Taylor v Mosman Municipal Council

The site and its context

1. The site is located at 7 Ellamatta Avenue, Mosman and is legally described as Lot 11 in DP 875220.
2. The allotment is irregular in shape. The site area is approximately 878sqm. The site has a primary frontage of 16.075m to Ellamatta Avenue and benefits from a secondary frontage to Glengarry Lane of 22.55m in length.
3. The site is characterised by topography, falling from the southeast to the northwest by approximately 3.3m.
4. The site is currently occupied by a two-storey detached dwelling house that includes a habitable third-level attic contained within the roof form. The dwelling house dates from the original development consent, the subject of these proceeding, and has been constructed more recently than 2015.
5. An existing detached double garage is located along the Ellamatta Street frontage. This garage is clearly an older, dilapidated structure that predates the recent dwelling house.
6. The immediate vicinity surrounding the site comprises a reasonably consistent urban character.
7. Ellamatta Avenue is a relatively short cul-de-sac. The dwellings on the northern side of the street, at numbers 1, 3, 5 and 7, form a cohesive row sharing a range of similar features.
8. Numbers 1, 3 and 5 are locally listed heritage items. They present as traditional, detached Federation-era dwellings with high levels of ornamentation, including complex roof geometry, multiple chimneys, dormer windows, bay windows, decorative timber fretwork and brick detailing.
9. The heritage listed dwellings at numbers 3 and 5 have both been designed to present their primary facade to the north, addressing Glengarry Lane. Consequently, their Ellamatta Avenue addresses serve to accommodate a double carport and double garage respectively.
10. The heritage listed dwelling at 1 Ellamatta Avenue appears to function as part of a private hospital and the Ellamatta Avenue frontage, although not including a garage structure, serves to facilitate vehicle access to the site.
11. West of the subject site, the immediate neighbour at 61 Bradleys Head Road, also presents its garage structure to Ellamatta Avenue.
12. This consistent arrangement of garaging and vehicle accommodation addressing a primary street is a relatively uncommon feature across the local area, but is characteristic of the northern side of Ellamatta Avenue.

The planning controls

1. The key relevant statutory controls are as follows: 1. EPA Act 2. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 3. State Environmental Planning Policy No 55 - Remediation of Land 4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 5. Mosman Local Environmental Plan 2012 (MLEP) 6. Mosman Residential Development Control Plan 2012 (MRDCP)
2. The site is zoned R2 Low Density Residential under the MLEP and is situated within the Bradleys Head Road Heritage Conservation Area, also identified within Schedule 5 Environmental heritage of the MLEP.
3. The site is in close proximity to listed heritage items identified within the MLEP, at 59 Bradleys Head Road (Presbytery Blessed Sacrament Church), 63 Bradleys Head Road (Trelawney house and fence) and at 1-5 Ellamatta Avenue (group of 3 houses).
4. The MRDCP further defines the townscape attributes and heritage significance of the Bradleys Head Heritage Conservation Area, and sets out a series of provisions relevant to this matter, including; carport and garage design, fences and walls, landscaping, heritage conservation and privacy and security amongst others.

