Dickson v Mosman Municipal Council

[2016] NSWLEC 1494

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dickson v Mosman Municipal Council [2016] NSWLEC 1494
Hearing dates:	16-18 August 2016
Date of orders:	27 October 2016
Decision date:	27 October 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed. 2. Development Application No. 8.2016.46.1 for a new dwelling at 103A Raglan Street, Mosman, is refused. 3. The exhibits, other than exhibits 1, A, E, F and G, are returned.
Catchwords:	DEVELOPMENT APPLICATION: new two storey dwelling; access to dwelling on battleaxe lot; resolution of shared structures over access; common ownership of properties; siting of dwelling on battle-axe lot; inadequate landscaped area; impacts on adjoining dwellings
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Markakis v Mosman Council [2015] NSWLEC1033 James and Anastasia Markakis v Mosman Municipal Council [1998] NSWLEC223
Category:	Principal judgment
Parties:	Nigel Dickson (Applicant) Mosman Municipal Council (Respondent)
Representation:	Solicitors: Mr D Baird, Baird Lawyers (Applicant) Ms R McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2016/00154071

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 8.2016.46.1 for a two storey dwelling (the application) at 103A Raglan Street, Mosman (the site) by Mosman Council (the Council).

2. The appeal was subject to mandatory conciliation on 16 August, 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Background and context

3. A proposal to develop a dwelling house in a similar location on the site was refused by the Court in 2015, Markakis v Mosman Council 2015 NSWLEC1033 (the 2015 appeal). In that appeal, Commissioner O’Neill refused an application, which has the same intent as the application now before the Court; namely to construct a dwelling on a rectangular portion of land east of a tennis court on the site, whilst retaining the tennis court and existing pool and garage structures straddling the boundaries of the site and an adjacent site in common ownership, being No. 105 Raglan Street.

4. As was the case in the 2015 appeal, it is understood that the dwelling is to house a family member of 105 Raglan Street and that the occupants of both No.’s 105 and 103A will continue to access and use the tennis court.

5. Whilst the design of the dwelling has changed, along with boundary, landscaping and access arrangements, much of the background and context remains as it was in the 2015 appeal. Most of the applicable relevant planning controls are also the same. I have therefore reproduced much of the text from that judgment below. Furthermore, a number of the concerns raised in that appeal by the Council and neighbours remain and those that are still relevant are also similarly referenced. As the Council questioned in submissions, and which I need to turn my mind to, ‘what has changed between this proposal and the previous appeal?’

Issues

6. As outlined in the 2015 appeal, No.’s 103A and 105 Raglan Street are held in common or at least related ownership by the Markakis family. In this application, Mr Nigel Dickson is listed as the applicant but he is the architect acting for the Markarkis’ who, it is further understood, live in No. 105. Irrespective it was evident from discussions at the site view that amendments to structures on No. 105, or to the boundaries between No.’s 103A and No. 105, could be undertaken if necessary to gain approval to the application.

7. The Council’s contentions in the 2015 appeal which remain contested issues in this appeal include the following:

• The proposal provides inadequate landscaped area

• The proposal is unacceptably sited and is of excessive height, bulk and scale

• The proposal will have unacceptable impacts on neighbouring properties in terms of overshadowing and privacy

• The proposal will have unacceptable residential amenity for the occupants in terms of solar access, pedestrian accessibility and private open space.

8. There was an additional contention with regard to the streetscape impact of an awning but the design of the awning was subsequently modified to address this concern. Other issues dealing with lack of information on fencing and drainage were also addressed

9. In the 2015 appeal, the Council sought to either include a condition requiring the consolidation of 103A and 105 Raglan Street or that the issue of the encroachment of the garage and the pool of 105 Raglan Street over the site be resolved by the proposal.

10. Mr Baird submitted in that appeal, as in the present appeal, that conditions could be included in the consent requiring an easement to be created to permit the existing structures that straddle the boundary of 103A and 105 Raglan Street to remain but proposing a positive covenant on the titles of both properties requiring appropriate action to be taken to remove the structures prior to the disposal of either property.

11. In response, the Council sought a condition requiring a Construction Traffic Management Plan on the basis that the existing garage and tennis court would frustrate access to the site during construction. The Applicant opposed the inclusion of this condition.

12. Ultimately, Commissioner O’Neill dismissed the 2015 appeal on the basis of the unacceptability of the design of the proposed dwelling which did not require her to address the contested conditions on access. However, she did conclude at para 53 that “I am not satisfied that should 103A Raglan Street be separately disposed of in the future, the configuration of the site layout would function satisfactorily as a single family dwelling”. That issue remains.

The Site

13. The site comprises an allotment known as 103A Raglan Street and is located on the eastern side of Raglan Street, between Queen Street and Calypso Avenue. The site has an area of 980.5msqm and is irregular in shape, with an angled frontage of 5.37m to Raglan Street.

14. Existing on the site is most of a garage used by No. 105 Raglan Street, the spa and part of the pool of No. 105, and a tennis court used also by the occupants of No. 105. The background as to how this situation has arisen and the implications for the application I will deal with later.

15. The rectangular area of land 15.63 x 16.9m to the east of the tennis court of 103A Raglan Street, proposed as the area upon which the dwelling is to be constructed, was once part of 32 Queen Street. In 2005, 32 Queen Street was subdivided to create 3 allotments. Allotment 1 became 34 Queen Street and allotment 2 remained 32 Queen Street. In the 2015 appeal, the Council submitted that 32 Queen Street was later further subdivided and the rectangular area of land, proposed in this matter for the dwelling, was sold to the owner of 105/103A Raglan Street.

