Brown v Mosman Municipal Council

[2024] NSWLEC 1022

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brown v Mosman Municipal Council [2024] NSWLEC 1022

Hearing dates:

19 December 2023

Date of orders:

25 January 2024

Decision date:

25 January 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application 8.2022.208.1, for the construction of an inground swimming pool and fence at 1 Cobbittee Street, Mosman, Lot 1 in DP191632, is determined by the grant of consent, subject to the conditions at Annexure A.

(3) All exhibits except for A, B and G are returned.

Catchwords:

DEVELOPMENT APPLICATION – swimming pool beyond front building line – impacts on streetscape – impacts on landscape character – appeal upheld

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Mosman Local Environmental Plan 2012, cl 1.2

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Michelle Eileen Brown (1st Applicant)
Michael John Brown (2nd Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/219437

Publication restriction:

No

JUDGMENT

1. The Applicants currently own and reside in a detached house on the corner of Middle Head Road and Cobbittee Street, Mosman, at which they intend to construct an inground swimming pool and associated fence in their front garden. The Respondent, Mosman Municipal Council, has refused development application, DA 8.2022.208.1 requesting permission to construct the pool and fence, and it is this refusal that is the subject of this Class 1 Appeal.

2. These proceedings have been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The site is located at 1 Cobbittee Street, Mosman, Lot 1 in DP 191632 on an irregularly shaped corner lot (Figure 1). The dwelling is located to the north-eastern corner of this lot, with its rear wall situated along the eastern boundary. To the south of the dwelling is a garage and studio, with a triangle of vegetated land towards the street corner beyond this. Relevantly, the impact of this configuration is that there is no rear garden on the property, and the sole useable private open space lies to the front (west) of the dwelling, facing Cobbittee Street. It is in this private open space to the west of the dwelling that the swimming pool is proposed.

4. Subsequent to the filing of this appeal, leave was granted by the Court for the Applicants to amend the application, and it is this amended application that is relied upon in these proceedings. Based on the amended application, the Respondent presses the following contentions:

• The siting and location of the swimming pool, and

• The visual impact of the pool fence in the streetscape.

5. An additional contention pertaining to the removal of an existing tree is proposed to be resolved by a condition of consent requiring the planting of a suitable replacement tree.

Figure 1: Extract of Mosman Aerial Map, Exhibit 1, Annexure 3 showing the subject site in pink.

6. The application was suitably notified by the Respondent, and no submissions were made.

7. Evidence was provided by two Town Planning experts: Warren Long for the Applicants and Adam Urbancic for the Respondent. In the Joint Report of the Town Planning Experts (the Joint Report), Mr Urbancic raises a number of issues relating to the proposed development as assessed against the Mosman Local Environmental Plan 2012 (MLEP) and Mosman Residential Development Control Plan 2012 (MRDCP).

8. For the following reasons, I find that the siting, location and visual impact of the proposed pool and associated fence is acceptable when assessed against the relevant clauses of both the MLEP and MRDCP, and the appeal should be upheld.

Siting and location of the proposed swimming pool

9. The proposed swimming pool is located within the front garden of the property, facing Cobbittee Street. It is positioned wholly in front of the dwelling and will project beyond the front wall of the garage/studio (the front building line). The edge of the proposed pool coping is set back 2 metres from the property boundary, and the pool fence is set back 1m from the boundary. Screen planting is proposed to all sides of the pool except that which abuts the house.

10. Due to the slope of the front garden and the level at which the proposed pool is set, three of the four corners of the pool will be level with the existing ground, and one corner (the north-west) will project 550mm above ground.

11. Due to the unusual configuration of the property having no rear yard, the parties accept that there is no other reasonable location to support a potential swimming pool on this site, however, they disagree on its size, detailed siting, and the impact of the proposed development on the landscaped character and existing streetscape of Cobbittee Street. I will deal first with the size and detailed siting of the pool.

12. Principally, it is the size of the proposed pool, 3m x 6.98m, that results in both its projection above ground level and beyond the front building line of the garage.

13. Part 6.2 of the MRDCP provides controls for the siting of swimming pools. Objective O1 and the relevant controls P1, P3, P4 are:

“Objectives

O1. To have pools, spas and water features appropriately located to minimise the visual impact of the structure, and their impact on the amenity of adjoining residents.’

