Mullins & Mullins v Mosman Municipal Council

JUDGMENT:

• 15 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10063 of 2004 Mullins & Mullins v Mosman Municipal Council

1 This was a class 1 appeal No. 10063 of 2004 between Mullins & Mullins and Mosman Municipal Council in regard to the deemed refusal of alterations and additions to a house at No. 2 Milner Street, Mosman. The matter was dealt with by an on-site hearing on 28 May 2004 attended by: s Ms Julie Walsh, solicitor for the council s Mr Mark Campbell, barrister for the applicant s Mr Stuart Harding, consultant town planner for the council s Mr Robert Staas, consultant heritage architect for the council s Ms Lyndall Iron and Mr David Iron objectors of 86 Prince Albert Street, Mosman s Ms Margy Wash, objector of 82 Prince Albert Street, Mosman s Mr Peter Mullins and Ms Elizabeth Mullins 29 Hillfield Road, Oundle, United Kingdom, owners of 2 Milner Street s Ms Linda Hume, consultant architect to the applicant s Mr John Sheehan, chartered town planner and support for Mr Campbell s Mr Owen Kimberley, architect of the design s Mr Michael Dunbavan of No. 11 Allister Street, Cremorne. 2 During the hearing an adjournment was granted to enable amended plans to be drawn and notified and the hearing resumed on 28 July on-site and was attended by: s Ms Julie Walsh, solicitor for the council s Mr Mark Campbell, barrister for the applicant s Mr Stuart Harding, consultant town planner for the council s Ms Linda Hume, heritage architect for the applicant s Mr John Sheehan, chartered town planner and support for Mr Campbell s Mr Owen Kimberley, architect of the design s Mr Michael Dunbavan of No. 11 Allister Street, Cremorne 3 Issues in the original hearing were in Exhibit 6 and could be summarised as: (a) Height exceedance (b) Bulk and Scale (c) Streetscape (d) Affects on neighbours views towards the harbour (e) Architectural unity of the house with the extensions as proposed and (f) Location of the house between a heritage item at No. 4 Milner Street on the west and the boundary of the Bradley Head Road Conservation Area on the east. 4 All these issues related to the raising of the roof of the existing house and insertion of large dormer windows to provide a lst floor master bedroom/study and en-suite. It also involved the conversion of a flat roof over a family room on the south side to a hipped roof. 5 On 28 May the owners who lived in England attended the hearing and heard the evidence and instructed their experts to prepare amended drawings. 6 The respondent's evidence was heard from: s Mr Stuart Harding, consultant town planner for the applicant s Mr Robert Staas, consultant heritage architect for the council s Ms Lyndall Iron and Mr David Iron objectors of 86 Prince Albert Street, Mosman s Ms Margy Wash, objector of 82 Prince Albert Street, Mosman Also Ms Walsh represented other objectors whose written letter was in evidence that being Dr and Mrs Medianik, owners of No. 84 Prince Albert Street. Numbers 82 and 84 were on the east side of the proposal. Number 86 was across the street uphill of the proposal.

