Janian v Mosman Municipal Council

[2006] NSWLEC 549

Land and Environment Court

of New South Wales

CITATION:

Janian v Mosman Municipal Council [2006] NSWLEC 549

PARTIES:

APPLICANT
Albert Janian

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10180 of 2006 and 11490 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Demolition, environmental impacts, landscaping, vehicular access, driveway, fencing, views,

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 1998
State Environmental Planning Policy No. 19 - Bushland in Urban Areas
Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours
Draft Sydney Regional Environmental Plan - Sydney Harbour
Catchment 2004
Mosman Local Environmental Plan 1998
Mosman Residential Development Control Plan
Development Control Plan for SREP 23 - Sydney and Middle Harbours
Draft Sydney Harbour Foreshores and Waterways Area Development Control Plan 2004
Sydney Regional Environmental Plan - Sydney Harbour Catchment 2005
Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

DATES OF HEARING:

01-02/06/2006

 
DATE OF JUDGMENT: 

08/31/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso, barrister
Instructed by Mr J Hannaford, solicitor
Of: Hannaford Lawyers

RESPONDENT
Ms J Hewitt, solicitor
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

31 August 2006

10180 of 2006 and
11490 of 2005 Albert Janian v Mosman Municipal Council

JUDGMENT

1 This was two appeals No. 11490 of 2005 and No.10180 of 2006 between Albert Janian and Mosman Municipal Council. The 2005 appeal is in regard to an order under s.121B of the Environmental Planning and Assessment Act 1979 to demolish construction not built in accordance with Development Consent 8.2003.287.1 and restore to compliance. The 2006 appeal is against the conditions of consent to a s 96 application to amend Development Consent 8.2003.287.1. The appeals involve a newly constructed house and landscaping at 5 Pearl Bay Avenue, Mosman.

• Proceedings No. 11490 of 2005 is against Council's Order No. 13.2005.65.1; and
• Proceedings No. 10180 of 2006 is against Council's conditional approval (majority refusal) of section 96(2) Application No. 8.2003.284.4.
Terms of the order

2 The order relates to works not having been constructed in accordance with approved development application plans. The terms of the order directed the applicant of the current proceedings to:

1. Partially demolish the driveway such that the finished driveway is sited in accordance with plan A01 Issue B dated 18 November 2003 by Atelier Haefeli stamped and approved under Development Consent 8.2003.287.1.

2. Remove part of the rockwall and backfill under the driveway such that its final location does not extend laterally beyond the alignment of the finished driveway referred to in point 1 above.

3. Remove the partially completed garbage enclosure and the slab supporting it.

4. Alter the northern most window on the western elevation of bedroom 1 to conform to that shown on plan A01 Issue B dated 18 November 2003 by Atelier Haefeli.

5. Alter the family room window on the western elevation to conform to that shown on plan A01 Issue B dated 18 November 2003 by Atelier Haefeli and as modified by Condition 4 of Development Consent 8.2003.287.3.

The section 96(2) application

3 The s 96(2) application was the third proposed modification to the consent and sought the following changes:

Driveway

(1) Retrospective approval to retain the driveway in its built location. This would involve the deletion of Conditions 1A and 52A;
(2) Some form of balustrading along the western side of the driveway, full details of which with respect to height and materials were not provided on either plans or in the Statement of Environmental Effects.
Fencing

(3) increasing the height of the front fence from 1.2 m to 1.8 m
(4) increasing the height of the driveway gate from 1.2 m to 1.8 m and allowing it to remain for the proposed driveway width. This would involve deleting Condition 39E;
(5) retrospective approval for a retaining wall along the cliff line and provision of a 1.6 m high stainless steel balustrade;
(6) retrospective approval for the eastern side boundary fence to allow the masonry wall built in contravention to condition 39D to remain. The wall is generally 1.8 m high and contains a lintel over the roots of tree 9;
(7) provision of a brushwood fence of variable height between 1.8 m and 3.4 m along the eastern side boundary and generally forward of the building's south-eastern corner (i.e at bedroom 4 and the living room);
(8) retention of the existing chainwire fence along the western side boundary;
(9) provision of a 2.0 m high 7 m long batten screen inside the chainwire fence along the western boundary commencing from the cliff at the rear and heading south;
(10) provision of a 1.2 m high 3 m long batten screen as a continuation of the western boundary screen but travelling along the top of the cliff line;

Planter bed

(11) provision of a planter bed in the location of the previously proposed garbage enclosure and in lieu of Condition 1C (and Council's order) which requires its removal inclusive of its supportive base;

Windows

(12) retrospective approval for retention of the western facing full height window for bedroom 1 but with obscure glass to replace clear glass on its lower panel. This would involve modifying condition 1D and not pursuing Council's order;
(13) retrospective approval for retention of the western facing full height family room window with its present clear glass. This would involve deleting condition 1D as it relates to the family room and not pursuing Council's order;

Landscaping including Landfill

(14) revised landscaping plan including retrospective approval for extensive fill. The fill comprises demolition waste and blue metal. Approval of the landscape plan would necessitate deletion of Conditions 15A, 39A, 47 and 48.

4 Beyond the above, there have been additional works carried out without consent on the site. This includes planter boxes in front of bedroom 4 which do not appear on the proposed landscaping plan. Numeric data relevant to the s 96 application (and the Order as applicable) is as follows:

CONTROL	STANDARD	PROPOSED	COMPLIANCE
Landscaped Area
8.2003.287.1 approved 8.2003.287.3 proposed 8.2003.287.3 conditioned 8.2003.287.4 proposed	325.1 m2 380.5 m2 380.5 m2 376.3 m2	372.2 m2 (+14.5%) 182.0 m2 (-52.2%) 229.7 m2 (-39.6%) 110.0 m2 (-70.8%)	Yes No No No
Driveway Width	6 m (maximum)	6.8 m - 8.0 m	No
Crossing Width	3 m (maximum)	6.5 m - 9.0 m	No
Privacy	Sill heights or permanent glazing to 1.6 m	Full height windows overlooking neighbour's private open space	No
Fencing Height Front Eastern side front of dwg Western side front of dwg	1.2 m 1.2 m 1.2 m	1.8 m 2.0 m approximately 1.8 m - 3.4 m	No No No

THE SITE

5 The site comprises one allotment, namely Lot 5 in Deposited Plan 8492 and is known as 5 Pearl Bay Avenue, Mosman.

6 The site is located on the northern side of Pearl Bay Avenue between Spit Road to the east and Government Road to the west.

7 The site is irregular in shape with a frontage of 23.16 m to Pearl Bay Avenue. The eastern side boundary measures 44.90 m and the western side boundary 47.21 m.

8 The rear of the site has a frontage of 23.335 m to The Spit Reserve which in turn has water frontage to Pearl Bay within Middle Harbour.

9 The site contains a retaining wall at its front boundary and a cliff towards its rear boundary. The main portion of the site where the new dwelling is located is relatively level due to previous cut and fill works.

10 As at August 2005 there had been numerous (approximately 65) variations to approved plans or conditions. Many of these were addressed by way of retrospective approval pursuant to s 96(2) Application 8.2003.284.3. Others were subject of the order and s 96(2) Application 8.2003.284.4 which form the basis of these proceedings.

11 There are two trees remaining on the portion of the site above the cliff, one within the front setback adjacent to the elevated driveway and one along the eastern boundary, in general proximity to the rear north-eastern corner of the dwelling.

12 The site is located within a bushfire vegetation buffer and a foreshore scenic protection area. There are no other known hazards that affect the site.

THE LOCALITY

13 The Spit Reserve and Quakers Hat Park are located to the north of Pearl Bay Avenue properties and separate those sites from Pearl Bay. Both the Spit Reserve and Quakers Hat Park are listed as heritage items under the Mosman Local Environmental Plan 1998.

14 The built form of the locality predominantly comprises detached two storey dwellings

15 The landscape character for the surrounding allotments comprises canopy trees amongst turfed or otherwise vegetated gardens, often separated by retaining walls to account for topography of the land.

16 Due to the cliff running through many allotments backing onto the reserve, quite a few have elevated structures that overhang the cliff, such as swim pools and decks, some on tall piers, some on retaining walls that are visible from the reserve below.

