Andrews v Mosman Council

[2014] NSWLEC 1045

Land and Environment Court

New South Wales

Medium Neutral Citation:

Andrews v Mosman Council [2014] NSWLEC 1045

Hearing dates:

6 March, 2014

Decision date:

11 March 2014

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is upheld.

2. Development Consent No. 8.2012.156.2 is modified to delete condition 1B and to replace the planter box with a screen wall and extend the roof over to the southern extent of the terrace, subject to the conditions of consent in Annexure A.

3. The exhibits, other than exhibits 7 and F, are returned.

Catchwords:

MODIFICATION APPLICATION: deletion of a planter box and replacement with a privacy screen on a first floor terrace; extension of the roof over the terrace; impact on views from neighbouring dwelling.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Dixon Andrews Architects Pty Ltd v Mosman Council [2013] NSWLEC 1073

Category:

Principal judgment

Parties:

Mr Dixon Andrews (Applicant)
Mosman Council (Respondent)

Representation:

Mr Dixon Andrews (Applicant)
Ms Julie Walsh Solicitor (Respondent)
- (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

10962 of 2013

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of an application to modify Development Consent No. 8.2012.165.2, to delete a planter box along the side of the first floor terrace and replace it with a privacy screen and extend the roof over to the southern edge of the terrace (the proposal), at 61A Muston Street, Mosman (the site), by Mosman Council (the Council).

1. The appeal was subject to mandatory conciliation on 6 March, 2014, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

1. The Council's contentions in the matter are that proposed modification will result in unacceptable visual and acoustic privacy impacts to 59 Muston Street, Mosman and unacceptable bulk and scale impacts when viewed from the rear, public laneway.

1. The Council's contention regarding the "unbalanced appearance" of the proposal when compared to the adjoining attached dwelling was not pressed.

1. The current development consent for this property was the subject of an agreement reached during a conciliation conference held pursuant to s 34AA of the LEC Act and a hearing in which the remaining outstanding issues that had not been resolved during the conciliation conference were decided (Dixon Andrews Architects Pty Ltd v Mosman Council [2013] NSWLEC 1073) (the previous proceedings). The Council contends that the current development consent represents an agreement that was reached between the parties and forms part of a "package deal", as the wording of condition B1 was the result of a compromised position being adopted by Council (when compared to the condition that it replaced in the original consent) in order to allow the parties to come to an agreement regarding this issue. It is the Council's view that the applicant now seeks to renege on that "package deal" and this demonstrates that the applicant was not acting in good faith in the conciliation conference held during the previous proceedings. According to the Council, this is a relevant circumstance of the case and should be taken into account by the Court.

The site and its context

1. The site is on the eastern side of Muston Street.

1. The site contains a partly constructed, semi-detached dwelling, which is two storeys with a basement garage level below at the rear, accessed from Redan Lane.

1. The property to the south of the site, 59 Muston Street, contains a duplex with one dwelling on the ground floor and one dwelling on the first floor and basement garages below at the rear, accessed from Redan Lane. On the upper level, there is a small terrace on the northern side of the building, opening from the main bedroom and positioned between the main bedroom and the living room. There is a large terrace at the rear across the length of the rear facade. There is a narrow view of the harbour from the main bedroom, towards the east and along the northern side of the dwelling. The northern facade of 59 Muston Street is setback 1.5m from the shared side boundary and the terraces are setback 2.5m from the shared side boundary. Both terraces have a glass balustrade. The bedroom terrace has a privacy screen that can be raised and lowered.

1. The properties along the eastern side of Muston Street enjoy magnificent views of Balmoral and the harbour beyond, looking east across the rear boundaries of their properties.

Background and the proposal

1. Development Consent No. 8.2012.165.2 (the consent) is for a two storey attached dwelling with a basement garage at the rear.

1. The consent includes a rear terrace on the upper level (the terrace), with a planter box along the southern side, 600mm high above the finished floor level (FFL) and 1m wide. The terrace is 1.9m from the side boundary. The planter box is to be planted with a hedge that is capable of reaching a mature height of 1.6m above FFL. The roof over the rear terrace is setback on the southern side, so that the roof does not extend over the planter box. The intent of the condition requiring the planter box is to restrict the trafficable area away from the common boundary and the screening hedge is to act as a visual barrier (exhibit 7, contention 2.3).

1. The proposal is to delete condition B1 requiring the planter box on the terrace and to replace the planter box with a screen wall 1.7m high above FFL on the southern side of the terrace and extend the roof over the terrace to the southern edge of the terrace, so that it is setback 1.9m from the side boundary.

Planning Framework

1. The site is zoned R3 Low Density Residential pursuant to Mosman Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent.

1. The dictionary of LEP 2012 includes the following definition:

storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include:

(a) a space that contains only a lift shaft, stairway or meter room, or

(b) a mezzanine, or

(c) an attic.

1. The proposal is subject to the objectives and controls in the Residential Development Control Plan 2012 (DCP 2012). Clause 1.9 of DCP 2012 includes the following in regard to how Council assesses proposed development:

Council expects that applicants will satisfy the objectives and comply with the corresponding planning controls set out in this Plan. Mere compliance with the planning controls is no guarantee of approval. A proposal must respond to the context of the site, streetscape and the desired character of the townscape area.

1. Clause 4.2 of DCP 2012, 'Siting and scale', includes the following relevant objective for height and floor space ratio (FSR):

O1 To have the effects of bulk and scale of buildings arising from new development minimised.