History of the Modification Application

1. On 5 June 2020, Modification Application No. 8.2015.162.2 was lodged with the Respondent by the Applicant.
2. The modification was notified and three submissions received during the public notification period. The relevant issues raised in these submissions include: 1. The proposal comprises similar features conditioned out of the original development consent and should not be reintroduced. 2. The original consent included conditions that had the effect of omitting dormer windows W1 and W2 in the western plane of the roof due to overlooking and privacy concerns, and these should not be reinstated. 3. The proposed balcony will overlook the pool and bedroom of neighbours and if approved should introduce privacy screens. 4. The raised roof line necessary to accommodate the balcony will overshadow the pool and garden of neighbouring property. 5. The proposed garage is of excessive size and should be setback from the common boundary to the immediate neighbour. 6. Concern for the scale, form and siting of the proposed garage. 7. Concern an approval will set a negative precedent for siting of garages.
3. On 2 September 2020 the Respondent requested the Applicant withdraw the modification. The reasons included: 1. The proposed garage is excessive in size and would have an unacceptable bulk and scale impact to the streetscape. 2. The proposed setback of the garage does not comply with the minimum side setback requirement. 3. The proposal would have an adverse impact upon the heritage conservation area. 4. Council's landscape designer, engineer and heritage advisor do not support the proposal for various reasons.
4. On 21 October 2020 the Applicant submitted amended plans.
5. On 25 October 2020 the Applicant provided additional information in support of these amended plans.
6. On 16 December 2021 the modification was considered by the Respondent, with the assessment report recommending approval subject to conditions requiring the portion of dormer windows below a height of 1.6m above the floor level to be fixed translucent glazing, and deleting works in relation to the garage, fence, driveway and crossover.
7. Also on 16 December 2020, the Respondent refused the modification for the following reasons: 1. The extension of the attic roof to the north and creation of a balcony adversely alters the traditional built form of a house that contributes significantly to the Bradleys Head Heritage Conservation Area. The addition of dormers to the western side of the attic roof is not consistent with the architectural character of the house. 2. The proposed garage will result in dominance of built form over landscape and on the streetscape of the conservation area. 3. The proposed garage is excessive in size and will have an adverse impact on the streetscape, and does not satisfy the controls set out in Part 7.4(3)(f) Bradleys Head Heritage Conservation Area of the MRDCP. 4. The proposed high pier and palisade fence is out of character with the traditional fences of significant periods of residential development in the conservation area. 5. The proposed landscaped area is unacceptably lower than the required minimum 45% and the submitted plans do not reflect the current condition of the landscape which includes a swimming pool and large paved area in the rear of the property. 6. The proposed planting plan is unacceptable in that it does not propose substantial canopy tree plantings on the site to compensate for the removal of the large Blackbutt that previously occupied the site. The plantings do not adequately soften the built form of the house or the proposed garage. 7. The adverse heritage and amenity impacts of the proposal are contrary to s 4.15(1)(a)(i) and (iii) of the EPA Act. 8. The proposal is inconsistent with the objectives of cl 5.10 of the MLEP. 9. The site is unsuitable for the proposed development s 4.15(1)(c) of the EPA Act. 10. The proposal is contrary to the public interest s 4.15(1)(e) of the EPA Act.
8. On 21 December 2020 the Applicant filed an appeal against the Respondent's refusal of the modification with the Land and Environment Court.

The issues

1. The contentions set out by the Respondent can be found in the Statement of Facts and Contentions forming Exhibit 2 in these proceedings.
2. These contentions are summarised as follows, and with the exception of Contention 7, all are pressed by the Respondent: 1. The original consent included conditions that had the effect of omitting dormer windows W1 and W2 in the western plane of the roof, and these should not be reinstated. 2. The maximum building height permitted under cl 4.3 of the MLEP is 8.5m. The proposed dormer windows have a height of approximately 10m, and the ridge line above the proposed balcony has a height of approximately 11.9m, breaching the height control by 1.5m and 3.4m, respectively. The exceedance of the height of building development standard results in a proposal that is inconsistent with objectives of the height of building control and R2 Low Density Residential zone. 3. The modification proposes building elements - being the garage, dormer windows and balcony - that are bulky and inappropriate in the streetscape of Ellamatta Avenue, Glengarry Lane and Effingham Street. The proposal results in unacceptable impacts upon the heritage significance of the Bradleys Head Road Heritage Conservation Area. 4. The modification results in a loss of landscaped area on the site and does not comply with a requirement for 45% of the total site area to be landscaped as required by cl 6.6 of the MLEP. 5. The modification exceeds the height of building control and results in overshadowing and privacy impacts upon neighbours to the east and to the west. 6. The modification was publicly notified and submissions were received that are consistent with the contentions pressed by the Respondent. 7. Inadequate information to support complete assessment of the modification, including survey, landscape area calculations, gross floor area calculations, overshadowing diagrams and landscape plans.
3. It is helpful to group these various, occasionally intersecting, contentions into a series of related design and planning issues: 1. The built form, siting and scale of the proposed double garage and storage space, and its impacts upon the heritage conservation area, landscape and streetscape character of Ellamatta Avenue. 2. Dormers windows W1 and W2 in the western plane of the the existing roof form and associated heritage, streetscape and privacy issues. 3. The built form, scale and bulk of the proposed attic balcony and associated heritage, streetscape, overshadowing and privacy issues.