16. The irregular site can be described as containing three components. There is a 40.69m long access handle, which is approximately 5m wide, from Raglan Street to the west of the site, located between 105 and 103 Raglan Street. There is a rectangular area, approximately 28.4m x 18.3m, containing the north-south orientated tennis court, which joins the access handle at the north-western corner of the tennis court. There is a rectangular area to the east of the tennis court, at the southern end of the tennis court, which is 15.63m in an east-west direction and 16.9m in a north-south direction and this is the area proposed for the dwelling.

17. The site wraps around two boundaries shared with 34 Queen Street. The rear boundary of 34 Queen Street is the northern boundary of the portion of the site proposed for the dwelling. The southern portion of the western side boundary of 34 Queen Street is the eastern boundary of the site adjacent to the tennis court.

18. To the south of the site is 32 Calypso Avenue. The majority of the northern (side) boundary of 32 Calypso Avenue forms the southern boundary of the site.

The proposal

19. The proposal is for a two storey dwelling to the east of the existing tennis court in generally the same location as was proposed in the 2015 appeal.

20. The proposed development, including boundary adjustments between No.’s 103A and 105, varied between the refused application, the plan the subject of conciliation and the application as amended during the hearing.

21. The dwelling as refused contained living areas and terraces on the ground floor and three bedrooms on the first floor with balconies to the east and west. Also proposed were adjustments to the boundary between No.’s 103A and 105, works to the garage to effectively divide its use between No.’s 103A and 105, an awning over a pedestrian entry, vehicular access gate, and landscaping works. Works in the battleaxe leg included stairs to the tennis court so as not to require pedestrians to have to access the tennis court, and then the dwelling, from the stairs at the rear of No. 105.

22. In the refused application, it was proposed to reduce the area of the site from 980.5sqm to 882.5sqm and increase the area of No. 105 by the same amount. Included in the area to be transferred to No. 105 was half the driveway, half the garage and all of the pool and spa. The portion of the garage allocated to the site was to be converted to what was described as a ‘gatehouse/entry foyer’, albeit it was internal to the garage, with the garage divided internally by a light weight wall. Two tandem parking spaces were to be provided in the portion of the driveway which remained on No. 103A. A new 1.8m high translucent glass over masonry fence was to be erected to separate the proposed pedestrian way to the new dwelling on No. 103A from the pool area on No. 105, and a right of way was proposed around the northern portion of the tennis court (this portion of the court remaining on No. 105) to give pedestrian access to the new dwelling. Existing stairs from the rear of No. 105 to the tennis court on No. 103A were to remain with the fence not extending beyond the stairs.

23. On July 19, 2016 Leave was granted by the Court to amended plans which proposed to reduce the site area from 980.5sqm to 912.91sqm rather than to 882.5sqm and increase the area of No.105 by the same portion. This resulted from placing all of the tennis court into No. 103A but otherwise the access and boundary adjustments were as per the refused application.

24. Other changes in the amended July plans were relatively minor or matters of detail but included adding privacy screens to south facing balconies of two of the bedrooms and provision of 2 trees of a species recommended in the Council’s DCP. New plans were also lodged demonstrating compliant solar access to the proposed dwelling.

25. During the hearing, the Applicant was granted Leave to rely on further amended plans, which reversed the arrangements to reduce the size of the site and instead increase it from 980.5sqm to 1031.961sqm, with the site area of No. 105 reduced accordingly. This arose from abandoning the proposal to divide the driveway and garage to create an entry ‘foyer’ and instead provide all of the garage and driveway on No. 103A. The spa connected to the pool on No. 105 therefore was now proposed to be retained on No. 103A and the pool continued to straddle the boundaries between No.’s 103A and 105. The fence between the pool area and the pedestrian way was still proposed.

26. Other changes to primarily address objectors’ concerns lowered the dwelling by 400mm and deleted or narrowed balconies and verandas and/or provided additional privacy screens. The ground floor veranda and first floor balcony proposed on the eastern elevation were both reduced to provide more space for canopy trees and the fence between the site and 32 Queen Street was increased in height and a mature hedge proposed to address privacy concerns with this neighbour.

27. The amended dwelling the subject of the appeal therefore comprised 2 levels with a minimum setback in the order of 3m to the northern and southern boundaries and 1.5m to the rear boundary. Living areas remained on the ground floor and 3 bedrooms, each with ensuites, on the upper level with only elevated bathroom windows on the southern façade. Articulated elements included increased setbacks on the north western and south eastern elevations. A veranda at the ground level and a balcony at the upper level overlook the tennis court and provide the principal areas of private open space, other than the tennis court, associated with the dwelling. Five canopy trees are provided: two in the south west corner of the site, one in the north west corner, one adjoining the tennis court at the northern boundary and one in the access handle. Landscaping is proposed in the side setback areas and for much of the tennis court perimeter.

28. The Council contended that the proposal, even as amended, was substantially the same as the proposal refused by the Court in 2015 with only the design of the dwelling changing, but not its general location, access constraints or overall impacts on neighours, and not with any substantive improvement in the landscaped setting.

Planning Framework

29. The site is zoned R2 Low Density Residential pursuant to Mosman Local Environmental Plan 2012 (the LEP) and the proposal is permissible with consent. The relevant objectives of the R2 zone are:

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

•    To ensure that development is of a height and scale that seeks to achieve the desired future character.

•    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.

30. The definition of landscaped area in the LEP is:

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.

31. Clause 6.6 of the LEP states as follows:

(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 or Zone R3 Medium Density Residential.

(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:

(vi)    50%, if the site area is at least 900m2.

