Hinde v Mosman Municipal Council

[2004] NSWLEC 560

Land and Environment Court

of New South Wales

CITATION:

Hinde v Mosman Municipal Council [2004] NSWLEC 560

PARTIES:

APPLICANT
Hinde J

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10599 of 2004

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- construct a screen
privacy
views

LEGISLATION CITED:

Mosman Local Environmental Plan 1998

CASES CITED:

DATES OF HEARING:

20/09/2004

EX TEMPORE
JUDGMENT DATE :

09/20/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr Luiting, Barrister

RESPONDENT
Mr G Green
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

20 September 2004

10599 of 2004 Hinde J v Mosman Municipal Council

JUDGMENT

1 This is an appeal against the refusal by Mosman Municipal Council (the council) of a development application to construct a screen along the boundary of 20 Burran Avenue, Balmoral.

2 The screen is proposed to be lattice on galvanised iron posts to a maximum height of about 4.5 m (reduced by 300 mm during the hearing). The purpose of the screen is to reduce overlooking of the property from No. 18 Burran Avenue, particular from the bathroom and bedroom windows on the first floor.

3 The site is zoned residential under Mosman Local Environmental Plan 1998 (LEP 1998) and is within the Rosherville-Wyar-Give Townscape under Mosman Residential Development Control Plan (DCP). The DCP contains provisions relating to setback, privacy and views.

4 The key issue in this case is the competing interests of Mrs Hinde, the owner of 20 Burran Avenue, to achieve privacy and the desire of Mr Leece, the owner of No. 18 Burran Avenue, to retain views, particularly views to Balmoral Cove.

5 The evidence of Mr G Vikas, architect and Court appointed expert, was that No. 20 did experience privacy impacts. He stated that there was a hierarchy of spaces and resultant impacts. In his opinion the key areas of sensitivity to overlooking were the terrace off the living area, particularly the wider area adjoining the northern boundary, and the living/dining area, including the area used by Mrs Hinde for her work. He placed other areas as being of less importance and to be where privacy could be maintained by actions that Mrs Hinde could take, such as planter boxes.

6 The privacy impact on the terrace and living areas results from somebody standing at a specific position in the bathroom or in the bedroom close to the open window. The positions also provide specific views for the occupants of No. 18, which also has other expansive views over the water.

7 It was common ground between the parties that the screen as proposed would impact on these views from the bathroom and the bedroom.

8 An alternative option, which provided a privacy screen along the terrace at No. 18 would, in Mr Vikas opinion, achieve acceptable privacy and better maintain the views from No. 18. Although some of the view of the cove would still be lost. Council submitted that this option should be reduced in height to reduce this view loss while achieving privacy to the key area of the terrace.

9 The first question is whether there is a real privacy impact on No. 20. The terrace and living areas are key living areas, which can be overlooked from very limited viewing points from rooms within No. 18 that are normally considered to be less important for assessing overlooking and view impacts.

10 The terrace and living area, which also provides extensive views of the harbour, is in an area where a degree of overlooking is to be expected which is recognised in the DCP in 5.6 which states that:

“In urban areas such as Mosman absolute levels of privacy cannot be achieved”.

11 DCP Control P1 requires a sill height or permanently fixed obscure glazing to a height of 1.6 m above the floor level. The glazing of the bathroom window is clear but it does not look directly onto the terrace except from one specific point. The obscure glazing to the bedroom is to a height of 1.4m, which is slightly less than the requirement but overlooking is only from a limited position. I accept that while there is some overlooking of No. 20 this is not beyond that which is contemplated by the DCP and is reasonable within the context of the site and other houses and their orientation towards views of the harbour.

12 I recognise that Mrs Hinde has a real privacy concern and I accept that it is reasonable for her to seek to mitigate the overlooking and privacy impacts that she perceives may occur. However, I do not accept that the proposal to erect the screen along the boundary is reasonable. As a structure it does not comply with the DCP setbacks controls and would appear as a very high boundary fence.

13 The screen would be clearly visible from Burran Avenue and will impact on the view corridor between the properties from the street. I note that Mr Vikas did not consider the intrusion into the view corridor to be significant. However, the Desire Future Character Objectives of the Rosherville-Wyar-Gire Townscape area include the objective “to retain public views between and over houses”. This is the only view corridor in the street and provides a clear view to the harbour and the opposite shoreline. The proposal would be in the centre of this corridor and would adversely impact upon it. I do not accept that what is essentially a very high boundary fence should impact on a public view. Particularly in the context where there are not unreasonable privacy impacts. For this reason that the proposal must fail.

14 In relation to the alternative application for which the applicant sought approval in the event that the original proposal should fail. The proposed screen, as amended by council’s condition to reduce the height, will provide privacy to the main living area of the terrace, will result in some view loss to the Cove but will not impact on the view corridor from the street. It is therefore a reasonable compromise between the competing interests of the two parties.

Orders

15 The orders of the Court are that:

1. The Appeal is upheld.

2. The Development Application to construct in screen at 20 Burran Avenue, Mosman, is determined by the grant of development consent subject to the conditions in Annexure “A”.

3. The exhibits, except Exhibits 8 and 5, may be returned.

__________________________
Annelise Tuor
Commissioner of the Court