Salmon v Mosman Municipal Council

Land and Environment Court (NSW)|2022-11-23

Judgment

COMMISSIONER: On 9 June 2021, the Applicant in these proceedings lodged development application 8.2021.196.1 (the DA) for alterations and additions to a dwelling house, including the demolition of an existing swimming pool, and the construction of a new swimming pool at 5A Hopetoun Avenue, Mosman.
The DA was notified by Mosman Municipal Council (the Respondent) from 11 - 25 June 2021 in accordance with the Mosman Community Participation Plan 2020.
On 16 August 2021, the Respondent refused the DA.
On 22 September 2021, the Applicant sought a review of the determination under s 8.2 of the Environmental Planning and Assessment Act 1979 (EPA Act), which was notified to the community between 7 - 22 October 2021, and referred to the Mosman Local Planning Panel on 18 May 2022.
On 22 July 2022, the Applicant filed an appeal in the Class 1 division of the Court's jurisdiction, under s 8.7 of the EPA Act.
In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land Environment Court Act 1979 (LEC Act) on 22 November 2022, which commenced with an onsite view.
During the onsite view, the Court, in the company of the legal representatives and experts, heard an oral submission on behalf of the owners at No 5 Hopetoun Avenue, that may be summarised as follows:

The elevated lawn and proposed pergola structure impose privacy impacts due to overlooking from a higher level.
The proposed higher fencing to the west of the subject site creates a visual impact from the primary living areas.
The rear water feature is located too close to the boundary.
A window to the west elevation, identified on drawings as window W201 is directly opposite an existing window at No 5 Hopetoun Avenue.

The Court, in the company of the legal representatives and experts, was then taken on a walking tour of properties to the east and west of the subject site, in what the Applicant considers to be the visual catchment.

The site and its context

The site is located on the southern side of Hopetoun Avenue looking north over properties opposite, towards Clontarf, with a slope from the rear of the site to the Hopetoun Avenue frontage of around 8.7m.
The site is legally described as Lot A in Deposited Plan 337972.
To the west of the site, No 5 Hopetoun Avenue is a two-storey dwelling identified for its heritage significance at a local level (item I114) in Schedule 5 of the Mosman Local Environmental Plan 2012 (MLEP).
Further to the west of No 5 Hopetoun Avenue is a well-vegetated reserve with a dense tree canopy in the location of an unmade road reserve.
To the east of the site, No 3A Hopetoun Avenue is a part two, and part three storey dwelling with basement car parking.
At the time the DA was lodged, the site was located within the R2 Low Density Residential zone according to the MLEP in which dwelling house development was permissible.
However, the MLEP has subsequently been amended so that the site is now located within the C4 Environmental Living zone, in which the objectives are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • 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 and landscaping and to retain natural topographical features. • To ensure that development is of a height and scale that achieves the desired future character of the area. • 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.
While Exhibit 1 identifies the site being located within the Belmont Townscape, it is not. Instead, it is agreed to be located within the Rosherville/Wy-ar-gine Townscape according to Section 7.4 of the Mosman Residential Development Control Plan 2012 (MRDCP).
The Rosherville/Wy-ar-gine Townscape is described at Section 7.4(18) of the MRDCP in the following terms: (18) Rosherville/Wy-ar-gine Townscape character Description of area and character The Rosherville/Wyargine Townscape is characterised by sloping topography and a north eastern aspect which forms an amphitheatre around Chinaman's Beach and Rosherville Reserve. The topographical variety is one of the most distinctive features of this area. The varied and irregular lot layout has been substantially influenced by topography. Divided, contour based roads and sandstone retaining walls in response to topography are important character elements. Buildings are generally well spaced and oriented to water views to Middle Harbour. The majority of housing is post World War II, with substantial development on Wyargine Point. The area has a diverse architectural character ranging from recent large pseudo-Tuscan villas, contemporary urban courtyard housing, to earlier Sydney School style residences. The quality and character of roof elements is particularly important in this area because of the visibility afforded by the topography. Remnant native Angophora dominated bushland, the open space and foreshore of Chinaman's Beach and Rosherville Reserve, sandstone cliffs and views to Middle Harbour are important features of the area. The area has an exposed landscape with some enclosed valleys. Tree cover varies with remnant bushland, including magnificent Angophoras, and some introduced Norfolk Pines and jacarandas evident throughout the area. Community facilities include Parriwi Park, Rosherville Lighthouse, Rosherville Reserve, Chinamans Beach.