17 The reserve to the rear of the site is zoned 6(a) Public Recreation while the site itself is zoned 2(al) Residential.

STATUTORY CONTROLS

18 The following statutory controls were considered in the assessment of s 96 Application 8.2003.287.3 which forms the background to the Notice of Intention to Give an Order and then the Order itself:

• State Environmental Planning Policy No. 19 - Bushland in Urban Areas
• Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours
• Draft Sydney Regional Environmental Plan - Sydney Harbour Catchment 2004
• Mosman Local Environmental Plan 1998
• Mosman Residential Development Control Plan
• Development Control Plan for SREP 23 - Sydney and Middle Harbours
• Draft Sydney Harbour Foreshores and Waterways Area Development Control Plan 2004
• Notifications Development Control Plan
• Mosman Section 94 Contributions Plan - Open Space

19 By the time of the order being appealed and the third s 96 application being lodged, SREP 23, the draft REP and their related DCPs had been repealed and replaced by:

• Sydney Regional Environmental Plan - Sydney Harbour Catchment 2005; and
• Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005.
  

20 This judgment will not address the repealed plans. In any event, their controls are largely subsumed by the new plans.

21 The following is a brief summary of applicable provisions from the remaining relevant statutory controls:

State Environmental Planning Policy No. 19 - Bushland in Urban Areas

22 Clause 2: Clause 2 provides plan aims and objectives. Of particular relevance are subclauses:

(1) which provides a general aim to protect and preserve bushland within the urban areas because of its value to the community and its importance in terms of natural heritage and aesthetic value;
(2)(a) to protect the remnants of plant communities which were once characteristic of land now within an urban area;
(2)(g) to protect bushland for its scenic values, and to retain the unique visual identity of the landscape; and
(2)(i) to protect existing landforms, such as foreshores.

23 Clause 9: Clause 9 applies to land adjoining land zoned for public open space. Clause 9(2)(b) requires, inter alia, consideration of the following matters prior to a grant of development consent:

(d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, the siltation of streams and waterways; and
(e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes.

Sydney Regional Environmental Plan - Sydney Harbour Catchment 2005

24 Clause 2: Clause 2 provides aims of the Plan. Of particular relevance are the following:

(1)(a)(i) to ensure that the foreshores and waterways of Sydney Harbour are recognised, protected, enhanced and maintained as an outstanding natural asset;
(1)(b) to ensure a healthy environment on land and water;
(2)(c) protection of the natural assets of Sydney Harbour has precedence over all other interests.

25 Clause 21: Clause 21 relates to biodiversity, ecology and environment protection. Subclause (a) provides development should have a neutral or beneficial effect on the quality of water entering the waterways.

26 Clause 25: Clause 25 refers to scenic quality issues. Subclause (b) provides that development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its foreshores.

27 Clause 26: Clause 26 relates to views. Subclause (b) provides that development should minimise any adverse impacts on views and vistas to and from public places.

Mosman Local Environmental Plan 1998

28 Clause 2: Clause 2 provides plan objectives. Of particular relevance are subclauses:

(b) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity;
(f) to enhance and protect the scenic amenity of Sydney and Middle Harbours; and

(l) to protect, conserve and enhance the landform and vegetation, especially foreshores or bushland, in order to maintain the landscape amenity of Mosman.

29 Clause 11: Clause 11(1) identifies residential zones. The site is zoned Residential 2(a1). Of relevance are the following zone objectives:

• Maintain the general dominance of landscape over built form, particularly on harbour foreshores;
• Ensure that development is of a height and scale that complements existing buildings and streetscapes;
• Encourage residential development which has regard to local amenity; and
• Maintain the natural character of the harbour foreshore by ensuring that landscape dominates over built form.

30 Clause 14: Clause 14 provides objectives and a development standard for floorspace ratio. The increased area of structures constitutes floor space resulting in an FSR of 0.604 to 1. The following clause objectives are relevant to the driveway, garbage enclosure and rockwall:

(a) to control the scale of development so that it is compatible with housing characteristics of the locality;
(b) to retain natural ground levels for the purpose of landscaping;
(c) to minimise the effects of bulk and scale of new development.

31 Clause 15: Clause 15 provides objectives and a numeric requirement (not a development standard) for landscaped area. Each of the following objectives are relevant:

(a) to maintain and enhance the landscape and townscape character of Mosman's residential areas by requiring landscaping of sites in conjunction with other development;
(b) to maintain a general dominance of landscape over buildings, particularly on harbour foreshores and in the 2(al) and 2(a2) Residential zones;
(c) to maintain and enhance significant vegetation, especially mature trees.

(d) to maintain natural ground levels, especially near boundaries, and to limit excavation of sites; and

(e) to ensure there is adequate and useable ground level open space for recreation, landscaping and containing urban run-off.

32 The development as originally proposed involved a landscaped area of 372.2m2 (325.1 m2 required, 14.5% excess). Subsequent s 96 applications involving additional hard surface areas and illegally built additional rooms turned the excess into a deficit. The current s 96 application proposes a landscaped area of 110.0m2 (376.3m2 required, 70.8% variation).

33 Clause 27: Clause 27 requires a consideration of Sydney Regional Environmental Plan - Sydney Harbour Catchment 2005. Also of relevance is objective (a) to recognise, protect and enhance the natural, visual, environmental and heritage qualities of Mosman.

34 Clause 29: Clause 29 provides controls for contamination, with an objective of requiring remediation of contaminated sites to ensure safety. A full account of the nature of the illegal fill dumped on the land has not been provided. It appears that the fill includes building waste, blue metal and cementitous material.

35 Prior to granting consent for the fill, testing would be required to verify its content and the need or otherwise for remediation.

36 Part 9: Part 9 provides heritage conservation controls. Clauses 32 (objectives) and 37 (Development in the vicinity of heritage items) are applicable but do not raise any issues of direct relevance to the current appeals.

Mosman Residential Development Control Plan

37 Section 1.4: Section 1.4 provides plan objectives. Of relevance, inter alia are objectives to:

(b) conserve neighbourhood character and sensitively manage the desired future character of Mosman and its individual townscapes.

(c) enhance and protect the scenic amenity of Sydney and Middle Harbours;

(d) protect, conserve and enhance the landform and vegetation to maintain the landscape amenity of Mosman Municipal Council; and

38 Section 3: Section 3 outlines the importance of a site analysis such that the context of the site is properly considered to achieve well designed development that makes a positive contribution to its surroundings and neighbouring dwellings. A stated benefit of the analysis is that designs can be produced which minimise negative impacts on the amenity of adjoining developments.

39 Amongst other matters, the site analysis should consider surrounding buildings, privacy, local character, streetscape and kerb crossovers.

40 All works subject of the Order and those parts of the s 96 application for which retrospective approval is sought have been completed without this step in the development process and therefore did not have the beneficial advice arising from a site analysis.

41 Section 4.2: Section 4.2 provides height, setback and building bulk controls. Relevant objectives and planning guidelines are:

(f) limit potential for bulky houses and encourage sensitive siting of buildings and leafy garden character.


01 to have buildings which address the street.

03 to have adequate side setbacks to provide spatial relief;

05 to have the height and scale of development which relates to the topography with minimal cut and fill.

06 to have a scale of development which is not excessive and is consistent with the existing or desired future character of the area;

P10 Building siting should promote new planting;

P12. Development must be consistent with the objectives and requirements for floorspace ratio of Clause 14 of the Mosman LEP 1998.

42 Section 4.3: Section 4.3 provides controls for view sharing. The following matters are of limited relevance to minor views available from the public footpath (in the vicinity of the proposed 1.8 m front fence) down the eastern side of the house.

• It is important to protect, maintain and, if possible, enhance views through building design.

  
  01 To have opportunities for public vistas and public views from streets and public places protected and enhanced.

43 Section 4.4: Section 4.4 provides landscaping controls. The following objectives and controls are of relevance:

01 To have the existing canopied and vegetated landscape character of Mosman townscape areas protected and enhanced;

P1 Landscaping must be consistent with the objectives and requirements of Clause 15 of Mosman LEP 1999; and

P4 Where soil and drainage conditions are suitable, unpaved or unsealed landscaped areas are to be maximised and designed to facilitate on-site absorption of stormwater.