32. The proposal is subject to the relevant objectives and controls of the Mosman Residential Development Control Plan 2012 (the DCP). The DCP includes, at 2.2 Site Analysis, the following in relation to the importance of undertaking a site analysis:

A site analysis is the first step in the design process. A site analysis is based on a survey plan and aims to ensure the qualities of the site and its context are properly considered to achieve development that is well designed, makes a positive contribution to its surroundings and establishes a positive relationship with neighbouring buildings.

A site analysis identifies and explains the key features of the site and its surroundings, and in particular, it should be used to:

assess how future development would relate to its immediate surroundings and to itself; and produce a design that minimises the negative effects on the amenity of adjoining or nearby developments.

33. The DCP includes the following at 4.2:

The siting and scale of a building – its height, floor space ratio, setback from site boundaries and relationship in size to adjoining buildings – set the dominant character of any development.

Controls for these elements are important to facilitate an acceptable siting and scale of development that maintains a satisfactory relationship with neighbouring properties and the wider street context. Buildings should be designed “from the ground up” with ground floors located at or near ground level.

Height and FSR objectives

O2. To have a scale of development which is not excessive and is consistent with the existing or desired future townscape area character.

O3. To have a built form that is typical of traditional building types in Mosman, and encourage pitched and gabled roof forms.

Building setback objectives and controls

O5 To have adequate side setbacks for basement excavations to allow for deep soil planting between buildings.

O6 To have adequate side setbacks to provide spatial relief between buildings, encourage view sharing and minimise overshadowing of neighbouring properties.

O8 To have rear setbacks which complement existing setbacks and which provide sufficient space for substantial planting, provide adequate separation of buildings, and have regard to cross views of neighbouring properties.

O9 To have buildings which are sited to relate to the topography with minimal cut and fill, preserve existing significant trees, vegetation, rock outcrops, watercourses, natural features and promote new vegetation links.

P11 Building bulk should be distributed to minimise overshadowing to neighbours, streets and public open space. Building forms should enable a sharing of views with surrounding residences and permit views from public streets and open spaces.

P12 Council may require an additional side setback to ensure adequate daylight and sunlight access to adjacent buildings or to minimise view loss. In particular, an additional side setback from the southern boundary for east-west oriented lots, especially for first floor additions, may be required.

P22 Buildings should be sited to preserve existing significant trees, vegetation, rock outcrops, water courses and natural features and promote new planting.

34. The DCP also relevantly includes the following in relation to landscaping at 4.4:

For land zoned R2 Low Density Residential, the minimum landscaped area is based on the site area to encourage planting whilst not unreasonably restricting development. The greater the site area, the greater the landscaped area required.

Objectives

O4 To have the existing canopied and vegetated landscaped character of Mosman protected and enhanced.

35. The DCP contains the following objectives and controls for solar access at 5.8:

O1 To have sunlight to habitable rooms and private open spaces, and daylight access to all habitable rooms to ensure high levels of residential amenity.

O2 To have the degree of overshadowing of neighbouring properties minimised.

P1 Buildings should be sited and designed to maximise sunlight to north-facing windows of living areas and principal areas of open space, having regard to the planning principles listed above.

P2 Windows should be appropriately located, sized and shaded to reduce summer heat load and permit entry of sun in winter.

P4 North-facing windows to living areas and main ground level private open space of neighbouring dwellings should not have sunlight reduced to less than 3 hours between 9am and 3pm on 21 June.

P6 Council may require an additional side setback to ensure adequate daylight and sunlight access to adjacent building. In particular, an additional side setback from the southern boundary for east-west orientated lots, especially for first floor additions, may be required.

36. The site is located within the area identified by the DCP as the Sirius Slopes Townscape. The relevant description of the area and character is as follows:

The Sirius Slopes Townscape is a steeply sloping area in Mosman’s south located between two ridges, encompassing Little Sirius Cove and overlooking Sydney Harbour. The subdivision pattern is curvilinear with contour streets reflecting the relatively steep topography. The topography creates an enclosed feeling and affords views to Sydney Harbour and the city skyline.

Larger lots and dwelling house sizes are prevalent. An irregular pattern of house orientation is also evident. There is a diversity of buildings, with many erected in the Federation and Interwar periods. These are substantial dwelling houses on large sites with some allotments having front and rear street frontages; many have formal gardens. There are pockets of intact Federation dwelling houses of the Queen Ann and Arts and Crafts style which have typical features including chimney stacks, steeply pitched roofs, gables and verandahs. The area is typified by moderately low stone fences.

The area is characterised by medium to light tree cover and landscaping. Tree cover is light along the Raglan ridge increasing in density toward the lower slopes. Bradleys Head Road ridgeline has a heavier tree cover. Large formal gardens are also prevalent. The Brush Box is a dominating streetscape element.

37. The relevant planning controls for the Sirius Slopes Townscape are:

Landscaping:

(d)    Large formal gardens should be maintained.

(e)    Landscaping within side setbacks adjacent to public reservations should complement the vegetation of the reserve and existing natural vegetation should be retained.

(f)    Use selected trees to give a structure and reference point between the dwelling house and garden, and garden and landscape. Distinctive valley slope trees should grown here, such as, Sydney Red Gum (Angophora costata) and Sydney Peppermint (Eucalyptus pipenta) with colour accents from flowering trees such as Illawarra Flame trees (Braclychiton acerifolium) and Jacaranda (Jacaranda mimosifolia).

(g)    Traditional gardens here are with enclosed grass space defined by shrub plantings forming formal and informal hedges.

38. The site is partly located within the Raglan Street Heritage Conservation Area Townscape (the HCA). The tennis court and access handle are within the HCA, however the area proposed for the dwelling, being the portion of the site formerly part of 32 Queen Street, is outside of, and adjacent to, the HCA. The HCA is within and forms a part of the Sirius Slopes Townscape. The planning controls for the HCA at 7.20.3 of the DCP include, in relation to landscaping at (f), ‘maintain ample gardens and street plantings which are of great significance in the conservation area’.

