Archiworks Architects Pty Ltd v Mosman Municipal Council

[2006] NSWLEC 426

Land and Environment Court

of New South Wales

CITATION:

Archiworks Architects Pty Ltd v Mosman Municipal Council [2006] NSWLEC 426

PARTIES:

APPLICANT
Archiworks Architects Pty Ltd

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10394 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Section 96 amendment, detached dwelling, privacy screens, residential amenity, privacy, landscaped areas,

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 1998
Mosman Residential Development Control Plan

DATES OF HEARING:

15/06/2006

EX TEMPORE JUDGMENT DATE:

06/15/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr Min Van Hoang, architect

RESPONDENT
Mr A Hawkes, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

15 June 2006

10394 of 2004 Archiworks Architects Pty Ltd v
Mosman Municipal Council
JUDGMENT

1 This was a s 96 amendment application in appeal No. 10394 of 2004 between Archiworks Architects Pty Limited and Mosman Municipal Council in regard to a detached dwelling at 39 Central Avenue, Mosman, which had been approved by the Court in proceedings and judgment dated 23 September 2004, which is recorded as 2004 NSWLEC 616.

2 In that decision consent was granted to the detached dwelling subject to certain conditions. The proposal is under construction at the present time and this application is for amendment of that consent.

3 As shown in Exhibit A of this appeal, the application is to delete some privacy screens on the western side of the ground floor front and first floor front balconies which would enable overlooking of the front yard and a deck of 41 Central Avenue. The owner of that particular property has sent a letter, also contained in Exhibit A, from a Michelle Dawson dated 18 March 2006 indicating that there is no objection to the removal of these privacy screens.

4 The parties came to the Court with consent orders which sought simply to substitute the amended drawing in Condition 1(i) of the consent with the description of the new drawing. There was also to be an amendment to Condition 34 which had originally required the privacy screens which would preserve the privacy screens intended to protect 41 Central Avenue. The application had been exhibited and all of the adjoining owners notified and, except for the letter of support from Ms Dawson, there had been no other communications, objections or letters received by the council.

5 The issues had been:

1. The impact of the proposed deletion of the privacy screens along the western side of the ground and first floor front balconies of the approved development upon the adjoining property at 41 Central Avenue, Mosman.
Particulars
The planning objectives within cl 2 of the Mosman Local Environmental Plan 1998 and in particular subcl (b) to maintain and improve existing residential amenity.
The 7th zone objective within the Residential 2(a1) zone which is to encourage residential development which has regard to local amenity.
Section 5.6 of the Mosman Residential Development Control Plan in respect of:
• Objective 1 - to have adequate visual and acoustic privacy levels for residents and neighbours;
• Policy “O” that above ground balconies, terraces, decks, verandas and outdoor spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate the overlooking.

6 The respondent was represented by Mr A Hawkes, solicitor, and the applicant was represented by Mr Min Van Hoang. The respondent submitted that the conflict with the particular control of Mosman Municipal Council in this case was mitigated by the fact that the adjoining No. 41 is a corner allotment and has a garage immediately beside the subject property and the garage also is on the street front boundary of No. 41. On its roof there is a deck and adjacent that, between the street front and the house, there is an open front yard area. Both the deck and the front yard are fully visible to persons in the street and had no existing privacy.

7 Apparently, the owner of that property in understanding that existing situation does not feel the need to preserve privacy from the new house being built next door from which at both the ground level and the first floor level this roof top garage deck and the front yard of No. 41 would be overlooked. That being the case, the council did not press that particular control.

8 Mr Hoang advised the Court that the development was under construction otherwise in accordance with the conditions of consent. An amended landscape plan had been approved with the construction certificate in accordance with the conditions and the plan sought to be substituted was essentially the same as the original plan except it had noted on it the deletion of the screen at the western end of the ground floor street front terrace and the western end of the first floor street front terrace.

9 Overall, I can see no reason sufficient to refuse the s 96 amendment.

10 Therefore the orders of the Court are:

(a) The application be upheld.

(b) Pursuant to s 96(8) of the Environmental Planning and Assessment Act 1979, the application to modify the development consent No. 8.2003. 324 granted by this Honourable Court in Appeal No. 10394 of 2004 dated 23 September 2004 for the demolition of an existing dwelling and construction of a three storey dwelling house with swimming pool and basement garage and storage area in respect of premises known as 39 Central Avenue, Mosman be granted subject to amendments to Conditions 1 and 34 of the aforesaid consent No. 8.2003.324 as follows:

1) The development must be carried out in accordance with the following plans and documents except where amended by the conditions of consent:


i) Drawing No. WD01D of 17 March 2006 and Drawing No. WD02bb of August 2004 both drawings prepared by Archiworks Architects Pty Ltd;

ii) Landscape Plan LP-001/B Rev 01 of 4 June 2004 prepared by Andrew Lane Landscape Architect;
iii) Concept drainage plan No. S1 Job No. 03/2 of 24 November 2003 prepared by Lee Jing Consulting Civil and Structural Engineers; and
(iv) The Statement of Environmental Effects of 21 November 2003 prepared by Archiworks Architects Pty Ltd.
34) To ensure reasonable privacy for 37 and 41 Central Avenue, the sides of the rear first floor balcony and eastern side of the two front balconies shall have a privacy screen to a height of 1.6 m.


c) No order as to costs .

___________________
K G Hoffman
Commissioner of the Court
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