DHG International Pty Ltd v Mosman Municipal Council

[2004] NSWLEC 97

Land and Environment Court

of New South Wales

CITATION:	DHG International Pty Ltd v Mosman Municipal Council [2004] NSWLEC 97
PARTIES:	APPLICANT DHG International Pty Ltd RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	10558 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Alterations and additions to a dwelling SEPP 1 Objection - height development in vicinity of a heritage item landscape area.
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 State Environmental Planning Policy No 1 Mosman Local Environmental Plan 1998 Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours
CASES CITED:
DATES OF HEARING:	27-29 October, 2003
DATE OF JUDGMENT:	03/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson (Barrister) SOLICITORS Paul Bard, Lawyers RESPONDENT Ms J Walsh SOLICITORS Pike Pike and Fenwick

JUDGMENT:

- 7 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10558 of 2003

Tuor C

19 March 2004

DHG INTERNATIONAL PTY LTD

Applicant
v

MOSMAN MUNICIPAL COUNCIL

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Mosman Municipal Council (the council) of a development application for alterations and additions to an existing dwelling at 36 Wolseley Road, Mosman (lot F DP918077). I have found that the objection under State Environmental Planning Policy No 1 - Development Standards (SEPP1) to the height standard is not well founded. The appeal is therefore dismissed. I will now set out my reasons for this decision.

The site and its context

2 The site is located on a corner of Wolseley Road, Beaconsfield Road and Frascatti Lane. It has an area of 1372m2 with a frontage of 22.73m to Wolseley Road, 73.23m to Beaconsfield Road and 20.11m to Frascatti Lane. The site slopes of about 8.5m from south to north from Frascatti Lane to Wolseley Road.

3 The site has a part one and part two storey Federation style house, which is set back from Wolseley Road in terraced gardens. Car access is off Frascatti Lane to a three car garage with a single storey cottage.

4 The adjoining house to the west, Yattendon, 34 Wolseley Road, is a heritage item. It is similar in style to No 36 and No 32, but these properties have been altered by roof additions.

5 Surrounding development is characterised by detached one and two storey houses of a variety of heights and styles.

Background and Proposal

6 A development application (DA8.2003.004.1) for the site was lodged on 6 January 2003. The application was for “renovations to existing residence and cottage and extension of 6 metres to northern elevation”. The application was advertised and council received four submissions. The main issues of concern related to: loss of views; height and number of storeys; and the extension of the house towards the north closer to the Wolseley Street frontage. Council refused the application on 13 May 2003.

7 During the hearing the experts clarified that the proposal involves extensive demolition of the existing house. They agreed that the roof and most external walls above the existing sandstone foundations would be demolished. The extent of demolition of internal walls and floors is not clear. Mr Neustein described what would be left as a “building platform” for the new house.

8 The alterations and additions will result in a one to three storey house and the construction of a swimming pool. Alterations to the existing garage and cottage at the rear of the site are also proposed.

Statutory framework

9 The site is zoned Residential 2 (a1) under Mosman Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent. The proposal exceeds the height standard in cl 13 of LEP 1998 and the applicant submitted an objection under State Environmental Planning Policy No 1 (SEPP 1). This policy allows development standards to be varied provided their application is either unnecessary or unreasonable.

10 Clause 15 of LEP 1998 specifies a landscaped area control. The parties agreed that the application did not meet this standard but, due to the wording of the clause, a SEPP 1 objection was not required. Clause 37 relates to development in the vicinity of a heritage item.

11 Under the Mosman Residential Development Control Plan (RDCP) the site is within the Balmoral Townscape Area. The RDCP addresses matters that are relevant to the proposed development including: siting and scale; views; landscaping; streetscape and building design; desired future character and swimming pools.

12 Sydney Regional Environmental Plan No 23 – Sydney and Middle Harbours applies to the land but no issues were raised in relation to this Plan.

Issues

13 The Statement of Issues before the Court contains 17 issues. These can be summarised into the following key issues:

(a) whether the SEPP 1 objection in relation to height is well founded.

(b) whether the proposal will adversely affect the heritage significance of the adjoining heritage item, Yattendon at 34 Wolseley Road.