Public submissions

39. Seven submissions were lodged against the refused application. Three resident objectors provided evidence at the commencement of the matter on site. One resident, of 103 Raglan Street, was solely concerned with the design of the entry awning and gate. This issue was addressed in the amended design.

40. The Court, in the company of the parties, viewed the site from the other two objectors’ properties. Their objections to the proposal can be summarised as:

• The resident at 34 Queen Street objected to the proposal on the basis of bulk and scale given the location adjacent to her rear boundary, privacy, view loss, and landscaping. She was also keen to ensure access would be retained to the drainage easement across the site which benefited her property.

• The resident at 32 Calypso Avenue objected to the proposal as it will overshadow the northern windows of his dwelling which includes bedrooms and living areas as well as create privacy concerns. He questioned the sustainability of the proposed landscaping and considered the development to be out of character with development in the street. He stated “the applicant needs to decide if he wants a tennis court or a house. The ideal location would be an L shaped dwelling with proper landscaping and it wouldn’t need to be two storey. It would have minimal impact but there would be no tennis court”. He was critical of the ‘site analysis’ stating it did not show the relationship with other buildings and that changes to the proposal suggested by the applicant were “just band aids on a building that will not be a good one for its occupants and will impact on surrounding residents”.

Expert evidence

41. Expert planning evidence was provided by Mr Steven Layman on behalf of the Council and Mr Nigel Dickson as the Applicant.

42. The experts agreed on the following:

• The proposed dwelling complied with the LEP height control and FSR requirements and met solar access requirements for neighbouring dwellings.

• If the surface of the tennis court was natural grass, the proposal would amply satisfy the numerical control for landscaped area at cl. 6.6 of the LEP and 4.4 P1 of the DCP.

Dwelling access

43. Access to the location of the proposed dwelling is convoluted as a consequence of past approvals which have allowed construction of a garage, a spa and part of a swimming pool utilised by No. 105 in the battleaxe portion of the site. This precludes any access for vehicles and limits direct access for pedestrians from the street to the proposed dwelling which is exacerbated by the tennis court situated between the access and the proposed dwelling.

44. Previous decisions that deal with the access arrangements for the site are worth summarising as access to the proposed dwelling is, in my view, a determinative issue in this appeal irrespective of whether or not the dwelling now proposed addresses the dwelling design issues raised by Commissioner O’Neill in the 2015 appeal.

45. In 1997, and prior to the rectangular portion being added to the site on which the dwelling is now proposed, the Court, in Appeal No. 10587 of 1997 James and Anastasia Markakis v Mosman Municipal Council (the 1997 appeal), dealt with an appeal by the Markakis’s against conditions imposed by the Council on a development consent. This consent was for alterations and additions to the existing house at No. 105 and over the associated grounds of No.’s 105 and 103A Raglan Street.

46. In his extempore judgment in the 1997 appeal, Assessor Hoffman notes, inter alia, that:

• No. 103A was a vacant lot which had been subdivided off No. 103 Raglan Street.

• The new lot comprised an old existing tennis court and an access handle between No’s 103 and 105.

• There was an existing swimming pool partly on No. 103 and No. 103A which remained despite the subdivision…On No. 103A the pool had been filled with soil.

• The proposal included a large ornate four car carport on the axe handle of No. 103A, but apparently also partly on No. 105.

• A swimming pool and spa with canopy partly on No. 105 and No. 103A was proposed.

• There was also the proposed refurbishment of the existing tennis court … mainly on No. 103A but partly on No. 105.

47. Whilst much of the 1997 appeal deals with drainage and other matters not directly relevant to the current appeal, one of the conditions sought in the appeal to be removed was condition D9 which read:

9. The site is to be amalgamated into one title by consolidation. Documentary evidence of this registered consolidation shall be submitted to Council prior to the release of the building plans.

The ‘site’ in this context was both No. 103A and No. 105 Raglan Street but did not include the south eastern portion later added to No. 103A on which the dwelling is now proposed.

48. The following is an extract from the decision of Assessor Hoffman in dealing with Condition D9:

Condition D9 was perhaps the most sorely contested condition. The applicant’s reasons were mainly to preserve the value of the separated lots, because of there being separate financial arrangements for each, in regard to their purchases and mortgages. This was not normally a matter which the court would give much weight to when considering environmental and planning matters. However the opportunity was given for a substitute condition to be considered which would overcome the respondent’s concerns. The revised draft conditions submitted by the applicant, only dealt with the provision or maintenance of on-site car parking for No. 105 Raglan Street in the event of number 103A Raglan Street been separately sold off. In the court’s opinion the respondent’s evidence was much more than that. It went to the provision of the required statutory landscaped area, which was related mainly to the buildings of other facilities on No. 105 Raglan Street. It went to the encroachments of proposed building constructions across the boundaries of No. 103A. And it went to the fact that the proposal before the court represented a total concept, and a total intention by the applicant to use what was now number 105 and number 103A, the unified and integrated purposes (sic). The new draft conditions proposed by the applicant would have to deal with these matters also. The court has not had any response from the respondent on this draft condition, and was unaware if the respondent had even seen it. Therefore condition D9 should remain, at this time.

49. The Markakis’ appealed this and other orders under section 56A of the Court Act with their appeal heard by Justice Lloyd in September 1998, James and Anastasia Markakis v Mosman Municipal Council [1998] NSWLEC223. In that appeal, the Applicant’s counsel, Mr Drummond, raised concerns that consolidation had the potential to enable the owners of 32 Calypso Avenue to extinguish a drainage easement benefitting No. 103A which needed to be retained. Justice Lloyd agreed with Mr Drummond that there could therefore be legal consequences which would follow consolidation.

