Walker v Mosman Municipal Council - [2024] NSWLEC 1341 - NSWLEC 2024 case summary — Zoe

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Walker v Mosman Municipal Council

[2024] NSWLEC 1341

Land and Environment Court (NSW)|2024-04-16

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Court

Land and Environment Court (NSW)

Decision date

2024-04-16

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

JUDGMENT

COMMISSIONER: The applicant, Phillip James Walker, has requested development consent to make alterations and additions, and construct a vehicle turntable, new parking spot and new fence at his residence, a semi-detached dwelling house at 89 Spit Road, Mosman. Mosman Municipal Council, the respondent, has refused the relevant Development Application No 8.2023.31.1 and it is from this actual refusal that these proceedings arise.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court's jurisdiction. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 and 16 April 2024, and over which I presided. No agreement was reached in conciliation, and the matter proceeded forthwith to a hearing on 15 April 2024.
Although the parties did not reach agreement in conciliation, resolution was achieved on several of the issues in dispute between the parties. Subsequently, the remaining contentions that are pressed by the respondent are: 1. The impacts of the development on the streetscape and desired character; 2. The impact of the development on the existing street tree; 3. The public interest.
The proposed development is located to the front of the existing semi-detached dwelling fronting Spit Road, Mosman. Spit Road is a classified road that forms a primary vehicle route from Sydney's Northern Beaches to North Sydney and the city. The site, legally known as Lot 72 in DP 602239, is located on the eastern side of Spit Road and currently features a one and two-storey semi-detached dwelling - one of ten similar semi-detached dwellings in a row. The existing front yard is entirely paved, and the front boundary wall is an approximately two metre high painted masonry wall. The site is not a heritage item, nor is it located within a heritage conservation area. Pursuant to the Mosman Local Environmental Plan 2012 (MLEP), the land is zoned R3 Medium Density Residential.

[2]

The impact of the development on the streetscape and desired character

To consider this contention, the streetscape and desired character must first be defined. To do this, I turn to the evidence provided in the Joint Report of Planning Experts (Ex 3), the relevant planning controls, and the observations I was directed to make at the site view.
Expert planning evidence was provided by Mr Paul Grech for the applicant, and Ms Rebecca Englund for the respondent.
Mr Grech submits in Ex 3, that the streetscape is defined by "considerable variation in housing typology and architectural style, fence style height and materials, and availability of vehicle access and on-site parking."
Ms Englund, the town planning expert for the respondent, submits that the streetscape is relevantly described in the Spit and Military Roads Townscape statement at Pt 7.4(21) of the Mosman Residential Development Control Plan 2012 (MRDCP): "The area is relatively dense with buildings sited close to the street. The corridor is dominated by residential flat buildings interspersed with commercial buildings, retail buildings and some single storey dwelling houses. Mid to post war modest flats and modern flat developments (post 1980) are prevalent. The buildings are deep red and blue brick, with some painted and cream brick intrusions. Roofs are generally tiled with some slate. Except for some residential flat buildings, roofs are pitched and complex in form. Tree cover is sparse and diverse including brush box, coral trees and eucalypts. The landscape has an open exposed character."
I accept both descriptions, which do not conflict, and note that as supported by my observations on site and by the photographic survey that forms Appendix E of Ex 3, the existing streetscape is highly varied in the ways described by both Mr Grech and the Spit and Military Roads Townscape statement.
In terms of the desired character of the area, I accept the evidence of Ms Englund, the town planning expert for the respondent, that this desired character is established through the application of the relevant development controls, again with particular focus on the Spit and Military Roads Townscape statement in the MRDCP, which relevantly provides the following: "Planning controls - Spit and Military Roads Townscape Building form and design: (a) Encourage building form that creates a noise barrier and is appropriately sited to increase noise attenuation for residents and to adjoining properties. Vehicle access: (b) Encourage vehicle access to residential properties from side streets and rear lanes rather than Military or Spit Roads. Fences: (c) Encourage low unpainted brick and timber front fences. High front fences/walls may be acceptable on Cowles Road, Macpherson Street, Military Road, Ourimbah Road, Spit Road and Spofforth Street to reduce vehicle noise impact. (d) Encourage acoustically treated fences which are attractive and not of unrelieved masonry. Landscaping: (e) Encourage opportunities for aggregated deep soil planting areas at the Spit and Military Road frontage. Planting is to soften the built form and assist in noise attenuation."
The respondent contends that the proposed development has an adverse impact on the streetscape and desired character of the area due to:

Limited provision of landscaping;
Provision of a hard stand parking area forward of the front building line;
Height and design of the front fence; and,
Unacceptable demolition of the front verandah.