(c) whether the amount of landscaped area and the location of the swimming pool is acceptable

14 The following experts gave evidence:

· For the council

Ms H Miller, town planner
Mr R Staas, heritage architect

· For the applicant

Mr M Neustein, architect and town planner
Mr P Lonergan, heritage architect

15 The Court also heard evidence from the following residents:

Mr J Mortimer, 4 Beaconsfield Road, Mosman

Ms M Movat, 2 Beaconsfield Rd, Mosman
Dr P Humphries, 51 Middle Head Road

SEPP 1 Objection - height

16 Clause 13 of LEP 1998 establishes a maximum building height of 8.5m and a maximum wall height of 7.2m. It also specifies the maximum number of storeys as two. An existing basement in an existing building may be excluded from the number of storeys if it does “not add to the bulk or height of the building”. The parties did not agree whether the basement was existing and therefore not a storey. They agreed that the maximum height of the building was 10.8m to the top of the proposed turrets and 9.4m to the ridge. The maximum wall height is 8.1m. The existing house exceeds both the maximum building height and the wall height but not to the extent of the proposed additions.

17 The objectives of cl 13 are stated as:

(a) to protect public and private views; and
(b) to minimise the visual impact of buildings when viewed from the harbour and surrounding foreshores; and
(c) to ensure buildings resulting from new development are compatible with existing buildings in terms of height and pitched roof form; and
(d) to minimise the effects of bulk and scale of buildings arising from new development in existing residential areas.

18 Mr Neustein submitted a SEPP 1 Objection to the three development standards relating to height in cl 13. In his opinion the proposal met the objectives of the standard for the following reasons:

· The retention of part of the existing dwelling places constraints on compliance with the standard but achieves “careful use of resources” and “a better environment and development than a new dwelling, compliant with Council’s controls”

· The existing house already exceeds the maximum building height and wall height in the standard. The proposed alterations and additions will not increase the overall height of the building or the wall height.

· The alterations to the “under-croft area” will not add to the height or bulk of the building and will not be visible from the street or the harbour

· The purpose of the turrets is for ventilation, therefore by definition they are excluded from height.

· The main impact on views results from the skylights and dormers on the east and west elevation. If these were deleted the proposal would not have a material effect on views and would meet objective (a) of cl 13.

· The changes and deletion of part of the existing roof form break up the bulk of the building and better meet objective (c) and (d) of cl 13. The extension towards the north does not add to the overall bulk of the building.

19 Ms Miller held the contrary view that the proposal did not meet the objectives of the standard for the following reasons:

· The extent of demolition results in little of the existing building being retained but constrains redevelopment of the site. The benefit of what is retained does not justify non-compliance with the controls.

· While the proposal does not increase the overall height of the building (except for the turrets) where it is already exceeded. The proposed extension to the north adds building where there is currently no building. This extension exceeds the three height standards and does not achieve the objective of the standard as it impacts on views and adds to the bulk of the building.

· The impact on views, particularly from the lower deck at No 6 Beaconsfield Road, where the view of Manly would be obscured.

· The changes to the existing roof form break up the bulk of the building but do not compensate for the impacts of the northerly extension.

· The “under croft area” is not excluded from the number of storeys because it is either not currently used as a basement, will be excavated and will be extended under the existing verandah and into an area that is currently not built upon.

· The turrets are design features, there main purpose is not as vents.

20 I accept Ms Miller’s evidence that the exceedance in the height control does not meet the objectives of the standard. In particular, the retention of part of the existing building does not render compliance with the standard as unreasonable or unnecessary. The constraints that retaining a small part of the building place on the future planning of the site have not been justified nor that the benefits of retention out weigh the constraints imposed.

21 The existing building already exceeds the height control. Even if only that part of the proposal, which further exceeds the standard, is considered in the SEPP 1 objection this has an impact that would not occur if the standard were met. This is largely as a result of the extension of the building towards the north where the experts agreed that the development exceeded the maximum building height and the wall height.

22 The experts disagreed on the number of storeys. I am persuaded by the evidence of Ms Miller that the proposed basement is a storey and therefore does not comply with the two storey standard. To be excluded the proposed basement area must pass two tests, namely: it should be existing and not add to the bulk or height of the building. Even if I accept that the enclosed under croft area is an existing basement, the additional storey over this area adds to the bulk of the building and does not pass the test of additional bulk. The proposed basement under the existing verandah and the area where there is no existing building clearly are not an existing basement.