50. At para 21 and 22, Justice Lloyd states:

21. Mr Drummond also submits that there is no town planning need for such a condition. The assessor seems to have had a concern about the possibility of one of the two allotments being sold and as to what would happen to the structures which straddle the common boundary of the two allotments in such an event. Mr Drummond refers to the Council’s powers under the Local Government Act 1993, s 68 which, he submits, affords to the Council adequate control over the demolition of those structures. The condition is thus not necessary. As indicated in para 19 above, it has the potential to extinguish the drainage easement over 32 Calypso Avenue; that would in turn mean the proposed development could not proceed; it would defeat the very development to which the condition relates. A condition having such an effect would not be one which is for a proper planning purpose as well is being unreasonable and thus fails the first and third tests of validity described in Newbury.

22. Mr Drummond further submits that the assessor failed in the judgement to deal with the above-mentioned issues, despite the fact that they were strenuously argued and were put forward as the major reasons for the applicant’s opposition to the conditions. The assessor’s judgement only makes a reference to there being separate financial arrangements for each allotment, that being a subsidiary reason for the applicant’s opposition to the conditions. The assessor’s failure to consider, or to even mention, a major issue which was in contention is itself an error of law.

51. Accordingly Justice Lloyd remitted the appeal back to the Assessor to be determined giving his findings. As would be expected, he did not comment on the merits or otherwise of the condition in dispute.

52. However, although the application was remitted back to Assessor Hoffman for further determination, resolution of the condition was in fact subsequently determined by consent of the parties, that is the Markakis’s and the Council, whereby the condition subsequently read:

9. The applicants shall, prior to commencing construction, place a positive covenant on the titles of property numbers 103A and 105 Raglan Street, to the effect of the terms annexed hereto and marked “A”.

53. The annexure marked A is in effect a positive covenant over No.’s 103A and 105 in favour of the Council which is only intended to operate and only has effect if the two properties are separately owned. In that event there is a requirement to reinstate at No. 105 one car parking space. It does not deal with the issue of the structures across the access way of No. 103A. Nor does it achieve the planning outcomes that appear to have been sought by Assessor Hoffman in his original determination of the proposed works, ie. that they not be constructed across the battleaxe leg thus restricting vehicular or pedestrian access to the remainder of No. 103A.

54. The Council was unable to advise me why they had agreed to the proposed condition given the consequential future access constraints to the developable portion of the site. It is noted however, that this was prior to the additional area being added to the site, on which the dwelling is now proposed. It is therefore possible that the Council reasonably assumed that the tennis court would need to be redeveloped, and the access leg structures removed, to allow the construction of any dwelling on the site.

55. This history of the site is relevant in understanding the site as it presents today but does not assist proposals to develop a dwelling house on it. No. 103A Raglan Street currently has no obvious street entry, no assigned access way for vehicles or for pedestrians, and no ability for vehicular access to the developable portion unless structures utilised by No. 105 are removed or modified, including the existing carport/garage, a spa, a swimming pool and a tennis court.

56. The application as amended seeks to address this by providing property identification at the street, including all of the garage and the driveway into the site (although they could still be used by the occupants of No. 105 ‘informally’), and erecting a fence (albeit translucent) alongside the pool to define a narrow pedestrian way between the pool and the southern boundary from the garage to the tennis court.

57. However, to access the proposed dwelling by foot from the street, one must still traverse alongside any cars parked in the driveway, through an enclosed garage, around the swimming pool, down steps and across or around a tennis court.

58. Whilst a previous agreement by essentially the same parties (ie the Council and the owner/applicant of No’s 103A and 105) consented to by the Court as lawful allowed this situation to be created whilst the properties were in common ownership, this was at a time when No. 103A did not contain a dwelling but only a tennis court, as is still the case. It was also before extra land was added on which a dwelling house is now proposed to be developed rather than requiring the tennis court to be removed for such a development to occur in its place.

59. During the hearing, in response to my concerns regarding access, the Applicant proposed a condition of consent requiring a covenant so that, in the event that No’s 103A and 105 are not in common ownership, the owner of No. 105 would demolish the pool and spa to the extent that they encroached on No. 103A and fill and reinstate the land allowing “an appropriate surface to be affixed on natural ground, whether it be concrete, paving, tiling or otherwise.”.

60. Mr Baird argued that this appeal afforded the opportunity for the Court to effectively redress the legacy of a situation that should not have arisen, regularise the access and resolve the boundary encroachment issues.

61. However, only the covenant was offered as a means of redress and only as a condition of consent. Rectification works would only be undertaken should ownership of the properties change in the future not as works undertaken as part of the application.

62. I do not consider this to be an acceptable or appropriate planning solution as access to the dwelling is a key consideration for the development. The proposed covenant simply defers the means of providing appropriate access to the proposed dwelling to future landowner/s and to the Council, which is not acceptable given it is avoidable. It also does not deal with how a future dwelling might best be accessed by both vehicles or pedestrians and leaves it to the actions of the Council and the owner of No. 103A to enforce, but the discretion of the owner of No. 105, potentially in dispute with the Council and/or future owners of No. 103A, to determine what might be appropriate rectification works affecting both No.’s 103A and 105.

63. Whilst approval to create the lot gave rise to an entitlement to seek approval for a dwelling house on it, approval to such an application needs to be on the basis of the Court being satisfied that it is an appropriate and acceptable development including access arrangements.