The contentions

In order to more fully appreciate the issues in dispute, it is helpful to further describe that aspect of the proposed development most keenly contested.
The existing dwelling on the subject site is well setback on the site, so that the rear wall of the dwelling is around 1.5m-2m from a rear retaining wall that rises vertically to the property behind, at No 20 Kirkoswald Avenue.
The substantial setback of the southern portion of the built form means the principal open space on the site is located toward the front of the site, addressing both north and Hopetoun Avenue.
The existing dwelling is, in plan, an L-shaped form occupying the south and east of the site. Landscaped area, including an existing swimming pool are located towards the north-west of the site.
The landscaped open space is elevated above the level of the street, and above the front landscaped area of the adjoining property at No 5 Hopetoun Avenue.
The Applicant describes the principal driver of the proposal is to achieve greater landscaped area for the family to enjoy. To achieve this, the existing swimming pool is proposed to be relocated from an area that can be converted to deep soil and soft landscaping, to an area over the existing concrete driveway and basement parking area.
However, according to the Respondent, the consequence of such an elevated swimming pool in the location now proposed, is a high street wall with a bulk and scale out of character with the streetscape, visual privacy impacts to No 5 Hopetoun Avenue and a built form that predominates over landscape.
The Respondent contends the development application should be refused on five grounds that are broadly defined as follows: 1. The proposal has excessive bulk and scale that adversely impacts neighbouring properties and the locality. 2. The proposal does not positively contribute to the streetscape or the desired future character of the area. 3. The proposal imposes unacceptable visual privacy impacts on No 5 Hopetoun Avenue. 4. The proposal has not been designed to minimise visual impacts in an area identified as a scenic protection area. 5. The proposed swimming pool is located forward of the building alignment and is elevated above the ground, in contravention of the MRDCP.

Development standards are exceeded

The parties agree that the proposed development incorporates components that depart from development standards with respect to the height of buildings (cl 4.3 of the MLEP), height of buildings (additional provisions) (cl 4.3A of the MLEP), and floor space ratio (cl 4.4 of the MLEP).
The Applicant relies upon three written requests prepared by Mr Tony Moody, town planning expert for the Applicant (Exhibit A, Tabs 3-5): 1. Clause 4.6 request for variation of height of buildings standard under cl 4.3 of the Mosman Local Environmental Plan 2012. 2. Clause 4.6 request for variation of height of buildings (additional provisions) standard under cl 4.3A of the Mosman Local Environmental Plan 2012. 3. Clause 4.6 request for variation of floor space ratio standard under cl 4.4 of the Mosman Local Environmental Plan 2012 .
However, the parties also agree that the components of the proposal that relate to an exceedance of the controls do not contribute to a greater exceedance than is evident in the existing development, and so the provisions of cl 4.6 of the MLEP are not engaged.
To this end, the Applicant took the Court to the decision of Duggan J in Landcorp Australia Pty Ltd v Council of the City of Sydney [2020] NSWLEC 174 (Landcorp Australia) to submit that, as in the circumstances of that case, the components of the development evidently in breach of the development standards at [32], is not development that contributes to, or alters the height of the building, or the wall height of the building, or the floor-space ratio (FSR) of the building in respect of which the existing building is already in breach.
In respect of each of the variations to the relevant development standards, the parties essentially agree that: 1. The proposed lift connecting the basement, ground floor and level 1 exceeds a height of 8.5m permitted by cl 4.3 of the MLEP, but is wholly within the envelope of the existing built form such that no element of the lift is visible externally. 2. The window on Level 1 of the subject site, on the western elevation and identified as W210 replaces an existing window in a wall that exceeds the wall height standard at cl 4.3A of the MLEP but does not contribute to, or alter, the wall height of the building on the site. 3. The addition of gross floor area at the basement level for the purposes of access to the lift is essentially offset by the reduction in floor area in those levels above by virtue of the voids that form the shaft.
For the reasons given in Landcorp Australia, I accept the joint submissions of the parties that it is unnecessary for the Court to consider the written requests at [32] because; 1. In the case of the lift, the height is within the envelope of the existing building. 2. In the case of W210, it seeks to replace an existing window in the same location, in a wall with a wall height that is unchanged. 3. In the case of the change in FSR, I consider the increase in area required in front of the lift at the basement level to be wholly offset by the voids created in the levels above for the lift shaft, and no change in the external bulk or scale of the existing building on the site results.

