Hosking Munro Pty Ltd v Mosman Municipal Council

[2006] NSWLEC 364

Land and Environment Court

of New South Wales

CITATION:

Hosking Munro Pty Ltd v Mosman Municipal Council [2006] NSWLEC 364

PARTIES:

APPLICANT
Hosking Munro Pty Ltd

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10100 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- Alterations and additions to existing semi detached dwelling, erection of a new two storey dwelling,lot sizes, car parking, open space, solar access, access, streetscape.

LEGISLATION CITED:

Mosman Local Environmental Plan 1998

DATES OF HEARING:

6-7/06/2006

EX TEMPORE JUDGMENT DATE:

06/07/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Hudson, solicitor
SOLICITORS
Wilshire Webb

RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

- 7 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

7 June 2006

10100 of 2006 Hosking Munro Pty Ltd v
Mosman Municipal Council
JUDGMENT


This decision was given extemporaneously. It has been revised
and edited prior to publication.


Introduction

1 This appeal relates to development application No. 8.2005.16.1 which is for alterations and additions to the existing semi-detached dwelling and the erection of a new two storey dwelling at 74 Avenue Road, Mosman.

2 The site comprises Lot 71 in DP1070068. It has a frontage of 7.5 metres to Avenue Road, a rear part frontage to Wolger Road, a depth of around 70 metres and an average gradient of about 5% sloping away from Avenue Road. Existing development in the locality includes apartment buildings, semi-detached dwellings and single storey dwellings.

3 The site was the subject of an earlier development application for subdivision into two lots. That application was refused by the council on the basis of the two lots being too small and because it would not be properly responsive to the objectives of the minimum lot size development standard in Mosman Local Environmental Plan 1998 (“the LEP”).

4 A subsequent appeal to the Court was upheld for similar reasons. Subdivision is not proposed in this present development application.

Statutory provisions

5 The site is zoned Residential 2(d) under the LEP and in this zone dwelling houses, semi-detached dwellings and multiple dwellings are permissible with development consent. Relevantly, multiple dwellings means two or more dwellings whether attached or not and the proposal falls within this definition.

6 The relevant objectives of the 2(d) zone include:

· ensure a variety of housing types in Mosman,

· maintain and enhance landscaping as a major element in the residential environment,

· provide for housing which is compatible with surrounding development in terms of bulk height and scale,

· encourage residential development which has regard to local amenity and in particular public and private views.

7 The LEP contains development standards relating to building height, wall height, floor space ratio and landscaped area. The proposal either meets or exceeds these requirements.

8 Also applicable to the site is the Mosman Residential Development Control Plan (“the DCP”), which relevantly contains provisions dealing with siting and scale, car parking and access, privacy and security and townscapes. It also contains provisions dealing with the design of multiple dwellings.

Advertising and council’s decision

9 The application was advertised and two submissions were received. Matters of concern raised in those submissions include: failure to comply with applicable planning controls; amenity impacts including loss of sunlight, loss of privacy, loss of outlook and excessive built form; and loss of mature vegetation.

10 The development application was, on the recommendation of council officers, refused for reasons including: failure to comply with the residential 2(d) zone objectives; the development would be beyond the environmental capacity of the site and would not conform to the character expectations for the locality; failure to comply with the requirements of the DCP including aspects of solar access and privacy; and the loss of on street parking.

Evidence

11 On behalf of the respondent council, expert town planning evidence was provided by Mr C McFadzean. On behalf of the applicant, expert architectural and landscape architectural evidence was provided by Mr M Munro.

Townscape

12 Under the DCP the site is included in the Belmont townscape area and whilst the provisions in section 6.10 seem not to recognise the particular characteristics of this site and its environs, which include a number of multiple dwellings or apartment buildings, it nevertheless needs to be taken into consideration.

13 Relevant character elements in this townscape area include a consistent scale and form of development and small front gardens with low fences of various materials and styles. As for the desired future character, front setbacks and low fences are to be maintained and high front walls and fences are discouraged. Garages and carports are to be provided with access off rear lanes or behind the building line and on street parking is encouraged.

14 Taking into account the requirements of the townscape area and the objectives of the zone together with the proposal’s compliance with the applicable development standards I have no hesitation in reaching the conclusion that a development of the kind here proposed would be appropriate. A higher density of development is clearly anticipated by the zone and by the applicable floor space ratio. I accept that the form of this development would, in principle, be appropriate especially taking into account the diverse streetscapes comprising Avenue Road and Wolger Road. In reaching this conclusion I have also taken into account the constrained nature of this long narrow site and the nature of existing adjoining development. Of particular relevance here are the properties at 76 Avenue Road and 10 Wolger Road which in terms of their built form configurations are very similar to the proposal, notwithstanding they may have been approved under different planning provisions.

15 In this regard I have no difficulty in accepting that in terms of the Wolger Street streetscape that the proposal would be acceptable and would have an appropriate and satisfactory relationship with its neighbour to the east, although a different design that makes provision for some landscaping between these two buildings would produce a better outcome. In this context I have no concerns with the proposal’s non-compliance with the side setback requirement. Here I refer to section 4.2 of the DCP, particularly section P7 that allows a nil setback in certain circumstances. The essence of this provision is in my view met by the proposal.