44 Section 5.1: Section 5.1 provides streetscape and building design controls. Of relevance are the following objectives:

01 To have development of a scale and appearance which is in keeping with the street and neighbourhood character;

03 To have streetscapes which are compatible with and support the desired future character objectives of the townscape areas;

05 To promote open style fencing as a means of reducing the visual impact of solid fencing styles and encouraging safety through passive surveillance of streets and private property;

P8 Development should respect the defined desired future character of the townscape area. See section 6.12 below;

P14 Front fences, and side fences forward of the building line, should be no more than 1.2 m in height above footpath level;

P17 To improve household security, low/open style fences are encouraged; and

P18 Where public views are available from the street, these should be preserved by open style fencing.

45 Section 5.2: Section 5.2 relates to car parking and access. Of relevance are the following comments, objectives and controls:

• The provision of car parking should reasonably satisfy the needs of current and future residents, but recognise the need to balance car parking access and provision with design objectives;
  

• Garages, carports and vehicle access crossovers are to be minimised to reduce the visual dominance of car parking areas and access ways in the streetscape;

03 To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for street planting;

P10 Driveways must not exceed 6 m. Vehicular crossings should not be more than 3 m in width to minimise the loss of on street parking; and

P18 Elevated car parking structures and driveways on steeply sloping sites are discouraged.

46 Section 5.6: Section 5.6 relates to privacy. The following comments, objectives and controls are of relevance:

• Privacy needs of neighbours should influence all stages of design;
• Proposed plans must consider and respect the amenity and privacy of neighbouring properties and the enjoyment afforded by both external and internal living areas;

01 To have adequate visual and acoustic privacy levels for residents and neighbours; and

P1 Habitable room windows with a direct sightline to the habitable room windows or private open space in an adjacent dwelling within 9 m must:

• have sill heights of 1.6 m above floor level; or
• have permanently fixed obscure glazing in any part of the window below 1.6 m above floor level.

47 Sections 5.9 and 5.15: Sections 5.9 and 5.15 provide controls for site facilities and waste management. The following matters are of relevance:

• Site facilities are to be accessible and not create amenity problems such as smell and unsightliness. The impacts of site facilities on neighbours and the overall appearance and the local streetscape need to be considered;

04 To have site facilities thoughtfully and sensitively integrated into development so as not to be obtrusive and unsightly
P1 Site and waste facilities should be located and designed for attractive visual appearance and function, and complement the architecture and neighbourhood character;

P10 A waste and recycling storage area must be visually and physically integrated into the design of the development. The design of the waste and recycling storage area must not detract from the aesthetics of the streetscape;

P6 Re-used and recycled waste generated from demolition and/or construction should be appropriately transported off-site to a nominated storage location;

P7 To monitor and manage demolition and construction waste, records of all waste materials leaving site should be maintained; and
P8 For all residential developments, adequate provision must be made for the storage and collection of waste and recycling receptacles.

48 Sections 5.12 and 5.13: Sections 5.12 and 5.13 provide stormwater controls. The following matters are of relevance:

P1 Development should maximise the opportunity for stormwater re-use and must comply with Council's On-site Detention Policy;

P4 Hard surfaces such as driveways should be minimised to reduce stormwater runoff;

P5 Rain water tanks should be used to reduce mains water consumption and minimise the amount of stormwater entering the drainage system;

01 To have the adverse effects of stormwater on the environment minimized;

02 To have stormwater quality and quantity controlled and eliminate stormwater discharge to adjoining properties;

03 To have surface water run off minimized;

P1 Disturbance to the natural drainage pattern should be minimised where possible - development must be consistent with the natural hydrology as much as possible;

P4 Non-porous surfaces should be minimised to reduce stormwater run-off; and

P5 Drainage from any site must be in accordance with the Guidelines for Stormwater Drainage Systems and Council's Policy for On-site Stormwater Detention.

49 Section 5.14: Section 5.14 provides site management and excavation controls. The following controls are of relevance:

P6 For all excavation operations that require the use of fill, only clean fill is to be used;

P8 Reconstituted ground levels must not be higher than the ground level of an adjoining property;

P54 A preliminary site contamination investigation is required to be undertaken for all sites involving excavation which may or has the potential to be affected by contamination. In this regard the applicant should refer to DUAP and EPA's "Managing Land Contamination Planning Guidelines 1998"; and

P55 If the preliminary investigation demonstrates the existence or potential for contamination on the site, Council may request the applicant to submit a detailed site contamination investigation and a remedial action plan prior to determining a development application.

50 Section 6.12: Section 6.12 provides controls for Middle Harbour / Pearl Bay townscape. Of relevance are:

Desired future character objectives to maintain:
• public views to Middle Harbour;
• the architectural diversity of the area and limit bulky mega dwelling
• the blend with the natural environment on lots adjoining the Reserve by discouraging fencing between them.
Desired future character objectives to encourage:
• generous side setbacks that allow for landscaping;
• views between buildings; and
• low open style front and side fences.

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

51 Section 2.2: Section 2.2 provides general ecological aims including that development not impact adversely on water quality.

52 Section 2.3: Land to the foreshore side of the site is noted as Open Forest Type A and Open Forest Type B which have medium and high conservation values respectively.

53 Section 2.4: Section 2.4 provides that the higher conservation value of Open Forest Type B is to prevail (unless it can be demonstrated otherwise). Tables 2 - 4 provide performance criteria which include the following:

Soil Conservation - The area of paving or other non-porous surfaces is to be minimised.
Pollution Control - Any increase in suspended solids is temporary and does not exceed the current range or turbidity.

54 Section 3: Section 3 provides landscape character types and performance criteria for each type. The reserve adjoining the site's foreshore side is landscape character type 9.

55 Section 5.6: Section 5.6 outlines appropriate species for new plantings.

Mosman Section 94 Contributions Plan - Open Space

56 The s 96 appeal purports to appeal the s 94 contribution imposed by Condition 20. The s 96 application did not seek to delete or modify condition 20 and to this end, it is unclear what is at issue. Nonetheless, applicable controls are as follows:

Section 1 : Section 1 outlines that the purpose of the Plan is to enable the acquisition and embellishment of land for the purpose of open space in Mosman. The acquisition and embellishment is achieved by levying s 94 monetary contributions on approved residential developments.

Section 2 : Section 2 provides that the plan applies to all land within the Mosman Municipality and provided the development involves an intensification of residential development. This includes, inter alia, the erection of a new dwelling which involves an increase in the number of bedrooms (or rooms likely to be used as bedrooms) from the former dwelling. It is this development which accommodates an increased population which is likely to increase the demand for open space and recreational facilities in Mosman.

Section 4 : Section 4 identifies the nexus between creating additional residential accommodation and the increase in demand for open space.

The Section also provides the mechanics for the operation of the contribution in terms of calculating the increase in population with reference to census data on occupancy rates for dwelling houses based upon the number of bedrooms they contain. Condition 20 was calculated on the basis of a four bedroom dwelling (occupancy rate 3.36 people) replacing a 3 bedroom dwelling (occupancy rate 2.65) multiplied by the contribution rate at the time of $4055 per person (i.e (3.36-2.65) x $4055 = $2879.05).

Section 7: Section 7 provides the contribution rate per person and outlines that the rate is indexed annually. The rate at the time of the development application being determined was $4,055 per person.

Section 8: Section 8 provides controls for the administration of the Plan. Of note is that payment is required prior to the release of the Construction Certificate. This occurred with payment on 30 January 2003.

Notification Development Control Plan
SECOND SECTION 96 APPLICATION

57 Council does not notify neighbouring properties of the Order process. Comments in relation to matters subject of the order were, however, received in the second s 96 process, a brief synopsis is:

58 Four objections received from 7 and 8 Pearl Bay Avenue. Objections included but were not limited to:

• The increased size of the driveway is unattractive and not required;
• The garbage room is unsightly and not in keeping with other houses in the street;
• Landscaped area;
• Landscape provision near the driveway; and
• Window size and treatment.