I will deal with each of these in turn.

[3]

The provision of landscape to the site frontage

The respondent firstly contends that the proposed development provides inadequate landscaping, and unacceptably restricts future landscaping to the front of the house due to the installation of the vehicle turntable.
Ms McCulloch for the respondent submits that the best use of the front yard area is landscape, and that the planting proposed is tokenistic and does not achieve the amount of landscape that is encouraged in the MRDCP controls. This is supported by the oral evidence of Ms Englund who submits that the front yard should be landscaped in a manner that softens the built form. Ms Englund further submits in Ex 3 that the lack of landscaping forward of the dwelling is also inconsistent with Objective O6 and Planning Control P4 of MRDCP Pt 4.4, which states: "Objectives … O6. To have front gardens and areas forward of the front building alignment include vegetation and landscaping that makes a positive contribution to the streetscape. Planning Controls … 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."
MRDCP Pt 5.1 further states: "Objectives … O4. To have the front setback contribute to the streetscape in terms of a landscaped setting, with minimal hard surface areas. … Planning Controls … P16. Provide sufficient area within the front setback which incorporates gardens and space for appropriate trees to balance the built form. P17. Hard surfaces should be minimised with in the front setback, and sufficient soft landscaping provided to overcome the pressures within the front setback of car parking and driveways."
Ms Englund contends that the provision of a hard stand parking area forward of the front building line, coupled with insufficient landscape, will not meet the above objectives or controls, and will permanently remove the opportunity to meet MRDCP Pt 5.2 Objective O2: "O2. To have areas forward of the front building alignment reserved predominantly for vegetation and landscaping and to make a positive contribution to the streetscape."
In response, Dr Smith for the applicant submits that although the townscape controls encourage planting, there is no positive requirement in the MRDCP for the current hardstand to be replaced with planting. This was confirmed by Ms McCulloch. Dr Smith further submits that the proposed development increases the quantum of planting in the front yard in a way that maximises the visual impact to the street frontage through judicious species selection and positioning. This includes tree species up to 3m tall and climbers to the side boundaries, both of which will be visible in passing, either above or in glimpses through the new front fence.
Ms McCulloch further submits that, as demonstrated in Figure 6 of Ex 3, there was previously a substantial amount of planting in this front yard, and that this impacts the consideration of the proposed planting. I concur with the respondent that previous planting that is no longer present is not a relevant consideration in these proceedings.
From the observations I was directed to make on site and the planting shown on drawing DA04 of Ex C, I prefer the evidence of the applicant on this issue and am satisfied that the proposed vegetation makes a positive contribution to the streetscape, meeting the relevant objectives of Parts 4.4, 5.1 and 5.2 of the MRDCP. Further, although the area forward of the front building alignment is not reserved predominantly for vegetation as required by MRDCP Pt 5.2 Objective O2, the proposed vegetation has been sited and species selected to maximise the positive contribution on the streetscape. I also note from the views I was directed to make on site, that the front gardens along this part of Spit Road are highly varied in terms of the proportion of vegetation to hardstand in front gardens, and this proposal is not inconsistent with this.
I subsequently find that, on merits, the provision of landscape to the front courtyard is acceptable, and will make a positive contribution to the streetscape in accordance with Pts 4.4, 5.1 and Pt 5.2 of the MRDCP.

[4]

The impact of a hardstand parking space to the front of the building

Regarding the provision of a hard stand parking space forward of the front building line, Mr Grech argues that this is contemplated by MRDCP Pt 5.1 Objective O4 and controls P16 and P17, as detailed above, and 5.2 control P2 which states: "P2. For existing development, garages or carports should be sited having regard to the following hierarchy: (a) garage or carport located at rear of the site with access from a rear lane; or (b) garage or carport located at the rear of the site with access from the street frontage or at the side of the dwelling behind the front building alignment; or (c) where a garage or carport cannot be provided at the rear or side of the dwelling, a hardstand area (preferably in the form of wheel strips) forward of the front building alignment which is integrated into the landscape character of the front yard is the preferred approach."
In relation to MRDCP Pt 5.1, I concur with the applicant that in the application as amended, the front setback will contribute to the streetscape in terms of a landscaped setting, incorporating gardens and space for appropriate trees to balance the built form. Further, although hard surfaces remain as the majority surface treatment in this space, planting has been incorporated wherever possible to minimise these hard surfaces, as per control P17.
Part 5.2 of the MRDCP goes on to provide detailed planning controls pertaining to carport and garage design. Ms McCulloch submits that the principles in this part should be relevantly applied to un-roofed parking spaces, however Dr Smith submits, and I concur, that the drafting of these detailed controls relates specifically to carports and garages only, and are not relevant to this matter.
From this evidence I find that in circumstances such as those relevant to this site, the provision of a parking space to the front of the building is envisaged by the controls, and that the balance of planting and hard surfacing has been minimised, and is acceptable. The proposed parking space will not impact the opportunity for the front setback to make a positive contribution to the streetscape.