The evidence

1. The Court was assisted by experts in planning, who conferred to prepare a joint report of planning experts. The experts are Ms Kerry Gordon for the Respondent and Mr Anthony Betros for the Applicant. Their joint expert report forms Exhibit 3.
2. Similarly, the Court was assisted by experts in heritage, who conferred to prepare a joint report of heritage experts. The experts are Mr Brad Vale for the Respondent and Mr Stephen Davies for the Applicant. Their joint expert report forms Exhibit 4.
3. In their joint expert report, at pars 17-95, Ms Gordon and Mr Betros set out their disagreement to a number of key points: 1. The acceptability of dormer windows W1 and W2. 2. The acceptability of the proposed height exceedance and associated impacts created by dormer windows W1 and W2 and the attic balcony. 3. The acceptability of the proposed garage structure upon the streetscape and heritage character of Ellamatta Avenue. 4. The acceptability of the landscape plans.
4. In his oral evidence, Mr Betros set out his view that the final amended proposal was generally acceptable, and that the dormer windows represent the Applicant's preferred method of achieving light and ventilation within the attic.
5. He offered a view that dormer windows are a roof feature more consistent with positive streetscape characteristics of the locality than skylights.
6. He conceded that the height of building exceedance created by the dormer windows and balcony contributes to issues of perceived bulk and scale and overshadowing, but that the overall composition of the proposed roof form is acceptable.
7. He noted that translucent glazing to the lower portion of the southern dormer window (as subsequently proposed by the Applicant) would eliminate cross viewing with the neighbouring property at 61 Bradleys Head Road.
8. Mr Betros described the balcony as being "recessed and camouflaged" within the design of the roof form, and considered it to be "in keeping" with similar structures in nearby and neighbouring properties, and not to be out of character.
9. Finally, Mr Betros described his satisfaction that the final amended double garage design was acceptable because - in part - it meets the maximum 40% of site frontage control set out in Part 5.2 of the MRDCP, because the storage space linking the garage to the primary dwelling will be screened from view by landscaping and because the proposed form is familiar to the immediate streetscape.
10. In response, Ms Gordon noted that the amended proposal - although representing some improvement - did not go far enough to warrant approval.
11. Addressing the Respondent's draft conditions of consent, Ms Gordon set out her view on a range of further amendments necessary to render the proposal acceptable.
12. This included altering the garage enclosure to instead create a car port, setting the car port 300mm from the eastern boundary, lowering its height, making the form presenting to Ellamatta Avenue symmetrical and reducing its frontage to a maximum of 6m.
13. In Ms Gordon's view, the storeroom roof linking the garage to the primary dwelling requires further differentiation to reduce its scale and visibility when viewed obliquely from Ellamatta Avenue.
14. Finally, Ms Gordon set out her view that the amended landscape plans required confirmation of an appropriate large canopy native tree species that will mature to approximately 10m in height, and associated conditions to ensure the proper establishment of this tree.
15. The planning experts agree that the original development consent was approved with an exceedance of the maximum height of building development standard, satisfactorily justified at that time. Consequently, the modification forming the subject of these proceedings does not need to be accompanied by any formal cl 4.6 written request to vary the height of building development standard.
16. In their oral evidence Mr Davies and Mr Vale generally agreed that dormer windows are a characteristic element, often evident on neighbouring and nearby dwellings, even if not always a traditional or original feature of the heritage conservation area.
17. They agreed the existing dwelling at 7 Ellamatta Avenue is not a heritage item, but rather a recently constructed dwelling adopting the general form, features and characteristics of nearby dwellings, including those which are heritage items.
18. They agreed that - in comparative terms - the proposed dormer windows are relatively small element within the roof form.
19. Mr Davies set out his view that dormers are the preferred method for admitting light and air into the attic, ahead of skylights, because of their ability to integrate into the roof form and adopt consistent materials to the adjacent roof.
20. Mr Vale generally agreed, both in oral evidence and at par 12(ii) of the joint report forming Exhibit 4, where he states that "the proposed dormers are aesthetically fitting on the Federation style house."
21. However, recognising the more recent date of construction of the dwelling at 7 Ellamatta Avenue, later at par 12(ii) of the joint report, Mr Vale qualifies his support when he states: "The proposed dormers are not a means of using a roof space that has existed for over a century; they are an addition to a relatively modern structure. In the case of a house built in the Federation period that is contributory in a conservation area (but not a heritage item), I am sympathetic to owners seeking to add dormers to use the roof space, if that can be done in a manner that is not intrusive in views from the street. If a roof space that was built in the Federation period is over Council's height limit, I am sympathetic towards new dormers being added to the roof space above Council's height controls. In this circumstance, the house is a relatively new structure, so I no longer see a heritage reasoning to privilege the house in having proposed dormers above the height controls."
22. Returning to his oral evidence, Mr Vale then set out his method for assessing the impacts of the proposal upon the heritage conservation area.
23. Noting the subject property is not a heritage item, Mr Vale indicated that the assessment would start with reference to the statement of significance contained within the MRDCP.
24. In Mr Vale's view, the key consideration is - does the proposal diminish the significance of the heritage conservation area - and factors such as the scale, form, materials, streetscape and landscape character of the final amended proposal are each in play.
25. In terms of the proposed garage, Mr Vale stated in oral evidence that he saw no heritage issue in demolition of the existing garage.
26. Both heritage experts agree the existing arrangement of the dilapidated garage and associated hardstand are a detracting feature of the Ellamatta Avenue streetscape and warrant replacement.
27. Similarly, the heritage experts are in general agreement that the final amended landscape proposal, which introduces garden planting and a large native tree, in concert with proposed amendments to the boundary fence addressing Ellamatta Avenue, is an appropriate design response in heritage and streetscape terms.