THIRD SECTION 96 APPLICATION

59 In relation to notification of the third s 96 application two submissions were received from 7 Pearl Bay Avenue. A late submission from 8 Pearl Bay Avenue was submitted on 23 February 2006. Matters raised within public submissions included:

Privacy
• Obscure glazing of windows is not a permanent solution. The developer or another future owner could simply reglaze;
• A masonry sill would dramatically reduce vision into our property and provide the privacy we require and expect;
• The unapproved enlargement of windows is not needed to improve light or gain a view. The site already enjoys views to the north and west and need not rely on these areas;
• The family room and bedroom tower over No. 5 Pearl Bay Avenue;
• Shrubbery at No. 7 has reached maturity. Any new planting at No. 5 would take years to establish;
• The asserted justification for privacy from the family room window is that it is 18-20 m from the outdoor pool and patio areas. This is misleading. The window is 4 m from the eastern edge of the pool, 7 m to the middle of the pool, 13 m to the middle of the deck and 19m to the western edge of the deck;
• A masonry sill for the family room and bedroom would reduce the areas within the dwelling from which you could view No. 7's outdoor areas and family dining area;
• With windows as they are, using our pool and deck entertainment areas will feel like we are in a goldfish bowl, therefore restricting the use of our own facilities which we have used unfettered for 17 years;
  
  Process/Precedent
  
• As adjoining residents we relied upon the law and planning process. Council has an obligation to protect ratepayer's amenity. The developer has constantly breached Council and building conditions despite fines and orders. The building was built without an architect's supervision without engineering details or a geotechnical report. A PCA was not appointed until after work commenced. There was a gap between the two certifiers. There have been further breaches on top of the 70 listed in April 2005. We do not believe the breaches are innocent;
• Council should consider the repercussions of approving illegal modifications. To do so would give the green light to uncontrolled development. Can developers freely change approved plans and conditions and then seek approval without regard to the planning process? It makes a mockery of Council efforts to maintain standards;
• The amendments were carried out in direct defiance of Council conditions as well as in contempt of the whole building process.

  Landfill

• Conditions have been ignored with tonnes of gravel used around the building.
• Despite being told not to have gravel, the owner went ahead and had vast quantities of gravel spread around the house.
• Turf is not difficult to maintain. The previous owner had no trouble having a suburban garden.
• The owner has built in rainwater tanks so there should be no problem watering.

Driveway

• Council has refused the widened driveway on three occasions;
• The curve meets relevant standards;
• The pot plant solution is ridiculous, it is not permanent and trivialises Council procedures;
• The applicant previously agreed to the reduced driveway and provide a green privacy screen;
• The pot plant tubs cover almost the same area as that conditioned to be removed. If the turning area as stated by the applicant is inadequate then the pot plant tubs do little to improve it;
• Pot plants will do little to screen the driveway. Removal of the illegal section is necessary for proper screening;
• The enjoyment and beauty of the front garden of No 7 would be substantially compromised if the driveway is allowed to remain;
• Almost the whole front yard of No. 7 will be on view to people on the driveway. This will stop us from using our front yard.
• No justification has been given for the 8.Om wide driveway at the kerb. The width detrimentally impacts on neighbours across the road and the streetscape.
  
  Fencing
  
• Despite purporting to have a 1.2 m brushwood fence in the location of the chain wire fence forward of No. 7's building alignment, the elevations show it to the foot of the stone fence which is ·1.5 m above the ground level of No. 7 and 2.0 m above No. 7's internal footpath level.
• The front fence is higher than it should be, is unnecessary and unsightly.

CIRCUMSTANCES OF THE CASE

60 The orders arise out of non compliance with DA 8.2003.287.1 as subsequently modified on two occasions by section 96 applications. An abridged history relevant to those issues subject of the appeal is detailed in the following paragraphs.

The Original Development Application

61 DA 8.2003.287.1 for demolition of a dwelling house and the erection of a new dwelling house was approved on 14 January 2004. The assessment report noted floorspace ratio ("FSR"), building height and landscaped area figures as indicated in the table below. The final column shows the degree of variation to the controls:

Element	Control	Proposed	Variation
FSR	0.5:1	0.52.1	3.2% variation
Building Height	8.5m	8.5m	No variation
Landscaped Area	325.1 m2	372.2m2	No variation (14.5% excess) excess)

62 A range of conditions were imposed on the consent.

The First Construction Certificate, First Notice of Intention to Give an Order, First Illegal Works and Building Certificate

63 On 15 April 2004 the Accredited Certifier issued a Construction Certificate. Some 30 variations to the approved DA plans were detected. Of note were the following (numbering is for ease of reference to plans held by Council and to match numbering in previous assessment reports):

1. Driveway shape different to that approved having a lesser setback to No. 7 Pearl Bay Avenue.
2. Garbage enclosure added without prior approval to the eastern side of the driveway.
25. Bedroom 1 window (west) increased in size.

64 Site works were commenced in March 2004 without a Construction Certificate having been issued and on 19 April 2004 the Accredited Certifer issued a Notice of Intention to Give an Order which if proceeded with would require either demolition of the unauthorised building work or the receipt of a building certificate from Mosman Council for the works completed to date. On 24 August 2004 Council issued a Building Certificate. The Certificate did not extend to any of the works the subject of either of the current proceedings.

The First Section 96 Application (8.2003.284.2)

65 On 6 April 2004 DA 8.2003.287.2 was lodged for raising the floor level of the garage by 800mm and repositioning the driveway. A report by the Director Environment & Planning was considered by Council at its meeting on 19 July 2004 where Council resolved, subject to the applicant's agreement, to allow the change in level on the basis that the driveway position remain unchanged so as to facilitate landscaping and a visual softening of the elevated structure.

66 By letter dated 23 July 2005, the applicant was requested to agree to Council's proposed condition 1A as follows:

"1(A). The point of access and setback of the internal driveway ramp from the western boundary of the site must be retained in accordance with Plan No. A01 Issue B dated 18 November 2003 by Atelier Haefeli Pty Ltd to ensure reasonable privacy and visual relief for the residents of the adjoining dwelling and retention of landscaped elements to moderate the appearance of the entry structure in the streetscape. The Construction Certificate must be amended to reflect these changes. "

67 On 9 September 2004, Council received a fax in reply to its 23 July letter 2005 from the owner, Mr A Janian,who apparently agreed to the condition.

68 On the same date (i.e 9 September) Council issued the modified development consent.

The Second Construction Certificate

69 Despite the agreement, a modified CC was lodged to the PCA showing the driveway in a yet again different location.

70 The Accredited Certifier proceeded to issue a revised CC on 6 September 2004 (3 days prior to the amended development consent having been issued). The plans incorporated 38 variations to the approved section 96 plans. Of particular relevance were the following changes:

1. Driveway shape of another different nature.
2. Different shape garbage enclosure (still without any approval). Design inconsistent between sheets 1-M and 4-M with a gate added on the former.
25. Bedroom 1 window (west) increased in size.
39. Two unspecified rooms underneath the driveway shown on an A4 engineering plan (but not on architectural and structural plans)
68. Family room window (west) increased in size.

Unapproved Works and Consequent Action

71 The site was inspected during December 2004 and January 2005 by Council staff. Amongst 9 other variations such as the roof slope being constructed in the wrong direction, the inspection confirmed the driveway as constructed was different to that approved under the DA and s 96 (or the CC and modified CC plans).

72 On 31 January 2005 correspondence was issued to the owner's representative which (a) identified differences between approved DA plans, CC plans and works as built, (b) clarified Council's position with respect to the extent to which the Building Certificate could be relied upon and (c) identified a total of 19 consent conditions which were not complied with.

The Second Section 96 Application (8.2003.284.3)

73 Following the objections received as noted above a further inspection and the detection of a further 11 variations between new plans and works as built, the following was undertaken:

• Issuing an order to stop all works on site
• Request made for corrected plans accompanied by surveyor's certification as to accuracy.
• Request made for engineering certification for matters such as floor framing, wall framing and roof framing.
• Request made for a revised landscaped plan that significantly increased soft landscaping, in particular not using decomposed granite in the rear yard.

• Request made a revised hydraulic plan that indicated the volume of rainwater tanks and a justification for the hydraulic plan.

74 As a result of the unauthorised works undertaken and the modifications sought, revised numeric data was as follows:

Element	Control	Proposed	Variation
FSR	0.5:1	0.604:1	21.1 % variation (previously 3.2%)
Building Height	8.5 m	8.8 m	3.5% variation (previously complied) complied)
Landscaped Area	325.1 m2	182.0m2	52.2% variation (previously complied with 14.5% excess)

75 The s 96 application was considered by Council at its meeting on 15 August 2005. That report (as adjusted by an 11 August 2005 memorandum) recommended, inter alia:

A. The approval of the majority of changes sought but subject to conditions, including various new conditions relating to fencing, demolition of the garbage enclosure, the driveway and turfing of yards in lieu of decorative pebbles / builders waste / blue metal. NB - the majority of these conditions have allegedly been breached or sought to be further modified on the latest s96 application. Refer to the table below for the wording of various conditions relevant to the current proceedings.

