Houng-Lee v Mosman Council
[2013] NSWLEC 1195
•16 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Houng-Lee & anor v Mosman Council [2013] NSWLEC 1195 Hearing dates: 3 October 2013 Decision date: 16 October 2013 Jurisdiction: Class 1 Before: Fakes C Decision: See paragraph [91]
Catchwords: MODIFICATION: deletion of conditions of consent requiring a reduction in overall height of development; view sharing Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Mosman Local Environmental Plan 2012Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Rod Houng-Lee (First Applicant)
Liddy Korner (Second Applicant)
Mosman Council (Respondent)Representation: Applicants: Mr G McKee (Solicitor)
Respondent: Ms J Walsh (Solicitor)
Applicants: McKees Legal Solutions
Respondent: Pikes & Verekers Lawyers
File Number(s): 10577 of 2013
Judgment
COMMISSIONER: In February 2013 Mosman Development Assessment Panel (MDAP), under delegation of Mosman Council, approved Development Application No 8.2012.250.1 for the demolition of an existing dwelling and the construction of a new dwelling with a covered terrace and associated landscaping at 24 Lavoni Street, Mosman (the site).
The MDAP approved the DA subject to the inclusion of a number of conditions including Condition 2 which required:
The Construction Certificate plans shall detail the following components of the development lowered by 500mm:
· The top two levels of the dwelling house (Levels 2 & 3 - such that the upper roof does not exceed RL33.4 and the lower roof parapet does not exceed RL32.4)
· The covered terrace in the rear yard; and
· The lawn and drying court in the rear yard.
The reduction in height was recommended in order to provide a reasonable sharing of views between the proposed development and properties upslope.
The consent also imposed conditions relating to a retaining wall and a portion of the fence adjacent to the northern boundary, both in the front set back of the site (Conditions 4(c), 6(h), 4(f) and 6(l)).
In May 2013, the applicants lodged Modification Application No 8.2012.250.2 seeking deletion of the conditions listed above as well as amendments to condition 6(d) in regards to landscaping and the inclusion of a canopy roof to provide shelter over the entry level door at level 2.
In July 2013, the applicants appealed under s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the council's deemed refusal of the Modification Application.
The Modification Application was subsequently referred to the MDAP for determination. In August the MDAP approved the modification application subject to discontinuance of the appeal and the retention of condition 2 of the original consent. The canopy was approved and condition 6(d) amended to enable the planting of three small trees rather than one large tree. The principle reason given in regards to condition 2 is:
In respect to the requested amendment to the height of the building, landscaping and cabana the Panel considers that the enhancement of views to bedrooms as submitted by the applicant as reasons for the height adjustment is unreasonable having regard to the view loss that arises from living areas of adjoining properties.
The appeal was not discontinued and the matter proceeded to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached the conciliation was terminated under s 34AA(2)(b) and the matter progressed to an on-site hearing.
The issues in contention
The contentions pressed by the council are summarised as:
(1) Unacceptable impacts on adjoining properties (20 and 22A Awaba Street) in terms of view loss and visual bulk, in part as a consequence of non-compliance with height standards;
(2) Unacceptable impacts on privacy of 22 Lavoni Street;
(3) Unacceptable impacts on views from 22A Awaba Street as a consequence of height of landscaping; and
(4) Unacceptable impacts on Lavoni Street streetscape of proposed walls and fences in front set back.
The site and its locality
The site is on the western or upper side of Lavoni Street Mosman on the slopes within the Balmoral Townscape as defined in Mosman Residential Development Control Plan (MRDCP).
It comprises two allotments (Lot B DP 315703 and Lot C DP 315702) with a combined area of 520m2. The site falls approximately 8m from its rear boundary to Lavoni Street. It is burdened by two easements, one to drain water and the other for the sewer.
The site presently contains a part one, two and tree storey rendered brick and timber dwelling, driveway and terraced front and rear gardens. There is a large and mature Liquidambar in the front garden. The front of the dwelling is set back 11-13m from the street frontage.