16 I also accept that the provision of a carport structure would not adversely affect the Avenue Road streetscape, notwithstanding that there are few such structures in this road. The existence of a carport on the site of the adjoining property at No 76 lends support to this conclusion. Despite this I am concerned at the lack of transparency into the site that would result from the screens within the carport and the existing front wall. Perhaps a different design for the front fence and the screens within the carport could be produced that enables the landscaping within the site to become an integral part of the streetscape, could be produced and which need not prevent the provision of an appropriate level of privacy for the front courtyard.

Open space and privacy

17 Whilst the DCP does not contain any minimum area requirements for private open space for multiple dwellings it does anticipate the provision of such spaces by dealing with matters such as privacy and solar access. It also does not have minimum area requirements for communal open space but does require that such open space should have adequate solar access.

18 The majority of the landscaped area on the site is comprised in a central area of communal open space that is to be shared between the two dwellings. The existing dwelling is also to have a small deck that overlooks this communal open space and a south facing area of private open space in front of the building and adjacent to Avenue Road. The new dwelling is to have a small north facing terrace off the first floor bedroom, it will also have direct access from its living areas onto the communal open space at ground level.

19 The landscape plan includes the provision of vegetation to provide some privacy for the new dwelling in an attempt to prevent overlooking from the existing dwelling’s new deck and kitchen.

20 The separation between the two dwellings is about 15 m and this would comply with most standards for such separation including that in s 5.6 of the DCP. However, given that both dwellings have a strong orientation towards each other, a better privacy arrangement is needed not only in relation to the buildings themselves but also the open space, especially that of the new dwelling. I have not been persuaded that the landscaping proposal would sufficiently achieve the necessary privacy.

Solar access

21 Section 5.5 Pt (p) 31 of the DCP requires that living rooms and private open spaces for at least 70% of dwellings should receive a minimum of two hours direct sunlight between 9 am and 3 pm in mid winter. An examination of the shadow diagrams reveals that at the winter solstice the communal open space and especially that part of this open space that adjoins the proposed new dwelling would be overshadowed for most of the day. This is a matter of great concern notwithstanding that the deck off the upstairs bedroom would receive good solar access.

22 It is also clear that the existing dwelling probably meets the two hours direct sunlight requirement for the family and meals room and the adjoining deck, although the front courtyard probably does not. On balance the solar access available for this dwelling is satisfactory.

23 Conversely solar access for the new dwelling is unsatisfactory notwithstanding that it would have reasonable access to daylight.

24 I have already commented on the deficiency associated with the communal open space adjoining this dwelling and it is clear that the kitchen, dining and living room that opens onto the communal open space would not get any direct solar access during the relevant period at the winter solstice. Whilst the belated attempt to resolve this concern by the provision of skylights would assist, it does not go far enough.

25 Clearly the problems with this proposal that prevent the granting of consent involve streetscape aspects in Avenue Road and the amenity of the new dwelling. Whilst this is a difficult site given its narrowness and orientation I do not accept that this is a reason for non compliance with reasonable solar access and privacy requirements notwithstanding that the new dwelling would mostly have reasonable amenity. I have no doubt that a different design could better address these concerns.

Lot sizes

26 Clause 12 of the LEP sets development standards for subdivision and the subject land is plainly not large enough if it were to be subdivided into two lots to meet the standard that would otherwise be applicable. Whilst this is of no relevance to this application I would observe that were this application to have been approved, the utilisation of communal open space may well make such a subdivision impossible irrespective of the applicable development standard because of the need to maintain a sharing arrangement. Conversely a strata subdivision for the site may not be problematical since this form of subdivision can provide for common property.

Car parking

27 Finally, in relation to the provision of car parking on the site and the consequence of removing two car parking spaces from Avenue Road I do not accept that the demand for on street parking would be so adversely affected that the loss of these spaces is of such significance as to deny the applicant an opportunity to provide their own off-street parking. Most properties in the street already have an access cross over.

28 I also accept that whilst there is an alternative position for the construction of a new access cross-over and parking area this would inevitably result in the loss of significant vegetation which, in the interest of maintaining the leafy character of the area, should be maintained.

Site access

29 The final issue in this case arises from the council’s proposed deferred commencement condition involving the provision of legal access from the site onto Wolger Road. There is a strip of land between the subject land and Wolger Road that is probably not in the ownership of the council or the applicant. This strip of land extends quite some distance to the west and east of the site and is utilised for stormwater drainage purposes and is also utilised for vehicular and pedestrian access to and from the subject site and at least the two adjoining sites. Whilst this strip of land is not the subject of the development application, the availability of access across it is necessary such that a development consent for development in the form of the proposal can be effective.

30 It was submitted on behalf of the applicant that this matter does not need to be resolved at this point in time and is not an impediment to the granting of development consent.

31 Had I been minded to grant the consent sought I would not have imposed the deferred commencement condition accepting that, in the circumstances, the existence of this strip of land is unlikely to be a critical impediment. Moreover if it were to become a problem this would either be resolved in favour of the applicant and I accept that this is the most likely outcome or alternatively the applicant would have to accept the consequence that the consent would not be able to be utilised. This matter however has no affect on my decision that for the reasons I have given the appeal should be dismissed.

Orders

32 The orders of the Court will therefore be:

1. The appeal is dismissed.

2. Development application No. 8.2005.16.1 for alterations and additions to the existing semi detached dwelling and the erection of a new two-storey dwelling at 74 Avenue Road, Mosman, is determined by the refusal of consent.

3. Exhibit D is retained.

___________________
T A Bly
Commissioner of the Court
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