B. That a notice or notices of intent to give an order or orders be prepared requiring the following:

• partial demolition of the driveway to comply with the previously approved DA plan. This will necessitate partial removal of the rockwall and backfill under the driveway;
• demolition of the garbage enclosure and the slab supporting it;
• alteration to the northern most window on the western elevation of bedroom 1 to require compliance with previously approved plans; and
• alteration to the western facing family room window to require compliance with previously approved plans.

76 Following submissions from Mr Janian and his architect Mr.Standley and neighbouring objectors, Council debated the matter and resolved generally in line with the recommendation including conditions.

The Order

77 With regard to Pt B of Council's resolution, a Notice of Intention to Give an Order was issued on 23 August 2005.

78 Representations to the Notice were received from Hannaford Lawyers which in short sought to:

(i) retain the driveway, rockwall and family room window in their current form;
(ii) retain the garbage enclosure in its current form or alternatively reduce its height and use it as a landscape planter box; and
(iii) convert the lower panel of the bedroom window to obscure glass or apply some alternate screening and not construct the "approved deck" to the northern side of bedroom (NB there is no approved deck, the upper floor plan only shows lines for the terrace on the ground floor).

79 On 24 October 2005, a letter was issued to the owner concerning (1) work proceeding without the appointment of a PCA following the retirement of Mr Lindsay and (2) seeking full details of the proposed planter bed including its height, materials to be used, landscaping proposed and any irrigation work.

80 No reply to Council's 24 October 2005 had been received by 14 November 2005 at which time a further letter was issued advising that if no response was received by 21 November 2005 Council would proceed to finalise its position on an order. No reply was received and on 23 November 2005 the Order subject of the current proceedings was issued.

81 Subsequent correspondence from Hannaford Lawyers indicated the owner had prepared a submission on the planter box and forwarded it to Hannaford Lawyers but not Council. The submission was not passed on to Council in time and in any case did not respond in full to Council's request for details.

82 The order allowed a period of 35 days for compliance. The terms of the Order have not been met and on 13 December 2005 the current appeal was filed.

The Third Section 96 Application (8.2003.284.4)

83 On 6 December 2005 the latest section 96 application was lodged (8.2003.287.4).

84 The application sought the reversal of various conditions previously imposed and the effective reversal of the 23 November 2005 Order. The table below outlines conditions imposed (mostly from the second s.96 application) and their status as at the time of the third s.96 application being considered:

Condition No.	Condition Wording	Status
1 A	The point of access and setback of the internal driveway ramp from the western boundary of the site must be retained in accordance with Plan No. A01 Issue B dated 18 November 2003 by Atelier Haefeli Pty Ltd to ensure reasonable privacy and visual relief for the residents of the adjoining dwelling and retention of landscaped elements to moderate the appearance of the entry structure in the streetscape. The Construction Certificate must be amended to reflect these changes.	Applicant again seeks variation under this application and an effective waiving of the Order.
1 B	To minimise the dominance of hard structures over the natural environment, no approval is granted for the retaining wall and security fence along the cliff towards the rear of the property.	A retaining wall has been built without approval. Consent is sought under this application for 1.6 m balustrading on the retaining wall.
1 C	To protect the streetscape, no approval is granted for the garbage enclosure including its slab base.	Applicant seeks conversion to a planter bed and an effective waiving of the Order.
1 D	No approval is granted for full length windows on the western elevation of bedroom 1 and the family room. The northern most window of bedroom 1 and the western facing family room window is to be constructed in accordance with plan A01 Issue B dated 18 November 2003 by Atelier Haefeli Pty Ltd as modified by condition 4.	Applicant again seeks approval for full length windows and an effective waiving of the Order.
15A	The area in the rear yard marked on landscape Plan LP-JRPBA-01 C as decorative pebble is to be replaced in entirety with turf or other vegetation. Excepting stairs as approved no hard surface is to be constructed to the rear of the dwelling. Field gullys in this area are to be likewise removed. The revised landscape plan required with the Construction Certificate is to show these details.	Condition breached. Recycled building materials and blue metal have been placed extensively around the building.
16	The proposed planting on the northern boundary of Acacia longifolia `Sophorae' is to be deleted and the tube stock planting to be picked from [a list specified].	Planting not as per list
19A	The elevation of the western boundary fence does not accurately depict ground levels. The fence is to be located at ground level along the boundary line. A revised elevation plan is to be provided with the Construction Certificate application.	Plans with this application remain inaccurate.
39A	To lessen impacts on the natural environment, no approval is given for changes to ground levels to the rear of the dwelling. Levels are to be in accordance with those shown on survey plan 8292-DET Issue A dated 6/5/03.	Condition breached. Recycled building materials and blue metal placed to the rear of the dwelling. Levels not as per survey plan.
39B	The existing retaining wall along the cliff towards the rear of the property is to be removed. The materials are to be disposed of off site and not used as fill on the subject site.	New retaining wall built without approval. Unknown where old materials were deposited.
39C	To ensure consistency with the Residential Development Control Plan, side boundary fencing along the western boundary shall be limited to 1.2m in height forward of the south-eastern corner of the building at No. 7 Pearl Bay Avenue.	Fencing inaccurately depicted. Variation sought to allow the chainwire fence to remain in addition to brushwood fencing.
39D	To protect tree 9, fencing along the eastern side boundary shall only continue (from the front boundary) as far as the northern most pillar of the carport at No. 3 Pearl Bay Avenue.	Condition breached. Retrospective approval sought for constructed wall.
39E	To ensure consistency with the Residential Development Control Plan the gate across the driveway shall be limited to 1.2m in height and shall be reduced in width to reflect that of the approved driveway.	Applicant again seeks high fencing and a wider driveway under this application.
47	The fill material imported to the site is to consist of clean fill material only, that is, non-contaminated excavated material (i.e. soil, rock or similar material). Putrescible and non-putrescible solid waste, including demolition material, is not permitted.	Condition breached. Fill deposited includes demolition material.
48	No fill shall be introduced within the drip line of canopy trees on the site.	Condition breached. Fill introduced under canopy of tree 9.
52A	The driveway crossing at the kerb is to be reduced to 4m to lessen streetscape impact, to more easily accommodate street trees and to maximise on street parking. The driveway may fan out to the width of the driveway as approved at the property boundary.	Applicant again seeks variation to 9 m.
75A	A Compliance Certificate must be prepared by a registered surveyor and submitted to the Principal Certifying Authority certifying that finished ground levels are in accordance with conditions of consent.	Compliance not possible noting fill deposited over land.

85 The application was notified from 22 December 2005 and 12 January 2006, and submissions received as noted above.

86 The application was considered by Council at its meeting on 21 February 2006. Council resolved to approve the application in a limited respect to allow certain balustrading but the majority of changes were refused, consistent with its planning assessment for the second s.96 application and the order proceedings. The terms of the resolution inter alia were as follows:

A. That Development Application No. 8.2003.287.4 be approved (in part) pursuant to Section 96(2) of the Environmental Planning and Assessment Act 1979 subject to the following:

Al. Deletion of condition No. 39D.

A2. Amending conditions Nos. 1 B, 39B and 77 to read as follows:


1B. To minimise the dominance of hard structures over the natural environment, no approval is granted for a security fence along the cliff towards the rear of the property.

39B. The existing retaining wall along the cliff towards the rear of the property is to be removed. The materials are to be disposed of off site and not used as fill on the subject site. A replacement retaining wall may be provided constructed of sandstone and not to exceed finished ground levels shown on survey plan 8292-DET Issue A dated 6/5/03 by more than 100mm. Adequate weep holes to allow the slow release of any hydrostatic pressure behind the wall are to be incorporated.

77. 2 x 25 litre Jacaranda sp are to be planted as street trees either side of the Bracychiton sp. The applicant will be responsible for the establishment of these trees at least until the end of their first summer.