Findings

1. I now propose to uphold the appeal and grant consent to an amended modification subject to conditions. The amendments are to be based on the Issue E architectural plans tendered as Exhibit D in these proceedings. In proposing this course, I set out my reasons in the following paragraphs.
2. As noted earlier in this judgment, it has been helpful to group the various tensions evident in the proposal into a series of three related design and planning issues: 1. The built form, siting and scale of the proposed double garage and storage space, and its impacts upon the heritage conservation area, landscape and streetscape character of Ellamatta Avenue. 2. Dormers windows W1 and W2 in the western plane of the the existing roof form and associated heritage, streetscape and privacy issues. 3. The built form, scale and bulk of the proposed attic balcony and associated heritage, streetscape, overshadowing and privacy issues.
3. Firstly, I find it is reasonable for the property to accommodate a double garage and storage space, but in order to mitigate against a number of heritage and streetscape issues, I have determined that amendments be made to improve the form, siting and scale of the garage and storeroom structure. These amendments are to be based on the Issue E plans tendered as Exhibit D in these proceedings, but necessitate further changes described below.
4. In reaching this determination, I note the dwellings on the northern side of Ellamatta Avenue tend to include garaging or structured carports sited close to the street alignment and forward of the building line of the primary dwelling.
5. Although uncommon in the Bradleys Head Road Heritage Conservation Area, garages sited in front of the primary dwelling are a prominent and familiar element in the Ellamatta Avenue streetscape. This is partly a consequence of the houses at 3, 5 and 7 Ellamatta Avenue each presenting their primary facade and architectural composition to the north on to Glengarry Lane.
6. For this reason, it is clear that the provisions guiding the siting of garages set out at Part 7.4(3)(f) of the MRDCP should not be faithfully applied in this particular circumstance.
7. The existing dilapidated double garage and associated hardstand do not positively contribute to the streetscape. The modification therefore represents an opportunity to significantly improve the current presentation of 7 Ellamatta Avenue to its immediate streetscape.
8. With the lawful removal of the large Blackbutt tree in recent years, a substantive reason for earlier refusal of the garage is no longer relevant.
9. There is general agreement that the final amended landscape design is appropriate, but should include a replacement large canopy native tree. I accept that the landscape design described in the Issue E landscape plans (and forming Exhibit E in these proceedings) will improve the overall streetscape presentation, and as it matures, will serve to reduce the visual impacts associated with the garage and storage space. Confirmation of an appropriate large canopy native tree species (other than the currently nominated Acmena smithii) is required and shall be included within the conditions of consent.
10. Pursuant to cl 6.6(3)(a)(v) of MLEP, which deals with landscaped areas, the consent authority may refuse to grant consent to development where the landscaped area is less than 45% of the site area.
11. In the circumstance of this matter, the planning experts agree the amended proposal has the effect of increasing the total landscaped area from 293.8m2 to 331.5m2. This is equivalent to an increase from approximately 33% of the total site area to approximately 38%. While the amended proposal does not meet the numeric control of 45%, I am satisfied the objectives set out at cl 6.6 of the MLEP have been met.
12. The required amendments to the garage and storeroom (as currently described in the Issue E plans) are intended to further mitigate against issues raised by the Respondent and include siting the garage 300mm from the eastern surveyed site boundary, rendering the structure symmetrical when viewed from Ellamatta Avenue, lowering the floor level of the garage by 170mm, reducing the pitch of the hipped roof from 30o to 25o, and thereby reducing its overall height by approximately 642mm.
13. Additionally, the amended garage and storeroom structure is to have a maximum height to the underside of the eaves of 2.4m above its finished floor level, and the amended garage shall be reduced in width to be no greater than 6m wide in its presentation to Ellamatta Avenue.
14. The design of the front fence as described in the Issue E plans shall be amended so that the masonry side walls adjoining the pedestrian entry gate are replaced with metal palisade between masonry piers. The raised garden beds shall be lowered to match the adjacent footpath level. The masonry plinth of the fence addressing Ellamatta Avenue shall be no more than one masonry unit high, and be no greater than 300mm above footpath level
15. Next, I find it is reasonable for the northern dormer window W2 to be introduced into the western plane of the existing roof. However, I have determined that the southern dormer window W1 should be deleted by condition of consent.
