George Conomos v Mosman Municipal Council

[2003] NSWLEC 401

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Land and Environment Court

of New South Wales

CITATION:

George Conomos v Mosman Municipal Council [2003] NSWLEC 401

PARTIES:

APPLICANT
George Conomos

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10971 of 2003

CORAM:

Murrell C

KEY ISSUES:

Development Application - Development Standards :- Demolition of an existing dwelling - Erection of a new 3 storey dwelling house-Exceedence in wall height and storeys-
SEPP 1 Objection

LEGISLATION CITED:

Environmental Planning and Assessment Act
State Environmental Planning Policy No 1
Mosman local Environmental Plan

CASES CITED:

DATES OF HEARING:

14/11/2003

EX TEMPORE
JUDGMENT DATE :

11/14/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Fish, agent - town planner

RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10971 of 2003

Murrell C

14 November 2003

George Conomos

Applicant

v

Mosman Municipal Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against the council's refusal of a development application for a three storey dwelling on the land known as 33 Stanley Avenue Mosman. The application was primarily refused because of the impact of the proposal on view loss. In this regard there are three SEPP 1 objections that must be considered to vary devlopment standards.

2 In terms of my assessment the SEPP 1 objections are threshold questions and so I will deal with these first. They are matters that require a variation to development standards contained in the local environmental plan. As such they are more than guidelines contained in a development control plan.

3 The issue of the two storey height limit in my assessment is central and determinative in this application. That is the exceedance in the number of storeys. I must give proper, gunuine and realistic consideration to the controls. The LEP contains the standards and the objective is clearly articulated for the two storey height limit. And in my assessment I will combine it with the SEPP 1 consideration for the wall height requirement. The wall height requirement is 7.2 m. In my assessment I must assume that the controls in the LEP are there for a proper planning purpose.

4 Clearly a main purpose of these controls is with respect to view loss from adjoining buildings. The extent of the impact on views can often be difficult to assess, however, today the court has the benefit of the poles/ timber frame that has been erected by the applicant to demonstrate the impact. And in my assessment the proposal impacts unreasonably on views and as such it does not satisfy or conform with the Policy to justify varying the standard.

5 The standard must be looked at in terms of its underlying purpose which is the critical element and focus for assessment. The underlying purpose of the control, or one of the underlying purposes, is to preserve views from adjoining properties. The objection under the SEPP 1, therefore, is not allowed in my asssessment and for this reason the development application fails.

6 I will, however, assess it, in terms of the floor space ratio issue but I find this is not critical to the application and is not one that would warrant refusal in my opinion (and I think that is agreed between the parties today). The particular judgment, which I draw on in terms of the steps that one must go through for of a SEPP 1 assessmeare set out in the judgment - Winton Properties and North Sydney Council wherein Justice Lloyd articulated what is an adopted principal of this Court in terms of SEPP 1 assessments.

7 The critical question to ask is what the underlying objective of the standard is and if having regard to the circumstances the proposal does not satisfy the objective of the standard then the SEPP 1 Objection should not be allowed and therefore the application must fail.

8 In my assessment the standard for number of storeys in the circumstances of this application is one that should be complied with because the proposal of three storeys causes unreasonable view loss and therefore does not satisfy the objective of the standard. The wall height also to a lesser extent, impedes the views from adjoining properties. I thank the applicant for erecting the height poles because I always find in cases such as this it becomes far more subjective if one does not have height poles and I consider that has been most appropriately done today and this has been of assistance to the Court.

9 As demonstrated by the evidence today when one assesses applications on the basis of photomontages there can be difficulties with marrying systems together, and this is no reflection on the application as such. However, with the benefit of the height poles the extent of view loss is clearly shown and the view loss from No. 62 from the main terrace area, which is part of the primary living area of that dwelling, is unacceptable in the Court’s assessment and therefore the variation to the standard is not allowed.

10 I can go on to assess the application in terms of the height of the swimming pool but I do not think it is necessary given that the application fails. by way of comment, however, I will say that mutual overlooking is a common factor in areas with magnificent views of the water. And especially where the topography is steeply sloping there is a certain acceptance of mutual overlooking. Also one looks at separation distances in terms of acceptable mutual overlooking and I am of the view that overlooking from this property to adjoining properties is not an issue and would not warrant refusal of this application. In this case the subject property is overlooked from above which is more imposing than looking up. This is an accepted planning principal taken into consideration in terms of assessment of development applications.

11 In terms of the covenant this is not a matter that I need to address because I’m looking at it in terms of the planning principles, planning guidelines and in terms of the SEPP 1 regime and on that basis the application fails.

12 The SEPP 1 standards are also reinforced by the development control plan and clearly the development control plan also provides greater guidelines which is to assist applicants in preparing applications and to understand why the controls are in place. It would appear to me that there has not been sufficient regard given to the council’s controls and planning regime, in particular the development control plan for residential development, in the formulation of the development proposal.

13 In my assessment SEPP 1 variations are always a harder test and there are expectations in terms of certainty in the planning process that must be considered. For a SEPP 1 variation to be successful the underlying objectives of the standard should be met. If there is a variation to any of the controls in that regard the council has clearly contemplated the objectives of its controls and the reasons for its controls and for that reason the application fails because the objective of the standards in terms of view loss are not satisfied.

Orders

14 The orders of the Court are:

1. The appeal in respect of the property known as No. 33 Stanley Street, Mosman, is dismissed.

2. The development application submitted to Mosman Council No. 8.2003.1221.1, and as amended, is determined by the refusal of consent.

3. The exhibits are returned.

By way of comment in the circumstances I did not consider it appropriate or necessary to pursue amendments or alternatives to what was proposed because it would appear that the applicant would not be in favour of a consent that would have the effect of deleting the third storey. In this regard I heard Mr Fishes evidence and the applicant no doubt would want to go back to the drawing board. And I suggest take into consideration the council’s planning regime and controls as a starting point.

_________________
J S Murrell
Commissioner of the Court
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