…

Planning Controls

Siting:

P1. Pools/spas should be located behind the front building line, preferably at the rear of the main building.

….

P3. Any pool/spa/water feature must be setback from a property boundary by a minimum of 2m to the external edge of the pool surround. In cases where a proposed pool is adjacent to habitable rooms of an adjoining dwelling, a greater setback than 2m may be required. The setback area must be appropriately landscaped.

P4. Any pool/spa surround must be located at or below ground level (existing). Elevated pool/spa structures above the natural ground level are expressly discouraged. If a pool/spa structure is proposed that is located above the ground at any point, the finish of the structure should blend into the background environment and or landscaping and not be visible from a public place.”

14. I note that there are no development controls that specifically deal with the size of pools, only the above limitations on setbacks, siting and amenity or visual impacts.

15. When considering the proposed pool against these controls, Mr Urbancic states that all are contravened because:

• The pool is located forward of the front building line (Control P1).

• Although the pool is set back 2m from the property boundary, that setback is not appropriately landscaped (Control P3), as the landscape should enhance the outcome should not be simply a means of screening it from view.

• The pool is not located entirely at or below ground level, and the part of the structure that is located above the ground will not blend into the background environment or landscaping and may be visible from a public place (Control P4) if the planting fails.

16. In contrast, Mr Long submits that although the pool is located forward of the front building line, that this projection is limited to 1.754m for the pool and 2.754m for the fence. He further submits that the 2m setback between property boundary and pool edge is appropriately landscaped, as it allows adequate space for shrub planting of a height and density that will both screen the pool and fence from view from a public place and make an appropriate contribution to the landscape character of the street. Finally, he submits that the corner of the pool that is above ground will blend into the landscaping because of the planting surrounding it, and that it is in the interests of the owners to ensure this planting does not fail.

17. Noting the requirement under Environmental Planning and Assessment Act 1979 s 4.15(3A)(b) for the consent authority to be flexible in applying the provisions of a development control plan, and allow reasonable alternative solutions that achieve the objects of the standards set by those provisions, it is my considered opinion that MRDCP Pt 6.2, Objective O1 is met with the proposed pool design. I form this position because of the measures taken in the design to minimise the visual impact of the pool and fence using levels and planting, and the subsequent lack of amenity impacts. In my opinion the proposed pool has been appropriately located in-ground as much as possible on a sloping site, with the required 2m setback, and with adequate planting to minimise any visual impacts. Sufficient space has been allowed for the proposed plant species to develop into suitable screening hedges and the selected species are suitable for the site and location. I further note that, as confirmed by both experts in their joint report, there is no impact on the amenity of adjoining residents.

Impact of the pool on the streetscape and landscape character

18. The Respondent contends that the setback of the proposed swimming pool is inappropriate as it does not complement the existing streetscape (including setbacks), or the open, landscaped character of the street, in contravention of planning control P4 and Objective O4 of Part 4.2 of MRDCP.

19. Streetscape is defined in Appendix 1 to the MRDCP as:

“… the collection of visible elements in a street, including the form and treatment of buildings, setbacks, fences and walls, landscaping and trees, driveway and street layout and surfaces, utility services and street furniture such as lighting, signs, barriers and bus shelters.”

20. In their evidence, the experts interchange ‘streetscape’ and ‘landscape character’, largely because the landscape setting is visually dominant in the streetscape, with extensive planted and built landscape elements, and a natural topography that falls away to the north in a series of steep declines towards Balmoral.

21. As per the evidence of the planning experts, and based on the observations I was directed to make on site, both the streetscape and landscape character of Cobbittee Street is highly varied. The western side of the street, opposite the subject site, contains a mix of vegetation, fences, walls and built form of different heights and visual permeability, with limited building setbacks and a narrow verge. The eastern side, to the extent of the visual catchment identified by the parties, consists of the subject site and its neighbours at numbers 3 and 5 Cobbittee Street. The verge on this side of the street is generous, being approximately 7m wide in front of the subject site and widening out to approximately 11m as it leads towards numbers 3 and 5 Cobbittee Street. The built form within the street is variable in terms of form, architectural style, height and setbacks.

22. Although the frontages to all three properties on the eastern side of this visual catchment could be described as heavily landscaped, I reject the assertion of Mr Urbancic that they are all ‘open’ in nature. A mix of planting, stone walls, oblique access paths and substantial level changes result in neighbouring front gardens that can only be glimpsed through their varied, but visually impermeable, boundary treatments.

