John Sheridan v Mosman Municipal Council

[2004] NSWLEC 78

Land and Environment Court

of New South Wales

CITATION:	John Sheridan v Mosman Municipal Council [2004] NSWLEC 78
PARTIES:	APPLICANT John Sheridan RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	11214 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing buildings SEPP 1 objection floor space ratio bulk character of the area solar access visual and acoustic privacy storage facilities heritage
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No.65 State Environmental Planning Policy No. 1
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	03/03/04, 04/03/04
DATE OF JUDGMENT:	03/11/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones, solicitor of Hones Lawyers RESPONDENT Mr A Hawkes of Pike, Pike and Fenwick

JUDGMENT:

14 of 14

1 of 2

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11214 of 2003

Brown C

John Sheridan

Applicant

Mosman Municipal Council

Respondent

Judgment

Introduction

1. This is an appeal originally against the deemed refusal but later refusal by Mosman Municipal Council (the council) of Development Application No. 8.2003.079.1 for the demolition of three existing dwellings and erection of a residential flat building at 88-92 Spit Road, Mosman (the subject site).

2. I record that an inspection of the subject site was undertaken on the morning of the first day of the hearing with representatives from both parties. With the agreement of both parties a number of objectors to the proposal provided their evidence on site.

3. In balancing the competing evidence I have concluded that the appeal should be upheld and development consent granted subject to conditions.

Subject site and surrounding area

4. The subject site comprises Lot 1 in DP 655456 and part Lots 2 and 3 in DP 5745. It is slightly irregular in shape with a frontage of 36.69 m to Dalton Road (north) and 31.365 m to Spit Road (east). The southern boundary is 40.645 m and the western boundary is 33.76 m giving a total site area of 1343.8 sq m. It is also generally level, with a total fall of 1.82 m from its south-eastern corner to its north western corner.

5. The subject site contains three existing dwellings, each of a single storey brick construction with tiled roofs. The existing vegetation comprises some mature species up to 12 m in height with the remainder of the area being grassed or paved.

6. To the west of the subject site is a generally 2 storey aged persons housing development known as The Garrison & Killarney Retirement Centre (the aged persons housing development). Further to the west and to the south, development consists predominantly of single dwelling houses. The Mosman commercial centre is located approximately 100 m to the south of the subject site.

7. Development to the north comprises dwelling houses and residential flat buildings up to 9 storeys in height. Development to the east, and on the opposite side of Spit Road, comprises 3 and 4 storey residential flat buildings.

The proposal

8. The proposal seeks to demolish all existing improvements on the subject site and construct a residential flat buildings containing 17 units over four levels with basement carparking. The building will contain 3 x 1 bedroom units, 12 x 2 bedroom units and 2 x 3 bedroom units. Levels 1, 2 and 3 have a similar floor plan consisting of five units on each level. Level 4 contains the 2 x 3 bedroom units.

9. The basement carpark provides parking for 25 vehicles and bicycle storage with access from Dalton Road.

Relevant planning controls

10. The subject site is zoned 2(e) Residential under Mosman Local Environmental Plan 1998 (the LEP). The proposed development is permissible with consent within this zone. The subject site adjoins the Killarney Estate Conservation Area (the Conservation Area) to its north and the west although the council raised no heritage issues.

11. Clause 13 provides development standards for height and clause 15 provides development standards for landscaped area. There was no dispute that the proposed development satisfied these requirements. Clause 14(2) states that a building must not exceed a floor space ratio (FSR) 1:1 in the 2(e) zone. Clause 14(1) provides objectives for FSR. These are:

(a) to control the scale of development so that it is compatible with housing characteristics of the locality, and
(b) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off.

12. There was agreement that the proposed development exceeds the 1:1 FSR. The applicant calculates the FSR at 1.1:1 and the council at 1.13: 1. The difference is not material in terms of the assessment required by the Court. In response to the exceedance of the development standard, the applicant provided an objection pursuant to State Environmental Planning Policy No. 1- Development Standards (SEPP 1) to show why strict compliance with the standard was not necessary or reasonable in this case.

13. Draft Amendment No. 20 to the LEP is also relevant and proposes to insert a further subclause into cl 14(2). It states:

(c) to minimise the effects of the bulk and scale of new development

14. Mosman Residential Development Control Plan (the DCP) also applies to the proposed development. The relevant clause is 5.5 Multiple Dwellings: Design and specifically objectives 01, 04, 07, 08, 013 and 014. Other relevant matters include storage (P26 and P27) and acoustic privacy (P28 and P29).

15. State Environmental Planning Policy No.65 - Design Quality of Residential Flat Development (SEPP 65) also applies to the proposed development. The relevant design principles are Principle 2 - Scale and Principle 4 - Density. By way of cl 30(2)(c) of SEPP 65, the publication Residential Flat Design Code (the Code) is also relevant.

16. The council filed an Amended Statement of Issues containing 12 issues. These can be conveniently grouped into the following areas:

1) whether the SEPP 1 objection is well founded?, and
2) whether the internal amenity of a number of the units is adequate in terms of solar access, visual and acoustic privacy and storage?

