Griffin J v Mosman MC

[2005] NSWLEC 108

Land and Environment Court

of New South Wales

CITATION:

Griffin J v Mosman MC [2005] NSWLEC 108
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
John Griffin

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

11460 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- alterations and additions to an existing dwelling - carparking - widows walk - streetscape - overlooking - balconies.

LEGISLATION CITED:

Mosman Local Environmental Plan 1998

CASES CITED:

Super Studio v Waverley C [2004] NSWLEC 91

DATES OF HEARING:

1/03/2005

EX TEMPORE JUDGMENT DATE:

03/01/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Whealy, solicitor
of PricewaterhouseCoopers Legal

RESPONDENT
Ms J Walsh, solicitor
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

1 March 2005

11460 of 2004 John Griffin v Mosman Municipal Council

JUDGMENT

1 This appeal relates to Development Application No. 8.2004.396.1, which is for alterations and additions to an existing three-storey multiple dwelling including additional balconies at the front and rear a new roof and rooftop terrace, new garages and landscaping works. Strata subdivision is also proposed

2 The appeal was conducted as an on-site hearing and judgment was given on-site. The site comprises Lot 2 in DP 17847 being No. 30B Stanton Road, Mosman. It has a frontage of 14.35 metres is rectangular in shape with side boundaries of 39.86 metres.

3 Immediately adjoining properties at No.s 30C and 30A Stanton Road and No. 8 Glencarron Avenue (at the rear) each being developed with attached two-storey dwellings. The locality generally contains predominantly two-storey dwelling houses with some three-storey dwelling houses and other multiple dwelling buildings.

4 The use of the property as multiple dwellings is a prohibited use in the Residential 2(a1) zone under Mosman Local Environmental Plan 1998, however the proposal is permissible as the site has existing use rights.

5 The application was notified and six submissions were received on behalf of the properties at 30A and 30B Stanton Road and 8 Glencarron Ave. Matters of concern expressed in these objections involve: excessive excavation associated with the driveway and garages; excessive bulk and scale of the extended building; inadequate landscaping and inappropriate removal of trees; adverse impacts on the streetscape; stormwater drainage; excessive overshadowing; and loss of views.

6 Dealing with the matter of the carparking on the site I agree with the experts that the provision of four on-site carparking spaces would be appropriate. However, this raises an issue of loss of existing mature vegetation and this was the concern in terms of the amenity of the neighbour at No. 30C, Ms Feyder and also somewhat of a concern in relation to streetscape. The concurrent issue associated with the provision of carparking in the configuration proposed was whether the large jacaranda on the east side of the site could be retained.

7 Overall I am satisfied that the carparking and landscaping arrangement in the front yard of this property would be satisfactory. In this regard I have taken into account the ability to engineer the access driveway slab in such a way as to not adversely interfere with the root system of that jacaranda tree. I have also taken into account the ability of the front part of the site beyond the garage to be landscaped with additional canopy trees notwithstanding that the achievement of maturity of these trees will take some years. Finally in terms of the loss of trees at the north west corner of the building whilst the landscaping scheme does not and indeed cannot provide for canopy trees the landscaping scheme which includes trees of up to 4 m in height on a somewhat elevated ground level would be satisfactory.

8 The next issue that I will deal with involves the so called “widows walk” which is at the upper level or within the roof of the building. I suspect that this is not what traditionally would be called a “widows walk” given it’s size but it is certainly a roof terrace. The neighbours’ overlooking concerns about this terrace have been resolved by the proposed changes. These changes however, would make little difference to the concerns of the neighbours as to the noise that would animate from the use of a terrace at this size.

9 The planners agreed that in terms of streetscape the amended roof terrace would not be out of character with the surrounding area and more particularly in terms of the streetscape. Senior Commissioner Roseth in Super Studio v Waverley C [2004] NSWLEC 91 at paragraph 5 in considering roof terraces said:

The surrounding houses do not have roof terraces so a roof terrace would be a new element in the area. This does not mean that it is inappropriate only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if it’s impact were minor or negligible.