64. There are no guarantees that the future occupants of No.’s 103A and 105 will happily co-exist in perpetuity even if the properties are in common ownership and the occupants of 103A will have only a narrow pedestrian access from the street and garage to their dwelling which will continue to necessitate going across or around the tennis court whilst overlooking the spa and swimming pool of No.105 (albeit through a translucent fence) even though these facilities are substantially on their land. The occupants of No. 105 will continue to use their pool and spa, the garage (‘informally’) and presumably the tennis court, which is why it’s being retained, even though these structures will be part of No. 103A.

65. It is one thing to allow this reciprocal use of activities on No. 103A by the occupants of No. 105 whilst No. 103A is vacant, other than the tennis court. It is another to allow their continued use when it results in unsatisfactory access to a new dwelling constructed there.

66. In my view, the Applicant can either continue to have the pool, spa and direct access to the tennis court all on or partially on Lot 103A whilst it is not developed, or develop a dwelling on No. 103A with appropriate, direct, unimpeded and apparent access, at least for pedestrians if not for vehicles, from the street and garage to the front door of that dwelling. Not both.

67. To approve the development in its current form would create an unsatisfactory planning and development outcome and undesirable precedent in terms of access when that situation can be remedied through the current application and prior to a dwelling being developed on No. 103A.

68. In the 2015 appeal, Commissioner O’Neill concluded that the desire to retain the existing tennis court resulted in a compromised configuration for the site layout including requiring pedestrian access to the dwelling through the existing garage then across the middle of the existing tennis court to the front door of the proposed dwelling. She was not satisfied that, should 103A Raglan Street be separately disposed of in the future, the configuration of the site layout would function satisfactorily as a single family dwelling.

69. Similarly in terms of the current appeal, I am not satisfied as to the adequacy of the pedestrian and vehicular access to the proposed dwelling. On this basis, the application is refused.

70. It is therefore not necessary to deal with the other issues arising in this appeal. However, I do address them below given these issues formed the bulk of the evidence and will still need to be addressed in any application where acceptable access is proposed.

Landscaped Area

71. Much of the Council’s objection to the development, and the evidence before the Court, related to the acceptability or otherwise of the proposed landscaping. Given the proposal was to retain the tennis court in its current form over the majority of the site, there was limited area to provide both a dwelling and additional landscaping. It was however agreed that more landscaping is proposed than is currently on the site.

71. Clause 6.6 of the LEP provides that the consent authority can refuse to grant consent if at least 50% of a site over 900sqm does not comprise landscaped area. In their joint report, the experts agreed that the landscaped area comprises only 20.4% of the site. However, I estimate that, with the amended plans relied upon at the hearing, this percentage reduces to something less than 18% of the site, given the site area has increased.

72. As in the 2015 appeal, the Applicant acknowledged that the tennis court, with a surface of acrylic grass on a concrete slab, constituted hard paving when using the definition of landscaped area in the LEP and therefore can’t be considered landscaped area. Nevertheless, the Applicant argued that the tennis court contributes to the landscaped character of the site because there are trees and palms planted in planter beds along the eastern and western sides of the tennis court and the tennis court is an open area used for recreation.

73. However, as was offered in the 2015 appeal, should the Court be minded to refuse the appeal on the basis that the tennis court is hard paved and therefore does not contribute to the landscaped area calculation for the proposal, then the Applicant would prefer a requirement that the existing tennis court be replaced with a natural grass surface thus meeting the numeric LEP requirement for provision of landscaping, rather than refusal of the application.

74. At the time of 2015 appeal, the 50% landscaping requirement of the LEP was not yet in force but was proposed through Amendment 5 to the LEP. On this basis, Commissioner O’Neill indicated she would have given the provisions of cl 6.6 significant, but not determinative, weight. She states in part at para 45:

45. ... The experts agreed that if the tennis court was grassed, the proposal would amply satisfy the numerical control for landscaped area in DCP 2012 and therefore also comply with the requirement for landscaped area in LEP 2012 (Amendment 5). As a consequence of the applicant’s submission, any inconsistencies of the proposal with the objectives for landscaped area or non-compliance with the numerical requirement for landscaped area are not determinative. The only question before me in relation to landscaped area is whether to require the application to be amended to provide a grassed tennis court. Given my findings in the following paragraphs in regard to the other contentions, there is no need to come to a conclusion on whether or not the proposal should be amended to provide a grassed tennis court.

76. Since the 2015 appeal, clause 6.6 of the LEP has come into force. The parties agreed that it is not a development standard under the LEP as it is not a mandatory standard but rather a ground on which an application can be refused. Nevertheless, a clause 4.6 variation request was lodged with the application in support of the non-compliance. An updated clause 4.6 request was submitted with the amended July proposal but not with the amended plans that the Applicant was granted Leave to rely upon in the hearing.

77. Given it followed the format of a clause 4.6 variation request, Mr Dixon’s basis for not providing 50% landscaped area was that it was unreasonable or unnecessary in the circumstances, and that there were sufficient environmental planning grounds to justify not providing this quantum. He also argued that it will be in the public interest because it would be consistent with the objectives for landscaping and with the objectives for development within the zone.

78. Mr Dixon argued in essence that the substantial under provision of ‘landscaped area’ arises out of the retention of the tennis court and the fact that it is artificial turf whereas, if it were grassed, the landscaped area would be in the order of 70% of the site. He further argued that:

1. There is little distinction between an artificial and a grass tennis court.

2. A number of adjoining sites, or sites in the vicinity, have tennis courts or swimming pools taking up large parts of the open space of the sites and limited landscaped areas largely in front setbacks. Examples are given.

3. The tennis court is situated within a natural open space corridor formed along the rear boundaries of lots to the south and north.

4. The proposal meets the objectives of the zone by maintaining and enhancing the existing landscaping, in that more landscaping is proposed than currently exists including providing screening to neighbours.

5. Landscaping is proposed to soften built form around the boundaries with adjoining properties and a number of new canopy trees are proposed.