16. I accept that the introduction of the dormers into the roof form is generally regarded as acceptable by the heritage experts. There are numerous nearby examples of similarly scaled and proportioned dormer windows, which are familiar and representative of the character of the area, even if not commonly an original feature of traditional Federation houses.
17. Although the proposed dormers are situated above the 8.5m maximum height of building control, they are diminutive in scale to the overall roof form and are approximately 1,200mm below the primary ridge line.
18. For these reasons, I am satisfied that the dormer windows do not create unacceptable heritage or streetscape impacts.
19. However, I find that the orientation and proximity of the southern dormer window W1, and its relationship to the neighbouring property at 61 Bradleys Head Road, would create privacy and cross viewing impacts, and for this reason it is to be deleted by condition of consent.
20. I have considered, but discounted, the Applicant's proposal that translucent fixed glazing be introduced to the lower portion of the dormer window W1 to mitigate against cross viewing. In this instance, having visited the neighbouring property and observed the relationship between existing and proposed windows, I prefer the position adopted by the Respondent, that the southern dormer be deleted entirely.
21. The deletion of the southern dormer is intended to eliminate even the perception of an erosion in privacy that would accompany a screened or translucent window addressing the more sensitive side boundary, and for this reason, I also determine that the southern dormer should not be replaced by a skylight.
22. Although not directly relevant to the reasons for this judgment, I note that deleting the southern dormer also has the effect of reducing the perceptible bulk of the roof form and results in a simplification of the overall composition of the dwelling.
23. Finally, I find it is reasonable to introduce the proposed attic balcony into the existing roof form, and note the internal amenity provided by the balcony and its glazed french doors, in conjunction with the internal amenity provided by the northern dormer window, will work to compensate for any reduced internal amenity resulting from the deletion of the southern dormer window.
24. The design of the attic balcony described in the Issue E plans forming Exhibit D, introduces a series of changes to increase privacy and to eliminate potential cross viewing, particularly to the neighbouring property at 61 Bradleys Head Road. This version of the balcony also offers a greater sense of enclosure and shall form the basis of the amended modification.
25. I accept that the proposed attic balcony will increase the perceptible bulk and scale of the existing dwelling and in doing so, will further extend the height non-compliance established by the existing dwelling as constructed, however the Issue E version of the attic balcony reduces this bulk in comparison to the Issue A version, which accompanied the initial Modification Application.
26. Similarly, I accept that the proposed Issue E balcony brings with it some additional overshadowing impacts. However, these additional impacts are minor and limited to a portion of two west-facing study windows at 5 Ellamatta Avenue, and persist for just 15 minutes between 9am and 3pm during the winter solstice.
27. Overshadowing impacts of this extent are reasonable and consistent with the guidance set out in Part 5.8 of the MRDCP, which does not require the protection of west-facing study windows in the same way that other north-facing primary rooms and habitable spaces are protected.
28. In determining the acceptability of the proposed balcony, I have considered the objectives of the height of buildings clause set out at cl 4.3(a) of the MLEP and am satisfied these objectives are met.
29. In considering the Respondent's contentions associated with the proposed Issue E attic balcony, I am satisfied that no cross viewing and privacy issues arise as a result of the balcony's configuration. The primary outlook is to the north over Effingham Street and Glengarry Lane, where adequate separation distances exist and where the underlying topography and configuration of the northern neighbouring dwelling further eliminate privacy issues.
30. I am satisfied that upper level balconies integrated within roof forms are a common feature of the immediate locality, including elsewhere along the northern side of Ellamatta Avenues, and these balconies are similarly oriented to the north over the roof scape of the immediate northern neighbours.
31. I accept the Issue E balcony design is positively integrated into the overall roof form in a manner consistent with the character of the local area, and does so without detriment to the presentation of the dwelling when viewed within the Bradleys Head Road Heritage Conservation Area.
32. From vantage points within the public domain along Effingham Street and Glengarry Lane, I am satisfied that the overall composition of the dwelling will be cohesive and consistent with the character of the heritage conservation area.
33. I have determined that the modification is to be amended to reflect the form and scale of the attic balcony as currently described within the Issue E plans.
34. For these reasons, I now propose to uphold the appeal and grant consent to an amended modification, subject to conditions.

