COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under ss 8.6(2) and 8.7(1) of the Environmental Planning and Assessment Act 1979 against the refusal by the Mosman Council (the Respondent) of Development Application 8.2019.65.1 (the Development Application) which proposes substantial alterations and additions to a dwelling house constituting construction of a new dwelling and swimming pool (the proposed development) at 38 Burrawong Avenue, Mosman (the site).
The appeal was listed for mandatory conciliation on 30 September 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).
The Court granted leave for the matter to commence with an onsite view. In the company of the parties and the experts, I was taken to the following properties in order to hear submissions from the owners:
1. Ms Margaret Ward, of 40 Burrawong Avenue drew my attention to the visual bulk and scale that would be presented close to the southern boundary of the property, and with sightlines to a ground floor living area, and external covered patio, and first floor dressing room, study and daughter's bedroom.
2. Mr Alex Pope of 36 Burrawong Avenue submits that recent refurbishment of their home relocated the living, dining and kitchen areas to make the most of the northerly aspect that would be overshadowed by the proposed development.
3. Mr Greg Curson, of 19 Silex Avenue submits that the proposed development would result in view loss to a portion of the harbour currently enjoyed from an outdoor entertaining terrace, and a reduced pitch to the roof of the proposed development would substantially resolve a number of the concerns held by all neighbouring properties.
I was also taken on to the subject site to view the existing levels and setbacks on the site including to the southern path leading to the side entry, and to the rear yard to understand the potential sightlines to 40 Burrawong Avenue from the ground floor terrace at the rear, and the change in levels proposed by the landscape plans.
In the interests of ensuring the conciliation discussions took account of the particular spatial aspects of the contentions and the objector submissions, the conciliation conference commenced onsite during which a number of amendments were agreed. I granted an adjournment for the Applicant to prepare amended plans, and reconvened via Microsoft Teams at 2pm at which time the Applicant advised that all amendments agreed to had been achieved and amended plans would be finalised overnight.
On this basis, I granted a further adjournment to the conciliation to reconvene at 10am on the second day at which time a further adjournment was granted, reconvening at 3pm.
At this stage of the conciliation conference, the parties reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 1 October 2020.
The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [39].
I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons set out in my decision that follows.
The site is located within the R2 Low Density Residential zone identified by the Mosman Local Environmental Plan 2012 (MLEP), in which dwelling house development is permitted with consent, and wherein the 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 proposed development exceeds both the height of buildings standard at cl 4.3 of the MLEP, and the additional height provisions at cl 4.3A of the MLEP and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the MLEP.
The relevant objectives of the height standard at cl 4.3 of the MLEP, are in the following terms:
(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,
[2]
The contravention of the height of buildings standard is upheld
A maximum height of 8.5m applies to the site, and the amended plans indicate a ridge height with a relative level (RL) of 76.090 AHD. The written request, prepared by ABC Planning dated October 2020, states the maximum height is 9.14m, which measures the exceedance at 640mm using an interpolated ground line agreed by the planning experts.
Clause 4.6 of the MLEP provides the Court with the power to grant consent to the development even though the development would contravene the development standard found in cl 4.3 of the MLEP, but that power is subject to conditions.
As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), for the Court to have the power to grant development consent for a development that contravenes a development standard, subcl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:
1. The proposed development will be consistent with the objectives of the particular standard in question (subcl 4.6(4)(a)(ii)), and
2. The proposed development will be consistent with the objectives of the zone (subcl 4.6(4)(a)(ii)),
3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (subcl 4.6(3)(a), and
4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (subcl 4.6(3)(b)
I am satisfied that the written request adequately addresses the matters in subcll 4.6(3)(a) and (b) for the following reasons:
1. Firstly, that compliance with the height standard is unreasonable and unnecessary because:
* The height variation is agreed by the experts to not generate any adverse streetscape impacts when viewed from Burrawong Avenue, including in respect of the heritage significance of 40 Burrawong Avenue and due in part to the exceedance being located behind the ridgeline at the frontage which is, itself, complying.
* The amended plans minimise the adverse affects of visual bulk and scale through the greater setback to the northern boundary than the existing dwelling, amended landscape planting and screening to the boundary fence and rear ground floor terrace, the removal of the north facing terrace, and the amended form of the roof.