[5]

The height and design of the front fence

Regarding the impact of the proposed front fence, the parties spent some time in conciliation resolving a detail that would meet vehicle safety requirements as well as the aesthetic constraints of the respondent in screening the visual impacts of the verandah removal. Irrespective of this, the respondent maintains that the visual permeability of the fence will have an adverse impact on the streetscape by exposing the altered front elevation of the dwelling, and that the height and style of the fence is inconsistent with the townscape controls, the architectural style of the dwelling, and the streetscape.
Ms McCulloch submits that the tall fence is only required to counteract the adverse visual impact of the removal of the verandah, and if the verandah was to be retained there would be no need for a tall fence.
I note however, as highlighted by the applicant, that MRDCP Pt 5.3 contemplates tall fences in this location: "OBJECTIVES 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. O2. To have low open style front fencing as a means of reducing the visual impact of solid fencing styles, encourage safety through passive surveillance of streets and private property, and allow for public views. O3. To allow higher front fencing only in certain circumstances where there is a dual street frontage, where consistent with the scale or heritage value of a property, or to mitigate noise on streets with a high traffic volulme. … PLANNING CONTROLS P1. Fences and walls must be consistent with identified streetscape and townscape area character elements. P3. Front fences, and side fences forward of the building line, should be no more than 1.2m in height above footpath level. P4. In certain circumstances Council may allow front fences, and side fences forward of the building line, greater than 1.2m in height above footpath level only where: … (c) the property adjoins one of the following streets with high traffic volume: … Spit Road, … In such cases, Council may allow a fence up to 1.8m in height of solid material provided it can be shown that the fence acts as an effective noise barrier. Such fences are to be either set back from the boundary to allow landscaping to soften the bulk or the structure is to be articulated as an alternative to a solid blank wall. P5. In the case of semi-detached dwellings, a higher fence will only be permitted, in circumstances set out above, if both semis in the pair seek consent concurrently."
I note that P5 does not require further consideration in this instance as the property already features a high wall, as does the adjoining semi that forms this pair, and the neighbouring dwelling to the north.
The proposed fence does not meet the criteria set out in control P2 of Pt 5.3, as it is higher than 1.2m, nor control P4 of Pt 5.3, in that it is neither solid nor an effective noise barrier, and is not set back from the boundary to allow landscaping in front.
However, I also note that, as I was directed to observe at the site view, although there was a prevalence of high masonry walls along this part of Spit Road, there were numerous examples of alternative low or open boundary treatments, as well as varying fence materials including timber and metal. Relevantly, this included a tall metal fence at 109 Spit Road, and again some way down the road at 163 Spit Road. The latter is of a similar style to the fence proposed in this application. From that I concur with the applicant that the fence is consistent with the identified streetscape and townscape area character elements, as per Pt 5.3 control P1.
For the reasons given below, I also concur with the applicant that the visual impact of the removal of the verandah is acceptable and that the glimpses of this that may be gained through the fence
Further, as submitted by the applicant and demonstrated at the site view, a barrier for noise attenuation is not necessary in this instance as the owner has undertaken alterations to the glazing of the front façade that meet the requirement for noise attenuation to this dwelling. It was further observed on site that, as the houses in this location sit higher than the road, the front boundary walls or fences do little to improve acoustics to the dwelling or its neighbours, and can only contribute to the acoustics of the front garden.
From this I concur with the applicant that although the proposed fence does not strictly comply with the controls set out in MRDCP Pt 5.3, that it is of a style and height that will integrate with the existing streetscape, and has been both contemplated and permitted at other locations in the vicinity.
Regarding the acoustic requirements of the MRDCP, the applicant submits, and I concur, that acoustics have already been considered in this dwelling through the internal modifications observed on site. From this, I am satisfied that the proposed development meets the objectives of MRDCP Part 5.3 in that: 1. The new fence will be compatible with positive elements of the streetscape and satisfy the character objectives for the townscape area (Objective O1), 2. The visual impact of solid fencing styles has been mitigated through the visually permeable fence design which does not hinder passive surveillance of the street and private property and allows for public views (Objective O2), and 3. The proposal is for higher front fencing that is consistent with the scale of the property, as it matches the existing wall height on site and is in keeping with the height of walls on neighbouring properties (Objective O3).