17. In response to the advertising of the proposed development, the council received 15 individual letters of objection and two petitions. A number of local residents provided evidence on site on the morning of the first day of the hearing and raised a number of issues not specifically identified by the council. These include access from Dalton Road and consequential additional traffic, parking and safety impacts, the impact on the Conservation Area, inappropriate height, inappropriate contemporary design, loss of trees, overshadowing and overlooking to the residents of the adjoining aged persons housing development.

18. The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard and again, there was no dispute as both parties relied on the stated objectives in cl 14 of the LEP and the additional objective in Draft Amendment No. 20. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

19 This question also asks does compliance with the development standard tends to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (EPA Act). These objects state:

5. The objects of this Act are:
(a) to encourage –
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

20 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

21. Mr Geoff Goodyear, a town planner, provided a SEPP 1 objection for the applicant. In terms of the objects of the EPA Act he states that the subject site is very suitable for residential development, being largely unconstrained by natural or man-made features. The proposal also represents the orderly and economic development of land. It is an appropriate use of a scarce resource within the Sydney region.

22. He further states that compliance with the development standard is unreasonable and unnecessary as it satisfies the objectives of the standard. It is compatible with housing development in the locality. The subject site is zoned for the proposed development, unlike the land to the west in Dalton Street that is zoned for single dwelling houses. Notwithstanding this, the proposal provides an appropriate transition from the subject site to other sites, including those fronting Spit Road that are zoned for residential flat development. Additionally, the proposal provides substantial deep soil landscape setbacks to all boundaries and on-site detention ensures there are no impacts in terms of stormwater run-off. Consequently the proposal is consistent with the objectives of the development standard and as such it is unnecessary to require strict compliance. For these reasons the SEPP 1 is well founded.

23. Mr Peter Moffitt, an architect provided evidence for the council. In his assessment, the proposed development offends objectives (a) and (c) of the development standard. He sees the scale of the proposal as incompatible with the housing characteristics of the locality. Additionally, the effects of the bulk and scale are not minimised. Mr Moffitt places some emphasis on the poor contiguity with the low scale residential precinct in Dalton Road. As the subject site adjoins a Conservation Area there is a need for compatibility with the one and two-storey scale of the buildings in this area. Heritage considerations make this an even more pressing consideration. He states that the subject site is a transitional one and it may not be possible to achieve the maximum FSR.

24. On this issue, I prefer the evidence of Mr Goodyear. With the benefit of a view of the subject site and surrounding areas I accept that the proposal is compatible with the housing characteristics of the locality. In accepting Mr Moffitt's general proposition that consideration should be given to the effect of the proposed development on the Conservation Area, I am not convinced that the impact is unacceptable or unreasonable. The interface between higher-density residential development and more modest residential development can sometimes be problematic however in this case I accept that the proposal addresses this issue in a more than acceptable way. While the relationship with the aged persons housing development will change because of the increased density, it is a form of development clearly contemplated by the council's planning controls. A building of the form and dimensions proposed is not, in itself a valid basis for rejection.

25. I accept that the proposal addresses the relationship with the aged persons housing development in a number of positive ways. The building is orientated so that the elevation facing the aged persons housing development occupies less than 50% or15m of the 33.76 m length of the common boundary. The setbacks are generous, comprising some 7 m to the building on the lower three levels and 14 m on the upper level. When combined with the 8 m setback of the aged persons housing development and the existing and proposed landscaping, I agree with Mr Goodyear that the proposal provides an acceptable transition.

26. The potential for impact on the single dwellings in Dalton Street diminishes with distance from the subject site however even the closest dwellings are sufficiently removed from the subject site to ensure there is not a strong visual contrast in building form. In considering this aspect, I am also mindful that the Dalton Street area has a different zoning and because of this will have a different building form. It would be unrealistic to expect the less dense building form found in Dalton Street should extend into the higher density zoning along Spit Road.

27. The property directly to the south is occupied by a residential dwelling and is similarly zoned to the subject site. It is of similar vintage to many of the dwellings in Dalton Street although it is not within the Conservation Area or an identified heritage item. While there will be a contrast in building forms, the proposal represents the general form of building anticipated by the zoning. In my view it would be inconsistent with the objects in s 5(a)(i) and (ii) of the EPA Act to give any weight to the objection that the proposed building will be out of character with the adjoining residential dwelling.

28. While not raised as a specific issue by the council, Mr Moffitt raised the issue of heritage impact in his evidence, as did a number of local residents. Part 9 of the LEP provides requirements for heritage conservation. Objective (b) in cl 33(1) seeks "to ensure that any development does not adversely affect the heritage significance of….. heritage conservation areas and their settings". In terms of impact on the Conservation Area I find that the proposal is acceptable and consistent with the objectives in cl 33(1) principally for the reasons mentioned in the preceding paragraphs.

29. In finding that the proposal is acceptable I have also given consideration to Principle 2 - Scale and Principle 4 - Density in SEPP 65.