* While a complying development to the north of 36 Burrawong Avenue would likely remove sunlight to the north facing ground floor windows, amendments to the south western corner of the first floor plan in the proposed development achieves 3 hours of sunlight to the area nominated by Mr Pope as the 'meals area'.
* Window openings to the side boundaries are translucent up to a height of 1.5m to avoid overlooking into neighbouring properties and achieve visual privacy.
1. Secondly, I am satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard for the reasons that follow:
* the existing partial excavation of the site to the north contributes to the exceedance to the extent it determines the ground floor level, with an impact on the upper level and its roof.
* the proposed development, when viewed in the context of its streetscape, will not result in adverse impacts. In particular, the ridgeline at the front of the property complies with the height standard and it is only behind this frontage that the exceedance occurs.
* The amended roof form does not result in view loss from neighbouring properties. In particular, I accept that the view from the lower ground outdoor area at 19 Silex Road is largely unaffected as a result of the lower ridgeline and lower pitch being adopted by the Applicant, with only minor incursion by the roofline of the proposed development in to the water views.
Next, I am satisfied that the proposed development is consistent with the objectives of the height standard, and of the zone. Firstly, the objectives of the standard are met, in my view, as the exceedance does not adversely affect public or private views and would be virtually imperceptible when viewed from the harbour or its foreshore. Further, the roof form, materials and setting of the proposed development, including landscape planting and screening are in substantial conformity with the desired future character of the area and where overshadowing occurs to the 36 Burrawong Avenue, the shadow is generated by the complying aspects of the proposed development.
Secondly, consistency with the objectives of the R2 zone at [11] is achieved in proposing a single dwelling in a landscaped setting and which minimises the adverse effects of bulk and scale for reasons stated at [17(1)] (second dot point)
In arriving at the state of satisfaction required by subcl 4.6(4)(a)(ii), I note that there are particular features or aspects to the site that impose certain relationships between the adjoining properties on Burrawong Avenue. Firstly, the fall of Burrawong Avenue results in a stepping down towards the north, making some overshadowing to the south and the imposition of bulk to the north, to some extent, inevitable.
The concurrence of the Secretary has not been obtained in this matter. Nonetheless, the Court has the power under subcl 4.6(2) of the MLEP to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in subcl 4.6(5) of the MLEP (Initial Action at [29]).
I also have considered the matters in subcll 4.6(5)(a), (b) and (c) including whether any matter of significance for State or regional environmental planning is raised, the public benefit of maintaining the standard and have decided that in the circumstances of this case for the reasons outlined above that the standard can be contravened as there is no apparent public benefit maintaining strict compliance with the standard in the circumstances of this case.
For those reasons, and the reasons set out above, I find that the Applicant's written request made pursuant to cl 4.6 of the MLEP to contravene cl 4.3 of the MLEP should be upheld.
[3]
The contravention of the wall height standard is upheld
Relatedly, the proposed development exceeds the wall height standard of 7.2m at cl 4.3A of the MLEP by a dimension of 300mm. For reasons similar to those set out at [20], the exceedance is limited to the northern side of the site where the site falls substantially when compared to the southern side.
That said, the written request notes that if the agreed interpolated ground line at [14] is adopted, the wall height would comply given the measurement would be taken from a line that rises from the northern boundary to the southern boundary, as shown in the diagram re-produced below.
Nevertheless, the Applicant's written request maintains that, if an exceedance is assumed, that compliance with the wall height standard at cl 4.3A is unnecessary or unreasonable on grounds that are identical to those set out at [17(1)], and as the exceedance is not, of itself, responsible for any adverse or unreasonable shadow impacts.
Furthermore, the written request cites environmental planning grounds it regards as sufficient to justify the contravention that are identical to those set out at [17(2)].
Finally, the written request relies upon the same grounds to assert that the public interest is met due to consistency with the objectives of the wall height standard and of the zone as set out at [18] and [19].
I am satisfied that the proposed development is in the public interest and, given the minor nature of the exceedance of the wall height, if indeed there is an exceedance, it is sufficiently minor for the Secretary's concurrence to be assumed in accordance with subcl 4.6(4)(b) of the MLEP.
As a result, I find that the Applicant's written request made pursuant to cl 4.6 of the MLEP to contravene cl 4.3A of the MLEP should be upheld.