10 The overlooking issues having been resolved, this leaves for my determination the question of whether in the context of the locality a roof terrace would be appropriate and given the absence of other roof terraces in the locality whether this, together with the aural impacts likely to result would be sufficient to require this terrace to be omitted from the design. I have decided that it should. I recognise that the roof terrace that the use of the roof terrace is not likely to be extensive but the amenity that it provides is likely to be so good as to encourage regular use and I expect that this use and the noise associated with it would readily carry into the neighbouring properties.

11 I also accept the submission put on behalf of the council, notwithstanding that the two town planning experts were not of the same view, that based on the principle in Super Studio this would be a new element in the area and would thus be inappropriate. In introducing a new element such as this one needs to take such a decision with great care. As the Senior Commissioner said “roof terraces are only acceptable if their impacts were minor or negligible” in all of the circumstances I do not accept that the impacts associated with this roof terrace would be negligible.

12 The next issue is that of streetscape. I can understand concerns that the excavation for the garage and the widened driveway would alter the presentation of this building to the street. But on balance I find the arrangement to be acceptable. In reaching this conclusion I have taken into account the fact that the driveway is not entirely dissimilar to the one that already exists on the site. I have also taken in account the landscaping arrangement as proposed which extends over the garage in a manner that I accept that will be successful. The landscaping as I mentioned earlier, is to occur on the front part of the site and will add further small, medium and large plantings to compliment existing plantings. These things together with the proposed fence arrangement which is responsive to that on neighbouring properties in terms of its basic character leads me to conclude that the original matters of concern in relation to streetscape are not such as to warrant rejection of the application.

13 The final issue relates to the balconies at the front and the rear of the two dwellings. These balconies provide opportunities for overlooking the neighbouring properties to the west and the east. Significant attempts have been made to reduce opportunities for overlooking. However, there remain concerns about residual opportunities for overlooking albeit on oblique angles together with loss of acoustic privacy. This particularly involves noise emanating from the use of these balconies. As for the balcony at the rear at level 1 there will be some loss of some views from No. 30C. I inspected the front and rear garden areas of the adjoining properties.

14 Dealing firstly, with the privacy considerations, associated with the front yards. I noticed that the character of the front gardens in both instances is somewhat different to that of the rear gardens. These gardens exhibit a significant degree of seclusion coming partly from the topography and partly from existing substantial vegetation by comparison with the rear yard areas seem somewhat more open and have a somewhat different functional character, for example at No. 30A there is a swimming pool.

15 I have decided is that the front garden areas would benefit from greater protection from overlooking and in terms of aural privacy. These spaces seem to have a much more peaceful character and would benefit if there were no balconies on the front of this building at the ground and first floor levels. I have thus decided that those balconies should be omitted from the design. Another reason for this is that I see less importance for there to be balconies off bedrooms. Also, in relation to the ground level whilst the front balcony to be removed is off a formal lounge area there is another balcony off the other living area. Whilst the amenity of that unit at ground level would have been an improved by an additional balcony, bearing in mind that this property comprises two dwellings by comparison with nearby buildings which only have one dwelling in the same footprint, what should result should be entirely within reason.

16 Clearly this means that I have decided that the balconies at the rear can remain in their presently proposed form. This means that there will be some loss of privacy and some loss of views for the neighbouring properties but in all of the circumstances the end result here will be appropriate.

17 I have therefore decided, subject to the changes I have described, that the appeal can be upheld and conditional development consent granted. Agreed conditions are to be provided within seven days.

18 The orders of the Court will be:

1. The appeal is upheld
2. Development application No. 8.2004.396.1 for alterations and additions to the existing dwelling at No. 30B Stanton Road, Mosman is determined by the granting of the development consent subject to the conditions in Annexure A hereto.
3. Exhibit A is retained.

___________________________
T A Bly
Commissioner of the Court
ljr

30/03/2005 - Correct typographical errors in Orders - Paragraph(s) 18