Andrew Burges Architecture v Mosman Council

[2006] NSWLEC 187

Land and Environment Court

of New South Wales

CITATION:	Andrew Burges Architecture v Mosman Council [2006] NSWLEC 187
PARTIES:	Applicant: Andrew Burges Architecture Respondent: Mosman Council
FILE NUMBER(S):	10183 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- variation of development standard, s94 contribution
DATES OF HEARING:	10/04/2006
EX TEMPORE JUDGMENT DATE:	04/10/2006
LEGAL REPRESENTATIVES:	Applicant: Mr P Clay, barrister Mr M Connell, solicitor of Uther Webster & Evans

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

10 April 2006

10183 of 2006 Andrew Burges Architecture v Mosman Council

JUDGMENT

1 Senior Commissioner: This is an appeal against Conditions 10 and 18 of Consent 8.2005.287.1, issued by Mosman Council (the council) on 24 February 2006 for alterations and additions to the existing dwelling on 2 Koowong Avenue, Mosman.

2 Condition 10 requires the roof of one section of the house to be lowered by 400mm. The roof has a height of 10.6m, while cl 13(1) of Mosman Local Environmental Plan 1998 (the LEP) establishes a maximum height of 8.5m. If Condition 10 were retained, the height would be 10.2m.

3 The applicant submitted an Objection under State Environmental Planning Policy 1 to the height development standard on the basis that the proposal will meet the objectives of the standard. Clause 13(1) identifies four objectives: (a), (b), (c) and (d). The dispute between the parties is whether objectives (b) and (d) are satisfied. Objectives (b) aims:

to minimise the visual impact of buildings when viewed from the Harbour and surrounding foreshores.

4 Objective (d) aims:

to minimise the effect of bulk and scale of buildings arising from new development in existing residential areas.

5 The council’s planner, Mr P Wells, said that the proposal breached several of the council’s standards. The purpose of the 400mm requirement was to reduce the extent of the breaches. The applicant, who is also the proposal’s architect, Mr A Burges, said that a 400mm reduction of the roof would make it impossible to install the highlights to the east wall of the kitchen, thus depriving the kitchen/dining area of cross ventilation and eastern sunlight. If the roof were lowered, the only alternative would be to replace the highlight with a roof light, which would be less effective, both for ventilation and for solar access.

6 I do not think that the 400mm difference in height would be perceptible from the Harbour, particularly in this design, which has broken the house into two separate pavilions in order to reduce the visual bulk. In my opinion, the proposal does meet the objective 13(1)(b) of the LEP. As concerns objective 13(1)(d), the section of the building of which the height is at issue is a long way from the street and obscured by an existing section with an existing roof. It is perceptible from the south. I note that the neighbours to the south have not objected. All in all the impact of the 400mm additional height on the scale of the building is minor. The proposal therefore meets also objective 12(1)(d).

7 Having said the above, I accept Mr Wells’ evidence that the breach of height should be kept to a minimum and all effort should be made to comply, or nearly comply, with the height standard. It is only because Mr Burges has persuaded me that the lowering of the roof would necessitate a less environmentally acceptable solution that I am inclined to accept that the roof height may remain 10.6m.

8 Condition 18 requires the s94 contribution on the basis that the existing house has three bedrooms while the proposed house has five bedrooms. In my opinion, the existing house has four bedrooms, not three. I agree with the council that the new house has five bedrooms. This changes the contribution to $3,127.98.

Orders

1. The appeal is upheld.

2. Development application for alterations and additions to the existing dwelling on 2 Koowong Avenue, Mosman is determined by the grant of consent subject to the conditions in Annexure A.

3. Condition 10 of the council’s consent 8.2005.287.1 is deleted.

4. Condition 18 of the council’s consent 8.2005.287.1 is amended to change the contribution from $6,129.15 to $3,127.98.

5. Exhibits 2. A, B and C are retained on the Court’s files.

_______________________
Dr John Roseth
Senior Commissioner