Brindisi v Mosman Municipal Council

[2025] NSWLEC 1063

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brindisi v Mosman Municipal Council [2025] NSWLEC 1063

Hearing dates:

21-22 January 2025

Date of orders:

07 February 2025

Decision date:

07 February 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent number 008.2019.69.1 is modified in the terms in Annexure A.

(3) Development consent number 008.2019.69.1 as modified by the Court is Annexure B.

(4) The exhibits are returned, except for 1, 4, A, B, C.

Catchwords:

MODIFICATION APPLICATION – alterations and additions – visual bulk – streetscape impacts – awnings

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.53, 4.55, 8.7

Land and Environment Court Act 1979, ss 34AA, 39

Mosman Local Environmental Plan 2012, cl 6.6

Texts Cited:

Mosman Development Control Plan 2012

Category:

Principal judgment

Parties:

Rino Brindisi (First Applicant)
Linda Brindisi (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
C Koikas (Applicants)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Baron and Associates (Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/296298

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal is about the visual impacts of modifications to a large dwelling house that already exceeds the built form controls.

2. The Applicants, Rino and Linda Brindisi (Brindisi) have appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Mosman Municipal Council’s (Council) refusal of modification application number 008.2019.69.3 (MA). The modification application seeks to modify DA 008.2019.69.1 (DA) for alterations and additions to the existing dwelling house at 4 Fairfax Road, Mosman as follows:

• Deletion of part of the enclosed entrance (reduction of gross floor area (GFA) by approximately 3.5m²).

• Increase in bedroom size for two bedrooms on the first floor by 0.6m or approximately 3.5m².

• Deletion of approved driveway pergola and replacement with a concrete awning with green roof and void cut outs.

• New awning curving from the east of the dwelling along the northern elevation to join the proposed driveway awning with green roof and void cut outs.

3. The appeal is a Class 1 residential appeal and in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act), commenced as a conciliation conference. Agreement could not be reached between the parties to resolve the issues and the conciliation conference was terminated. The hearing commenced immediately. The parties agreed for the evidence from the site viewing to be considered in the hearing.

4. For the reasons set out, I find that the proposed modifications do not unreasonably increase the visual bulk of the dwelling and should be granted.

Amended Application

5. Brindisi sought and was granted leave to amend the MA pursuant to s 39 of the Land and Environment Court Act 1979 (amended MA). The amendment was generally unopposed by Council, but with an objection against the photomontage based on its accuracy. The Court allowed the photomontage on the basis that the accuracy could be dealt with through evidence or submissions if required. The amendments to the MA are summarised as follows:

• Amendments to the architectural plans to clearly delineate the existing dwelling house, previous modification and proposed modification.

• Amended landscaping plans and plant species.

• Photomontage of the proposed modified development.

The site and context

6. The site is known as 4 Fairfax Road, Mosman and legally described as Lot B in DP 334369 (site). The site has a frontage of 58.5m to Fairfax Road and obtains expansive water views to the north and east. The site is triangular in shape and approximately 449.5m² in size.

7. As observed on site, this section of Fairfax Road is a short cul-de-sac. The subject site is one of two dwellings located on the southern side of the road, with the directly adjoining dwelling to the west facing Kirkoswald Avenue. To the east, the land falls away and is only accessible by stairs. Dwellings further below are accessed from other streets.

8. Dwellings on the northern side of Fairfax Road fall away from the street. The frontage of these dwellings as viewed from Fairfax Road can be characterised as comprising large single storey garages close to the property boundary. Based on the aerial diagrams attached to the Statement of Facts and Contentions, most of these properties provide landscaped open space areas in their rear yards.

Key Issues

9. Council raised the following contentions in its Statement of Facts and Contentions (SOFAC) (Ex 1):

• Contention 1 – Excessive building bulk.

• Contention 2 – Inadequate landscaping.

• Contention 3 – Out of character / streetscape.

• Contention 4 – Further information to distinguish the existing development, approved development and proposed modifications.

10. Further information on contention 4 was provided in the amended MA.

11. The contentions can be summarised as one key issue, being the impact of the proposed awnings and increased bedroom sizes on the visual bulk of the dwelling as viewed from the streetscape.

