Freeman Super Co Pty Limited v Mosman Municipal Council

[2015] NSWLEC 1048

Land and Environment Court

New South Wales

Medium Neutral Citation:	Freeman Super Co Pty Limited v Mosman Municipal Council [2015] NSWLEC 1048
Hearing dates:	23, 24 February 2015
Date of orders:	03 March 2015
Decision date:	25 February 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Directions made in consultation with the parties for provision of amended plans and conditions, with final orders to be made in chambers.
Catchwords:	DEVELOPMENT MODIFICATION – Demolition of existing dwelling house and construction of new two storey dwelling house – Siting – Visual privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Freeman Super Co Pty Limited (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: Mr P Rigg (Applicant) Solicitors: Mr D Hand, David Hand Solicitor (Applicant) Ms J Walsh, Pikes Lawyers (Respondent)
File Number(s):	10872 of 2014

EX TEMPORE Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of an application made under s 96(1A) of the Act to modify development consent DA8.2013.208.1 which approved the demolition of an existing dwelling house and construction of a new two-storey dwelling house and associated landscaping at 19 Thompson Street, Mosman.

2. The development consent was approved by Mosman Development Assessment Panel at its meeting of 16 April 2014, subject to conditions. Conditions 2 and 3 were in the following terms:

Amended Plans

2. The Construction Certificate plans shall detail the lowering of the rear wing by 500mm to have a FFL of RL76.70 for the ground floor, with the same 500mm reduction in height of the FFL for the first floor and associated roof eave level.

Amended Plans

3. The Construction Certificate plans shall detail the glass in windows W03, W04, W05 on the first floor and W04 on the ground floor as being translucent, achieved by the permanent acid etching of the glass up to a height of 1.6m above the respective FFL to each window.

3. On 14 August 2014 the applicant applied to modify the development consent by deletion of conditions 2 and 3.

The Site and its locality

4. The site is on the western side of Thompson Street at the corner of Ruby Street, on the western, downward sloping side from Bradleys Head Road. The site has an area of 557.7 square metres. The site is rectangular in shape with a frontage of 17.075 metres to Thompson Street and 32.73 metres to Ruby Street. The site falls approximately 2.5 metres to the west. The site presently contains a single storey brick dwelling house with a pitched tile roof with vehicle access and a single carport on the Ruby Street frontage. The site forms part of the Bradleys Head Road conservation area which generally compromises substantial houses on large sites, some allotments having front and rear boundaries to parallel streets. The surrounding development consists of large detached dwelling houses. There are views across to the city and harbour to the south and south west of the site.

The approved development

5. The approved plans provide for vehicle access to a garage on Thompson Street. At ground level there are three bedrooms with ensuites, a laundry and a living area which is located at the northern side of the proposed building. There is a colonnade on the eastern side of the living area below street level at Ruby Street. On the northern side at that level there are two windows from floor to ceiling level. The western side of the living room is full height glazing with a door accessing a small landing at the north western corner and steps leading down to a grassed area. The windows on that western side are identified on the plans as W05, being the door and five panels along the living area, W04 at the hallway leading from the stairs to the living area past the laundry, and W03 at the hallway at the foot of the internal stairs.

6. At first floor level there are a living area, a kitchen and dining area with decks facing south and a master bedroom and study. The western side of the master bedroom and the hallway past the staircase and the walk-in wardrobe have full height glazing. The windows on the western side of that rear wing are identified on the plans as W05 being five panels with fixed lower panels and openable upper panels at the main bedroom; W04, a hallway leading from the internal stairs to the main bedroom past a walk-in wardrobe; and W03 at the hallway at the top of the internal stairs.

7. The approved landscape plan shows grass at ground level at the northern and western sides, screen planting along the western and northern boundaries and additional landscaping along the eastern boundary to Ruby Street. There are two entries to the dwelling, one facing Thompson Street accessed from stairs leading down from Ruby Street and steps leading up from the driveway ramp, and the other entry access further to the north from Ruby Street. The corner of Ruby Street and Thompson Street has a masonry wall with lawn and plantings.

Imposition of Conditions 2 and 3

8. The Council officer's report recommending approval of the development application noted that the proposed development complied with the building height and floor space ratio (FSR) development standards in the Mosman Local Environmental Plan 2012 (the LEP) and with the applicable controls under the Mosman Residential Development Control Plan (the DCP). The main issues in the assessment of the application were identified as privacy, and demolition of a contributory item in a conservation area. The latter was not an issue in the assessment, with the Council's heritage adviser considering the proposal to be satisfactory on heritage grounds.

