profile of the proposed building to its Stanton Road frontage. In agreeing with WR1s conclusion that public views are shared, I am aware of the agreement from Ms Gordon that the proposal "maintains appropriate view sharing from Stanton Road and from the public domain generally" (Ex 3, par 119).
WR1 has demonstrated that the first of the relevant wall height standard objectives to cl 4.3A of MLEP has been achieved.

[14]

To minimise the adverse effects of bulk and scale of buildings

First, I would say that I can agree with WR1 that the bulk and scale impacts of the proposal would be acceptable as far as 22 Stanton Road is concerned given the relative heights of the building at 22 Stanton Road compared to that proposed and privacy screen treatments.
The most significant issue for the proposal is its relationship with 18 Stanton Road, with bulk and scale impacts the point of particular attention.
The view sharing outcome has already been considered and is not a consideration in regard to 18 Stanton Road. I also note the privacy treatments proposed for 18 Stanton Road at ground level, through hedging of a fixed height in the pool area (proposed Condition 9) and through the setting back of the balustrade of the upper level balcony and the side boundary setback more generally.
In respect of this neighbour to the east, it is argued in WR1 that the proposal would be reasonable in overshadowing terms with reasonable levels of solar access between 9am and 3pm mid-winter and that, with the amendments, there would be no unreasonable visual privacy impacts, and that the visual massing perceptions, after amendments, is not much greater than would be experienced now (ibid): "… the Level 3 southern façade and balcony/balustrade alignments proposed ensure that the bulk and scale of the non-compliant building height elements has been minimised as viewed from the upper level west facing bedroom window of No. 18 Stanton Road. Having inspected the height profiles from the rear yard of this adjoining property, I am satisfied that the bulk and scale of the non-compliant building height breaching elements do not give rise to inappropriate or jarring visual impacts given the relative height of adjoining development, the recessive nature of the Level 3 building height breaching elements relative to the Level 2 building façade below and the screening afforded by existing and proposed intervening landscape elements."

[16]

Whether there are sufficient environmental planning grounds

WR1 argues that there are sufficient environmental planning grounds to justify the contravention. The grounds are somewhat dispersed throughout the written request. I will come to them below.
Consistent with my previous commentary, I will mention the view of Council's expert with respect to this topic. Ms Gordon did not believe that there were sufficient environmental planning grounds to justify the contravention. Ms Gordon's view was that it is, singly, the desire to "chase" a view over the top of 18 Stanton Road that is driving the design, which embodies "an excessively deep floor plate at Level 3" (Ex 3, par 102 and par 106 cited below). "In my opinion, the only reason for breaching the height controls in the manner proposed is to provide a deep floor plate at Level 3 so that the living area and private open space area obtain views to both the east and south, because other prop erties in the area have achieved this. This does not constitute sufficient environmental planning grounds for the breach of the height control."
Ms Gordon had a concern about wider effects and the public interest in retaining provisions of this kind into the future (Ex 3, par 107): "…such an approach, if continued on other sites into the future would effectively result in the abandonment of the height control provisions, with all subsequent applications using similar arguments to seek ever increasing breaches of the height controls."
Ms Gordon drew a link to cl 1.2 of MLEP which provides as follows: (a) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity,
In closing submissions, Council also raised a previous judgment of mine, Jacobs v Waverley Council [2019] NSWLEC 1232 (Jacobs), and the finding in that case that there were not sufficient environmental planning grounds to justify a contravention. Jacobs was concerned with an application for a secondary dwelling, which would be located within the backyard of an existing residential property. The circumstances were such that the proposal would involve a contravention of the maximum permissible floor space ratio standard under State Environmental Planning Policy (Affordable Rental Housing) 2009 and Waverley Local Environmental Plan 2012. In that case my finding was that, beyond the provision of private benefit, the written request's arguments in support of the contravention were generally concerned with proving up that the proposal would have nil or negligible adverse effects, at [49]. For me this was insufficient grounds in those circumstances.
In the case at hand, I believe that WR1 does demonstrate there are sufficient environmental planning grounds to justify contravening the development standard. While the arguments are dispersed through the document, when read together, it seems to me that WR1 is positing a line of argument comprising five inter-related planning grounds, particular to the case, which are sufficient in the circumstances.
First, is that it is reasonable to seek to provide for a substantial view corridor with proposal's for new homes or redevelopments in this setting. It is submitted that it is commonplace and it is reasonably expected that new homes will be designed for the harbour outlooks available in this Balmoral "amphitheatre". To this effect, eastern and south-eastern views are particularly sought after. It is argued that a redevelopment of 18 Stanton Road, which can be reasonably expected in this particular setting, would also seek to maximise its view. I agree that it is reasonable to seek out such an outcome, which of course only takes one so far.
Second, is that it is reasonable to seek to provide security for any obtained view corridor into the future. The site sits at an angle in Stanton Road. The angle is located at the boundary of 22 and 18 Stanton Road. East of the angle, the road reservation straightens to be more perpendicular to the eastern (harbour) views. While the angling of Stanton Road has, it is argued, assisted the sharing of eastern views between 24 and 22, and 22 and 20 (potentially), the straightening of Stanton Road at the boundary between 20 and 18 reduces that effect. Given (1) above, and the reasonable expectation of a redevelopment of 18 Stanton Road to seek to maximise its own outlook, then according to the Written Request, it is reasonable for a design at 20 Stanton Road to take some account of this, in view sharing terms ("future proofing view sharing") (Ex O, p 99). In my view, there are questions surrounding this planning ground, perhaps starting with the quality of the available views seeking to be secured and the otherwise consequences of the provision of such "security".
The third, fourth and fifth grounds are particularly interlinked, and I will consider them together when drawing my conclusion. The third is that the scale of the development is reasonable. It is argued that there is a compliant FSR, that the objects of the development standard have been achieved (which I have concurred with [45]) and that there has been some ratcheting back of the scale of proposal to something closer in massing to that which exists on the subject site at present (Ex O, p 100). "…the south-eastern corner of the level 3 glazed building façade and associated roof form has been setback to align with the southern rear wall of the existing dwelling house located on the subject property with the eastern return of the terrace balustrade in this location setback an additional 1 m beyond the projecting terrace slab to ensure that the balustrade will not be readily discernible as viewed from the ground floor eastern terrace area of the adjoining property."
Fourth, is that the design configuration is reasonable. At one level this is concerned with externalities such as what is seen to be reasonable side setbacks when compared to the existing. But I think of more pertinence here, in the consideration of "environmental planning grounds", is the internal design and particularly the intentions for the proposal's main living area to be located at the street level (or Level 3). Here I am mindful of earlier suggestions from Ms Gordon that the proposal scale back the extent of building footprint at Level 3, by swapping the living area with bedrooms at a lower level.
Fifth is that there are no unreasonable impacts associated with the proposal or contravention in particular. Something addressed in regard to the wall height contravention in that the objectives of the standard are achieved, and more widely in the narrowness of the contentions.
I note as well that WR1 also links in to the objects of the EP&A Act, mindful of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [23]. It is argued that the proposal promotes good design and amenity of the built environment, in accordance with s 1.3(g) of the EP&A Act, by (Ex O, p 111): "…(representing) good contextually appropriate design affording exceptional levels of amenity whilst maintaining appropriate streetscape and residential amenity outcomes in particular a view sharing outcome with surrounding development. Consideration was given to the redistribution of the compliant quantum of floor space to achieve a greater level of compliance with the height of buildings standard however alternate schemes were not adopted as they did not achieve the same view sharing and residential amenity outcomes as achieved through adopting the building alignments and heights proposed."
It seems to me that the line of argument referenced above do provide a coherent set of planning grounds sufficient to justify the contravention. While there would be limits to instances where it might be seen as reasonable to use an argument relating to view protection as a means of justifying a height contravention, there are unusual circumstances at hand here. First, there is the quality of the views which are available. Second, is that it is factual that there is a bend in the street alignment at the corner of the boundary between 20 and 18 Stanton Road and the opportunity to share views "horizontally" has, in a sense, run out. Third, is that the actual impacts, including view loss to the west, and broader amenity concerns in regard to 18 Stanton Road, are not unreasonable. Fourth is related to the fact of achievement of the objectives of the standard. When I add the distinctly positive design feature allowing for a reasonable sized open living area at the street level, I am satisfied that the grounds outlined in WR1 are environmental planning grounds, aligned to s 1.3(g) of the EP&A Act, and in this case they are sufficient to justify the contravention. In my opinion these planning grounds are quite different from the setting I found in Jacobs.
Together, the above findings mean WR1 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.