Expert Evidence

12. Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 3) by Mr Michael Neustein for the Applicants and Mr Steven Layman for Council. The experts gave oral evidence.

Do the proposed awnings and bedroom sizes unreasonably increase the visual bulk of the dwelling?

13. Council presses that the proposed modifications unreasonably increase the visual bulk of the dwelling and the proposed landscaping does not mitigate that bulk. Council submits that all three contentions are relevant to the proposed modifications. The relevant controls are set out below.

14. Mosman Local Environmental Plan 2012 (MLEP):

2.3 Zone objectives and Land Use Table

…

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

…

Zone C4 Environmental Living

1 Objectives of zone

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access and landscaping and to retain natural topographical features.

• To ensure that development is of a height and scale that achieves the desired future character of the area.

• To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

• To minimise the adverse effects of bulk and scale of buildings.

4.4 Floor space ratio

(1)  The objectives of this clause are as follows—

(a)  for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living—

(i)  to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and

(ii)  to provide a suitable balance between landscaping and built form, and

(iii)  to minimise the adverse effects of bulk and scale of buildings,

(iv)  to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,

…

(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

6.6 Landscaped areas

(1) The objectives of this clause are as follows—

(a) to have the landscape and townscape area character of Mosman’s residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development,

(b) to have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores, while recognising the difficulty of achieving this on small lots where there are existing buildings such as semi-detached dwellings,

(c) to have adequate and usable ground level open space for recreation, landscaping and containing urban run-off.

(2) This clause applies to land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living.

(3) The consent authority may refuse to grant development consent to development involving the erection of a building unless at least the following minimum landscaped area of a site (as a percentage of the site area) is provided for the development—

(a) for development resulting in one dwelling per lot or for a non-residential building—

(i) 25%, if the site area is less than 400m2,

(ii) 30%, if the site area is at least 400m2 but less than 500m2,

(iii) 35%, if the site area is at least 500m2 but less than 650m2,

…

Dictionary

…

landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.

15. The key parts of the Mosman Development Control Plan 2012 (MDCP) include:

“5.1 Streetscape and building design

…

Objectives

O1. To have development of a scale and appearance which is in keeping with the street and desired future townscape area character.

O2. To have building bulk controlled by incorporating facades that are well articulated.

O3. To have variety within development, where consistent with the street and desired future townscape area character.

…

O5. To have streetscapes which are compatible with the townscape areas.

O6.To have ancillary structures sited and designed to integrate with the built form and not be dominating.

…

Planning Controls

P1. New development should incorporate articulated facades to avoid a bulky appearance and to create proportions consistent within the streetscape. The use of elements such as recesses, modulation and setbacks in building walls, and varied materials is encouraged so as to avoid expansive uniform elevations. Pergolas, verandahs, decks and planter boxes are also appropriate provided they are suitably dimensioned and do not contribute to building bulk.

…

P18. Development should satisfy particular planning controls for the townscape areas outlined in Part 7 of this Plan.

P19. Ancillary structures that are located within the front building setback or that are visible from the street – such as carports, garages, fences, garbage bin areas, letter boxes, electricity substations, solar panels etc. – are to be designed and sited to be compatible with the building without becoming the dominant feature on the site.

P20. Garages and carports are to be designed so as to minimise bulk. Roofs generally should be flat or low pitched. The use of large gables and ornamentation to replicate the main dwelling should be avoided. In new and existing development, garage doors should be recessed behind the face of the structure in which they are located to minimise their dominance.

…

7.4 (18) Rosherville/Wy-ar-gine Townscape

Planning controls – Rosherville / Wy-ar-gine Townscape

Building form and design:

…

(d) Limit bulky mega dwelling houses with horizontal emphasis across allotments.

(e) Facades of large dwelling houses should be well modulated so that their form and scale relates to the existing streetscape and topography, and are not dominating when viewed from the harbour and neighbouring properties.”