9. On the issue of privacy, the report noted (exhibit 2, p28):

The siting and resultant bulk and scale of the proposed scheme as amended by conditions of consent is satisfactory.

The proposal complies numerically with the building height development standard and the wall height and the number of storeys planning control.

The proposal complies with the maximum floor space ratio.

The proposal has a satisfactory front setback and side setback established by Planning Control P3 and P8 of the [DCP].

The rear setback is considered satisfactory noting that the site is a corner allotment and the siting of the garage and studio located to the south. It is the design of the rear wing itself which is problematic as it directly results in loss of privacy to the adjoining property to the west. This application does not seek to remedy the primary source of the concerns with regard to privacy, being the elevated nature of the rear wing as it steps up 500mm from the main dwelling and the expansive window treatment chosen for the west-facing wall. This issue has been raised as a central reason for refusal in the two previous applications. Accordingly, a condition of consent is recommended with regard to lowering the rear wing by 500mm to RL76.70 for the ground floor, with a commensurate reduction in height at the first floor and roof eave levels. As discussed below, the translucent windows will be explicitly required to be chemically treated (acid-etched) glass and not the film-coated glass to ensure longevity and to avoid potential compliance issues. Advanced plantings are also required on the western boundary.

10. The report noted that a submission had been received from the owners of 21 Thompson Street raising privacy concerns, and continued (exhibit 2, p 30):

The current design has the rear wing set back further from the western boundary to achieve a setback of 6.4m to the landing and 7.6m to the window line, which is proposed to have a translucent glass treatment to 1.6m above floor level for all the windows facing west on the first floor and the hallway windows on the ground floor. This design leaves just the ground floor living room windows untreated. The living room on the ground floor has an RL77.2. The existing ground levels around the shared boundary are RL75.5. A standard 1.8m side fence would achieve a height to RL77.3. This results in all the windows being visible over the height of the side fence as viewed from 21 Thompson Street.

Section CC in the plans indicates that the ground level is to be raised adjacent to the western boundary. The higher ground level, with 1.8m fence above, does not overcome in-looking from the development into 21 Thompson Street.

As outlined previously, the recommendation includes lowering the rear wing to reduce the degree of overlooking that will occur to a satisfactory level. The provision of translucent west-facing windows in the rear wing (windows W05, W04, W03), to be chemically treated and not treated with film and advanced planting along the western boundary to assist in providing screening between the two properties.

The conditions in the recommendation seek to ensure the satisfactory maintenance of privacy between the parties and therefore compliance with objectives O1 and O3 and planning controls P1 and P2 of section 5.7 of the [DCP].

11. In its determination of the application the Mosman Development Assessment Panel adopted the recommended conditions with an amendment to proposed condition 3 to require for the ground floor windows permanent acid-etching of the glass up to 1.6m for window W04 rather than for windows W03, W04, and W05.

12. A Modified Statement of Environmental Effects in support of the s 96 application to delete conditions 2 and 3 submitted that the proposal complies with the relevant height controls, and lowering of the rear wing would not improve the perceived height, bulk, or scale, or reduce amenity impacts, and if lowered it would "bury" the ground floor into the existing ground levels and make street access more difficult and reduce access to sunlight and ventilation for parts of the day; and that with the provision of dense screen planting there would be an effective screen to prevent overlooking whereas the use of acid-etched glass would reduce the level of amenity to those levels and effectively delete the outlook to the principal open space for the dwelling.

Evidence

13. The appeal was the subject of a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979. The parties were unable to reach agreement and the conciliation was terminated, and the matter proceeded to a hearing. The parties consented to the evidence from the site view, including submissions made on site by the owners of 21 Thompson Street, forming part of the evidence in the appeal.

14. The owners of 21 Thompson Street had made submissions to the Council in response to the original assessment of the development application, and to the modification application, and those submissions are in evidence (exhibit 2). Those submissions are consistent with the submissions on site, that the primary concern is with privacy. The owners of 21 Thompson Street are concerned with using plantings for privacy. They agree that they have balconies on their property which overlook their neighbours to the west, however note that those balconies were built before they bought their house. They agreed that there are existing opportunities for overlooking from the windows of the existing dwelling on 19 Thompson Street and the adjoining property to the north on Ruby Street, however those are at an oblique angle.

15. Expert evidence was provided on behalf of the applicant by Mr Michael Munro, architect, and on behalf of the Council by Ms Claire Muir, planner.