[17]

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 interpretation of the word "consistent" has been a consideration in many judgments of the Court. Here, briefly, I accept the interpretation that the word consistent is synonymous with compatible (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 [45]).
I agree with and rely on WR1'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 tree retention as proposed, the proposal is compatible with the fourth zone objective of maintaining the general dominance of landscape over built form. For the reasons outlined earlier, I am also satisfied that the proposal: (1) is of a height and scale that aligns with the desired future character, (2) reasonably maintains local amenity and public and private views, and (3) is consistent with the objective of minimising adverse effects of bulk and scale as a consequence. 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 MLEP are met in regard to the wall height contravention.

[25]

Other objections

The objecting submissions commonly raised concerns about height, visual bulk and scale and, of course, view loss. These matters are addressed above in the body of the judgment. I have given consideration to the further submissions from neighbours, also mindful of the amendments to the proposal. The key matters are examined below.
The owners of 24 Stanton Road raised the issue of visual privacy. I note that the planning experts were satisfied that the proposal is consistent with the requirements of Part 5.7 of MRDCP in relation to visual privacy (Ex 3, par 137). I am satisfied that the proposal would not provide an unreasonable outcome in visual privacy terms for 24 Stanton Road. My reasons are centred on the considerable distance attenuation which is available between the site and 24 Stanton Road and that it is reasonable to expect some loss of privacy will occur in settings such as this where householders are seeking to maximise views.
Loss of street parking was also of concern to neighbours, given high parking demand in local streets especially during peak times for the local beaches. I accept the advice of the traffic experts that the now proposed driveway layback at 4.5m (excluding wings) satisfactorily preserves on-street parking (Ex 5, par 8).
Concerns were also raised in relation to tree loss and planting. In particular there was a concern about the potential loss of Tree 7, of high landscape significance (Arboricultural Impact Assessment, Ex D, p 11) due to swimming pool encroachment and associated retaining walls. The arboricultural and planning experts are in agreement that the proposed changes to landscaping, including retaining walls and steps, and as embodied in conditions (particularly proposed Condition 9) mean there will be no unreasonable encroachment into Tree 7's protection zone (Ex 6, par 7).
Proposed landscaping was also seen to have potential to impinge on views from neighbouring properties or cause inconvenience through dropping of foliage. Revisions to landscape plans (replacing some of the taller species in the back yard), coupled with conditions of consent, have, according to direct oral evidence, satisfied the planning experts that views will be satisfactorily protected and no unreasonable inconvenience will occur to neighbouring properties related to maintenance and the like. I accept this opinion.
The neighbour to the south also raised concerns in regard to stormwater. I have been informed on the stormwater management system which splits outflows between Stanton Road and Edwards Bay Road and provides for an absorption system and spreader to address any problems of concentration of flows (Ex 4, par 14) and associated stormwater plans (Ex G). I accept the position of Council's expert that the proposed arrangement is satisfactory.