Streetscape

The Respondent contends the proposal fails to positively contribute to the streetscape and the desired future character of the area for reasons set out by reference to provisions of the MRDCP that follow.
In particular, the height of the retaining wall required to contain proposed fill in the north-western corner of the site visually dominates when viewed from Hopetoun Avenue.
Section 4.4 of the MRDCP deals with landscaping and provides relevantly: … O10 To have natural ground levels maintained, especially near boundaries. … P4 Vegetation and landscaping should: (a) soften the built form; (b) be consistent with the theme of vegetation in the streetscape, if a predominant theme exists; (c) form part of the overall streetscape, and therefore contribute as a unifying element within the street.
Additionally, the relocation of the swimming pool to a position over the garage, the extent of retaining walls and resulting planter beds further presents a built form that dominates over landscaping when viewed from Hopetoun Avenue.
The relevant objectives and controls in Section 5.1 of the MRDCP in respect of streetscape and building design are: O1 To have development of a scale and appearance which is in keeping with the street and desired future townscape area character … O4 To have the front setback contribute to the streetscape in terms of a landscaped setting, with minimal hard surface areas. … O6 To have ancillary structures sited and designed to integrate with the built form and not be dominating. … P19. Ancillary structures that are located within the front building setback or that are visible from the street - such as carports, garages, fences, garbage bin areas, letter boxes, electricity substations, solar panels etc. - are to be designed and sited to be compatible with the building without becoming the dominant feature on the site. P20. Garages and carports are to be designed so as to minimise bulk. Roofs generally should be flat or low pitched. The use of large gables and ornamentation to replicate the main dwelling should be avoided. In new and existing development, garage doors should be recessed behind the face of the structure in which they are located to minimise their dominance.
Similarly, the predominance of walls and structures at the front of the site reinforce a dominance of built form at the front boundary that detracts from positive elements of the streetscape.
Section 5.3 of the MRDCP deals with fences and walls, and relevantly provides: O1 To have new fences and walls that are compatible with positive elements of the streetscape and satisfy the character objectives for the townscape area.
The amended architectural plans, self-evidently prepared after the filing of the SOFAC, show retaining of earth to the north-western corner of the site in the form of three tiered planter beds. Drawing DA104 Rev H contains relative levels to the top of each tiered wall indicating a step of 1m in each instance: RL36.630, RL 37.630 and RL 38.630.
Drawing DA105 Rev I, re-produced in part below, shows the degree of setback of each tier from Hopetoun Avenue, which Mr Layman considers positive, but of itself, does not overcome his concern with the location of the swimming pool to the north-eastern corner.
The experts spent some time discussing the height of the pool above Hopetoun Avenue, the planter bed that surrounds it, the pool fence and the means by which planting may be maintained.
It is agreed that the underside of the planter is around 2800mm above the driveway directly below, and the top of the planter is 1.3m above that, or around 4.09m above the driveway below.
The experts differ on the extent of streetscape that should be considered when assessing the positive elements with which a development should be compatible.
Mr Layman prefers to consider the streetscape to be defined by natural characteristics such as what he calls 'cranks' in Hopetoun Avenue. In the circumstances of this site, that is from No 1A at the corner of Hopetoun Avenue and Kirkoswald Avenue to what the solicitor for the Respondent, describes as the divided road.
Additionally, Mr Layman discounts a number of properties that have swimming pools in the front setback as consent for those pools may have been granted prior to the adoption of current controls, although he acknowledges in oral evidence that he is unaware of controls beyond those that are current.
Mr Layman essentially sets out two kinds of streetscape presentation on the high side of Hopetoun Avenue. The first kind is a high street wall broken by either vehicular or pedestrian openings, seen in No 1 Hopetoun Avenue, illustrated in Annexure C of the joint report and re-produced below:
The second is a high street wall with garage doors and pedestrian gates presenting to the street such as in No 1C Hopetoun Avenue, again depicted in Annexure C and re-produced below:
In contrast, Mr Moody casts a net equally to the east and west of the site, as is depicted in Exhibit F, but limited to the high side of Hopetoun Avenue which is distinct from the streetscape formed by properties to the low side of Hopetoun Avenue.
According to the Applicant, Mr Moody's evidence is supported by the provisions of the MRDCP which consistently refer to "the street and desired future townscape area character", being the Rosherville/Wy-ar-gine Townscape area at [22].
Furthermore, the chapeau to Section 5.1 of the MRDCP defines streetscape in the following terms: "Streetscape refers to the way a street looks and is fundamental in defining neighbourhood identity and townscape area character. Streets are composed of buildings, landscape elements, fences, footpaths, driveways and utility services; it is the arrangement of these components and their visual appearance that influences the streetscape character."
The Applicant also submits that planning control P1, Section 5.1 encourages design elements such as recesses, modulation, setbacks in walls, planter beds and variation in materials to be used, as is the case here.
I accept Mr Moody's characterisation of the distinguishing feature of Hopetoun Avenue is the clear distinction between properties on the high side, and those on the low side. Those on the high side generally present some form of walled frontage, punctuated by a driveway or door for vehicle access.
I also record here that, on the basis of the onsite view, I consider the most dominant natural feature of Hopetoun Avenue in the vicinity of the site, beyond the topography itself, is the vegetated reserve to the west of No 5A Hopetoun Avenue. This reserve, in my view, breaks the run of development from Kirkoswald Avenue, which then continues west of the reserve.
Furthermore, as the road divides at around the same point, the effect of development on the high side of Hopetoun Avenue is accentuated, unmoderated by a visible frontage to the low side of the street.
Adopting Mr Layman's view of the visual catchment would discount No 1A Hopetoun Avenue from the visual catchment, as the subject site cannot be viewed from a position immediately in front of this property. Between No 1A and the subject site, Hopetoun Avenue both bends and rises, obscuring one from the other.
A similar characteristic is evident along the entire length of Hopetoun Avenue, as the road meanders around what I understand is Wyargine Point.
In fact, the orientation and elevation of Hopetoun Avenue changes throughout its length and the visual catchment in the immediate vicinity of any property changes accordingly.
However, the visual catchment matters less, in my view, than the repeated urging of the provisions of the MRDCP for development to be in keeping or contribute to the character of the street and the desired future townscape area character, which I consider to be terms that are broader in application than a particular visual catchment.