[6]

The impact of demolition of the front verandah

Finally, in terms of streetscape considerations, the respondent contends that the demolition of the front verandah will have an unacceptable visual impact on the existing dwelling and streetscape.
Mr Grech states in Ex 3 that the changes to the front verandah are relatively modest, and that the prominent visible features, being the roof and timber detailing immediately below the eave line are to be retained. He further submits that, due to the screening effect of the proposed fence and planting, only filtered views of these changes will be visible, and experienced primarily by pedestrians moving past the site at a slower speed than passing vehicles.
MRDCP Pt 5.1, control P13 states in relation to building design to: P13. Avoid the removal of original architectural details and finishes, including avoiding painting face brick work or sandstone, replacing timber with aluminium, replacing unglazed terra cotta tiles or slate with other material, or removing chimneys.
In his evidence, Mr Grech focuses on the detailed list in this control, stating that not only are verandahs not mentioned but also that this control seeks to avoid, not mandate the removal of such features.
I do not concur that the changes to the front verandah are relatively modest, given the application seeks to remove it entirely. I also accept the respondent's position that the controls seek to retain such features, and that the verandah would not be considered an 'architectural detail or finish', but part of the built form. However, I also note that, as submitted by Mr Grech, the most visible part of the front of the dwelling - the roof and timber detailing below it - will be both retained and improved. I further note that this dwelling is neither a heritage item nor within a heritage conservation area, and the architectural significance of the verandah, whilst not unimportant, is limited in this context.
At the site view, the parties took me to another property at 81 Spit Road, where in a similar manner the verandah had been removed from an existing semi-detached dwelling and replaced with hard standing at ground level. In evidence, Ms Englund detailed the ways in which she felt this was an unacceptable outcome, which included inappropriate finishes to the exposed sub-floor facing the street, and the lack of landscaping to soften this built form. In response, Mr Grech submitted that any adverse visual impact of this property was formed by the lack of fence, not the lack of verandah.
Considering the visual impact of the removal of the verandah on the subject site, based on the evidence of the planning experts and the observations I was directed to make on site, I concur with the applicant's position that the removal of the verandah is acceptable, subject to the retention and appropriate restoration of the overhanging eaves and timber detailing, suitable detailing to the subfloor space, the addition of landscaping in the front setback, and the inclusion of a fence. Each of these elements are included either in the application as amended on in the agreed draft conditions of consent that now form Annexure A. I do not consider that this will be contrary to the Spit and Military Roads Townscape statement, nor the objectives of the MRDCP Clause 5.1 because the development will be of a scale and appearance that is in keeping with the street and desired future townscape area character (Objective O1); will retain a well-articulated building façade (Objective O2); and allows variety within development that is consistent with the street and desired future townscape area character (Objective O3).

[8]

The public interest

The respondent contends that the proposed development will set an undesirable precedent and that the resulting cumulative impact of individual driveways to every semi-detached dwelling along Spit Road would have an adverse impact upon on-street parking, the flow of traffic along Spit Road, and the character of the streetscape and landscape.
In consideration of this contention, I turn again to the evidence of the planning experts in both Ex 3 and oral evidence. From this, I note that the experts agree that the majority of housing forms and arrangements in the street block on the eastern side of Spit Road and Awaba Street either already has parking in the front setback, or could not support parking in the front setback without significant modification of the existing dwelling, or redevelopment.
Mr Grech further submits in Ex 3 and in oral evidence that, in his high-level assessment of the subject block, of the 18 properties (excluding corner properties) in the block, four have existing vehicle access and only two more may have the potential for parking in the front setback, based on the size of the front yard and arrangement of the built form. In Mr Grech's opinion, and based on the requirement for each development application to be considered on its own merits, he does not consider the scale of impact envisaged by the respondent physically possible due to existing site constraints along Spit Road.
In addition, expert traffic evidence has been provided in the form of a Single Expert Report by Ben Midgely, a traffic expert for the applicant (Ex B tab 1). This report contains surveys of the uptake of on-street parking along Spit Road adjacent to the subject site. Mr Midgely submits: "Being a six-lane classified road at the site frontage, Spit Road is not considered a particularly appealing or friendly place to park a vehicle, with a driver needing to enter and exit the vehicle on the site of the vehicle adjacent to two further lanes of traffic."
He further submits that, in his assessment of the area, when combined with clearway times applying to the parking lane, the resulting uptake of on-street parking along Spit Road is minimal. This is supported by survey results taken during both a weekday and weekend (Ex 3 tab 1 p 7).
In response, Ms Englund does not contest the evidence of Mr Grech but instead submits that an undesirable precedent would be established through approval of a development that represents significant departures from multiple development controls, and promotes car parking above landscaping and street character. She further submits that parking should not be required on site due to adequate public transport in the area, and that there is no automatic entitlement to vehicular access to the property.
I note that neither party have provided any evidence in relation to the adequacy, or otherwise, of public transport in the area.
I concur with the evidence of Mr Grech that the opportunity for other landowners to apply this development as a precedent and request parking to their front yards is limited due to the physical constraints of most sites in this area. Subsequently, impact of setting a precedent in this location is limited and, rather than setting a precedent, this development provides a solution that is unlikely to be easily replicated on a large scale.
Additionally, for the reasons already given in this judgment, it is my considered opinion that although the proposed development does depart from some of the planning controls set in the MRDCP, when applying the controls of the MRDCP flexibly as required by EPA Act s 4.15(3A), it does meet the objectives of these controls. Further, on consideration of the merits of this proposed development, I do not find that this proposal promotes car parking above landscaping and street character, but instead achieves a functional balance between all three, and makes an acceptable contribution to the existing, highly variable streetscape.