The surrounding development comprises mostly two to three storey dwellings. Adjoining to the northwest is 20 Awaba Street, to the rear or west is 22A Awaba Street, and to the south is 22 Lavoni Street. The views and the proposed development were inspected from these properties.
The approved development
The approved development comprises three levels: Level 1 - garage, water tanks, storage, plant room, lift; Level 2 - entry, lift, study, bedrooms, bathroom, and access to rear courtyard; Level 3 - living, dining, kitchen, office, front terrace, lift.
The existing sloping and terraced back garden is to be filled and levelled to enable, amongst other things, the construction of a level lawn area and a rear covered terrace/pavilion and barbecue area. The rear pavilion is described as a low set open-sided structure with a flat metal roof. The new lawn will be accessed from Level 2.
The existing tiled and gabled roof, with a flat-roofed addition, will be replaced with a flat roof and parapet walls including a sloping clerestory roof orientated to the north.
Two trees, including the large Liquidambar, are to be removed and site re-landscaped. A stone fence with a planter behind and a second tier of stone retaining walls to retain the new level front garden will be built (subject to conditions).
The assessment framework
The site is zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (MLEP).
The relevant particular aims of the MLEP are:
1.2(2)(e) to recognise, protect and enhance the natural, visual, environmental and heritage qualities of the scenic areas of Mosman and Sydney Harbour and to protect significant views to and from the Harbour,
1.2(2)(f) to retain views to and from water and foreshore reserves and public areas from streets and residential lots.
Clause 2.3(2) of MLEP states that the consent authority must have regard to the zone objectives when determining a development application. The relevant zone objective for Zone R2 is:
To encourage residential development that has regard to local amenity and, in particular, public and private views.
The height of Buildings Map referred to in cl 4.3(2) sets the development standard for the height of buildings. The height limit for the site is 8.5m above natural ground level.
Mosman Residential Development Control Plan (MRDCP) was adopted and came into effect in March 2012. Further amendments were adopted and came into effect in February 2013.
The relevant particular aims of the MRDCP are:
1.5(e) minimise view loss to and from water and foreshore reserves, public areas, streets and residential allotments;
1.5(f) limit potential for large bulky dwelling houses and encourage sensitive siting of buildings and leafy garden character;
Clause 2.2 MRDCP deals with the importance of site analysis in the design process and the factors to be considered in siting and designing a building, in particular, what views are available from the site and adjacent properties.
Clause 4.2 considers 'Siting and scale'. Planning control P1 reiterates the maximum building height control of 8.5m and sets a maximum wall height of 7.2m and a general maximum of two storeys. P11 considers in part that 'Building forms should enable a sharing of views with surrounding residences and permit views from public streets and open space.' P21 requires buildings to be sited having regard to topographical features in order to minimise cut and fill.
Clause 4.3 deals with 'View Sharing'. Part of the introduction states:
New development should be designed to minimise view loss to the public and to adjoining and adjacent properties while still providing opportunities for views from the development itself. This approach is called "view sharing". Sensitive new building design can ensure the reasonable sharing of views. By its nature view sharing will involve sharing on the part of the affected parties. Neither obtaining nor retention of views can be assured in this process having regard to the criteria set out below. In assessing applications for development, Council must consider the importance and need to protect views identified in the site analysis process.
Council will consider the following steps in the assessment of reasonable view sharing:
1. What views are to be affected? In this Plan, a reference to views is a reference to water views and views of significant landmarks (e.g. The Heads, Opera House and Harbour Bridge). Such views are more highly valued than district views or views without significant landmarks. District views and views of bushland will be considered in development assessment when they are the only views available.
2. How are the views obtained and assessed? Views from private dwellings considered in development assessment are those available horizontally to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth).
3. Where is the view enjoyed from? Views enjoyed from living and entertainment areas are highly valued. Views available from other areas within residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the building concerned. Public views....