23 On this basis a large part of the building does not comply with the two storey standard. This increases the bulk of the building particularly when viewed from the north and the west, the main street frontages, and from the east as a backdrop to Yattendon, which I will discuss further under this issue. The effect of the bulk of the building is not minimised by responding to the slope of the land. I accept Mr Staas evidence that Federation style buildings do not follow the topography of the land by being stepped in form. However, as so little of the building is being retained there is no constraint that the alterations and additions should respond to an existing Federation building or to other Federation style buildings in the street, as this is not the character of the streetscape.

24 The three storey extension of the building towards the north results in a non compliance with the maximum building height which impacts on the views of properties to the west. The submission of Ms Walsh, for council, was that this impact did not achieve the objective “to protect…private views”. A different threshold test to the assessment of view sharing for a development that complies with the controls.

25 There will be a material impact on the views from the lower terrace of No 6. This terrace is the main outdoor area and opens off the living area of the house. The terrace will still enjoy expansive views of the water and its views over the land may be improved by the removal of part of the existing roof. However, the view that will be lost is of Manly, and although only a small part of the overall panorama, it is a significant view to the owner and a view that need not be lost if the development complied with the standard. I therefore do not accept Mr Neustein’s opinion that there is not a material loss of views from this property. The view loss from the other properties is not material.

For these reasons the proposal does not meet the objectives of the standard and the SEPP 1 objection is not well founded.

Impact on heritage item

26 Clause 37 of LEP 1998 requires that for development in the vicinity of a heritage item the following must be considered:

(a) the likely effect of the proposed development on the heritage significance, curtilage and setting of the item.
(b) the impact of the proposed development on any significant views to or from the heritage item.

27 The site adjoins a heritage item at number 32 Wolseley Road, known as Yattendon. The main area of disagreement between the heritage experts was the impact that the proposed development would have on the setting of this item. In particular, the impact of the three storey projection to the north towards Wolseley Road. The existing building is setback a similar distance from this street frontage as Yattendon and the adjoining property to the west.

28 The key question is what impact this addition has on the heritage item and the streetscape. In answering this question I have considered Ms Staas opinion that the heritage impact alone would not be such to warrant refusal of the application. None the less, Mr Staas said that the proposal would have an adverse impact on the setting of the heritage item and on its significance. In his opinion, the size of the proposal would dominate Yattendon. He agreed with Ms Miller that the two houses to the west and those across the road formed a cohesive group, separated somewhat from the rest of the street by the curve in the road. He agreed with Mr Lonergan that the wider context was “disparate” and that the modifications to the existing building were unsympathetic. However, Mr Staas did not agree that the existing house did not contribute to its context as it was of a similar scale, form and setback to the other buildings. He considered the proposal would be more unsympathetic than the existing house as it would be much larger and the projection forward would increase its visual dominance.

29 Mr Staas also agreed that there would be no physical obscuring of any of the characteristic elements of the heritage item and that the existing and proposed vegetation forms a screen between the proposal and the heritage item. He did not consider that this was sufficient to mitigate the impact of the proposal on the setting on the item.

30 Mr Lonergan held the contrary view, that the proposal would enhance the setting of Yatterdon and would have no impact on its curtilage, which he defines as only the site on which the item is situated. He also considered setting to be the “foreground of the item and that buildings in the background do not form part of the setting”. Mr Staas did not agree with either of these propositions. In his opinion curtilage includes the visual curtilage and the setting being “where the heritage item can be seen from the public domain”

31 I do not accept Mr Lonergan's limited definition of curtilage and setting. When considering the impact of a development in the vicinity of heritage item, it is logical that the relationship between the development and the item and how they are seen from the public domain would be part of the assessment to be undertaken under cl 37

32 Mr Lonergan’s opinion was that the existing building “makes no contribution to the setting or significance of the item”. The proposal would enhance the setting of Yattendon “through the alteration of what is currently an imposing white conglomeration of poorly considered alterations and additions to the original form”.