6. The tennis court will provides utility in terms of recreational amenity, setting and outlook for occupants of the proposed dwelling.

7. Given the relatively unique configuration of the site, the retention of the tennis court is reasonable in the circumstances and a reasonable landscape outcome is achieved.

79. The Council argued that:

1. The additional landscaping was inadequate in area and dimension to provide trees of a scale and appropriate deep soil planting commensurate with the size of the site and the proposed dwelling. Only 3 new canopy trees were proposed in the area being developed for the dwelling.

2. The proposal did not meet the LEP landscape objective to maintain the general dominance of the landscape over the built form with the balance between landscaped space and built form diminished.

3. There are no inherent site constraints which preclude the provision of the required landscaped area. If the tennis court was not retained, the land could comfortably comply with numerical control and the objectives of the control providing a better planning outcome including reduced visual impact to neighbours.

4. Just because some new landscaping is proposed does not mean that the enhancement sought by the LEP objectives is achieved if the quantum and quality of the landscaping can’t be met.

5. The shape of the site and its relationship to its 5 neighbours demands a sensitive response which is not adequately mitigated by the significantly deficient landscaped area. The siting of the dwelling to retain the tennis court and the existing structures within the access handle, constrain the ability to provide canopy trees.

6. The relationship of the proposal to No. 105 Raglan Street needs to be considered as if the site were not in the same family ownership. In the proposed development, the provision of landscaped area at the boundaries with No. 105 is inadequate and unresolved.

80. Having regard to the conflicting evidence of the experts, I am not satisfied that there are sufficient environmental planning grounds to justify non-compliance with the landscaped area sought by the LEP, without which consent can be refused. There are no constraints to complying with 50% provision other than the Applicant’s desire to keep the tennis court but also develop a dwelling on the site for the benefit of the owner/s of No.’s 103A and 105.

81. The site is not unique; there are a number of battleaxe lots in Mosman as Mr Dixon highlighted and the only unique aspect of the development is that, in order to keep the tennis court as is and have a dwelling house, substantially less than 50% of the site will be landscaped area. I don’t accept that this is a reasonable outcome. At over 1,000sqm the site is capable of providing a dwelling in an appropriate landscaped setting for 50% of the site were it not for the tennis court. Whilst the court does provide open space and recreational amenity, as well as amenity for the proposed dwelling overlooking it, this is principally solely for the benefit of the occupants of No.’s 103A and 105.

82. I accept that more landscaping is proposed than exists today, that the landscaping of the site will have little if any impact on streetscape views being at the rear of a battleaxe lot, that the non-compliance is as a result of the tennis court not from the Applicant seeking excessive dwelling floorspace with the development compliant in both FSR and height, and that the tennis court will provide recreational amenity for future occupants of the development.

83. However, the area that is to be landscaped is currently vacant land which likely has no adverse, only beneficial, amenity impacts on neighbouring properties. Whilst the Applicant argued this area would be enhanced by new landscaping, the proposed dwelling will take up the vast majority of it with additional landscaping being a subservient element in the development of that area.

84. Whilst Mr Dixon provided examples of other sites within the vicinity which also had tennis courts, no evidence was provided with suggests these sites provided less than 20% of their site as landscaped area because they had tennis courts, as the application proposes. My viewing of these examples suggests all would provide a greater percentage of landscaped area than the application.

85. In summary, I am not convinced that the application should not be refused for the reason provided for in LEP clause 6.6. I do not agree that the development meets all of the relevant LEP or DCP objectives for landscaping of the site. In particular, even if the tennis court was ‘grassed’ to meet the LEP numerical requirements, I agree with Mr Layman that the development, including the proposed landscaping, does not maintain or enhance local amenity or that there is not a dominance of built form over landscaped area.

86. As Commissioner O’Neill noted in the 2015 appeal, development in essentially the same location provided little opportunity, regardless of the surface of the tennis court, for canopy trees or distinctive valley slope trees which are features of the Townscape in which the site is located. She did not accept that canopy trees on the site would not contribute to the ambience of the locality and the landscaped character of Mosman. The Applicant offered to delete balconies and the veranda on the eastern elevation to provide more space for canopy trees, offset privacy impacts and meet DCP Townscape requirements, rather than relocate the dwelling. However, the area of land in which such trees can be located and sustained remains, in my view, severely constrained.

The Proposed Dwelling

87. As in the 2015 appeal where a dwelling was proposed generally in the same portion of the site as in the current application, the experts disagreed on the appropriateness of the siting of the dwelling.

88. In the 2015 appeal, dealing with a different dwelling design, Commissioner O’Neill raised concerns with that dwelling’s design in terms of the internal amenity for future occupants and the external impacts to neighbours. It had no outlook to the south, employed a blunt ‘boxy’ solution to deal with impacts on neighbours which compromised the amenity of the dwelling, and had not been orientated and designed to ensure optimum amenity and respond sensitively to its context. She was also not satisfied that it was consistent with the objectives of the R2 Density Residential zone, to maintain and enhance local amenity and to minimise the adverse effects of bulk and scale of buildings stating:

48. However, I am not satisfied that the proposal has been designed in response to the not inconsiderable constraints of this battle-axe site. The area proposed for the dwelling is constrained, yet the proposal is essentially a large, raised box with an upper level setback on the southern side and a ground floor unrelieved setback 2m from the northern, eastern and western boundaries of the small portion of the site proposed for the dwelling. In my view, a more skilful design would have dealt more effectively with the opportunities and constraints of this site and achieved an articulated proposal with varied setbacks, greater opportunities for planting and much better amenity for future occupants. The qualities of the site and its context have not been properly considered and the proposal does not achieve an outcome that is well designed. The proposed dwelling would not make a positive contribution to its surroundings, nor would it establish a positive relationship with neighbouring buildings, because the poorly articulated bulk of the proposed dwelling provides little relief and this is exacerbated by the narrow setback from the boundaries on three sides.