Visual privacy

The Respondent contends that raising the level of landscaping in the vicinity of the existing swimming pool results in unacceptable visual privacy impacts on the adjoining property at No 5 Hopetoun Avenue, contrary to the following provisions at Sections 5.7 and 5.14 of the MRDCP.
Section 5.7 of the MRDCP deals with privacy and security, with Objective 1 of the section in the following terms: O1 To have adequate visual privacy levels for residents and neighbours.
As the finished level of the newly elevated landscaped area would be 3.8m higher than the levels of Hopetoun Avenue, the Respondent believes it is contrary to objectives and controls at Section 5.14 of the MRDCP which deals with excavation and site management. In particular, Objective O2 is in the following terms: … O2 To have appropriate controls that safeguard neighbourhood amenity as much as practicable … P4 Reconstituted ground levels must not be lower than 2m below the level of the adjoining property at any point along the boundary and must not be higher than the ground level of an adjoining property
The Applicant cites an existing winding path of steps which provides access from the street to the dwelling. This path winds up from the street directly west to the boundary with No 5 Hopetoun Avenue, then returns to the east before finally turning to the south where a straight path connects to the front door.
According to the Applicant, this path provides the potential for overlooking to No 5 Hopetoun Avenue, but for a mature hedge of Murraya on the subject site that, until the eve of the proceedings, spanned the aluminium fence on the boundary to occupy both Nos 5 and 5A Hopetoun Avenue. These steps are proposed to be removed in favour of a more direct path to the dwelling, removing one potential source of overlooking.
For completeness, the hedge is agreed to have been pruned entirely from No 5 Hopetoun Avenue, evident in images that represent 'before' and 'after' in Exhibit K. However, nothing turns on that fact.
The proposed elevated level of the landscaped area is shown on Drawing DA105, including the location and height of fences proposed on the boundary between the subject site and No 5 Hopetoun Avenue.
The arrangement of landscaped area, fencing and landscape planting is perhaps best depicted on a sectional detail prepared by the Applicant's architect (Exhibit A, Tab 6), re-produced below.
According to the Applicant, the outcome depicted in the sectional detail above improves the degree of privacy from that evident today by virtue of, firstly, the setback from the boundary, clear of two rows of 'Buxus' species planted to the west and north perimeter of the lawn and behind a 350mm high Corten edge to prevent closer encroachment to the western boundary, not depicted but the subject of an agreed condition of consent.
Secondly, 1800mm high fencing is provided. Thirdly, by permitting the existing Murraya hedge to be grown to a higher level, reflected in a condition of consent.
Again, just as the winding path of steps is to be removed, the Applicant also submits that overlooking is a feature of the current arrangement given the existing swimming pool, located close to the western boundary, allows a person of average height to gain a sightline over the Murraya hedge to the principal open space and living areas of No 5 Hopetoun Avenue.
The swimming pool and its paved surround are to be removed. In its place, the setback and screening described at [71] are proposed, removing a source of overlooking possible today, and addressing the concerns of the neighbouring property at No 5 Hopetoun Avenue.
The Respondent submits that a sightline gained from beside a pool is no fair comparison with an elevated area of lawn that can be used for gathering and entertaining of large numbers.