1. Clause 4.2 includes the following relevant objectives and controls for building setback:

O6 To have adequate side setbacks to provide spatial relieve between buildings, encourage view sharing and minimise overshadowing of neighbouring properties.

P8 Development must have a minimum side boundary setback of:

(b) two storey (or up to 7.2m wall height) 1.5m

(c) three storey (or over 7.2m wall height): 3m

P11 Building bulk should be distributed to minimise overshadowing to neighbours, streets and public open space. Building forms should enable a sharing of views with surrounding residences and permit views from public streets and open space.

1. Clause 5.7 of DCP 2012, 'Privacy and security', includes the following relevant objectives and controls:

O1 To have adequate visual privacy levels for residents and neighbours.

P1 For new dwellings and additions, habitable room windows with a direct sightline to the habitable room windows or private open space in an adjacent dwelling within 9m should be either:

(a) offset from the edge of one window to the edge of the other by a distance equivalent to the width of the existing window; or

(b) have sill heights of 1.6m above floor level; or

(c) have permanently fixed translucent glazing in any part of the window below 1.6m above floor level.

P2 Above ground balconies, terraces, decks, verandahs, and outdoor spaces must not directly overlook rooms and private open space of adjoining properties unless screening can mitigate overlooking. When overlooking would be likely, permanent screening will be required to mitigate overlooking.

Expert evidence

1. Expert planning evidence was provided by Ms Danielle Deegan on behalf of the Council.

1. According to Ms Deegan, the advantage of the planter box along the southern side of the terrace is that it softens the appearance of the proposal. As the proposal is three storeys in the rear portion of the building, the side setback should be 3m. Council agreed to the planter in the previous proceedings because it further setback the trafficable area of the terrace to close to 3m and the roof over was also setback to cover the trafficable area of the terrace and not the planter.

1. Ms Deegan said in oral evidence that the impact of the proposed screen on the views from the main bedroom of 59 Muston Street is not significant, however in her opinion, the planter box is preferable to the screen wall, as it would allow the occupants of 59 Muston Street to retain a filtered view, through the hedge.

1. Ms Deegan said in oral evidence that the increase in overshadowing by the proposal of 59 Muston Street is slight and this increase is not significant.

1. In Ms Deegan's view, the extension of the roof of the terrace to the southern extent of the terrace, coupled with the 1.7m high screen wall on the southern side of the terrace will add to the bulk and scale of the proposal when viewed from Redan Lane.

Findings

1. In relation to the contention raised by Council regarding what might be described as the applicant "reneging on the deal" made by the parties in the previous proceedings, there is no limiting provision in either s 96 of the EPA Act or the LEC Act that effects any estoppel or gives rise to issues of res judicita, that would prevent the applicant making as many modification applications as he might wish to. In this matter, the applicant has exercised his statutory right of appeal against Council's refusal of the modification application.

1. I understand that the purpose of deleting the planter box and extending the roof to the southern extent of the terrace is to maximise the usable area of the terrace and to mitigate any impacts of the outdoor terrace on the visual and acoustic privacy of the neighbours to the south.

1. I noted during the site view that the two properties to the south of the proposal, 57 and 59 Muston Street both have upper level terraces along the length of the rear elevation with roofs over and with a screening device at the southern end of the terrace, without planter boxes. The property to the north of the attached dwellings, 63 Muston Street has an upper level terrace along the length of the rear elevation with a louvred roof over and without a planter box. I acknowledge that these examples in the vicinity of the site may be further setback from their southern, side boundaries than 1.9m, however the screening device is consistently located on the southern edge of the terrace in the two properties to the south. For this reason, I find that the proposal is an appropriate response to the context.

1. I am satisfied that the proposal is acceptable for the following reasons:

• The existing narrow view of the harbour from the main bedroom window of 59 Muston Street (exhibit 1, photograph 1) will be retained by the proposal. Exhibit A shows the northern extent of the view corridor illustrated on the plan and demonstrates that the proposal retains the same narrow view, as was afforded by the previous dwelling on the site.
• I accept Ms Deegan's evidence the proposal will not unreasonably increase any overshadowing of 59 Muston Street.
• The screen wall, 1.7m high above FFL on the southern side of the terrace, will adequately address the acoustic and visual privacy issues between the external terraces at 59 and 61A Muston Street and therefore the 1.9m setback from the side boundary is acceptable.
• The extension of the trafficable area to the southern extent of the terrace will not have any amenity impacts on 59 Muston Street because the terrace is shielded by the screen wall. The southern elevation of the proposal is adequately articulated when viewed from 59 Muston Street.
• The proposal will not result in any additional bulk or scale when viewed from the laneway, as the screen wall replaces the planter box and the extension of the roof over is a minor amendment. The bulk and scale of the rear elevation of 61A Muston Street is ameliorated in the context, because the attached dwelling is set further back from the rear boundary than both 61 Muston Street and 59 Muston Street and the upper level terrace is set in from the southern facade.

1. Having regard to the relevant planning controls and the evidence provided, I find that the proposal will not have any amenity or view impacts on its neighbours, it adequately addresses the privacy issues between the properties and it is an appropriate fit within the context. The proposal can therefore be granted consent.

Orders

1. The orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Consent No. 8.2012.156.2 is modified to delete condition 1B and to replace the planter box with a screen wall and extend the roof over to the southern extent of the terrace, subject to the conditions of consent in Annexure A.

(3)   The exhibits, other than exhibits 7 and F, are returned.

Susan O'Neill

Commissioner of the Court

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Decision last updated: 13 March 2014