De Angelis Taylor & Associates Pty Limited

[2003] NSWLEC 358

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Land and Environment Court

of New South Wales

CITATION:	De Angelis Taylor & Associates Pty Limited [2003] NSWLEC 358
PARTIES:	APPLICANT De Angelis Taylor & Associates Pty Ltd RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	10975 of 2003
CORAM:	Bly C
KEY ISSUES:	Development Application :- Alterations and additions - heritage - loss of views - height bulk and scale
LEGISLATION CITED:	Environmental Planning and Assessment Act, 1979 Mosman Local Environmental Plan 1998 State Environmental Planning Policy No. 1 - Development Standards
CASES CITED:
DATES OF HEARING:	19/12/03 (on-site hearing)
EX TEMPORE JUDGMENT DATE :	12/19/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, Barrister instructed by Bowen & Gerathy RESPONDENT J. A. Walsh, solicitor of Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10975 of 2003

Bly C

19 December 2003

De Angelis Taylor & Associates Pty Ltd

Applicant

v

Mosman Municipal Council

Respondent

Judgment

1. This judgement was dictated extempore on site at the conclusion of the on site hearing.

2. This appeal is against council’s refusal to grant development consent for alterations and additions to an existing two-storey heritage building located at No. 36 Cowles Road, Mosman. The additions comprise a basement storage area, ground level kitchen, dining and sitting area and first floor bedrooms.

3. The evidence presented to the Court was given by:

• Mr C King - town planner
• Mr P Gretch - town planner
• Mr H Fraser - heritage consultant

• Mr G Brooks - heritage consultant

4. As part of the hearing I inspected the immediate locality of the site and the properties at 1A Glover Street and 38 and 40 Cowles Road. I observed the relationship of the proposed extension particularly in relation to these three neighbouring properties.

5. Having visited these properties I heard from the residents and noted their various concerns including loss of views, reduced solar access, loss of privacy, the likely effect of the bulk of the building on their amenity.

6. I have already decided that in relation to the issue of permissibility, that this proposal could be granted development consent as a dwelling house and a place of worship. I have also acknowledged the concerns that the public notification of the proposal as simply extensions to a dwelling house may not have been entirely effective and as a consequence of this further notification would be required.

7. Whilst there were a number of different issues, which are said to support the council’s case these came down to two essential issues. The first being the impacts on the neighbours resulting from the height, bulk and scale of the extension and it’s proximity to those neighbours and the issue of bulk and scale generally. The second issue involved the question of whether the design, size and location of the extension is appropriate in the heritage context.

8. Dealing firstly with the bulk, height and scale issue it was brought to my attention that the proposal exceeds the applicable height development standard in Mosman Local Environmental Plan 1998, ("the LEP") as indeed does the existing building. As a consequence of this non-compliance with the development standard an objection pursuant to State Environmental Planning Policy No. 1 Development Standards, ("SEPP1") was prepared by Mr King.

9. The most relevant objective of the standard, which is contained in the LEP is objective (d) which is to minimise the effects of bulk and scale of buildings arising from new development in existing residential areas. In relation to this objective I have no doubt that the proposal comprises new development in an existing residential area.

10. The SEPP 1 objection argues that the preposed additions would not significally impact on views and argues that the additions are a response to the existing land form and existing floor levels and are not of such a bulk and scale as to be unreasonable or to create an unreasonable impact on neighbouring amenity.

11. Mr King in his report supported the proposal and in effect reiterated what he said in the objection that there would be no adverse impacts associated with the height, bulk and scale of the proposal that would warrant refusal of the application. Mr Gretch took the opposing view and believed that the building once extended would be excessively imposing upon the adjoining properties and that arguments in relation to the slope of the land resulting in a taller building which in turn had heights responsive to heritage requirements, did not excuse the impacts.

12. I have been persuaded by Mr Gretch’s evidence and which supports the concerns particularly of the neighbour at 1A Glover Street that, taking into account height and proximity, these impacts would be excessive. I accept that these impacts are such as to warrant refusal of the application.

13. Whilst matters of view loss, privacy and light are not of any determinative concern I nevertheless recognise what the residents have said about these matters especially the matter of view loss from No. 40. It seems to me that a somewhat different design could reduce view losses but the protection of these views need not be determinative of a revised design.

14. Dealing with the heritage question, I accept that the architectural approach in terms of detail and form, is satisfactory. I understand Mr Fraser’s concerns about the extent to which the extension is set forward in front of the existing building and how this new corner would, given the slope of the land in a height which would make it somewhat dominant with respect to the existing building.

15. I nevertheless prefer the evidence given by Mr Brooks which was very much along the lines of the reports prepared by Mr Stass and Miss S. Roen. Mr Brooks explained that the existing building has an asymmetrical form and the extension would continue this theme. In time it will be recognised as an appropriate element of the organic growth of the building which, in the heritage context, is not inappropriate. There are some concerns regarding the landscaping but with the proposed changes to fencing I accept that an appropriate landscape setting for this development could have been provided.

16. Clearly, there are alternate designs available which would be responsive to both the heritage requirements and the requirements of the LEP in terms of the building height. However, I would expect that an acceptable design may not necessarily have to strictly comply with those development standards given the existing height of the building. Also, I accept the evidence of Mr Fraser that a different design might recognise to a greater degree than did this proposal, the return of the existing building at it’s south western corner. It is therefore the decision of the Court that the appeal is dismissed and the development application is refused.

__________________________
TA Bly
Commissioner of the Court
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