Glen and Patricia Croxson v Mosman Municipal Council

[2003] NSWLEC 400

>

Land and Environment Court

of New South Wales

CITATION:

Glen and Patricia Croxson v Mosman Municipal Council [2003] NSWLEC 400

PARTIES:

APPLICANT
Glen and Patricia Croxson

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

11075 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Extensions and alterations to a house - large garage with extra facilities - proposal on a heritage listed laneway

LEGISLATION CITED:

Mosman LEP 1998
Mosman Development Control Plan
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

05/12/2003

DATE OF JUDGMENT:

12/08/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr. G. McKee, solicitor
of McKees

RESPONDENT
Ms. J. Walsh, solicitor
of Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11075 of 2003

Hoffman C

8 December 2003

Glen and Patricia Croxson

Applicant

v

Mosman Municipal Council

Respondent

Judgment

1. This was a class 1 appeal number 11075 of 2003 between Mosman Council and Glen and Patricia Croxson about extensions and alterations to their home at 43 Prince Albert Street Mosman.

2. The works included the extension of a rear family room to provide a dinette facing the rear yard; the removal of an existing swimming pool and its replacement with another pool and a spa pool towards the rear of the yard; the removal of an existing garage and its replacement adjacent to the rear laneway called Prince Lane with a much larger garage still housing only two cars but having a basement wine cellar, a bar and external pergola area, toilet and shower rooms, storeroom and an upstairs attic room. There were various landscape and terrace works to the backyard including substantial excavation to accommodate the terracing.

3. Number 45 Prince Albert was a heritage item. A Queen Anne federation house of some significance. The rear laneway was also a heritage item. The area was one of quite large Federation and California bungalow houses set in generous landscapes.

4. The issues were:

1. Single Dwelling: Where the proposal represents a multiple dwelling development in that the garage and associated rooms have been designed and are capable of use as a second dwelling which is a prohibited use within the residential 2A(1) zone under the Mosman Local Environmental Plan.

2. Excavation: Whether the excavation around the swimming pool is excessive in terms of cl 31 of Mosman LEP 1998.

3. Heritage: Whether the development is satisfactory in terms of heritage having regard to

(a) the objectives contained in cl 32 of the LEP and
(b) the Bradley’s Head Road heritage conservation area contained in the Mosman residential Development Control Plan in respect of maintaining or being sympathetic to the streetscape character of the area and
(c) the objectives and planning guidelines of cl 5.3 of the development control plan.

4. Privacy: Whether the development results in an unsatisfactory level of privacy impacts for the adjoining properties in terms of the objectives and planning guidelines of cl 5.5 of the development control plan.

5. Bulk: Whether the garage is unduly bulky.

6. Whether the proposed swimming pool satisfies the objectives and planning guidelines of cl 7.4 of the development control plan.

7. Whether approval of the application is in the public interest having regard to the submissions received from members of the public.

8. Whether the site is suitable for the proposed development.

9. Whether the proposed garage should be approved having regard to the following provisions of the development control plan cl 5.2 objectives 01, 02 and 03 and planning guidelines P10, P14 and P15.

5. The matter was dealt with by on site hearing. Present at the hearing and giving evidence were:

• Kerry Nash, town planner for the respondent and
• Bertha Gunawan student town planner at Mosman Council.
• John Pagan, town planner for the applicant;
• Rex McCrae Context Design Pty Limited building consultants;
• Rod Howard, Rod Howard Heritage Conservation Pty Limited

6. Appearing for the applicant was Graham McKee solicitor and Phillip Wilcox McKee’s paralegal.

7. For the respondent the advocate was Julie Walsh, council solicitor.

8. Residents appearing were:

• Michael Morris of 45 Prince Albert Street Mosman;
• Susanne Morris of 45 Prince Albert Street Mosman;
• Elizabeth Starr of 45 Prince Albert Street Mosman.

9. The applicant was represented by Mrs P. Croxson. Mr Bruce Young, landscape architect, attended towards the end of the hearing.

10. The issues were summarised by the parties as relating to the heritage significance of the laneway, and the streetscape of the laneway, and the impact of the large garage structure on it, and privacy and visual bulk impacts on neighbours at numbers 41 and 43.

11. The evidence of the council and the applicant’s heritage architects was that the impact of the garage was not sufficient for refusal in heritage terms. The significance of the laneway in the Mosman Heritage Review 1996 was stated as:

“The small laneways within Mosman’s original estate subdivisions are an important aspect of the historic urban structure of the municipality. In many cases these lanes display pleasing visual characteristics created by a combination of walls, vegetation, vistas and the backdrop of surrounding properties”.

