Bevan v Mosman Municipal Council

[2008] NSWLEC 1492

Land and Environment Court

of New South Wales

CITATION:

Bevan v Mosman Municipal Council [2008] NSWLEC 1492

PARTIES:

APPLICANT
Jennifer Ann Bevan

RESPOMDENT
Mosman Municipal Council

FILE NUMBER(S):

10668 of 2008

CORAM:

Whelan AC

KEY ISSUES:

Development Application :- The height bulk and scale of the proposed attic above the garage and inadequacy of landscape areas.

LEGISLATION CITED:

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

CASES CITED:

Zhang v Canterbury City Council 2001 NSW CA

DATES OF HEARING:

22 October 2008

 
DATE OF JUDGMENT: 

19 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr N Howie, solicitor
of Wilshire Webb Staunton Beattie Solicitors

RESPONDENT
Ms J E Hewitt, solicitor
of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Whelan AC

19 December 2008

10668 of 2008 Jennifer Ann Bevan v Mosman Municipal Council

JUDGMENT

Background

1 In April 2008 Council approved a development application for alterations and additions to an existing dwelling house and garage located at 20 David Street, Clifton Gardens.

2 Subsequently a section 96 Application was made to modify this consent and this was refused by Council, resulting in the current appeal. The amended application sought the following modifications to the approved development :-

• increase garage ridge line to create attic storage space above garage;
• provide external staircase and dormer entry doorway to attic storage space;
• include windows (with louvers) to gable ends and roof window to attic space;
• changes to front fence, gate and entry; and
• reconstruct the existing study dormer window in the main dwelling.

3 On 10 September 2008, the parties attended a section 34 Conference on site. The neighbours were given the opportunity of making submissions. These submissions included objections to the bulk height and scale of the attic above the garage. Following the view the Applicant tended further amended plans which proposed a lowering of the attic roof by some 90 cm. This change was in response to objections.

4 The s 34 Conference was adjourned to allow the Applicant to resubmit the amended plans to Council. Council accepted the changes to the front fence, gate and entry; and also the reconstruction of the existing study dormer window in main dwelling. Council rejected the design of the attic over the garage and maintained their position in regard to the inadequate landscape area.

5 The re-convened s.34 Conference took place in the Court on 22 October 2008. The Applicant proposed an increase to the landscaping area by the inclusion of an additional amount of 19 sq m. This is to be achieved by grassing the strip of land in the middle of the driveways. Council agreed to this amendment and a notation was made to the approved plans – sheet A3.03A. The parties otherwise failed to reach an agreement and in accordance with s 34 of the Land and Environment Act 1979, consented to the Commissioner disposing of the proceedings.

The Site

6 The property is known as 20 David Street Clifton Gardens and comprises Lot 46, s 3 in DP 6294. The site is rectangular in shape and has an area of 766.45 sq m. The land has a frontage of 15.24 m and a depth of 15.24 m.

7 The site falls approximately 1 m to the north at an average gradient of 2%. The site presently contains a two storey dwelling house and a single storey separate garage, located towards the rear of the parcel.

8 The site does not contain a heritage item and is not located within a heritage conservation area. The adjacent stone kerbing of David Street is of local heritage significance.

9 The locality is predominantly residential in character comprising a mix of dwelling types both single and two storey.

10 The outstanding issues for resolution by the Court are summarised as follows:

• The reasonableness of changes to the attic storage space above garage, in terms of bulk and scale and the impact on the adjoining neighbours.
• The adequacy of the landscape area in terms of the statutory controls.

Statutory Controls

11 The site is zoned Residential-2(a1) under the Mosman Local Environmental Plan 1998 (MLEP). The works are ancillary to the use of the site for a dwelling house and are permissible with Council's consent.

12 The site also falls within Clifton Gardens Townscape under the Mosman Residential Development Control Plan (MRDCP).

13 The site is located within the Foreshore Scenic Protection Area under the MLEP 1998.

State Environmental and Regional Planning Policies.

14 Ms Winnacott Town Planner (for the Council) said that:-

• The height bulk and scale of the proposed garage is two storeys and exceeds the height limit pursuant to planning guidelines. The scale of the garage is excessive and is not compatible with housing characteristics of the locality.
• The proposal does not comply with the numerical controls of cl 15 of the MLEP. The result is that the development exceeds the floor space ratio control. The maximum floor space ratio prescribed is 0.49:1 and that proposed is 0.53:1. The Development Application initially provided for 292 sq m of landscaped area, whereas the code required approximately 383 sq m.
• The proposed Attic constitutes a second story to the garage. The definition of “story” as set out in Schedule 1 of the MLEP1998 makes it clearly not permissible.

15 Mr Goodyer, Town Planner (for the Applicant) said that:

• The proposed garage with attic storage has minimal impact on the streetscape, is consistent with the character of the existing building on the site and does not create any amenity impacts that would warrant refusal of the proposal.
• In assessing the proposal one must take into account the provisions of the MRDCP as being the focal point of any assessment and the provisions are to be given significant weight although they are not necessarily determinative (see Zhang v Canterbury City Council 2001 NSW CA).
• The “performance approach” to guide development is well recognised. It is expected that a proposal will comply with all relevant controls “unless there is a good reason to deviate from these”. There are good reasons to deviate in this case.