A3. Addition of the following conditions:

39F. To minimise its visual impact for the neighbour, balustrading along the western side of the driveway shall only be provided where the driveway's height above the adjacent ground level exceeds 1.0m. The balustrading is to be of an open nature comprising metal horizontal tension wires.

39G. To ensure adequate safety and a more appropriate relationship between the built and natural environments, stainless steel balustrading to a height of 1.0m is to be provided to the southern side of the retaining wall referred to in condition 39B.

Landfill Order Proceedings

87 With regard to Pt B of Council's resolution, a Notice was issued on 22 February 2006.

Injunction Proceedings and Further Illegal Works

88 On 7 February 2006 it was noted that further unauthorised works were proceeding regarding waterproofing and preparation works for tiling the driveway. Council commenced injunction proceeding preparations which if progressed would have sought a Court order that no works beyond those approved and not in dispute take place. This action was halted following negotiations re an undertaking to a similar effect to the proposed Court order. It would seem that a final signed version has not been exchanged amongst the applicant's and respondent's solicitors. Notwithstanding, the intent of any would be evident from correspondence between the parties.

89 On 14 March 2006 the site was re-inspected by Council. It was noted at this time that further unauthorised works had taken place to the proposed landscape planter bed (the old garbage enclosure) with respect to rendering and the placement of lights.

Partial Compliance With Order

90 The 14 March 2006 site inspection also revealed that works to the bedroom and family rooms windows seemingly consistent with Order requirements Pts (4) and (5) had taken place. The proceedings for the Order have not been modified and the applicant's architect advised that full length windows would still be sought in the section 96 proceedings.

THE ISSUES

91 Whether the proposal has an adverse privacy impact for 7 Pearl Bay Avenue.

Particulars


1 (a) Mosman Local Environmental Plan 1998 ("MLEP 1998") clauses 2(b) and 11(1) zone objective 7.
(b) Mosman Residential Development Control Plan ("MRDCP") s 5.6 01 and P1.

Landfill - Environmental Impacts

2. Whether the landfill is contaminated.
3. Whether the landfill deposited on the land will have any adverse environmental impacts on the adjoining foreshore reserve, Pearl Bay or trees on site having regard to its content and the potential for runoff.

Particulars

(a) State Environmental Planning Policy No. 19 - Bushland in Urban (SEPP 19) clauses 2(1), 2(2)(a),(g) and (i); 9(2)(d) and (e).

(b) Sydney Regional Environmental Plan - Sydney Harbour Catchment 2005 ("SREP - SHC 2005") clauses 2(1)(a)(i), (b), 2(2)(c), 21 (a) and 25(b).

(c) MLEP 1998 clause 2(l), 15(1)(c) and (e), 27(a) and 29.

(d) MRDCP s 5.15 P6; 5.13 02; 5.14 P6, P54 and P55.

(e) Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 ("SHF&WA DCP2005") s 2.2, 2.3 and 2.4.


Landfill Generally

4. Whether landfill is an appropriate landscape treatment of the site.

Particulars

(a) MRDCP s 4.2 05 and P10; 4.4 01 and P4; 5.15 P6 and P7; 5.12 P4; 5.13 02, 03, P1 and P4; 5.14 P6 and P8.

(b) SHF&WA DCP2005 s 2.4.

Drainage

5. Whether the landfill provides for suitable infiltration of ground water and whether drainage for the site is adequate.

Particulars
(a) MLEP Clause 15(1)(e).
(b) MRDCP s4.4 P4; s5.12 P1 and P4, 5.13 01, 02, 03, P1, P4 and P5.
(c) SHF&WA DCP2005 s2.4, 3 and 5.6.


Landscaping

6. Whether landscaping proposed results in an appropriate balance with the natural and built environments.
7. Whether landscaping as proposed is sustainable and of an appropriate species.

Particulars

(a) MLEP 1998 clause 2(b); 11(1) zone objectives 2, 7 and 8; 14(1)(b); 15(1)(a), (b) and (d), 15(2), 27(a), 5.14 P6.
(b) MRDCP s1.4(b), (c), (d), (f), 4.2 06 P10,.4.4 01 P1, 5.1 01, 5.1 03, 5.12 P4.
(c) SHF&WA DCP2005 s 2.4.


Vehicular Access and Other Structure Forward of the Building Line

8. Whether the driveway and associated structures forward of the building lines are excessive in size.
9. Whether the crossover is excessive in width.
10. Whether balustrading is required to the side of the driveway and if so what is the appropriate form of balustrade/wall.

Particulars

(a) MLEP 1998 clause 2(b); 11(1) zone objectives 5, 7 and 8; 14(1)(a), (b) and (c).
(b) MRDCP s 1.4(b) and (f); 4.2 03, 06 and P12; 4.4 01; 5.1 01, 03 and P8; 5.2 03, P10 and P18; 5.9 01, P1 and P10; 6.12.


Front Fencing

11. Whether a high front fence and gate is appropriate within the streetscape.
12. Whether eastern and western side boundary fences are excessive in height.
13. Whether a chainwire fence and batten screen is an appropriate boundary fence for the western side boundary.
14. Whether ground levels are accurately depicted on plans to enable a full and proper assessment with regard to fencing.

Particulars

(a) MLEP 1998 clause 14(1)(a), (b) and(c).
(b) MRDCP s 1.4(b) and (f); 4.2 01 and 06; 5.1 03, 05, P8 and P14; 6.12.


Rear Fencing

15. Whether fencing along the cliff towards the rear of the property will have an adverse visual impact.

Particulars


(a) SREP – SHC 2005 clause 25(b)
(b) MLEP 1998 clauses 2(f), 14(1)(c) and 15(1)(b).
(c) MRDCP s 1.4 (c), 4.2 06, 5.1 P8 and 6.12

16. Whether front fencing to a height of 1.8 m will detract from public views towards Pearl Bay.

NB - Views are a matter or minor town planning significance in this appeal and are resolved by way of existing conditions for 1.2 m high front fencing.

Particulars

(a) SREP SHC 2005 clause 26(b).
(b) MLEP clause 11(1) zone objective 7 and cl 14(1)(c).
(c) MRDCP s 4.3 01; 5.1 P8 and P18; 6.12.


Section 94

17. Whether condition 20 is appealable given it does not relate to the section 96 application and as the contribution has already been paid.

Particulars

Mosman Section 94 Contributions Plan - Open Space.

Orderly Development

18. Whether approval of the application would satisfy the promotion of orderly development of land as sought by objectives of the Environmental Planning and Assessment Act 1979.

Particulars

(a) Environmental Planning and Assessment Act 1979 s.5(a)(ii).
(b) MRDCP s.3.

APPEARANCES

92 At the hearing some evidence was taken on-site, and observations of places the subject of evidence were made, such as: the property, its house, its driveway, its fencing, its vegetation, its retaining wall at the rear, the streetscape, views from objectors properties and from the foreshore reserve.

93 For the Respondent were:

• Mr. B. A. Richards – landscape architect for the council
• Mr. C. Covich – civil and traffic engineer for the council.
• Mr. C. McFadzean – town planner for the council
• Mr. R. Bucknell – objector of No.7 Pearl Bay Avenue
• Mrs. R. Bucknell – objector of No.7 Pearl Bay Avenue
• Mrs. D. Cambridge – objector of No.8 Pearl Bay Avenue

94 For the applicant were:

• Ms. G. Barron – landscape architect
• Mr. M. Standley – architect/planner
• Mr. G. Sayadian – civil engineer

95 The parties had agreed that Mr J.M. Nash – scientist be appointed as a joint expert by the Court in order to analyse the fill on-site.

FINDINGS

96 Mr Covich and Mr Sayadian agreed that the gravely fill would allow, in theory, increased percolation of rainwater down stream. However, due to the detention tanks and the size of the house, garage and driveway, compared to the previous one (now demolished), and the runoff if the site was vacant, the actual runoff would be less than previously, and acceptable.

97 Mr. Nash said in oral evidence that the fill contained asbestos in traces but he considered for human habitation the concentrations are “extremely minor hazard” and would not be released into the air, subject to capping with 100 mm of concrete paving, or 500 mm of soil.

98 Generally the fill comprised a top layer of dolorite crushed gravel 50 mm thick, a middle layer of recycled aggregate/bricks/concrete/marble 300-600 mm thick, a bottom layer of thin natural soil over bedrock that underlay the whole site. The asbestos was mainly in the middle layer, but some came to the surface amongst the gravel.