89. The dwelling the subject of the current appeal has a different design by a different architect, Mr Dixon, who argued that the design took on board Commissioner O’Neill’s concern albeit the area of the site on which the dwelling was to be developed largely remained the same. Improvements in the current design over the 2015 proposal are in terms of solar access, greater articulation and setbacks and more useable private open space.

90. The Council remained concerned however, that the dwelling now proposed remained inappropriately sited given its bulk and scale and still did not meet the LEP objective of residential development which ‘had regard to local amenity’. Mr Layman argued that this was because of the constraints imposed by the retention of the tennis court pushing the dwelling to a confined rear portion of a landlocked site and setting it in close proximity to neighbours where there was potential for amenity impacts. In his view, a more suitably sited dwelling with greater setbacks would address this and provide opportunity for more landscape screening and canopy trees.

91. Mr Dixon argued that retaining the tennis court was not a pre-requisite for his design and he had in fact prepared several options showing a development over it however was constrained by a number of factors including an existing sewer easement and the court’s location within a Heritage Conservation Area.

92. It was accepted that the development met the height and was well under the permissible FSR for the site, but that was also the case for the 2015 refused proposal. It was also agreed that the proposal complied with solar access requirements for 32 Calypso Avenue.

93. According to Mr Dixon, the proposal is of an appropriate scale in the R2 Low Density Residential zone, as demonstrated by the proposal’s compliance with the maximum height and FSR development standards with compliant setbacks and adequate solar access and should be considered within the established pattern of building massing in the area.

94. He argued, as was argued in 2015, that the proposed dwelling aligns with the existing dwellings fronting Calypso Ave, as it is positioned on the site in a similar location to what would have been expected had Calypso Ave continued northward and with a side elevation to the side elevation of 32 Calypso Ave, with a greater side setback to the shared boundary with 32 Calypso Ave than may have been otherwise expected.

95. I agree that the overshadowing impacts on 32 Calypso Ave are acceptable and that the Applicant has attempted to further improve solar access to this dwelling beyond numeric compliance with greater setbacks than the DCP requires but is constrained by the close proximity of the northern elevation of the dwelling at No. 32 which contains windows to habitable rooms. This of itself would not have been a ground for refusal notwithstanding that neighbour’s objections.

96. I also accept that the provision of privacy screens to the remaining southern balcony and deletion of a southern balcony at the rear address privacy for 32 Calypso Avenue.

97. Similarly, I accept that the proposal as amended following the site view does not readily provide an opportunity for the occupants to overlook the rear yard or windows of 34 Queen Street, with the increase in the height of the fence to 1.8m, the lowering of the dwelling, and the deep soil landscaping in the setback area allowing for additional landscaping.

98. Whilst Mr Dixon’s design, through various amendments, has sought to minimise adverse impacts to neighbours, to achieve this, in my view, the internal amenity and outlook for the future occupants of the proposed dwelling remains compromised. Whilst key living areas overlook the tennis court to the west, beyond the court is the rear high façade of 103 Raglan Street and there is no outlook at upper levels to the north or to the south and only from the third bedroom, a corridor Juliette balcony and two ensuites, to the east. It is still largely box like in its design as would be expected given the same developable area is proposed creating a building envelope dictated by 3 boundaries in close proximity and the desire to provide a 2 storey dwelling in a constrained location notwithstanding the large area of the site.

99. I do accept that developing a dwelling in the location of the tennis court presents challenges in terms of the sewer and drainage easements, and the heritage considerations given the location is within a HCA and closer to the rear of substantial properties fronting Raglan Street. However, at over 1,000sqm of site area, there should be ample opportunity to design a dwelling in an improved landscaped setting which maintains or enhances local amenity.

100. To answer, my original question: ‘what has changed between this proposal and that refused by the Court in 2015?’

101. The answer is that the dwelling has been redesigned, the garage and tennis court whole contained on the site, and additional landscaping and canopy trees provided.

102. What has not changed is the retention of the tennis court confining the development of the dwelling to a rectangular portion of the site remote from the garage and the street, precluding vehicular access to the dwelling, and requiring convoluted and confined pedestrian access from the garage to the dwelling including across or around the tennis court. The spa used by No. 105 continues to be situated on the site as does part of the swimming pool. Suggestions that these issues can be resolved in the future after the dwelling is constructed, and only if ownership of No’s 103A and 105 changes, infers it would be acceptable to approve a dwelling with these constraints now and leave possible rectification to future actions under a proposed covenant.

103. I have already indicated that I do not accept that rectification of a compromised access arrangement as proposed is acceptable simply to allow beneficial ongoing use of facilities on the site by an adjoining neighbour albeit the properties may currently be in common ownership. It is a totally avoidable outcome and, if it was rectified in conjunction with a proposal to develop a dwelling on the site, could alter and improve the location, accessibility, design and impact of that dwelling including its associated vehicular parking and pedestrian access.

104. I find that the not inconsiderable constraints to development identified in the 2015 Court refusal, largely of the Applicant’s making, remain inadequately addressed in this application, notwithstanding the changes to the design of the dwelling and the provision of some additional landscaping and canopy trees. These constraints result in an unnecessarily and avoidable compromised development which does not warrant approval.

Orders

105. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 8.2016.46.1 for a new dwelling at 103A Raglan Street, Mosman, is refused.

3. The exhibits, other than exhibits 1, A, E, F and G, are returned.

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Jenny Smithson

Commissioner of the Court

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Decision last updated: 27 October 2016