33 Mr Lonergan also concluded that the proposal would not obscure any significant stylistic features of Yattendon and that no impact on significant views of the item would occur. Although he stated “significant views from the northwest to the item are the only views that could be materially impacted. The proposal will result in a building silhouette that is considered compatible with the item and the style of the Item. Mr Lonergan acknowledged that when viewed from Beaconsfield Road, the terrace of the proposal would extend to the chimney on number 32 Wolseley Road. This would obscure part of the Yattendon that is currently visible through trees.

34 I accept Mr Staas evidence. No 36 and No 32 Wolseley Road, adjoin Yattendon. Although both these house are altered in an unsympathetic manner, with roof additions, they still retain a similar scale and setback to the heritage item. The houses built at a similar time retain similarities in detail and features and although not cohesive as a group they do provide, together with properties on opposite side of Wolseley, a reasonable setting for the heritage item.

35 The proposed development will change this setting. It proposes a much larger building that projects further forward. This projection, although articulated with a verandah and other details, is basically in one plane, that is three storeys in height. I accept Mr Staas opinion that the scale of the proposed development on a prominent corner will dominate the setting of the heritage item and have an adverse impact.

36 The view of Yattendon from parts of Beaconsfield Road will be blocked by the proposal, although this view is currently obscured by vegetation the form of the building can now still be seen. When viewed from the north west the proposal will form the backdrop to Yattendon and will impact on its setting.

37 While I accept that this change to the setting of itself may not warrant refusal of the application. The change is a direct result of the non-compliance with the height control discussed above and is a negative feature of the proposal.

Landscape area

38 The proposal does not comply with the numerical landscape area control in cl 15 (2) of LEP 1998 which would require 963 m2 of landscape area. The existing landscaped area is 580 m2. By removing an existing handstand area, the proposal increases the landscaped area to 610 m2. Mr Neustein’s said that the proposal achieves the objectives of the landscape standard for the following reasons:

This application marginally increases soft landscaping on-site and retains most established landscaping on site including mature trees. The area of landscaping provided on site is adequate to meet the needs of occupants and also contain urban runoff. Most importantly, the area of landscaping is sufficient to maintain the desirable streetscape characteristics of the locality and ensure screening of the adjoining heritage item. Certainly, with some additional planting, the dominance of the landscape, when viewed from Beaconsfield Street, could be ensured.

39 Mr Neustein also stated that if the landscape control were to be met, the floor space permissible on the site could only be achieved by a two storey building, with one floor above the other. In his opinion this would result in a bulkier building than the proposal. The proposal occupies a greater site area but is partly one storey and its roof form is broken which assists in reducing its overall bulk.

40 Ms Miller did not agree that the proposal met objectives (b) of cl 15 namely “ to maintain a general dominance of landscape over buildings..”. She agreed with Mr Staas that the bulk and scale of the proposal would dominate the site and the streetscape. A landscape plan was submitted during the hearing which Ms Miller did not raise issue with.

41 In Ms Miller’s opinion the location of the proposed swimming pool in the front garden did not meet the objectives of cl7.4 of the RDCP as it would have a negative impact on the streetscape and the privacy of No 34 Wolseley Road.

42 In Mr Neustein’s opinion the pool location was acceptable as it was set back sufficiently from the street and the adjoining property and was screened by landscaping.

43 I accept that the proposed landscaping does not met the objectives (a) and (b) of the standard. The landscape character of Mosman is one where if a house is large it is located on a large area of land, where the landscape dominates the built form. The numerical control seeks to maintain this character by requiring more landscaping the larger the site area. The result of implementing this control may be that the permissible floor area is not achieved. While the amount of landscaping proposed is large, the proposed development is also large. Even with the landscape plan the building will be the dominant element in the streetscape. Of itself this may not be sufficient reason to refuse the application but it contributes to the impact of the development on the setting of Yattendon and the overall height and bulk of the building, which I have found to be unsatisfactory.

Orders
1. The appeal is dismissed.

2. Development application No DA8.2003.004.1 for alterations and additions to an existing house at 36 Wolseley Road, Mosman, is determined by refusal.

3. The exhibits may be returned.



____________________
Annelise Tuor
Commissioner of the Court