23. However, the frontage of the subject site could be described as ‘open’ in nature, with the only current ‘enclosure’ along this frontage being the awning and low fence to the garage/studio, which sits on the boundary. The remainder of the Cobbittee Street frontage to the property is unfenced, and the boundary is not clearly demarcated. However, in the wider context of the Cobbittee Street streetscape, this open aesthetic does not form part of a pattern, nor a consistent streetscape or landscape character. In my opinion the ‘open’ landscape aesthetic to the eastern side of Cobbittee Street is formed by the wide grassed public verge, which is to remain.

24. As agreed in evidence by both experts, as the proposed swimming pool fence only extends along 10.4m of a 49.985m frontage, the resulting fence will enclose 20% of an otherwise open frontage to 1 Cobbittee Street.

25. MRDCP Part 4.2 sets development controls for the siting and scale of a building. In this case, the building (which as per the definition in the MLEP includes structures) is the swimming pool and fence. Part 4.2, Objective O4 and Planning Control P4 provide for building setbacks as follows:

“Objectives

O4. To have front setbacks complementing existing setbacks in the street.

Planning Controls

….

P4. Where there is no established pattern of development, front setbacks will be considered on their merits.”

26. MRDCP Part 5.1, Objective O6 and Planning Control P19 provide further guidance on the siting of ancillary structures:

“Objectives

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

Planning Controls

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.”

27. Mr Urbancic states in the joint report that as there is no established pattern of front setbacks along the eastern side of Cobbittee Street, in accordance with MRDCP Part 4.2, Control P4, the front setback is to be considered on merit. He goes on to state that, in his opinion, as the proposed pool projects beyond the front building line, it does not complement the existing setbacks to the eastern side of Cobbittee Street, and that this, combined with the above-ground portion of the structure creates an unacceptable visual impact on the streetscape in contravention of Part 4.2, Objective O4.

28. To further this, in closing, Ms McCulloch for the Respondent stated that this visual impact would be so great that upon entering Cobbittee Street, the swimming pool structure would be one of the first things you see and would dominate the streetscape.

29. Given that the awning and porch of the garage/studio on the subject site extends to the site boundary, further than the proposed fence, I reject the suggestion that the proposed pool and fence will dominate the view upon entering Cobbittee Street. I further reject the submission that the enclosure of 20% of the street frontage will have an unacceptable impact on the openness of the streetscape, as my observations on site supported the submission made by Mr McKee for the Applicants that the landscape character of the street is not ‘open’ in nature, beyond that which is provided by the grassed verge and the subject site itself. Beyond this, the streetscape, on both sides, is highly varied and largely enclosed, and the open nature of the subject site is an anomaly in the streetscape.

30. Subsequently, in my considered opinion, the proposed setback of the swimming pool not only meets the 2m setback requirement of MRDCP Part 6.2, Control P3, but it allows for adequate landscaping to screen the pool structure. This ensures that this development does not have an unacceptable visual impact on the streetscape and is consistent with the varied landscape character of the street. The combination of the pool being mostly in-ground and somewhat screened by the porch of the adjacent garage/studio means it is not visually dominating and, as a structure, it integrates adequately with the built form. This is consistent with the relevant objectives and controls of MRDCP Parts 4.2 and 5.1.

The visual impact of the fence

31. The proposed pool fence is 1.8m high and constructed of vertical timber battens spaced 100mm apart and painted a dark, recessive colour. The Respondent contends that this proposed fencing is of excessive bulk and is out of scale with existing development, which results in adverse visual impacts within the streetscape of Cobbittee Street. Mr Urbancic further states in evidence that this style of fence would be of a generally solid appearance, and is of a height, style and location that would be visually dominant, creating enclosure in an otherwise open streetscape.

32. The Respondent contends that the proposed pool fence offends the following planning controls of the MRDCP:

1. Part 4.4 Landscaping:

“Objectives

O6. To have front gardens and areas forward of the front building alignment include vegetation and landscaping that makes a positive contribution to the streetscape.”

2. Part 5.1 Streetscape and Building Design, Objective O6, Planning Control P19, as above at [25].

3. Part 5.3 Fences and Walls:

“Objectives

O1. To have new fences and walls that are compatible with positive elements of the streetscape and satisfy the character objectives for the townscape area.