Town Planning Evidence

16. Mr Layman for Council says that the existing development on site significantly exceeds the permissible GFA by 78.8%. The relocation of GFA from the basement to a location visible from the street increases the bulk. Fairfax Road adjoins a public walkway connecting Kirkoswald Avenue and nearby streets to the northern end of Balmoral Beach. The site adjoins an important pedestrian thoroughfare.

17. Mr Layman’s evidence is that the combination of the storey high retaining wall, triangular shaped site, topography, configuration of the dwelling and proposed modifications would result in a bulky/mega dwelling that is contrary to the townscape controls. The modifications are inconsistent with the zone objectives as landscaping will not be dominant over the built form.

18. Mr Layman says that the roof landscaping has inadequate soil depths, is unlikely to support trees or shrubs, is reliant on continued maintenance and is excluded from the landscaping definition.

19. Mr Neustein, planning expert for Brindisi, says that the proposal does not increase the GFA and is a minor relocation of 3.5m² from the entrance to the first floor. The relocation is not visually significant from the street and virtually impossible to see from the waterway. Mr Neustein’s evidence is that the new awnings and roof landscaping will break the scale and reduce the dwellings apparent bulk, and present as a green band across the facade along Fairfax Road. The green roof will introduce additional green surfaces and modulate urban heat effects to provide shade to the pool deck area. The green roofing will enhance the dwelling’s appearance and regular maintenance will be key to the dwelling’s aesthetic.

20. Mr Neustein’s evidence is that the proposed modifications increase landscaping along the rear and side setbacks, which will meet the 30% required by the MLEP (including the previously approved landscaped central courtyard).

21. From the waterway, Mr Neustein relies on an image he took from the middle of Middle Harbour, where he says that the existing dwelling is seen within the context of closely spaced and visually overlapping houses. The proposed relocation of the GFA will be impossible to discern. The new awnings and landscaping will not be prominent and read as a thin green band on the elevations.

Submissions

22. Ms McCulloch for Council submits that with a floor space ratio (FSR) of 0.89:1 where 0.5:1 is the maximum and breaches to the height and wall height controls, the site has more than maximised the development that can be accommodated by the site. The covering of the driveway encloses the space and would present as a solid, cavernous structure. The sweeping awning will contribute significant bulk on the site with a thick slab. The existing development is already prominent, and the proposed modifications will emphasise the structure.

23. The modifications do not change the quantum of landscaping but tip the balance further in favour of built form over landscaping contrary to the objectives and controls of the C4 zone, cl 6.6 of the MLEP and MDCP. The green roof is sparse and would be difficult to maintain as observed on site with a similar green wall.

24. Mr Koikas for Brindisi submits that Council has not identified any planning controls that the modifications do not comply with, and instead have inversely approached the task by contending that the objectives have not been achieved.

25. Mr Koikas submits that the modifications are consistent with the character of the street, including garages to the boundary on the northern side of Fairfax Road. The proposed awnings visually breaks the dwelling and the landscaping softens the appearance of the dwelling. The modifications increase landscaping, have no impacts on neighbouring dwellings and meet the objectives.

Findings

26. It is agreed by the parties that the proposed works do not numerically alter the FSR or height of the approved development and do not reduce the amount of landscaped area.

27. I agree that the placement and design of floor space and awnings can increase or decrease the visual appearance of a dwelling. I accept that on this site, the relocation from the entryway to the upper level bedrooms will be more readily perceptible from different vantage points. For the reasons detailed below, I find that the proposed modifications will not overwhelm the presentation of the dwelling and will not detrimentally impact on the streetscape.

28. In relation to the bedroom element, whilst enclosing a balcony does increase the visual bulk, in this instance there are already substantially large louvres approved across the front of the bedroom and balcony area as viewed front on from Fairfax Road. I accept Mr Neustein’s evidence and Mr Koikas’ submissions that there is no further impact when viewed through the louvres. Where visible from the public stairway and road near the stairway, I accept that there will be some loss of the perception of depth from the infill balcony. At 600mm, I accept that this increase is minimal and would not overwhelm the presentation of dwelling, even when considered with the proposed awnings.