Planning Controls

16. The site is in the R2 Low Density Residential zone under the Mosman Local Environmental Plan 2012 (LEP). The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

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

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

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, 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.

17. The relevant provisions of the DCP are in Part 4 Primary Planning Controls and Part 5 Site Planning and Design.

18. Section 4.2 Siting and Scale, provides:

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.

19. The objectives in section 4.2 include:

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, water courses, natural features and promote new vegetation links.

20. The relevant planning controls include:

P19. Where the existing pattern of development displays an established rear setback, development should retain this setback to provide sufficient space for substantial planting, provide adequate separation of buildings, and have regard to cross views of neighbouring properties.

P21. Buildings should be sited having regard to topographical features. The building footprint should be designed to minimise cut and fill. Refer to excavation and site management controls of this Plan for more details.

21. Section 5.7 Privacy and Security provides:

Good design can minimise the loss of visual and acoustic privacy by reducing the extent of overlooking between dwellings and into the private open space of neighbouring dwellings, and through the careful placement of rooms and facilities.

22. The relevant objectives and planning controls are:

O1. To have adequate visual privacy levels for residents and neighbours.

…

P1. For new dwellings and additions, habitable room windows with a direct sightline to the habitable room windows or private open space in an adjacent dwelling within 9m should be either:

(a) offset from the edge of one window to the edge of the other by a distance equivalent to the width of the existing window; or

(b) have sill heights of 1.6m above floor level; or

(c) have permanently fixed translucent glazing in any part of the window below 1.6m above floor level.

P2. Above ground balconies, terraces, verandahs, and outdoor spaces must not directly overlook rooms and private open space of adjoining properties unless screening can mitigate overlooking. When overlooking would be likely, permanent screening will be required to mitigate overlooking.

…

Issues

23. The Council contends that the approved conditions 2 and 3 are fundamental to the consent as they ensure that the adverse impacts of the approved development are dealt with in a satisfactory manner; that deletion of those conditions will result in unacceptable visual privacy loss and unacceptable visual bulk to 21 Thompson Street; and that it is inappropriate to rely on landscaping to protect privacy and reduce visual bulk. The Council initially contended that there was insufficient information concerning the RL of the existing side boundary fence; clarification of earthworks proposed; and the plants planted on the side boundary with 21 Thompson Street. That contention has been resolved.

24. During the course of the hearing the applicant sought and was granted leave to amend the application so that it seeks the deletion of condition 2 and the substitution for condition 3 of a new condition 3 that would require (a) that windows W05, W04, and W03 on the first floor be translucent up to 1.1m above finished floor level and that a horizontal metal louvre extending 1.1m from the face of the window be installed with overlapping louvres at 45 degrees angled upwards in the western direction; and (b) that windows W04 and W03 on the ground level be acid-etched to a height of 1.6m above the finished floor level.

25. The Council agrees to substitute condition 3(a) provided the translucent section and louvre for the first floor windows are at 1.4m above finished floor level rather than 1.1m. The applicant opposes that increase. The Council agrees to the substitution of condition 3(b) provided condition 2, requiring the lowering of the rear wing by 500mm, remains. If not, the Council submits that condition 3 should require acid-etching for window W05 off the living room as well as windows W04 and W03. The applicant opposes both the retention of condition 2, requiring the lowering of the rear wing by 500mm, and the amendment to require that window W05 be treated.

26. The Council proposes new condition 2A to require that ground levels in the rear yard not be altered outside of the proposed building footprint. The applicant agrees with that condition. The Council proposes a condition 3A requiring fixed translucent glass for all of windows W03, W04, and W05 on the first floor and windows W03, W04, and W05 on the ground floor. The applicant opposes this condition.

Consideration

27. There are two issues to be determined: first, whether condition 2 requiring the lowering of the rear wing of the approved development by 500mm should remain or be deleted; and, secondly, what is the appropriate privacy treatment for the windows on both levels on the western side of the rear extension. Central to both issues is the relationship between the rear wing of the approved development and the rear private open space area of No 21, primarily the paved area under the vergola and the grassed area which the occupants of No 21 stated was their primary open space area.