4. Is the proposal reasonable? A proposal that complies with all development standards (e.g. building height, floor space ratio) and planning controls (e.g. building setbacks, roof pitch) is more reasonable than one that breaches them.
The objectives and planning controls in cl 4.3 further expand on the principles and assessment process considered in the introduction given above.
As the views in contention are from private dwellings, Objective 2 is relevant. This states:
To have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscape design, whilst not restricting the reasonable development potential of a site.
Planning Control P4 states,
New development should be designed to minimise view loss to adjoining properties while still providing opportunities for views from the development itself.
Clause 5.3 MRDCP sets the objectives and planning controls for fences and walls.
The hearing and evidence
The hearing commenced with an inspection of the views and the likely impact upon them from the nominated affected properties. The owners of those properties made statements in addition to their written submissions included in the council's bundle of evidence.
To assist with the inspection, a number of height poles were erected at all corners of the approved dwelling. The tops of the poles were set to surveyed heights corresponding to those proposed by the applicants. The poles were marked at 500mm below the top to indicate the levels sought by council. String lines were set between poles to indicate the perimeter of the building.
The parties' planners, Mr Warren Long for the applicants and Ms Deborah Laidlaw for council, assisted with the inspection and later gave evidence. The planners prepared a very detailed joint report.
Views and view sharing
Views from the site
The floor levels of the new dwelling are proposed to be lower than the existing floor levels - 760mm on the first floor and 600mm on the ground floor. The council's position is that they be lowered an additional 500mm. These relative positions were marked on the windows of the ground and first floor east facing rooms. It is considered that some water views will be available from a standing position in the proposed bedrooms, the field of view will be significantly compressed should the council's conditions be imposed.
20 Awaba Street
Alterations and additions were approved for this property in late 2011. The owners of this property object to the applicants' proposal to delete Condition 2 as they contend they will lose their 'iconic' views (described below). They argue that they were required to lower their dwelling by 1.2m in order to meet council's requirements and the needs of neighbours. They strongly object to losing views from their living room at the expense of enhancing views from the applicants' bedroom.
The viewing areas likely to be affected by the proposal are the rear garden, as well as sitting and standing views from the first floor living room and associated balcony.
It is agreed that there is currently only a very limited water view through the Liquidambar available from standing/seated positions in the rear garden. The planners agree that this will be lost regardless of whether the applicants' or council's position is accepted.
The view in contention from the living room/balcony is the view to the southeast of Hunters Bay and the southern section of Balmoral Beach and HMAS Penguin. This view includes moored boats on the bay framed by vegetation on the foreground and in the distance. There is an unobstructed view to the east of North and Middle Heads through to the ocean beyond. This view will be unaffected by the proposal. The Liquidambar and part of the existing dwelling on the site currently obstruct the panorama from the Heads to Balmoral Beach.
The planners agree that from a standing position within 1 metre of the living room window, the proposed height of the dwelling would obscure about 50% of the Hunters Bay water view (with boats) as well as the vegetated foreground. The flat section of roof would obscure about 40% of the view through the tree to the east. The view of Balmoral Beach would be unaffected. The effect from the balcony would be similar. The condition sought by the council would allow that water view to be substantially retained from standing positions.
From a sitting position 1 m within the living room window, the proposed development would remove the currently available views to the southeast of Balmoral Beach and of the bay with moored boats. The council's preferred height would retain a portion of the water view and the beach.
The planners agree that the proposed development will exceed the height limit by 250mm at the south-eastern corner of the clerestory roof [given as 270 mm in a number of reports but agreed at 250 mm after consideration of the survey plan]. There is some disagreement as to the extent of the view loss as a consequence of this non-compliant portion. Mr Long considers that corner of the clerestory roof will be largely obscured by the northern edge of the roof but in any event would only affect a very small portion of the view, part of which comprises distant vegetation. Ms Laidlaw considers the non-compliant portion will be visible and is one of several non-compliances that make the loss of views unacceptable.
The planners disagree as to the acceptability and significance of the view loss.