99 He agreed that the fill had to be excavated to provide the capping, or the whole level of the fill raised 500 mm. The textile would need to be under the gravel paved areas too.

100 It was possible to excavate the 500 mm only where garden beds were proposed so long as the rest was paved. The garden beds would need to be lined on the bottom and sides with geotextile to prevent the fill permeating the garden bed. He agreed the fill was not gardenable and could not support grass or other vegetation.

101 Mr Richards and Ms Barron agreed that to use the geotextile and excavate would need the fabric pegged down during installation.

102 Mr Richards said that might solve the garden beds, but he did not agree with the extent of paving and gravel finish in the yard areas. The floor space increases to the house/driveway/rooms under the driveway had reduced the area available for vegetation so much that all remaining areas should be vegetated at least with grass or ground covers. Access along the east side could be done with stepping stones or a narrow path, including at the two garden seats.

103 Mr McFadzean supported this position. It was also noted the new landscape plan in Exhibit B showed a pathway along the west boundary with the Bucknell’s that originally was approved to be all planted out with screen vegetation as it is beside their rear private open space.

104 To plant grass and cap the fill needed the 500 mm of soil, which meant excavating the fill, or raising the level 500 mm to cap the fill. That would necessitate raising the retaining wall erected along the top of the cliff. Mr Richards and Mr McFadzean objected to it already, let alone raising it 500mm. Also other areas of the ground floor of the house towards the street would be below the fill level if raised 500mm. The appropriate solution they said was to remove the fill and put soil back in.

105 The applicant said the gravel terrace areas would be used for recreation and tables and chairs. Mr Richards said the gravel as existing is uncompacted and garden furniture would sink into it, as would furniture into grass.

106 The geotextile underlay option now put forward by the applicant necessitated laying the fabric under the top layer of gravel to avoid excavating the fill and capping the contaminated middle layer. The fabric would ensure the gravel would not compact and would move around as a result of foot traffic and rain, thus creating tracks and/or exposing the fabric.

107 Ms Barron agreed that the gravel areas were unlikely to be used for active recreation, and the garden beds could be enlarged. She agreed the views from the rear yard and ground level of the house were into the tree canopies of the reserve.

108 Mr Sayadian gave evidence he supervised the construction during the period the original stone retaining wall above the cliff top was in place. He said it was about 600 mm high and the new retaining wall is the same height within 100 mm.

109 Having seen the site, including from the reserve below, I have reached the conclusion that the retaining wall as built, provided it is structurally stable is much smaller than a number of other structures referred to earlier on adjoining and nearby properties. I doubt it would be seen from the water due to the tree canopies in the reserve, but it should not be raised any higher. Mr Richards and Ms Barron agreed the wall could be planted with overhanging shrubs, and painted with yoghurt to accelerate moss growth, so at its present height it would blend into the rock to some extent. Given the above, the retaining wall is acceptable provided it is structurally stable and with a stranded stainless steel wire fence uphill of the wall that would quickly become enveloped in vegetation and unnoticed.

110 Mr Richards said that the landscape proposal on the site at the foot of the cliff was unlikely to be successful due to the slope of the rock and the inability to provide deep soil. I am inclined to agree. The softening of the built form of the house as seen from the reserve has to be done at the cliff top. The views at the garden and ground floor level of the house are into the tree canopies of the reserve, so the outlook from there would not be obstructed by vegetation sought by the council. From the upper floor of the house that is the living rooms and kitchens and master bedroom the view is to the harbour and would remain unobstructed.

111 I agree that larger planter beds and grass and/or ground covers of appropriate species of plants should be required and the gravel eliminated without raising the existing finished levels. That means excavating the fill. The danger from the asbestos contamination does not necessarily require the removal of the fill, but the landscaping and visual impacts do require it.

112 Also I agree that endemic species must be used, and the native but not endemic species and any exotics in Ms Barron’s landscape proposal must be eliminated. The evidence is that exotics and non-endemic species at the top of the cliff quickly colonise the bottom of the cliff and the foreshore reserve that are required by the statutes to be kept as natural and endemic as possible. Numerous examples were seen on the view of the reserve where existing gardens of nearby houses had used exotics and they now grew in the reserve. These past unfortunate landscape impacts must not be repeated or made worse by new approvals.

113 The access path along the boundary with the Bucknell’s is unnecessary given the easy access along the east boundary from front to back of the site. Occasional access to maintain the landscape vegetation can be done without a path. The benefit to the neighbour, of increased privacy and better screen vegetation to soften the form of the new house at the subject site that towers above them, is warranted.

114 Vegetating the western side setback also helps to redress the reduction of vegetation in the landscaped areas caused by the changes to the original approval. The applicant submits that the rooms under the driveway do not constitute floor space for the purpose of calculating Floor Space Ratio and required landscaped area. Even if this is so, there is merit evidence from Mr McFadzean that the size of the house and garage, added to by the enlarged driveway as built, has streetscape impacts and impacts on neighbours that were not present in the original approval, and are detrimental.

115 At the street front there is to be considered:

• the widened driveway in the front yard of the house
• its proximity and height in relation to the Bucknell’s,
• its reduction of vegetated area in the front yard that can contribute to the streetscape and soften the built form,
• the garbage enclosure built where there was to be a gap in the driveway that enabled a view from the street into the south-eastern front yard of the site and its vegetation, and
• the proposed higher front fence that would further increase the appearance of a hard-surfaced front boundary with reduced landscaped area, and
• the widened vehicle footpath crossing that adds to these impacts.

116 Mrs Cambridge whose house looked down on the site and driveway from the opposite side of the street said these impacts were her concerns. She said the extent of the impact could be understood by realising the view from the street of the front yard vegetation of the original house at No. 5 (now demolished), has all become concrete. The streetscape quality had been reduced instead of enhanced, the latter being an objective of the statutes and controls.

117 Ms Barron and Mr Standley advised the plans now showed the garbage enclosure converted to a planter box, and this would enable quick growth vegetation that would improve the streetscape and allow the south-eastern front yard to be semi-private.

118 Mr Richards and Mr McFadzean said it was important to remove the planter box and reduce the driveway back to the original approval and not allow the fence to be raised, in order to minimise the fences and paved area as seen from the street and retain vegetation to soften the house/driveway and garage to obtain the future streetscape envisaged by the statutes and controls.

119 Mr Standley showed on the view other older nearby houses, most renovated, that had been permitted fences higher than 1.2 m and not a lot of front yard vegetation. One new house a couple of hundred metres away had substantially more hard front boundary surfaces and less vegetation. He said in any case the additional driveway width was needed for car manoeuvring.

120 Mr Covich agreed that the original approved driveway had a problem with driving a 99%-ile sized car into and out of the west side parking space of the garage, if another car was in the east side place.

121 Mr Standley said the as-built driveway eliminated that problem and also enabled a 99%-ile sized car to enter the west side space if a car was to be parked outside the garage on the east side of the driveway. He thought that was reasonable expectation.

122 Mr Standley prepared a plan in Exhibit G and Mr Covich a plan in Exhibit 14 to illustrate their points. Exhibit 14 showed a red line that would enable the 99%-ile size car to manoeuvre in and out without mutli-point movements.

123 Mr McFadzean said the driveway should be reduced as much as possible for the reasons previously stated. Exhibit 14 should be required at least; even though it meant reduction of the rooms under the driveway as well.

124 Mr McFadzean said another concern of the neighbours is in regard to the western corner window of the master bedroom on the upper floor level that directly overlooks the Bucknell’s rear private open space and pool. This is the part of the new house that towers over them.

125 As seen on the view, in this row of houses most neighbours overlook the back yards of each other.

126 He said the main views from the site are to the north through the huge windows provided. Views to the west across neighbours’ private open space are not needed. The master bedroom windows are built wider than approved and higher so it gives the perception to the neighbours of less privacy. He agreed the solid panels put in the lower frames of the window could not be replaced with clear glass without breaching the consent. Changing the window to have masonry below the sill was unnecessary. The sill heights of the bedroom and the living room west windows were now built at the approved height and that was the important thing for privacy.