Scenic protection

The Respondent contends the proposal has not been designed to minimise visual impacts in an area identified as a scenic protection area under cl 6.4 of the MLEP.
Clause 6.4 of the MLEP is in the following terms: 6.4 Scenic protection (1) The objectives of this clause are as follows - (a) to recognise and protect the natural and visual environment of Mosman and Sydney Harbour, (b) to reinforce the dominance of landscape over built form, (c) to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments. (2) This clause applies to land identified as "Scenic Protection Area" on the Scenic Protection Map. (3) Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that - (a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and (b) the development will maintain the existing natural landscape and landform.
The Respondent contends only that the Court cannot be satisfied in respect of cl 6.4(3)(b), to which the Applicant submits the existing landform is retained when regard is had to the location and gradient of the existing driveway, and the retention of retaining walls and landscaping in the road reserve.

Swimming pool

As stated at [28], the location of the proposed swimming pool is above the existing driveway entrance, which places it forward of the building alignment, and in an elevated position.
The height and setback of the pool and its surrounding planter bed was marked onsite by a red ribbon secured in place and marked on the survey tape setout plan marked Exhibit G.
In submissions, the Respondent considers a wall of around 3m in height will be visible over the red tape set out on site, comprising a sandstone wall of around 1.8m for the planter bed, then another 1.2m for a glass pool fence.
According to the Respondent, the location of the swimming pool is inconsistent with objective O1 and planning controls P1 and P4 of Section 6.2 of the MRDCP. These provisions are in the following terms: O1 To have pools, spas and water features appropriately located to minimise the visual impact of the structure, and their impact on the amenity of adjoining residents. … P1 Pools/spas should be located behind the front building line, preferably at the rear of the main building. … P4 Any pool/spa surround must be located at or below ground level (existing). Elevated pool/spa structures above the natural ground level are expressly discouraged. If a pool/spa structure is proposed that is located above the ground at any point, the finish of the structure should blend into the background environment and or landscaping and not be visible from a public place

The issues are distilled

As noted by the parties in submissions, a number of the contentions deal with similar concepts, and so may be said to overlap. For example, the chosen location of the swimming pool is contested for reasons that are closely related to the objections taken by the Respondent to the bulk and scale of the development when viewed from the public domain, the streetscape resulting from the proposal, and the impact of the bulk and scale and streetscape in the context of a scenic protection area.
In fact, I consider the contentions essentially distil into two categories; 1. Firstly, the proposal forward of the existing building line fronting Hopetoun Avenue, that absorbs contentions in respect of bulk, form and scale; streetscape, scenic protection and the swimming pool; and 2. Secondly, the visual privacy impacts arising from the proposed raising of the landscaped area to the west of the site adjoining No 5 Hopetoun Avenue.