12. Mr Nash went to the council’s residential development control plan which sought that garages should occupy only 40 per cent of the road frontage and have the remaining 60 per cent vegetated. This would limit the garage size to that of the existing garage at number 43 and similar structures at numbers 45, 39, 37 and 35. He said this tied in with the Statement of Heritage Significance of the laneway and would maintain the balance of trees and buildings in the lane that gave it the character it currently possessed.

13. The applicant’s evidence was that the residential development plan was referring to the front street sizes of garages not rear laneways, and the purpose of rear lanes was to house service facilities like garages. The garage was designed to match the house with a 35 degree pitched roof, and it would only be half a metre higher than the existing garage roof although it would be about 4.5 metres longer coming to within 900 mm of the southern boundary.

14. If, one included the pergola area there was only about the same separation from the northern boundary. Without including the pergola there was an overhang from the roof of the structure, which brought it to within about 2 metres of the northern boundary whilst the wall was back set approximately another half metre.

15. The attic room had a dormer window. The neighbours were offended by the view this would give into their backyards and to the rear of their houses and by the bulk of the garage seen at the uphill end of the properties.

16. Number 45 was concerned that being a heritage item they were constrained in what they could do on their property in order to respect the heritage significance and yet it appeared to them that a neighbour was able to exceed the council controls to provide facilities in a garage that were not related to the garage but were related to the house and entertainment.

17. The council controls also required garages to be single storey only and technically this garage was three storeys. The council was also concerned that the attic room, the toilet and shower facilities and the bar with its pleasant outdoor pergola terrace constituted a suite of rooms capable of being a separate domicile that was prohibited in the zone under the Mosman Local Environmental Plan.

18. The applicant protested that the plan showed the facilities were only accessible through the garage and could not in a practicable sense be used as a separate domicile and there was no cooking facilities in the bar and thus no kitchen.

19. The applicant pleaded that if the 35 degree pitch of the roof used to match the house created useable space, then the one storey limit on garages need not be enforced as there would be no difference in external bulk except for the dormer window.

20. The evidence of the respondent in summary was that the garage was being used to house much more than cars, and was in fact about the size of a small house. The objectives of the controls in garages was to prevent them becoming significant structures and to remain ancillary to the main house. This structure was just too big in the council’s evidence. Allowing this proposal, it was put, would be a signal to other householders to expand facilities in their own garages and change the balance sought to be retained in the municipality.

21. The applicant put that precedent was not a reason for refusal. It must be the merits of as application that determine it. The council has drafted conditions that allow the new swimming pool, bar and dinette with amendment to reduce the size of the garage. The applicant pressed the garage as is, and added conditions to improve landscape screening, and adding that the windows of the dormer could be frosted if the Court required, although the separation distance to the neighbours’ houses was so great it should not be imposed.

22. Overall the Court has concluded that cl P(14) of the Residential Development Control Plan provides that on rear lanes the same issues of streetscape should apply in regard to garages as on the main street frontage. Except for two large garages in Prince Lane that the council said were approved under a previous Development Control Plan the other new garages had been kept to the frontage of 40 per cent garage and 60 per cent landscape formula in cl P(10) in order to preserve the character of the lane. Admittedly the school on the lane presented a main structure right on the laneway boundary, and the two large garages previously referred to were other features in the laneway streetscape. But in view of the current controls and objectives they should not be used as precedents for the garage component of this proposal. Obviously the intention of the current controls was to prevent such new development and to maintain the balance of building fences and vegetation and trees currently seen in the laneway.

23. Therefore consent is granted but subject to the council’s draft conditions.

24. Therefore the orders of the Court are:

1. The appeal is upheld.

2. Deferred Commencement Consent is granted for extensions and alterations to No. 43 Prince Albert Street, Mosman, as shown in drawings Nos. 2001-01C, - 02D, - 03D, - 04C by Context Design Pty Ltd and landscape plans L1.01-0217D and L1.02-0217D by Landscape Direct as modified by and in accordance with the conditions in Annexure A hereto that include reduction in the size of the proposed structure housing the garage.

3. The applicant to give written submissions on draft conditions A3 and A4 to respondent by close of business today. The respondent to give a written reply to the Court by close of business on Friday 12 December 2003.

4. The exhibits be returned to the parties except exhibits B, E, F and 1.

K G Hoffman

Commissioner of the Court

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