[4]
Other matters
The site adjoins an item of local heritage significance at 40 Burrawong Avenue, engaging the provisions of subcl 5.10(4) of the MLEP. I am satisfied that the heritage significance of the item is not adversely affected by the proposed development for three reasons. Firstly, the item at 40 Burrawong Avenue is set well back from the street, and from the boundary adjoining the proposed development. The effect of this generous setback, combined with mature landscape planting, is that the proposed development and heritage item are not seen together. Secondly, while I note the concerns held by the owner of the heritage item as to the bulk and scale of the proposed development, I note the amended height of the primary ridgeline of the proposed development is lower than the average ridgeline of the heritage item. Thirdly, on the basis of the Respondent's heritage advisory referral dated 27 May 2019.
The site has a maximum FSR of 0.5:1, but as it is located within Area 1 as shown on the relevant map at cl 4.4(A) of the MLEP, the maximum FSR is calculated by the addition of 0.5:1 for the first 700m2 of site area and 0.4:1 for the remaining site area. Having a site area of 766.4m2, the maximum permitted Gross Floor Area (GFA) is (700 x 0.5) + (66.4 x 0.4) equalling 376.56m2. The proposed FSR is 375.5m2 and so complies.
On the basis of the Bushfire Hazard Assessment prepared by Bushfire Planning & Design dated 25 March 2019, and the conditions of consent, I am satisfied that the proposed development will conform to the requirements of the 'Planning for Bush Fire Protection' document as required by subs 4.14(1)(a) of the EPA Act.
In respect of cl 7 of State Environmental Planning Policy 55 - Remediation of Land (SEPP 55), I am satisfied that the subject land has been residential in nature and is or will be made to be suitable for the development.
While the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour Catchment SEPP) applies to all of the Mosman area, the site is not identified in the Foreshore and Waterways Area, is not a strategic foreshore site, is not a heritage item, and is not within the wetlands protection area and I am satisfied the proposed development is consistent with the aims of the Sydney Harbour Catchment SEPP.
Finally, I am satisfied that the application is accompanied by a BASIX certificate, dated 1 October 2020 and prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are:
1. Leave is granted to the Applicants to rely upon the following amended architectural plans (revision E) prepared by Weir Phillips Architects dated 30 September 2020:
1. DA01 - Site Analysis and Roof Plan;
2. DA02 - Basement/Garage Plan;
3. DA03 - Ground Floor Plan;
4. DA04 - First Floor Plan;
5. DA05 - Roof Plan;
6. DA06 - Street and Rear Elevations (Presentation);
7. DA07 - North and South Elevations (Presentation);
8. DA08 - East (Front) Elevation;
9. DA09 - West (Rear) Elevation;
10. DA10 - North Elevation;
11. DA11 - South Elevation;
12. DA12 - Ground Floor Plan (Full Site);
13. DA13 - First Floor Plan (Full Site);
14. DA15 - Sections AA; and
15. DA16 - Sections CC and DD.
1. Leave is granted to the Applicants to rely upon the following amended landscape plans (revision G) prepared by Melissa Wilson Landscape Architect dated 1 October 2020:
1. LS01 - Site Plan;
2. LS02 - Landscape - Front Yard; and
3. LS03 - Landscape - Rear Garden.
1. Leave is granted to the Applicants to rely upon the following documents prepared by ABC Planning dated October 2020:
1. Request for variation to development standard under cl 4.6 of the Mosman Local Environmental Plan 2012 in respect of cl 4.3 of the Mosman Local Environmental Plan 2012; and
2. Request for variation to development standard under cl 4.6 of the Mosman Local Environmental Plan 2012 in respect of cl 4.3A(4) of the Mosman Local Environmental Plan 2012 (collectively, cl 4.6 Requests).
1. The Applicants' cl 4.6 Requests seeking variations to the height of building and wall height controls under cll 4.3 and 4.3A of the Mosman Local Environmental Plan 2012 are well founded and are upheld.
2. The appeal is upheld.
3. Development Consent is granted to 8.2019.65.1 for demolition of a dwelling house and swimming pool, construction of a dwelling house, swimming pool and landscaping works at 38 Burrawong Avenue, Mosman subject to the conditions in Annexure "A".
[5]
Commissioner of the Court
Annexure A (269957, pdf)
Plans (20591680, pdf)
[6]
Amendments
09 October 2020 - Correction to cover sheet
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Decision last updated: 09 October 2020