Ms Laidlaw considers that the proposal will have an unacceptable impact on views from the living area of 20 Awaba Street, both quantitatively and qualitatively. In her opinion, the views from the living room and balcony of the heads and of Hunters Bay are qualitatively quite different with the framed view of the bay with the beach and moored boats being the more intimate of the views, and in particular, the view of Balmoral Beach being iconic or at the very least, an extremely highly valued aspect of the view. She therefore considers the likely impact to be severe from the living room and balcony and moderate for the entire property.
As stated above, Ms Laidlaw considers that the south-eastern portion of the dwelling is non-compliant in a number of ways including wall height, setback and number of storeys. In her opinion, the combined non-compliance reinforces her position that the impact on views from 20 Awaba Street is unreasonable given that the views the applicants seek to be enhanced are from a bedroom at the expense of views from a living area.
Mr Long considers that the impact on views from 20 Awaba Street is minor when the views available from the whole of the property are taken into account (Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140). In his opinion the primary view from the living room is to the east across Middle Harbour to North Head and that the composition of this view will be greatly enhanced by the removal of the Liquidambar. He considers that part of the distant view across a side boundary of moored boats and Balmoral Beach will be retained.
In Mr Long's opinion, the impact on views arises from elements of the north side of the new house that are substantially compliant with the planning controls. He states that the design of the new dwelling already incorporates floor levels lower than the existing floor levels - 760mm on the first floor and 600mm on the ground floor. He considers that the imposition of Condition 2 is unreasonable in that it will compromise the available views from the new dwelling that are currently available from the ground and first floors of the existing dwelling. The new levels would be 1.26m lower on the first floor and 1.16m lower on the ground floor.
22A Awaba Street
The view in contention from the ground floor living area of this dwelling located at the rear of the site is of Hunters Bay, HMAS Penguin and Balmoral Beach to the southeast. The current view is framed to the south by the dwelling at 24 Lavoni Street and by the timber addition on the existing dwelling on the site to the east. That view includes a Lillypilly in the front garden of No. 24 and other vegetation closer to the foreshore of the bay.
The concern is that part of the view will be obscured by the new dwelling and also by the proposed covered terrace and associated landscaping. The terrace would obscure the lower half of the view of the bay when viewed from a standing position within the ground floor living room, and most of the view from a seated position.
The owner of this property considers that the decision of the MDAP should be upheld as this achieves the view sharing required by council. In her opinion, the applicants should have been aware of the position of her dwelling in regards to overlooking and therefore the erection of a covered terrace for privacy that will obscure part of an important view is unreasonable. While she acknowledged the upper levels of her dwelling have expansive views, health conditions will lead to more time being spent on the ground floor.
It is agreed that the removal of the Liquidambar will improve the panoramic view available from the main first floor living room of this dwelling and from the study above. The planners agree that a reduction in the height of the house and terrace to the level proposed by council will result in a smaller impact as a consequence of the dwelling and retain the views in regards to the terrace.
Mr Long considers that the applicants' proposal represents reasonable view sharing in regards to what he considers is a moderate impact on views from a secondary living area. If these were the only views available from this dwelling his opinion would be different. In his opinion, lowering the terrace by 500mm is unreasonable and would involve more excavation although some adjustment to the structure could be considered.
In Ms Laidlaw's opinion the loss of a highly valued view from a standing position in an important living space would be severe. She considers that the loss as a consequence of the covered terrace is unreasonable as it not an essential component of the dwelling but an ancillary structure. She supports the owner's opinion in regards to privacy but also agrees with Mr Long that some design changes to the terrace could lessen the impact on views.
In regards to the impact of the proposed heights of landscaping, the planners agree that the landscaping on the northern boundary to a maximum height of RL 34.0 won't impact on the views from 22A Awaba Street or 20 Awaba Street. They note that the landscaping along the southern boundary of 20 Awaba Street is also conditioned to a maximum height of RL 34.