The proposal forward of the existing building line fronting Hopetoun Avenue

In general terms, the Respondent acknowledges the proposal offers a number of positive elements such as improved landscaping to the north-western corner of the site, but those positive elements are not dependent or contingent upon the relocation of the swimming pool. In other words, the positive elements of the proposal are able to be delivered with the pool retained in its current location.
Likewise, while other properties in the area may have swimming pools in the front setback, they are on constrained sites where there is no other option, unlike here, and none are able to be readily discerned from Hopetoun Avenue.
That said, Mr Layman's evidence is that the existing pools, while elevated above the street away from view, are evident from visual cues such as pool fences, reflections and the like.
While the Respondent submits that a wall with a vertical height of 3m will rise above the driveway on to the site, I do not agree. A sandstone wall, supported on recessed sandstone piers, rises 1.3m above the soffit of the driveway to an RL of 38.500, being the top of the planter above which landscape plantings will grow. I note here a height of 1.3m is similar to the height of the wall shown over the garage openings to Nos 1A and 1B Hopetoun Avenue, and so is not alien in the street.
Above this, a very different vertical plane is proposed that will, in my view, not read as a part of the sandstone face at all but as a transparent pool fence, setback from the sandstone wall, and behind planting.
That pool fence is set back around 700mm from the sandstone face, and behind landscape planting, identified in Condition 3A of the without prejudice conditions of consent as a species likely to obscure the pool fence when mature.
Furthermore, Dwg DA102 (Exhibit A, Tab 1) shows a setback of the planter bed from the front boundary varying between 1.7m and 4.8m.
This is consistent with Mr Layman's oral evidence that the subject site, by virtue of its setback from the Hopetoun Avenue frontage, does not demonstrate a street wall frontage, but is instead an arrangement of walls and fences.
Section 5.3, objective O1 seeks new fences and walls that are compatible with positive elements of the streetscape and satisfy the character objectives for the townscape area.
Given the degree to which tiered landscape, depicted at [45], forms an integral part of the site's frontage to Hopetoun Avenue, as do recesses, modulation and setbacks in walls in the vicinity of the stairs, I can only conclude the streetscape presentation proposed is consistent with Section 5.3 and Section 5.1, planning control P1, of the MRDCP.
Mr Layman also considers the arrangement of the fences and walls to visually extend the dwelling forward to the street. On this point, I disagree. The arrangement of walls, stairs, recesses, planter beds and the like, differ in material and finish, and by virtue of the integration of landscape planting are clearly landscape elements that are designed and sited to be compatible with the building without becoming the dominant feature on the site, and the garage door is recessed behind, and under, the face of the structure in which it is located to minimise its dominance.
In this regard, and while not always the case, I consider the photomontage (Exhibit A, folio 11), re-produced below, to be a reasonable representation of the proposal.
Furthermore, whether a swimming pool, not directly visible from Hopetoun Avenue in any event, is located in that position, I note the arrangement of retaining walls, stairs, tiered planter beds and landscape plantings continues to represent an aspect of the underlying topography on the high side of Hopetoun Avenue, consistent with objective O10, Section 4.4 of the MRDCP for natural ground levels to be maintained, especially near boundaries.
In this regard, the outcome proposed on the subject site is not unlike the presentation of No 5 Hopetoun Avenue to the west, which presents a garage entry to the east of the site frontage, with a deep sandstone fascia over, and more naturalistic topography to the west of the frontage.
In fact, I consider the proposal distinct, and preferable, to the predominant character of the high side of Hopetoun Avenue, exemplified in a number of properties in close proximity to the subject site such as No 1B Hopetoun Avenue, where a planar street wall conceals any ground levels when viewed from the street, largely absent the recesses, modulation and setbacks in walls sought by planning control P1, Section 5.1 of the MRDCP.
I consider the distinction to result from a greater consistency with the controls at section 4.4 of the MRDCP than a number of those properties with such a planar street wall, and so the proposal is compatible with not just elements of the streetscape found today, but with the positive elements of the streetscape desired by the controls.
As to whether the development will maintain the existing natural landscape and landform, required by the operative and relevant provisions of the Scenic Protection Area, at cl 6.4(3)(b), I again consider the integration of landscape planting in tiered planter beds, and varied setbacks, to permit the reading of the steeply sloping underlying topography achieves this. These are all measures, in my view, that may also be said to minimise the visual impact of the development from Sydney Harbour.
I note, by way of comparison, that the proposal appears to achieve this more successfully than the otherwise common approach by those properties on the high side of Hopetoun Avenue where planar street walls are punctuated only by garaging and pedestrian entry gates, concealing any topography beyond as in Nos 1A, 1B, 1C, or to the west of the subject site, No 11 which presents a variation on the planar street wall behind which natural landform is concealed, if it is indeed maintained at all.
As to whether this arrangement is consistent with the character desired in the future, I accept the Applicant's submission that the observation made by Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115, at [62]-[63] applies here. That is: "…the desired future character of the neighbourhood or area can be shaped not only by the provisions of WLEP, including the development standards themselves, but also other factors, including approved development that contravenes the development standard."
While I accept the Respondent's submission that the existing swimming pools in front setbacks to Hopetoun Avenue are likely to have their origins in historical consents, now discouraged, such development may be considered within the terms set out by His Honour above.
The particular aspect to which this applies is the contravening of planning control P1 and P4 of Section 6.2 of the MRDCP, in that the swimming pool is proposed both forward of the building line, and in an elevated position which is expressly discouraged.
However, planning control P4 appears to consider circumstances where a pool structure may be proposed above the ground level, so long as the finish of the structure blends into the background environment and or landscaping, and is not visible from a public place. In my view, both of these provisos are achieved in this case.
Accordingly, I find the proposed development consistent with both the existing character of the Rosherville/Wy-ar-gine Townscape, and the desired future character.