7 The applicant's evidence was heard from: s Ms Linda Hume, heritage architect and s Mr Owen Kimberley, architect 8 During the initial hearing it was discovered there was floor space under the subject house that when added to the additions took the proposal over the allowable floor space ratio (FSR). 9 During the adjournment the revised drawings lowered the roof so there was no exceedance of the hight limit, reduced the dormer windows and their roofs and retained the flat roof to the family room. These plans were renotified and Mr & Mrs Iron withdrew their objection, but Mrs Walsh and the Medianiks maintained their objections. 10 Mr Staas' suggestions being largely complied with and Mr Harding having inspected the impact of the revised proposal on the objector's houses, Mr Harding now recommended approval of the proposal. 11 The applicant had erected on the house a profile of the revised main roof alterations including the eastern dormer window so that the impact could be clearly understood. Having seen this the Court agrees with Mr Harding's opinion in Exhibit 9. Seen from the rear decks of Nos. 82 and 84 the proposal is now largely contained within the profile of the existing main roof of the house and does not materially impact on views towards the harbour. The balcony to the master bedroom that still concerns Nos. 82 and 84 would only have one corner of it seen from the neighbours and it does not block any substantial part of the view towards the harbour. The flat roof of the family room is retained and the previous hipped roof proposal would have been the main view obstruction. Therefore the view will remain substantially as is. It was noted two existing sewer vents stood high beside the flat roof in the view line. The applicant volunteered a condition to lower or relocate those pipes to minimise or remove their existing impact. 12 Persons on the proposed master bedroom balcony would be unlikely to look back towards the neighbours, from the only corner of the balcony from which that observation could be made, as the harbour view was in the opposite direction. In any case there was existing mutual overlooking of the backyards at Nos. 82 and 84 so privacy was already compromised to the extent quite commonly seen in the suburban areas. 13 In regard to No. 86 the Court observed that the revised plans greatly reduced the obstruction of the harbour view from the rear entertainment deck. Mr & Mrs Iron's having withdrawn their objection the Court finds the reduced impact acceptable. 14 The height limit being complied with it was no longer an issue. Mr Staas' suggestions having been adopted to achieve an acceptable fit into the adjoining heritage item and conservation area those issues fall away. 15 In regard to the floor space ratio exceedance, Ms Hume had prepared a State Environmental Planning Policy No. 1 objection. The Court upholds the objection for the reasons she gave and finds that in this case compliance with the FSR standard is unnecessary and the bulk and scale of the amended proposal is acceptable. 16 Overall there was no other reason sufficient for refusal. The council sought costs on the matter due to the facts that its concerns over the issues were raised in July 2003 and that it had given the applicant several opportunities to amend the design prior to the hearing and ultimately had to obtain expert evidence from Mr Staas and Mr Harding. 17 The applicant was prepared to pay re-notification costs but prior to that the applicant said it had been pressing its reasonable expectations, as there was a right to do, and did not have the benefit of full knowledge of the Staas' suggestions until the drawing was seen at 28 May hearing. This was partly due to the owners being in England but there had been a quick response by the applicant since 28 May and amendments made. 18 The Court has come to a view on costs that the applicant has had considerable costs itself, in erecting different sets of profiles on its roof to demonstrate the various proposals, and obtaining its own expert advice and although long drawn out possibly due to the owners being in England the applicant has shown willingness to negotiate on a better planning outcome. 19 However, the council should be able to recover the cost of updating of experts reports since the 28 May and its other attendances of other staff and personnel since that time because an earlier response by the applicant could have led to an earlier appreciation of the real impacts of the original development application and an earlier resolution of the dispute. 20 The final design except for the FSR is one that complies with council's statutes and controls and following them at the beginning could have avoided litigation altogether. 21 There being nothing else sufficient for refusal of the proposal, the orders of the Court are:

1. The appeal is upheld.
2. Consent is granted to alterations and additions to No.2 Milner St, Mosman as shown in drawings in Exhibit J being 0205/01, 02A, 03B, 04B, 05B, 06B, 07B, 08B, 09, 10, 11A, 12A by Owen Kimberley Architect as amended by and in accordance with the conditions in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits 6, 9, 10, 11, 12, 13, E, F, G, H, J, K and L.
4. The respondent shall within 14 days of the publication of this judgment file and serve written submissions on the costs as mentioned in this judgment and the applicant shall within the following 14 days file and serve written reply for referral to the Chief Judge for determination. ___________________ K G Hoffman Commissioner of the Court rjs Annexure "A" Conditions of Development Consent Mullins & Mullins v Mosman Municipal Council

The development consent relates to the following plans and documentation:

This approval relates to the following plan numbers (except where amended by the following conditions):

Plan Nos. Date of Plan Prepared by 0205/01, 02A, 03B, 04B, 05B, 06B, 07B, 08B, 09, 10, 11A and 12A Undated Owen Kimberley Architect Un-numbered Attic Floor 7 July 2004 Owen Kimberley Architect plan showing surveyor's levels of roof templates Un-numbered East and North Elevations 7 July 2004 Owen Kimberley Architect plan showing surveyor's levels of roof templates Plan of Details and Levels 22.11.02 Ref: 8873-4 Amended: Garvin Morgan & Company 24 June 2004 Survey Certificate 2 July 2004 Garvin Morgan & Company

Prior to the release of the construction certificate The following conditions must be satisfied prior to the release of the Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate application.

Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein.

Two copies of architectural and Structural Engineer's plans must be submitted with the Construction Certificate application. The structural engineering plans must be signed by a qualified practicing Structural Engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent. For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works.

To assist with an assessment of claims for the refund of the security deposit over Council's property, a dilapidation report must be submitted. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant's expense or compensated by deduction from the security deposit.