While they disagree on the final height of the covered terrace, the planners agree that the height of any landscaping along the site's western boundary should be limited to the height of the terrace.
Amendments
During the conciliation stage and after the site inspections, the applicants amended their position and now propose a reduction in overall height of the development by 150mm. This reduces the non-compliant building height to 100mm in the south-eastern portion of the clerestory roof. During the hearing, the architect advised that the covered terrace could be lowered an additional 150mm by modifying its construction.
The planners agreed that this help retain more of the views from 20 and 22A Awaba Street however Ms Laidlaw still considers the quality of the views will remain compromised unless the full height reduction is imposed.
Submissions - views and view sharing
Ms Walsh for the council supports Ms Laidlaw's opinion detailed in the joint report. In effect, the applicants have taken the benefit of a number of other non-compliances accepted by council but on balance, the full 500mm reduction in height is preferred for the reasons given by the MDAP. While sections of the new dwelling may be lower than the existing dwelling, and the floor levels are lower, the design of the building with its particular roof structure means that it effectively blocks more of the view than the existing dwelling with its pitched roof. Priority should be given to views from living areas rather than bedrooms.
In essence, the council's position is that the proposed levels do not achieve the relevant view sharing aims clearly stated throughout the MDCP.
In regards to Mr Long's use of the view sharing Planning Principle published in Tenacity, Ms Walsh contends that the approach to be used in assessing view sharing should be the method detailed in the MDCP. Planning Principles do not have the determinative weight of a DCP. While Tenacity considers views over side boundaries to be more difficult to retain, cl 4.3 of MDCP makes no such distinction.
Mr McKee places considerable weight on the report to council dated 27 May 2013 prepared by council's Executive Town Planner in regards to the modification application. The officer assesses the impact of the proposal, in particular the areas of non-compliance, considers the impacts from 20 and 22A Awaba Street and concludes by generally supporting the proposal with the exception of the lawn and covered terrace which should be reduced by 500mm in order to limit the impact on views from 22Awaba Street.
In regards to view sharing and the views from 20 Awaba Street, Mr McKee argues that the removal of the Liquidambar and its replacement with smaller growing species, will deliver a superior panoramic view to that currently available. He maintains that the combined effect of removing the tree and reducing the height by 150mm will provide a net gain in the view of at least 25%. He contends that any more than 150mm will reduce the view from the bedroom level to a sliver of water. He considers that the applicants' views across their front boundary shouldn't be overly compromised for a view across a side boundary, particularly when the general view will be enhanced.
In regards to 22A Awaba Street, Mr McKee considers that notwithstanding the fact that the panoramic views from the main living room will be improved by the removal of the Liquidambar, the reduction in the height of the terrace will significantly reduce the impact on views from the ground floor living room.
Findings - Views and view sharing
After considering the evidence and having had the benefit of inspecting the site and the affected properties I find that the appeal should be upheld in accordance with conditions of consent including requiring the lowering of the overall development by 150mm as amended by the applicants and with a further 150mm reduction in the height of the covered terrace at the rear of the property. My reasons are given below.
The relevant zone objective in MLEP 2012 encourages development that 'has regard' to local amenity, in particular public and private views. A key theme of MDCP is the encouragement of residential development that enables the sharing of views from residential properties that may be affected by the development: not surprising given Mosman's physical setting.
In particular, cl 4.3 MDCP sets the objectives and planning controls for the achievement of reasonable view sharing. The assessment process is given in [26] of this judgment. While it is not unreasonable for Mr Long to refer to the view sharing principles in Tenacity as they are frequently used in matters such as these, the assessment process in the DCP should prevail. I agree with Ms Walsh that the DCP does not distinguish between views across front or side boundaries.
The associated planning controls require view loss to be 'minimised' and development must not 'significantly' obstruct views from living and entertainment areas. The DCP states that views from areas other than living areas will not be protected. The assessment requires consideration of the view from standing positions.