Visual privacy impacts arising from the proposed raising of the landscaped area

The objector's oral submission at [7], was heard while standing in the front setback of No 5 Hopetoun Avenue, in a location that is approximate to that depicted in the image, re-produced below, taken from exhibit K.
To be clear, it is generally agreed that the image above is from a position somewhat more elevated from that witnessed by the Court, and may also include a mild horizontal distortion that does not detract from the value of the image as a record of the general view to the north-east from No 5 Hopetoun Avenue.
While concerns at the elevation of the pool level may not be wholly without foundation from a standing position in No 5 Hopetoun Avenue, I am satisfied that the section re-produced at [71] is an improvement from the sightlines available today, for the reasons that follow: 1. Firstly, the view from the front setback in both Nos 5 and 5A Hopetoun Avenue is to an expansive panorama taking in the waters of Cobblers Bay, and from Parrawi Head to the north west, to Castle Rock to the north east. The views provide an incentive to look to the north, and not across and behind from No 5A Hopetoun Avenue to No 5 Hopetoun Avenue. 2. Secondly, I accept a sightline is readily available to occupants of No 5A Hopetoun Avenue today, including from the pool surrounds, and the winding steps from which a sightline is only precluded by the mature Murraya planted on the subject site. These steps are to be removed. 3. Thirdly, three elements obscure a sightline in the proposal towards No 5 Hopetoun Avenue. They are:

While elevated, the new level is setback a further 900mm from the western boundary shared with No 5 Hopetoun Avenue, preserving the area in which the Murraya grows.
The Murraya is, by condition of consent, to be retained and, along with a new hedge formed by Syzygium Australe, is to be maintained at a height of at least RL 41.1, around 2.5m above the existing level.
A perimeter planter bed, defined by a 350mm high steel edging, will prevent a person moving closer to the western boundary when standing on the lawn at the newly elevated level.

While I find this deals appropriately with the potential for visual intrusion, I note planning control P4 in Section 5.14 of the MRDCP provides that reconstituted ground levels must not be higher than the ground level of an adjoining property.
As I find the relevant objective of Section 5.14 is addressed, I also consider it appropriate to apply the control flexibly, consistent with terms at s 4.15(3A)(b) of the EPA Act. I also note that the difference in level evident today is exaggerated by a deep, inclined trench on the eastern boundary No 5 Hopetoun Avenue to accommodate the inclinator.
In reaching the above conclusion, I consider the issue of privacy in the front setback of No 5 Hopetoun Avenue to be balanced against the amenity currently enjoyed in the form of a view taken from that position to the north-east to sky and tree canopy.
I consider those aspects at [112] sufficient to manage visual privacy, while not detracting from the amenity currently enjoyed by No 5 Hopetoun Avenue to the north-east across the side boundary of No 5A Hopetoun Avenue, and I note the removal by the Applicant of the proposed pergola structure in this area of the subject site assists in retaining that amenity.