Pursuant to Section 94 of the Environmental Planning & Assessment Act 1979, a monetary contribution of $5997.20 towards the acquisition and embellishment of public open space shall be paid to Council. This condition is imposed under Mosman Municipal Council's Section 94 Contributions Plan. The Plan may be inspected at Council's offices within the Civic Centre, Mosman Square, Mosman. Note: Contribution rates will be indexed by use of the Consumer Price Index and the actual amount to be paid will be determined at the date of payment. You may contact Council on 9978 4111 prior to payment to confirm current figures." Calculated as follows:

The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92.

The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.

In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant shall pay a long service levy at the prescribed rate of 0.2% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more.

A cash deposit or bank guarantee to the value of $2,500.00 in favour of Council shall be provided for the making good any damage caused to Council property. A request for a refund of unused funds may be made following the completion of works and an inspection of the property by Council.]

Materials and finishes shall be complimentary to the character and streetscape of the area. Details of finished external surface materials, including colours and texture, must be submitted to the satisfaction of the Accredited Certifier prior to the issue of the Construction Certificate.

The drainage plan drawing no.0205/09 proposes the use of a pump-out system to drain the property. This is an unacceptable method of disposal.

All roof water from the site is to discharge to Milner Street via a charged pipe system. A detailed design for stormwater drainage that satisfies the necessary criteria outlined in Council's current "Guidelines for Stormwater Drainage Systems" must be prepared. A certificate to this effect shall be supplied from a qualified engineer prior to the issue of a construction certificate. Prior to the Commencement of Site Works

The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal.

Notice of Intent to Commence Site Works 10. In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979, no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until: s the Construction Certificate has been issued; s the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent); s in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent.

s the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C): · appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and · notified the PCA of any such appointment; and · unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and · the person benefiting from the consent has given Council at least 2 days' notice of the person's intention to commence the erection of the building by way of completing Form 7D. Home Building Act 11. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there shall be such a contract in force. Evidence in the form of a copy of the contract must be provided to the Principal Certifying Authority. If the work is to be undertaken by an owner-builder, a copy of the owner-builder permit issued under the Home Building Act 1989 must be provided to the Principal Certifying Authority.

Protection of Adjoining Areas 12. If site or building works will: · cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or · involve the enclosure of a public place; or · have the potential to damage adjoining private land by way of falling objects then a temporary hoarding, fence or awning must be erected between the work site and the adjoining area. Any such hoarding, fence or awning must be removed when the work has been completed. The fence must be constructed prior to the commencement of works and where adjoining public land shall be covered in cyclone wire mesh to discourage the fixing of posters or graffiti. Sediment & Erosion Controls 13. Temporary sedimentation and erosion controls shall be constructed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be designed and installed in accordance with the requirements of the NSW Department of Conservation and Land Management's "Urban Erosion and Sediment Control" manual. Note: this document is now available from the Department of Infrastructure, Planning and Natural Resources.

Lapsing of Consent if Site Works Not Commenced 14. In accordance with Section 95(1) of the Act, this consent shall lapse unless work has physically commenced on the land within 5 years from the date of the consent or in instances where no work is required, the use has commenced within 5 years from the date of the consent. Public Liability Insurance 15. Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier. During Site Works / Construction The following conditions must be satisfied during site and construction works. 16. The applicant shall provide to the Council a certificate from a registered surveyor before cladding any of the first floor timber roof framing which confirms that the timber frame matches the heights as provided for in the amended survey plan dated 24 June 2004 by Garvin Morgan and Company and as depicted in the architectural drawings by Owen Kimberley dated 7 July 2004 (sheets 1 and 2) which are Exhibits "G" and "F" in these proceedings. In particular, the height of the proposed works must be at or below the following levels: · The dormer window being a maximum height of RL 77.26 (including the roofing material) as depicted by point 7. · The dormer springing line not exceeding RL 76.40 as depicted by points 3, 4 and 5. · The rear roof ridgeline not exceeding RL 76.9 at point 12 or RL 77.2 as defined in Section A-A (dwg no. 0205/07B) being a point at "top of capping" as annotated in the cross section drawing.