Directions

1. Accordingly, the Court directs that: 1. The Applicant is to prepare and file with the Court final architectural drawings, based on the Issue E plans tendered as Exhibit D, but amended to reflect the reasons and proposed conditions set out in this judgment, within 7 days. 2. Upon the Court forming a satisfactory view that these filed final amended plans are consistent with the reasons set out in this judgment - and pursuant to s 39(2) of the Land and Environment Court Act 1979 - the Court would then propose to exercise the function of Mosman Municipal Council as the consent authority under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 and agree to the Applicant amending Modification Application No. 8.2015.162.2. 3. Upon further direction from the Court, the Respondent is to effect lodgement of the final amended Modification Application by uploading it on the NSW Planning Portal, and notify the Applicant forthwith. 4. The Respondent is also to prepare a corresponding set of conditions of consent reflecting the reasons set out in this judgment and consistent with the final amended modification, and file these conditions with the Court within a further 7 days of the amended modification having been lodged on the NSW Planning Portal. 5. Upon receipt of the amended Modification Application and evidence of its lodgement on the NSW Planning Portal being filed with the Court (by the Applicant) and upon receipt of the corresponding conditions of consent being filed with the Court (by the Respondent), I then propose to make final orders to grant consent to amended Modification Application No. 8.2015.162.2 and at that time would dispose of the matter.

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: 08 September 2021