29. I accept that the proposed side and rear landscaped areas meet the definition and increase landscaping on site. In my view, nothing turns on this, as they do not visually contribute to the elevations that Council raises issue with. Similarly, there are no changes to the landscaped courtyard, which is not readily perceptible from Fairfax Road. Council contends that the awnings and to a lesser extent, the bedroom extensions, extend beyond the tipping point of built form to landscaping ratio on the site. I have considered the landscape contention on that basis.

30. I find that the modifications, in particular the awnings, will be visible but will not visually overwhelm the relatively confined streetscape. The adjoining dwelling to the west presents to a different street, though features a two storey built form and landscaping along its Fairfax boundary. The opposite dwellings are of a different character and present significant garage structures along their boundaries with some landscaping.

31. Due to the sloping topography, I find that both awnings will be minimally perceptible when viewed near the stairway area. Both awnings will be more perceptible towards the driveway and approaching to/from Kirkoswald Avenue. I accept Mr Neustein’s evidence and find that the awnings with rooftop landscaping and voids will create a visual break of the dwelling. Whist the visual appearance will increase, I accept that the awning plantings will soften the appearance and are an important aspect of the amended MA, with conditions of consent imposed for ongoing maintenance and replanting should they struggle to thrive. A condition of consent has also been agreed regarding adequate soil depths.

32. I accept that the retained setback of the driveway awning provides a sufficient break between the streetscape and dwelling, with the new flourish to the west adding visual interest to the design. The extent of awning structures when considered with the minor bedroom modifications are not inconsistent with the one to one and half storey garage structures opposite the site. For these reasons, I find that the modifications when considered as a whole are consistent with the existing and future character of the area.

33. I accept that there is an element of partly ‘walking back’ previously negotiated design components such as the open driveway pergola from the original consent and previous modification. However, I accept that the mostly enclosed driveway awning will not be visually dominant and importantly, generally retains the same level of separation from the boundary and landscaping contribution through the partly open, green, landscaped awning.

34. I accept Mr Neustein’s evidence that none of the modifications will be readily perceived from the waterway given their size.

35. Accordingly, I find that the proposed modifications are consistent with the controls and objectives in contention and the objectives of the zone. The modifications are close to the Council’s contended tipping point but in my view, do not visually overwhelm the dwelling, are attractively designed to enhance the dwelling and are softened by the plantings on both awnings. I accept that the modifications warrant approval.

Jurisdiction

36. There were no issues raised regarding any preconditions to modifying the consent.

36. The amended MA is made under s 4.55(2) of the EPA Act. I am satisfied that the development as modified is substantially the same as the one which was originally granted, as set out in the Statement of Environmental Effects prepared by City Planning Works dated 30 October 2023. I am satisfied that the modifications to the granted alterations and additions are minor, are similar in building footprint with some minor extensions, do not change the development’s compliance with any development standards and do not have any impact on the nearby heritage item. (s 4.55(2)(a)). For these same reasons and for the reasons set out in the findings of the contentions, I have considered the matters referred to in s 4.15(1) and find that these have been met (s 4.55(3)). I have considered the reasons for the grant of consent, provided in Ex 2. I am satisfied that the proposed modifications, whilst traversing similar issues such as visual bulk and landscaping, are not inconsistent with the reasons given by Council when they originally granted consent.

37. Section 4.55(2)(b) is not applicable to this application. The modification application was notified, and no submissions were received (s 4.55(2)(c)).

38. The development consent has not lapsed pursuant to s 4.53(1)(c).

Conclusion

40. I am satisfied that the proposed modifications have been designed to enhance the visual interest of the dwelling and provide increased amenity to the occupants without unreasonably visually dominating the streetscape as a mega dwelling. As agreed by the experts, there are no amenity impacts to adjoining dwellings. I find that the modification application should be granted.

Orders

41. The Court orders that:

1. The appeal is upheld.

2. Development consent number 008.2019.69.1 is modified in the terms in Annexure A.

3. Development consent number 008.2019.69.1 as modified by the Court is Annexure B.

4. The exhibits are returned, except for 1, 4, A, B, C.

S Porter

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 07 February 2025