The views in contention have been described in detail elsewhere in this judgment. While I can't verify Mr McKee's mathematics on the quantitative improvement of views from the living areas of 20 Awaba Street, I agree with him that there will be an improvement in the overall panorama available all year round as a consequence of the removal of the Liquidambar. Given the agreed position of the MDAP to permit its replacement with three small trees, the benefit will be long term. Although a portion of the more complex view of boats moored on Hunters Bay will be lost, I am not satisfied that the obstruction is significant enough to warrant the full lowering of 500mm.
The inspection of the existing dwelling on the site was useful in understanding the levels proposed by the applicants and by council. The floor levels of the entry and first floors are significantly lower than the existing floor levels and the views from those levels, while expansive, will be more compressed from the new dwelling, particularly from the entry level. I take Mr McKee's point that the site has the opportunity for views across its frontage and that potential should not be unreasonably limited.
Ms Walsh drew my attention to the package of controls in MRDCP that include view sharing as an element and the non-compliance with a number of them. The principle areas of non-compliance arise from the three-storey portion of the dwelling on the south-eastern side of the site. While level 1, which includes the garage and other utility areas, appears to be mostly below the existing ground level, it nonetheless appears as a (non-compliant) three storey dwelling at that corner. This in turn creates a non-compliance with wall height and side setback. However, these non-compliances are raised in the context of impact on views.
The portion of the dwelling that compromises the view from 20 Awaba Street is substantially compliant. The non-compliance with the development standard for height of buildings in cl 4.3(2) MLEP 2012 is reduced to a very small portion of the clerestory roof (100mm high x 1 metre length = 0.1m2). I agree with Mr Long that this non-compliant section has a negligible impact on any views from 20 Awaba Street.
While Ms Laidlaw presses the three storey element of the dwelling and the impact on the overall height and therefore impact on views, I note the council officer's report considers that notwithstanding the areas of non-compliance, the proposal is acceptable in terms of its impact on views from public areas and 20 Awaba Street. In addition, the council officer determined that the proposed height will not result in a significant increase in bulk and scale and that overall, the development is consistent and compatible with neighbouring properties and the streetscape. I am not persuaded that the design, including the three-storey element, or siting of the dwelling is unreasonable in the circumstances.
Where the council officer did take exception to the modified proposal is in regards to the impact on views from 22A Awaba Street as a consequence of the covered terrace. The officer recommends the full reduction of 500mm for the rear of the property. Given the agreement to reduce the height of the development, including the rear yard and terrace by 150mm with a further reduction in height of 150mm of the terrace structure, I am satisfied that the views from the ground floor living area of 22A Awaba Street will not be significantly obscured and the impact will be minor. Any landscaping along the western boundary is to be limited to the height of the terrace (noting that the northern boundary landscaping is limited to RL 34.0).
Therefore, I am satisfied that the proposal with the levels as amended will achieve the relevant zone objective for Zone R2 as well as the relevant aims of MRDCP in that the development will minimise view loss from affected residential properties.
The northern boundary fence and front retaining walls
During the site inspection, the planners agreed that some changes could be made to the southern portion of the front garden and retaining wall along the northern edge of the driveway. These would reduce the visual impact of the second tier of retaining walls. The detailed levels are described in the joint report.
The main portion of the secondary retaining wall in contention is towards the northern end. This portion screens an outdoor shower [to be used after visiting the beach]. The applicant seeks an increase in height of 700mm to the level conditioned by council. Council considers the proposed wall to be of excessive height and bulk. The use of vines and other landscaping to soften the visual impact of the stone wall was discussed on site.
Mr Long considers that the proposal is acceptable given the deep setback of the dwelling from the street and the already wide variety of styles of front fences, landscaping, walls, garages, and so on within the front setbacks of nearby properties.
The portion of the northern boundary fence in contention is the first section of the stepped fence from street level. The council contends that MDCP requires front and side fences forward of the building line to be no more than 1.2m above footpath level. At the very least the council requires the last panel of the side fence to be of an open palisade style.