28. The applicant submits that the topography of the site, sloping westwards down from No 19 to No 21, is not unusual in Mosman. The attractive views are to the south and south-west, and most allotments in Mosman with an aspect to the west have their views across common boundaries, so that it is accepted that there will always be overlooking. The approved development is below the LEP height limit of 8.5m and complies with the floor space ratio of 0.5:1, and at 256.1sqm exceeds the minimum landscaped area required by approximately 80sqm, with a good part of that at the rear yard area of the site. Having regard to the difference in frontages to Ruby Street and Thompson Street, and the location of the entry on Ruby Street, the applicant submits that the primary frontage is to Ruby Street. There is no "established" rear boundary setback for the site when it is considered with the adjoining 21 Thompson Street and the two lots to the west facing Prince Albert Road. The rear wing is set back 7.63m from the western side boundary with No 21. There is no large first floor deck proposed and all the viewing would be from inside the dwelling. There is nothing unreasonable about the height, setbacks, or design of the dwelling. The DCP only requires screening if the development is within 9m of the area affected by overlooking, and does not require areas beyond 9m to be addressed. The eastern wall of No 21 is close to 9m from the rear wing. At a distance of 13m away, a person standing at the landing would only see the top of the person at No 21. The applicant submits that there is no justification for requiring lowering by 500mm, as the applicant has achieved a reasonable balance. The internal amenity impacts of doing so would be significant, without providing worthwhile benefit, and would only infringe the DCP provision requiring minimising the amount of cut and fill.

27. The Council submits that in considering the balance of amenity it is relevant that the approved dwelling already has significant, iconic, views at the first floor. Even though the ground floor living area would not have those significant views, it is the area adjoining the garden area and it will get reasonable use. The approved development is only 300m below the maximum height; and it does meet the FSR standard. The Council accepts that the approved development would always require some cut and fill. The Council submits that the rear wing is the rear of the property, having regard to the entry on Thompson Street, and Planning Control P19 in section 4.2 of the DCP requires sensitivity in addressing that relationship. A person standing in the rear yard of No 21 will see two levels of windows above the fence, and a person in No 19 will have a clear view across the fence into No 21, even with the increased height of the fence. The approved development includes a living area on a part of the site that creates a situation where in future a deck could be added under Part 2 Div 1 Subdiv 6 of State Environmental Planning Policy Exempt and Complying Development Codes 2008 without any input from Council, and possibly without any screening.

28. There are two surveys in evidence, one dated 4 March 2012 for 21 Thompson Street (exhibit 3), and one for 19 Thompson Street, dated 25 February 2011(exhibit C). I accept Mr Munro's evidence, which was not disputed, that while there are some minor discrepancies in the order of 15 to 20cm between the two surveys, that is not uncommon and would be attributable to the use of different benchmarks; and, further, that exhibit 3 predates work done in 2007 at 21 Thompson Street, including the western timber deck.

29. Based on exhibit C, the ground level of 19 Thompson Street adjacent to the boundary with No 21 is at RL75.55. The ground level of No 21 at that site boundary is between 75.04 to 75.27RL. The level of the proposed dividing fence between the properties is at RL77.35. Based on the plans in exhibit B the finished floor level of the ground floor bedrooms is 76.70RL and for the living area 77.20RL. The finished floor level for the first floor living dining area is 79.25 and for the master bedroom 80.20.

30. Exhibit D is a site cross section prepared by Mr Munro with sight lines from three positions at ground level of No 19 and one position at first floor level. While Ms Muir disputed the accuracy of a timber deck level (RL74.89) shown on that plan for No 21, I accept that the sight lines establish that it would be possible for a person standing at No 19 at the ground floor to see a person standing at No 21, some 3.1 to 3.2m in from the side boundary. The experts agree that the separation between the rear wing of No 19 and the paved area of No 21 is approximately 13m. Further evidence as to the relationship between the two properties is a photograph taken by Ms Muir on the subject site at the level of the finished floor level of the ground floor living area, (exhibit 7). That photograph confirms observations on the site view, that from that level it is possible to look over the boundary fence to the covered paved area at the rear of No 21 and to the timber deck at its western side.

31. Based on this evidence I accept that the difference in levels between the rear ground level of No 19 and that of No 21 means that even with the slightly higher boundary fence proposed, there is the possibility of overlooking from the ground floor living area of No 19 to the paved area under the vergola of No 21. Section 4.2 of the DCP aims at providing acceptable siting and scale of development to maintain a “satisfactory” relationship with neighbouring properties, and that buildings should be designed “from the ground up”, with ground floors located at or near ground level. In this instance the ground floor of the rear wing is not located at or near ground level, but is approximately 1.6m above it at its north-west corner.