O2. To have low open style front fencing as a means of reducing the visual impact of solid fencing styles, encourage safety through passive surveillance of streets and private property, and allow for public views.

O3. To allow higher front fencing only in certain circumstances where there is a dual street frontage, where consistent with the scale or heritage value of a property, or to mitigate noise on streets with a high traffic volume.

Planning Controls

P1. Fences and walls must be consistent with identified streetscape and townscape area character elements.

….

P3. Front fences, and side fences forward of the building line, should be no more than 1.2m in height above footpath level.

P4. In certain circumstances Council may allow front fences, and side fences forward of the building line, greater than 1.2m in height above footpath level only where:

(a) there is dual street frontage, provided fences are articulated and do not have an adverse streetscape impact; or

.…”

4. Part 6.2 Swimming pools, spa pools/baths and water features:

“Planning Controls

…

P6. Pool/spa fencing that is visible from a public place, or in a foreshore location must be designed to reinforce the landscape quality of the locality and where located near to or abutting a front boundary should be required to include –planting to shield and or reduce its solid barrier effect to the satisfaction of the Council.”

5. Part 7.4(1) Balmoral Townscape:

“(f) Encourage low open style front fences which allow views/vistas.”

33. Despite Mr Urbanic’s position to the contrary, in my opinion, the proposed fence will not be solid in appearance, and will be suitably screened with vegetation that will make a positive contribution to the streetscape. The fence will not be the dominant feature on site but will sit within a suite of landscape and built elements that include a garage/studio with porch, the dwelling itself, and a range of shrubs, accent plants and trees. The fence will not block any passive surveillance of the street from the dwelling, and will be positioned within tall shrubs that make a positive contribution to the streetscape. The site frontage will be articulated through the application of different boundary treatments that include: low timber fence to the garage/studio; a pool fence within shrub planting, and; portions of garden with no fence or boundary demarcation. Further, as stated above, when entering Cobbittee Street, the more prominent visual element is likely to be the garage/studio and its porch which are light in colour and are not screened by planting. Finally, there are no views of vistas that align with this fence that could be interrupted by its construction.

34. On this basis I find that the proposed fence will have an acceptable visual impact and will meet the relevant controls of the MRDCP.

Provisions of the Mosman Local Environmental Plan

35. The Respondent contends that the proposed development does not meet Aim (2)(a) of cl 1.2 of MLEP 2012: “to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity”. In their joint report, the experts agree that the location of the swimming pool will not impact the amenity of any adjoining or adjacent residents, however, Mr Urbancic maintains this contention due to what he states is the unacceptable impact of the pool projecting out of the ground.

35. The Respondent further contends that the proposed pool contravenes the following objectives of the R2 Low Density Residential Zone:

“1 Objectives of zone

...

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

...

● To minimise the adverse effects of bulk and scale of buildings.”

37. For the reasons given above, I find that the pool design satisfactorily responds to the environmental constraints, is suitably integrated into the landscape, and minimises any adverse impacts of its bulk and scale.

The proposed pool is acceptable

38. I have considered the matters of relevance as identified under EPA Act s 4.15 and subsequently, for the reasons given, I find that the proposed development does not contravene the requirements of the MLEP and achieves the relevant objectives of the MRDCP. The proposed swimming pool and fence does not impact the amenity of the subject site or surrounding properties, and the visual impact on the streetscape and landscape character of Cobbittee Street is acceptable, as the pool and fence structure will adequately integrate with the varied and diverse streetscape. There are no other likely environmental impacts, noting that the removal of the existing tree has been accepted by the Respondent subject to the planting of a suitable replacement, as conditioned.

39. Pursuant to the requirements of EPA Act s 4.15, I have considered the proposed development against the relevant environmental planning instruments and development control plan and find that the likely impacts of the development are minimal, and acceptable. Subsequently, and pursuant to EPA Act s 4.16, I find the proposed development warrants the grant of consent.

40. The Court orders:

1. The appeal is upheld.

2. Development Application 8.2022.208.1 for the construction of an inground swimming pool and fence at 1 Cobbittee Street, Mosman, Lot 1 in DP191632, is determined by the grant of consent, subject to the conditions at Annexure A.

3. All exhibits except for A, B and G are returned.

E Washington

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 25 January 2024