Compliance with the Building Code of Australia 17. All works are to be carried out in accordance with the requirements of the Building Code of Australia. Demolition 18. All demolition work must be carried out in accordance with the provisions of Australian Standard 2601-2001: The Demolition of Structures. 19. Where asbestos material shall be removed or disturbed as a result of any proposed demolition, alteration or addition, all work must be carried out by a person licensed under Chapter 10 of the Occupational Health and Safety Regulation 2001 and undertaken in accordance with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996. All asbestos to be removed must be disposed of at a tip recommended by the NSW Environment Protection Authority and under no circumstances shall be re-used or sold. Signs for Building and Demolition Sites 20. For safety reasons, a sign shall be erected in a prominent position on the premises during demolition or building works stating that unauthorised entry to the work site is prohibited and showing the name of the builder or other person in control of the premises and a telephone number at which that person may be contacted during and outside work hours. The sign must be removed when the demolition or building work has been completed. This condition does not apply to building work carried out inside an existing building or building work carried out on premises that will be occupied continuously (both during and outside working hours) while the work is being carried out. Site Work Hours 21. In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays. Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works. Excavation, Backfilling and Support for Neighbouring Buildings 22. Sedimentation and erosion controls must be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction. Council Property 23. The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from Council's Traffic Committee for the establishment of a Construction Zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within Council property. Protection of Landscape Features 24. All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans. Water Conservation 25. To minimise domestic water consumption, water conservation devices with an AAA rating must be used, including low flow tap and shower head roses, dual flush toilets and six litre/minute flow regulators in all bathroom basins, kitchen and laundry sinks. Local Government Act 1993 26. This consent does not authorise the carrying out of any of the following activities which require the separate approval of Council under Section 68 of the Local Government Act 1993: Place a waste storage container in a public place Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993 . Approved Plans 27. A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the Principal Certifying Authority or an officer of the Council. Critical Stage Inspections 28. To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and or with relevant Australian Standards, the following critical stage inspections are to be carried out: • at the commencement of the building work; • after excavation for, and prior to the placement of, any footings; • prior to pouring any in-situ reinforced concrete building element; • prior to covering of the framework for any floor, wall, roof or other building element; • prior to covering waterproofing in any wet areas; • prior to covering any stormwater drainage connections; • fire separation if the building is within 900mm of the property boundary prior to any occupation certificate being issued in relation to the building; • smoke alarms prior to any occupation certificate being issued in relation to the building; and • final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building. The critical stage inspections must be carried out by the Principal Certifying Authority PCA, or if the PCA agrees, by another certifying authority excepting the final inspection which must be carried out by the PCA.

Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate - see later conditions of consent.

If you intend engaging Council to undertake the inspections, please telephone the area Building Surveyor or Council's Case Officer on 9978 4044 to arrange a suitable time.

Record of Inspections Carried Out 29. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the PCA, the PCA is to forward a copy of all records to Council.

The record must include details of: · the development application and construction certificate number; · the address of the property at which the inspection was carried out; · the type of inspection; · the date on which it was carried out; · the name and accreditation number of the certifying authority by whom the inspection was carried out; and · whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.

Prior To Occupation The following condition must be satisfied prior to occupation of the development. Compliance Certificates and Inspection Records 30. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use. Occupation Certificate 31. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with. Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council. Advice / Notes The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination. Headings such as "Prior To The Release Of The Construction Certificate" together with bolded notes that immediately follow, form part of this Notice of Determination. Conditions under the respective headings shall be read in the context of the heading and note. Section 82A of the Act provides for an applicant to request Council to review its determination excepting applications made on behalf of the Crown or applications in respect of designated development, integrated development or a complying development certificate. The request for review must be made within 12 months of the date of determination or prior to appeal being heard by the Land and Environment Court. A decision on a review may not be further reviewed under section 82A. If you are unsatisfied with this determination, Section 97 of the Act gives you the right of appeal to the Land and Environment Court within 12 months of the determination date. A public inquiry by a Commission of Inquiry was not held under Section 119 of the Act. Other public authorities may have separate requirements and should be consulted in the following respects: Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments; AGL Sydney Limited for any change or alteration to gas line infrastructure; Energy Australia for any change or alteration to electricity infrastructure or encroachment within transmission line easements; Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure. This decision does not ensure compliance with the Commonwealth Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act. Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court. In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading "Critical Stage Inspections" in this consent. If additional inspections are required, further notice will be provided. (iv) All references to "the Act" under this consent relate to the Environmental Planning and Assessment Act 1979.

      K G Hoffman
      Commissioner of the Court
      rjs

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