32. The applicant points to the additional cut that would be required to lower that part of the ground floor, and a consequent loss of internal amenity. Mr Munro's evidence was that lowering the ground floor would require the raising of the sill for the eastern window on the northern side of the ground floor so that that window would be smaller, and a reduction in the aspect to the colonnade on the eastern side of the living area, and the need for additional stairs to get back up to ground level. In Mr Munro's opinion there would be a reduction in the amount of natural light and ventilation as a consequence. Ms Muir's evidence was there is already fill on the Ruby Street side and in her opinion there is scope to step that area back to maintain the colonnade, and that the northern side of the building is presently largely overshadowed by the building on the adjoining property on Ruby Street.

33. In considering the provisions at section 4.2 of the DCP, it is not necessary, in my view, to determine whether or not there is an "established rear setback", particularly where, as is apparent from the aerial photograph annexed to the Statement of Facts and Contentions, the grouping of allotments between Ruby Street and Prince Albert Road, including the three with frontage to Thompson Street, does not reflect a standard orientation as illustrated at p 25 of the DCP, or that visible on the eastern side of Ruby Street and on the western side of Prince Albert Road. I am not persuaded that Objective 08 and Planning Control P19 require more than a recognition that there is a need to provide adequate separation of buildings and to have regard to cross views of neighbouring properties. Those provisions must be read together with Objective 09 and Planning Control P21, which require that regard be had to topography, and which aim to minimise cut and fill. The plans show, and the expert evidence confirmed, that the approved development will require cut and fill. I am not persuaded that the increase in cut, and the consequent reduction in size of the northern windows, that would be required with the lowering of the ground floor of the rear wing would be unreasonable in context where to do so would be consistent with the aim of section 4.2, and minimise the overlooking impacts on No 21 consistent with the aims of section 5.7 of the DCP. I agree with the Council that those potential impacts would not be addressed by treatment of windows W04 and W03 alone, and on that basis, I am not persuaded that it is appropriate to delete condition 2.

34. The issue of privacy screening on the first floor must then be considered. In their joint report the experts agreed that the potential for overlooking exists at the upper level. It was common ground that some screening of the first floor windows is required. The applicant's concern with the etched surface required for the windows on the first floor by condition 3 was in part based on a reduction in amenity of that level. The Council does not oppose the applicant's proposal to achieve a reduction in overlooking by means of a louvre and partial obscuring, rather than etched glass to 1.6m above finished floor level.

35. Section 5.7 of the DCP addresses visual privacy by reducing the extent of overlooking between dwellings into the private open space of neighbouring dwellings. Planning Control P1 refers to direct set lines between habitable room windows to habitable room windows or the private open space in an adjacent dwelling “within 9m”. While Ms Muir was concerned with the full extent of the private open space of No 21 across its rear yard, I agree with the applicant that the relevant concern of the DCP is the closer area within 9m of the proposed development. The rear wing is set back from the side boundary at 7.63m. I accept Mr Munro's evidence that the combination of translucent glass and louvres would minimise overlooking of the open space of No 21, and I accept that this arrangement would also enable the occupants of No 19 to retain their broader district views while minimising potential overlooking down to No 21. The evidence before me does not establish that obscuring the lower section of the first floor windows to a height of 1.4m and fixing the proposed louvres at that height would achieve any reduction in overlooking beyond that achievable by the applicant's proposed 1.1m. Condition 3A should be imposed in the form proposed by the applicant.

36. Having regard to these conclusions, and to the agreement of the parties as to the Council's proposed condition 2A, the outcome of the application to modify the development consent would be as follows:

1. condition 2 remains;

2. condition 2A is inserted;

3. subject to further discussion as to condition 3(b), condition 3 is deleted and substituted with the applicant's proposed condition; and

4. condition 3A as proposed by the Council in exhibit 9 is not imposed.

39. The Council's position was that if condition 2 remains, the applicant's proposed condition 3(b) should be imposed so as to require the screening of windows W04 and W03 on the ground floor. However, I note that condition 3 as imposed by the Mosman Development Assessment Panel departed from the recommendation that windows W03, W04, and W05 be treated and requires treatment of only window W04. Given that condition 2 is to remain and the rear wing is to be lowered, in my view the parties should have an opportunity to consider whether condition 3(b) should be imposed in the form suggested by the applicant, or should require treatment of window W04 only.

40. Directions made in consultation with the parties for provision of amended plans and conditions, with final orders to be made in chambers.

Linda Pearson

Commissioner of the Court

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Decision last updated: 17 March 2015