127 Mr Standley said the bedroom window was only 450 mm wider than approved, the extra height did not create any real additional overlooking. Bedrooms are mainly used at night and not generally the source of overlooking such as from living room windows. As built the living room windows are not as wide as approved so overlooking was reduced from there. With the solid panels below sill line Mr Standley said the Bedroom 1 windows should be allowed as built.

128 I am inclined to agree with this. The neighbours may have a perception of additional loss of privacy to the Council approval, but in practice it would not be actual to the extent I should require re-building.

129 I think to some extent the neighbours are tired and aggrieved by the past circumstances of the construction process as indicated in their objections. However, my role is to assess on merits and not adopt any punitive conditions where they are not warranted on merits evidence.

130 Returning to the streetscape issues, Mr McFadzean said existing masonry fence could remain but not the proposed extra height. He pressed reduction of the drive to the approved width but acknowledged Exhibit 14 went some way to the reduction of the driveway to reduce hard surfaces and enable more front yard vegetation for the streetscape reasons that would screen the elevated driveway. He favoured Exhibit G for the reduced footpath driveway crossing to increase vegetation in the footpath reserve.

131 In regard to the garbage enclosure now a planter box, he still sought its removal including the concrete slab it sat on. The original consent allowed a view down into the south-east corner of the front yard vegetation from the street. Mr Standley noted that below the planer was bedrock so to grow vegetation there it would need retaining walls and soil. The planter is a better way of providing vegetation seen from the street.

132 Coming along the street from the west I could see the need for vegetation to hide the elevated driveway and the need for a see-through balustrade so it did not increase the bulk. Due to the increased hard surfaces elsewhere I have concluded the streetscape is best served by cutting back the driveway and the rooms beneath to the red line in Exhibit 14 and increasing the vegetated area accordingly. The front fence and the gate should not exceed 1.2 m height which means keeping it as is and not raised. I accept retention of the planter box so long as it is planted with an advanced size tree of the type shown in Exhibit B.

133 The lowered fences on the boundary with the Bucknell’s as agreed on site to be a pool type fence with the increased vegetated area from there to the driveway is acceptable.

134 Except as amended by these findings, I accept the respondent’s submissions on the draft orders for amended conditions in Appeal 10180 of 2006 and Orders in Appeal 11490 of 2005.

ORDERS

135 Therefore the Orders of the Court are:

Appeal No. 10180 of 2006

1. Appeal Upheld in part.

2. Development Consent No 8.2003.287.4 dated 1 March 2006 be modified to amend conditions of consent as follows:

1. Deleted and replaced with the following:
“1 The development must be carried out in accordance with the following plans and documentation except where amended by later conditions of consent:

Plan	Date	Drawn
Exhibit 14 Appeal No. 10180 of 2006 in so far as it relates to the partial demolition of the driveway to the red line shown thereon including any structures beneath and Exhibit G insofar as the reduced footpath vehicle crossing is shown	Exhibit 14 by Covich Exhibit G drawing No. 927/Appeal 1.
S96 (November 2005) 01 Rev B	9/9/05	Michael Standley
S96 (November 2005) 02 Rev C	9/9/05	Michael Standley
S96 (November 2005) 03 Rev C	9/9/05	Michael Standley
S96 (November 2005) 04 Rev C	9/9/05	Michael Standley
LP 01 revC	24/5/06	PATIO Landscape Architecture and Design
04902-H1	May 05	GJS Consultants
Geotechnical Inspection and Stability Assessment – 5 Pearl Bay Avenue	20 November 2003	Douglas Partners
Letter from Douglas Partners, Geotechnical Engineers	22 March 2005	Douglas Partners
Survey plan 8292-DET Issue A	6/5/03	Unknown

1A This condition should remain with the following amendment.

The words “Plan No. A01 Issue B dated 18 November 2003 by Atelier Haefeli Pty Ltd” be deleted and replaced with “the red line drawn on Exhibit 14 Appeal No. 10180 of 2006 and the existing driveway structure be partially demolished to achieve this”.
1B Is deleted as an appropriate fence above the cliff is shown on plans.

1C This condition should be amended to the following "To protect the streetscape, approval is granted for the planter box located adjacent to the driveway including its slab base. The planter box to be vegetated with an advanced puncia tree 2 m high to be maintained, and replaced if it dies during the life of the house at No. 5 Pearl Bay Avenue."

1D This condition is amended by deleting the words: “Plan A01 Issue B dated 18 November 2003 by Atelier Haefeli Pty Lt d as modified by Condition 4” and replaced with: “Plan s 96 (November 2005) 03 Revision C by Michael Standley”

2. Condition 2 is amended by inserting the word “obscured” immediately before the word “translucent”.

4. Deleted, as it is dealt with in 1D above.

15. Delete and replaced with the following:

“15. The Landscape Plan Number LP 01 revC prepared by PATIO Landscape Architecture and Design shall be amended by:


i) The planting of a hedge of elaeocarpus reticulatus along the southern boundary in the eastern corner to replace 5 x stelitzia reg and 2 x cyathea sp indicated on that boundary on the plan.
ii) The area of the rear yard and side setbacks indicated “pebble terrace” or graphically indicated as pebble is to be removed and replaced with vegetation or turf .
iii) The proposed planting in the rear yard is to be replaced with native species endemic to the Mosman area.
iv) The gravel pathway along the western boundary from the steps below the garage to the northern end of the deck to be deleted and the area planted with endemic species trees reaching a mature height of 7 m plus and under storey screen shrubs to soften, the bulk of the building as seen from the west.
v) The areas of shrub vegetation in garden beds beside the retaining wall above the cliff is to be increased to the satisfaction of Council’s Landscape Architect. Species that will overhang the wall on its northern side to blend it into the rock cliff shall be incorporated.

The revised landscape plan is to be submitted with the construction Certificate application.

All landscaping is to be maintained and nurtured and replaced if it dies for the life of the house at No. 5 Pearl Bay Avenue.
15A Delete and replace with the following:
"All imported fill from the site is to be removed and disposed at an authorised Waste Facility. Levels are to be restored using friable soil to those shown on the survey plan 8292-DET Issue A dated 6/5/03." (Such levels being generally the same as shown on drawing No. S96 (November 2005) 02 Revision C).

16 This condition can be deleted as plan shows compliance.

19A This condition is amended by the deletion of the existing words and replacement with:
“See Conditions 39C, 39E, 39F, 39G. Also the extension of the street front fence and piers to 1.8 m height is not approved. The existing front fence as shaded is green, on Drawing No. S96 (November 2005) 04 Revision C, may remain”.
39A Condition is retained.

39B This condition is amended by deletion of the existing words and replacement with:

“The existing retaining wall along the cliff top near the rear of the property may remain provided an Engineers Certificate is provided to Council certifying its stability and construction to relevant standards”.

39C Delete and replace with the following:

“39C. Side boundary fencing from Pearl Bay Avenue frontage to the building alignment of 7 Pearl Bay Avenue is to be located at ground level along the boundary line and is to comprise open palisade pool style fencing to a maximum height of 1.2 meters measured from existing ground level.”


39E Condition to remain.

39G Delete and replace with the following:
“39G To ensure adequate safety and a more appropriate relationship between the built and natural environments, stainless steel open palisade style balustrading to a height of 1.0m is to be provided to the southern side of the existing retaining wall along the cliff towards the rear of the property.”
52A Delete and replace with the following:
“52A. The driveway crossing at the kerb is to be reduced to 4.5m (not including 0.75m splays at each end i.e. overall maximum 6.0 meters). The driveway may fan out to the width of the driveway as approved at the property boundary and as shown in Exhibit G in proceedings No 10180 of 2006 in the Land and Environment Court of NSW.”

3. The exhibits are returned to the parties except Exhibits A, B, G, 5, 6, 7, 8, 13 and 14.

1. Appeal is upheld in part.

2. Order dated 23 November 2005 issued by Mosman Council pursuant to s 121B of the Environmental Planning and Assessment Act is amended as follows:

Order 1 is amended by deletion of the words: “Plan A01 Issue B dated 18 November 2003 by Atelier Haefeli stamped and approved under Development Consent 8.2003.287.1” and replaced with: “the red line drawn on Exhibit 14 Appeals 10180 of 2006 and 11490 of 2005”.

Orders 3, 4 and 5 are deleted.
3. The Applicant shall comply with the order within 28 days of the date of this order.

_________________
K G Hoffman
Commissioner of the Court
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