Jurisdictional pre-conditions to the grant of consent

In addition to the principally contested matters in this case, there are a number of jurisdictional pre-conditions that I will now consider.
In respect of the MLEP: 1. The site is not identified to be in an area with acid sulfate soils classification, pursuant to cl 6.1. 2. The provisions of cl 6.6(3)(a)(iii) states the consent authority may, but not must, refuse to grant development consent unless 35% of the site is landscaped area, where a site is at least 500m2 but less than 650m2. The dictionary to the MLEP defines landscaped area in the following terms: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area. 1. At the conclusion of the hearing, the Court identified discrepancies in calculations provided to the Court. Parties sought to provide submissions on the issue, which I heard on 2 December 2022, followed by written submissions in reply. 2. The landscaped area calculations prepared by the Applicant, consistent with the definition, is 297.02m2, or just over 45% of the site area. 3. In written submissions filed 9 December 2022, the Respondent submits, and I accept, that the parties agree the quantum of landscaped area is increased, the provision at cl 6.6 is not a development standard, and that it is sufficient for the determination of these proceedings for the Court to find that the landscaped area proposed would comply with the control in cl 6.6 of the MLEP. 4. The proposal includes excavation and other earthworks, requiring consideration of those matters at cl 6.7(3). On the basis of the Geotechnical assessment prepared by JK Geotechnics dated 26 May 2021, the Landscape Plans prepared by Paul Bangay Studio dated 2 May 2021 and Concept Drainage Plan prepared by Susan Rothwell Architects dated 15 September 2021, I consider those matters that are not otherwise addressed in this decision, to be adequately addressed.
In respect of State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP): 1. On the basis of the historical use of the land the subject of the development, and the continuance of that use, I have considered whether the land is contaminated and conclude it is not, and that it is suitable for the development proposed, in accordance with s 4.6 of the Hazards SEPP.
In respect of State Environmental Planning Policy (Biodiversity Conservation) 2021 (Biodiversity SEPP): 1. While the site is located within the C4 Environmental Living Zone of the MLEP and so Ch 2 of the Biodiversity SEPP applies to the site, the development application is accompanied by an arboricultural report prepared by Naturally Trees dated 26 May 2021 (Exhibit A, Tabs 9 and 27) that confirms no trees are proposed for removal on the site. 2. The site is also identified to be within the Sydney Harbour Catchment area, pursuant to Ch 10 of the Biodiversity SEPP. I note here that Ch 10 of the Biodiversity SEPP was repealed on the eve of the proceedings by State Environmental Planning Policy Amendment (Water Catchments) 2022. However, the relevant savings provision serves to save the application of Ch 10 of the Biodiversity SEPP. 3. Section 10.10 of the Biodiversity SEPP sets out twelve planning principles that must be considered and, where possible, achieved (s 10.9(2)). I have considered the planning principles relevant to the development the subject of the development application and conclude that the development application demonstrates appropriate conformity with the planning principles.
In respect of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: 1. The application is accompanied by a BASIX certificate (Cert No. A416052_04, dated 22 November 2022) prepared by Alan Kempster Architects (Exhibit H) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

Of the contentions set out at [30], the parties agree that the provision of W210 does not impose a privacy impact on the adjoining property, and that changes to the size of a water feature to the south of the site result in an acceptable outcome.
In respect of those matters remaining, I find the development application, as amended, warrants the grant of consent pursuant to s 4.16 of the EPA Act, subject to conditions of consent.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application 8.2021.196.1 for alterations and additions to a dwelling house, including the demolition of an existing swimming pool, and the construction of a new swimming pool at 5A Hopetoun Avenue, Mosman is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All exhibits are returned except for Exhibits A and B.

Annexure A 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. Decision last updated: 22 December 2022

At a glance

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Judgment (15 paragraphs)

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Cases Cited (2)

Cited By (2)