The existing wall and fence between the site and the adjoining property to the north is wholly located on the applicants' land. The applicants' position is that the side fence and its supporting wall form the rear fence of the adjoining property and that a fence is necessary for safety reasons given the drop in level. The proposal is to rebuild and relocate the fence along the boundary but in its current form, which is a masonry retaining wall topped by timber panels.
Findings - Fence and retaining walls
Based on the circumstances of the site and within the context of the surrounding properties, I am satisfied that the modifications to the retaining wall on the northern side of the driveway, as discussed by the planners, should be implemented. The modifications will reduce the visual impact of the wall in that location.
I am also satisfied that the northern portion of the second tier of retaining wall can be retained at the height proposed by the applicants however the landscape plan must be amended to include species of shrubs and or vines that will provide more effective screening than the species currently shown on the landscape plan. Although the height of that section of wall breaches the control in WRDCP, given the nature of the site and its topography, the proposal is not out of character with surrounding and nearby developments. It will not unreasonably detract from the visual amenity of the site or unreasonably impact on the Lavoni Street streetscape.
In regards to the easternmost portion of the northern boundary fence, the proposal is to replace like with like. As this fence is the rear boundary of the adjoining property to the north, for safety, privacy and aesthetic reasons I consider it is appropriate to maintain the existing character and allow the proposal. To require a very different style of fence for one panel would seem to me to complicate rather than unify its presentation to the street.
22 Lavoni Street - privacy
The contention raised by council in regards to this property is unreasonable impact on privacy, in particular, on the northern side entrance to this dwelling, as a consequence of the raising of the level of the rear garden. This in turn would necessitate an increase in height of the dividing fence and associated visual impact.
The planners agree that modifications to the design and levels of the access stairs on the site as well as changes to the height of the boundary fencing and landscaping could achieve a better outcome for No. 22 and maintain the applicants' privacy.
The owners of No. 22, who have lived there for 56 years, also raised concerns over the impacts of landscaping on solar access to the windows of north-facing rooms and the outlook from them.
It was agreed in later discussions that solar access would not be compromised and that the modifications proposed by the planners would address the owners' concerns.
Findings - 22 Lavoni Street
I am satisfied that the concerns raised by the owners of this property, and by the council on their behalf, can be addressed by the measures proposed by the planners. Directions will be made to ensure that either the plans are marked to show the changes or that conditions describing the changes are made.
Conclusions and directions
For the reasons given above, I find that the top two levels of the dwelling, and the lawn, drying court and the area on which the covered terrace is to be constructed in the rear yard of the development are to be lowered by 150mm (and not by 500mm). The covered terrace structure is to be reduced in height by 150mm. These changes achieve a degree of view sharing I believe is consistent with the aims and objectives of MLEP and MRDCP. Amended plans and associated conditions of consent are to be prepared to reflect the new levels.
To ensure that views from 22A Awaba Street are not severely obstructed by the proposed landscaping, the height of any plants along the rear or western boundary of the site, or in the south-western portion of the rear garden, is to be limited to the finished height of the covered terrace. This height is to be conditioned and marked on amended landscape plans.
The landscape/ site plans and conditions of consent are also to be amended to reflect the findings/agreements noted in paragraphs [74], [80], [81] and [83] of this judgment in regards to the front retaining walls and north side fence and the steps, fence and landscaping adjoining 22 Lavoni Street.
As this is a modification application, the parties are to agree on a consolidated set of conditions that incorporate all conditions applicable to the development.
Orders will be issued in Chambers upholding the appeal once the plans and conditions are finalised as per the directions below.
Directions
(1) The applicant is to file and serve amended plans that reflect this decision by 23 October 2013.
(2) The parties are to file and serve agreed consolidated conditions of consent by 30 October 2013 - both in hard copy and electronically in Word 97 format.
(3) Final Orders will be issued in Chambers.
__________________________
Judy Fakes
Commissioner of the Court
Decision last updated: 16 October 2013
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