R J Pearce & Associates Pty Limited v Mosman Municipal Council

Land and Environment Court (NSW)|2006-09-04|Before: Ms J

Background. 1 This appeal was lodged against councils refusal of a development application for alterations and additions to a dwelling house in Mosman. For the appeal, a number of issues were identified, which can be summarised as follows: + non-compliance with the bulk, scale and height development standards, + amenity, privacy, + public interest.

2 The parties agreed to the appointment of Mr S Harding as the Court-Appointed expert for planning, and he prepared a detailed assessment report, which became Exhibit 1. The site. 3 The site is known as 27 Almora Street, Mosman and is described as Lot 76 in DP 509626. It is an irregular shaped, battle-axle lot with an axe handle frontage of 7.315 m to Almora Street. The site has an area of 927 sq m and has a crossfall from north to south.

Draft State Environmental Planning Policy (Application of Development Standards) 2004.

6 Under this LEP, cl 11 (2) identifies the requirements for the residential zones and the site is within the 2(a1) zone, where the proposed works are ancillary to the use of the site for a dwelling house and are permissible with councils consent, pursuant to the development control plan provisions.

7 The LEP contains a number of objectives and controls including cl 13 -Height limits in residential zones, which relevantly provides development standards for building height, wall height and number of storeys. The stated objectives of this cl 13 sub cl (1) are: (a) to protect public and private use, and (b) to minimise the visual impact of buildings when viewed from the harbour and surrounding foreshores, and (c) to ensure buildings resulting from new development are compatible with existing buildings in terms of height and pitched roof form, and (d) to minimise the effects of bulk and scale of buildings arising from new development in existing residential areas.

8 Subclause 2 provides that a building must comply with a maximum building height of 8.5 m and maximum wall height of 7.2 m.

9 Subclause 3 provides: A maximum of two-storey applies to all residential zones, except the 2(e) Residential Zone. However, the council may allow an additional storey: (a) in attic roof space of existing and new buildings, or (b) in the existing basement of existing buildings. Mosman Development Control Plans (DCP).

10 This DCP contains detailed development controls on the basis of the following objectives: (b) to identify and conserve neighbourhood character and sensitively manage the desired future character of Mosman and the individual townscape areas of Mosman; and (f) to limit the potential for large bulky houses and encourage sensitive siting of buildings and leafy garden character.

11 Section 4.2 provides objectives and planning guidelines for siting and scale (height, setback and building bulk). The following objectives and controls are of relevance: 04 To have buildings which are of a height and scale to preserve privacy for neighbouring residents... and provide access to sunlight. 05 To have the height and scale of development, which relates to the topography. 06 To have a scale of development, which is not excessive, and is consistent with the existing or desired future character of the area. P7 Provides numeric requirements for side boundary setbacks. P13 Building bulk should be distributed to minimise overshadowing to neighbours.

12 Other detailed design controls are contained in the DCP. Mosman Notification Development Control Plan The evidence. 13 Following the initial assessment of the proposal, amendments were undertaken, which effectively reduced the building height to 8.1 m and the wall height to 8.0 m. This results in a lower roof form, as compared to the original proposal.

14 Notwithstanding this, the principal non-compliance with the development standards concerns the three-storey presentation of the proposal. Consequently, a combined SEPP 1 objection to these building height development standards was made.

15 In considering the merits of the proposal in conjunction with the SEPP 1 objection, I note that council has previously granted consent to other extensions and alterations to the property, including a ground level garage. The proposed bedroom and kitchen extension are over this ground floor garage. As a consequence of the proposed works, the 2.1 m extension of the upper floor kitchen, will result in the new southern wall, containing no windows, which requires the existing south facing windows to be eliminated.

16 Mr Harding assessed the merits of the proposal relative to planning controls, and also in respect of the neighbours objections, particularly those from the owners of 23 & 25 Almora Street and 22 Hunter Road. He considers the proposed development is a minor addition to the existing dwelling and in the ultimate supports the proposal, because: + the addition will be setback over 3 m from the common boundary with No. 25 and is a much greater distance from the living area of the dwelling. The building also occupies only a small part of the vista available from the dwelling and rear yard. In this context, the proposed addition would have a minor visual presence. + the visual impact on the bulk and scale from No. 23 Almora Street and No. 22 Hunter Road, are less significant than at No. 25. + in the case of No. 22 Hunter Road, orientation of views towards the harbour means that most of the living areas are on the opposite side of the dwelling to the interface with No. 27 Almora. The change in impact between the current situation and proposed situation are minor in terms of the amenity of the occupants of No. 22 Hunter Rd. + the proposed extension of the bedroom does not raise concerning terms of bulk, scale privacy. This section of the dwelling is well below the allowable overall height and wall height. It is also only the second-storey and is therefore compliant with all aspects of height controls. + the proposed development does not result in adverse amenity impacts in terms of its height, bulk and scale.