16 Mr Goodyer’s reasons are that:-

• The site configuration permits the garage structure to be located at the rear of the site, minimising its impact on the streetscape and the character of the area. The design is such that the attic is now within the roof space which reduces the bulk and scale of the upper story.
• The roof pitch complements the character of the dwelling house. The north- south orientation of the site ensures that no neighbouring property suffers unreasonable overshadowing and that the proposal complies with the numerical standards of the MRDCP in terms of solar access.
• The site is within the Clifton Gardens townscape area and the housing characteristics of the locality are described in Section 6.9 of the MRDCP. Of relevance to the proposed garage /attic is an objective of the Clifton Gardens Townscape Zone :
  Architectural character is predominantly that of an English Garden suburb with substantial two-storey dwelling houses featuring Arts and Crafts elements Pitched roofs contribute significantly to the character of this townscape area.
• The roof pitch matches the character of the dwelling house. The garage has a relatively steep roof pitch of approximately 48° to match the main roof pitch of the existing house. The difference in high between the apex of the original (existing) garage and of that proposed is 1.54 m at the apex.
• The garage is located towards the rear of the property approximately 5 m from the adjoining rear boundary. It has a minimal impact on the streetscape or the character of the locality and is acceptable in the sense of views.

Landscape area:-

17 Mr. Goodyear states that the proposed development provides adequate landscaping areas. The total landscaped area is now agreed between the parties to be 346.6 sq m compared to 383.2 sq m. This reflects a difference of approximately 36.6 sq m.

18 Mr Goodyear points out that in a Development Application for the adjoining property, No. 22 David Street Council supported a variation to the standard landscaped area of some 32.6 m². The assessing officer's report in that matter stated that:

The proposal does not comply with the landscaped area requirements however it does comply with the objectives of cl 15 and the shortfall in landscape area is not significant enough to warrant a refusal.

19 The MRDCP make specific provision for variations to the landscaped area control where a garage is set back from the street, as follows:

A variation to the landscaping requirement set out in MLEP 1998 may be considered where the sitting of the garage or carport is setback from the street to observe the prevailing setback and integrate the parking in the design of the building. In this instance the driveway should be of a material that has a minor impact on the landscape character the property.

20 Ms Winnacott identified that the proposal did not disrupt any existing views from neighbouring properties or the public domain over the subject site. Mr. Goodman agreed with this assessment and further pointed out that that the controls encourage the location of the garage in the rear yard. He also stated that the pitch of the roof has been lowered such that the height of the building maintains the architectural character of predominantly an English Garden suburb. Accordingly he believes that the outlook is not an issue that warrants the refusal of the development application.

21 The Applicant intends to use the roof space as a storage area for a library. The area will not be used for residential purposes. Only approximately 40% of the space, in the middle section, is usable for walking around. The balance of the space will be fitted with custom-made shelving.

22 Having considered the evidence, submissions and undertaken a view my conclusions on the issues are as follows:-

(i) I am satisfied that the s 96 modification relates to the same development.
(ii) The modifications have been notified and objections received and considered.
(iii) I am persuaded to accept the reasoning provided by the applicant's town planner in support of the modification to the garage to include within the roof space the storage area. I accept that in assessing the proposal the provisions of the MLEP and the MRDCP are to be the focal point for any assessment. Notwithstanding the MRDCP adopts a performance approach to guide development. Council also accepts that that the DCP is to be read with regard to a “performance-based” approach.

23 I reject the proposition that the design is not compatible with the character of the area. The garage roof design mirrors that of the existing house which maintains the design objectives of the Clifton Gardens Townscape Zone. Section 6.9 of the MRDCP encourages the pitched roof design.

24 The top of the roof of the proposed garage as designed is at its maximum 1.54 m above that of the existing garage and the impact diminishes as the roof falls. Whilst I accept that this change does add to the bulk and scale of structure and I have also taken into account the opinion of the neighbours, nevertheless I do not consider that the changes proposed will have any significant detrimental impact on the visual amenity of the surrounding area.

25 In regard to landscaping areas, I note that the difference between that amount required under the code as compared with that provided is approximately 36 sq m. This equates to a shortfall of approximately 9%. I conclude that the shortfall in area is not significant in the context of this application because it reasonably satisfies the objectives of Clause 15 of the MRDCP.

26 I am satisfied that the neighbours objections have been considered and the proposal merits consent as it demonstrates reasonable compliance with the qualitative objectives of the relevant controls.

1. The Appeal in upheld.
2. The Section 96 modification application for- alterations and additions to the garage at 20 David Street, Clifton Gardens is approved subject to the conditions in Annexure A.
3. The Exhibits are returned except Exhibit A, C and G.

___________________

M C Whelan
Acting Commissioner of the Court
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