[9]

Jurisdictional considerations

Although I am satisfied that the proposal is acceptable on merit, there are additional matters of jurisdiction of which I must be satisfied prior to the grant of consent, which are set out below.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. The parties submit, and based the information in the Statement of Environmental Effects (SEE) (Ex B tab 13), I accept that the site has historically been used exclusively for residential purposes and there is no reason to suggest any contaminating uses on the land. I am therefore satisfied that the site is suitable for the intended development and the requirements of s 4.6 are satisfied.
Pursuant to the requirements of State Environmental Planning Policy - Building Sustainability Index: BASIX 2004, the application was accompanied by a BASIX certificate that relates to the development. The commitments in this certificate are required to be implemented via condition 8 of Annexure A.
Pursuant to the requirements of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP) s 2.6, development consent is required for the removal of the single Eucalyptus sp. street tree. This consent is requested in this development application and based on the oral submissions and joint report (Ex 4) of the arboricultural experts, I accept that the proposed tree removal and replacement satisfies the objectives of this clause, subject to the conditions of consent at Annexure A.
The site is located within the Sydney Harbour Catchment, and subsequently Ch 6 of the B&C SEPP applies to the development. Based on the information contained in the SEE and the parties' submission, I am satisfied that the matters identified in the B&C SEPP ss 6.6, 6.7, 6.8, 6.9 and 6.10 have been considered in the assessment of this application, and, as required by each of these clauses I am satisfied: 1. That the effect of the development on the quality of water entering Sydney Harbour will be neutral, and further that the impact on the water flow of a natural water body will be minimised (s 6.6). 2. That the proposed development will keep to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct impact of cumulative adverse impact on aquatic reserves; and does not abut a natural waterbody or wetland (s 6.7). 3. That the proposed development will not have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8). 4. That the proposed development does not affect public access to and from natural waterbodies (s 6.9). 5. That the proposed development is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).
Pursuant to the MLEP, the site is located within an R3 Medium Residential Zone. Development for the purposes of dwelling houses is permitted within this zone, and the proposed works are ancillary to the dwelling house. For the reasons given in this judgment, I am satisfied that the proposal is consistent with the aims of the plan at MLEP cl 1.2, and the objectives of the zone.
The proposed development has no impact on height or floor space ratio.
The existing site and proposed development do not meet the minimum landscaped area requirement of 25%, with an existing landscaped area of 15.6%. The proposed development will increase the landscaped area due to the introduction of new garden beds to the front courtyard. For the reasons given, I am satisfied that the proposed planting will achieve the objectives of MLEP cl 6.6, as: 1. The development requires landscaping of the site (cl 6.6 (1)(a)); 2. The planting will, at maturity, contribute to a general visual dominance of landscape over buildings in this area (cl 6.6 (1)(b)); and, 3. The development provides adequate useable ground level open space for recreation, landscaping and containing urban runoff (cl 6.6 (1)(c)), particularly when coupled with the existing rear garden that was observed at the site view.
Concurrence from Transport for NSW is required pursuant to s 138 of the Roads Act 1993. This concurrence was given, subject to recommended conditions of consent, in written correspondence dated 4 April 2023 (Ex 2 tab 2).
The development application was notified for 14 days between 14 March and 29 March 2023. One submission was received from the neighbour at 91 Spit Road. From the evidence given by the planning experts and the reasons given in this judgment, I am satisfied that the issues raised by this resident of visual impact, pedestrian safety, noise and construction management are adequately resolved in this application, or will be subject to the satisfaction of the conditions of consent at Annexure A.
The application was made with the consent of the owner of the land.