17 In his consideration of the SEPP 1 objection, Mr Harding says that the relevant objectives underpinning the height development standard in cl 13 of the LEP relates to minimising the effects of bulk and scale of buildings arising from new development in existing residential areas. Consequently, he says that the potential bulk and scale of impacts arising from this development are visual and privacy impacts, which he considers are minor and not sufficient to warrant refusal of the proposal, because it is not inconsistent with the objectives underpinning the development standard.

18 Furthermore, Mr Harding says that the noncomplying section of the development is generally within the form of existing development. As a result, varying the scheme to simply achieve compliance would not result in significantly different outcomes and would have little change to the amenity of the neighbouring properties. His assessment is that strict compliance with the standard is unreasonable and unnecessary in this case. Conclusions. 19 Having considered the evidence including the objections, the submissions and undertaken a view, I am satisfied to accept the Court-Appointed experts opinion that this proposal merits consent.

20 As I have noted previously, other alterations and additions had been approved by council to this dwelling and this includes the ground floor garage. When the current proposal was assessed by council officers, the first floor bedroom extension was supported, presumably in part because of its complying nature. I consider that conclusion reasonable. The remaining element concerns the "effective third storey element ".

21 However, a common measure of bulk is FSR. In this case the overall FSR of the proposal is 0.4:1, as compared to the allowable development standard of 0.476:1. Therefore, I do not consider it an unreasonable expectation of the owner to achieve additional floor space, which is still comfortably within that allowed by the control in this existing residential area.

22 As Mr Harding noted, the relevant objective concerns the minimisation of the effects of bulk and scale arising from new developments in existing residential areas. From the evidence and my observations on the view, the existing dwelling is somewhat separated from the public domain, by virtue of its battleaxe shape and access handle. Consequently, any adverse effects are minimised to some extent by this separation.

23 Notwithstanding this, the proposal would result in some changes experienced by the adjoining properties. But the concerns raised about overshadowing onto No. 25 are unfounded by reference to the shadow diagrams. In my assessment, the visual impact effects are minimal, as stated by Mr Harding because the amended roofline is lower than currently exists and from most viewing positions, unlikely to have any noticeable effects. In so far as the building extension will be discernible, it is still within the prescribed boundary setback and the applicant is to provide landscaping to mitigate any visual impacts and also to maintain the leafy character of the neighbourhood.

24 Also, the concern about overlooking is unlikely to affect the occupants of No 25, because the existing south facing windows will be removed and together with the proposed end privacy screens, it is likely there will be improvements to privacy and overlooking. Therefore, these concerns are not sufficient to warrant the rejection of the proposal.

25 Insofar as the kitchen extension will result in an additional east facing window, this window will basically maintain overlooking opportunities towards No. 22 Hunter Street that currently exists. Considering the internal restrictions on the use of the area adjacent to this additional window, it is unlikely there will be any adverse effects for overlooking, instead, I consider overlooking effects to be neutral.

26 By reference to the Draft SEPP (Application of Development Standards) 2004, it appears to be that the proposed variation to development standard is consistent with the aims and objectives for the zone and will result in a better planning outcome by the elimination of the existing south facing windows which provide overlooking opportunities.

27 In the ultimate, I am satisfied that the stated objectives for the wall height and number of storeys control is reasonably satisfied in this case, so that when the SEPP 1 tests are applied, strict compliance is unnecessary and unreasonable in the circumstances of this case. Furthermore, taking into account the site characteristics and topography it seems to me that any requirement to delete this minor third storey extension, to comply with the development standard would be unreasonable and unnecessary in this case. Accordingly I am satisfied the SEPP 1 objection is well founded.

Court Orders. 1 The appeal is upheld. 2 The SEPP 1 objection to the wall height and number of storeys control in cl 13 the Mosman LEP is allowed. 3 Development consent is granted to DA 8.2005.334.1, for alterations and extensions to the dwelling at No. 27 Almora Street, Mosman, subject to the condition in Annexure 'A'. 4 The exhibits may be returned except 1, 3, A, C, and D.

      R Hussey
      Commissioner of the Court
      ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : R J Pearce & Associates Pty Limited v Mosman Municipal Council [2006] NSWLEC 554

CASES CITED: Winten Property Group Ltd v Nth Sydney Council [2000] NSWLEC46; Pyramid Pacific Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 522

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