Principle 2 states, "good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area".
Principle 4 states that "good design has a density appropriate for a site and its context, in terms of floorspace yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing densities in the area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality" .

30. SEPP 65 speaks about "precincts undergoing a transition" and the "desired future character" and "desired future density". It clearly contemplates a form of development that is consistent with the council planning controls. In this case, the proposal satisfies other requirements that impact on scale, such as height and setbacks. I am not aware of any concerns by Mr Moffitt to the architectural style of the proposal. In my opinion the departure from the FSR standard does not, to any noticeable amount, add to the bulk of the building. I can comfortably conclude that the proposed building responds appropriately to the scale of existing development, notwithstanding the different zoning and form of development nearby and also the likely future development within the 2(e) Residential zone along Spit Road.

31. I find that compliance with the standard would tend to hinder the attainment of the nominated objects of the EPA Act and that compliance with the standard is unnecessary in this instance. Consequently, the SEPP 1 objection is well founded.

Internal amenity

32. The council described this as the real issue in the proceedings. Mr Moffitt identified a number of areas within the proposal that were unsatisfactory. The most significant involves the courtyards for unit 1, 6 and 11 that have poor orientation and solar access. Other issues relate to poor visual and acoustic privacy between a number of courtyards and the common outdoor area, privacy, unacceptable storage facilities, security issues with an entry point and the location of a study window.

Courtyards for unit 1, 6 and 11

33. In Mr Moffitt's opinion, the subject site has few constraints and as such the poor orientation and solar access to a number of courtyards is unnecessary. To overcome these shortcomings, a redesign of the building is necessary. Mr Goodyear refutes this conclusion and maintains that a suitable balance is achieved across the total development for orientation and solar access. He relies on the Code that provides a number of "Rules of Thumb" for assessing the effectiveness of natural light in a residential flat building. The Code provides for living rooms and private open spaces for at least 70% of the units to receive a minimum of 3 hours direct sunlight between 9am and 3pm in midwinter. There was agreement that 14 of the 17 units (or 82.4%) satisfy this requirement.

34. On this issue I agree with Mr Goodyear. The courtyard to unit 1 receives a relatively low level of solar access because of the overhang of the courtyard on the unit above and the need to extend an adjoining nib wall for acoustic protection. However, a compensating factor is access to a private outdoor recreation area partly within the setback to Spit Road and the use of glass blocks for the extension of the nib wall. Units 6 and 11 have similar orientation to unit 1 although no direct access to any private outdoor recreation areas. On balance, and considering the "Rules of Thumb" in the Code, I accept that proposal provides an acceptable level of solar access to the units.

Visual and acoustic privacy

35. Mr Moffitt accepted that the issue of visual privacy issue was addressed through the extension of the nib wall. He deferred to the agreed expert acoustical position of Mr Barry Murray, for the applicant and Mr Don Craig, for the council that the amendments to the nib wall satisfactorily addressed any concerns over noise.

Storage facilities

36. The DCP provides requirements for storage at P26 and P27. With recent amendments, Mr Moffitt acknowledged that the proposal complies with the numerical requirements in the DCP. In his opinion, however, the amendments effectively reduced the size of the units to a level below that he expected should be provided in the Mosman area.

37. The DCP provides no specific requirements for minimum area for units although it was agreed that the existing units satisfy the minimum requirements in the Code. As the proposal satisfies the DCP requirements for storage, this issue cannot support a refusal.

Security

38. Mr Moffitt raised this issue following amended plans that removed a glass wall from the entry area and replaced it with a brick wall. The applicant indicated that it would accept a condition to reinstate the glass wall, as a greater level of surveillance would be provided.

Study areas

39. Alcoves are provided within units 1, 6 and 11 and are designated as “study”. Mr Moffitt raised concern that the highlight windows to these areas adjoin balconies of other units and that light spill from the windows will create an acceptable impact on the use of these balconies. I note that the question of acoustic impact was satisfactorily addressed through appropriate glazing.

40. In my view, the potential for impact on the adjoining balconies is minor at best and when balanced against the opportunity for even some limited natural light within the alcove, I accept that the proposed highlight windows are a suitable inclusion.

Resident concerns

41. The local residents raised a number of concerns that were not specifically identified by council in the Amended Statement of Issues. These issues were:

Loss of privacy/overlooking

42. The potential for loss of privacy and overlooking was examined on the view and an estimate made of the location of the proposed building in relation to the existing aged persons development. While the building will provide a built form in an area that currently provides a view of the sky through landscaping, I note that there are few opportunities for overlooking into the aged persons development from the proposed development. In the locations where the potential does exist, sufficient setbacks and landscaping are provided to reduce this potential to an acceptable level. Similarly, overlooking into the adjoining property in Spit Road is satisfactorily addressed through building separation and landscaping.

Traffic/parking

43. This was a concern raised by a significant number of the local residents. The specific concerns related to an increase in traffic in the street, increased on-street parking and reduced levels of safety because of the increased traffic.

44. The applicant provided a report from Mr John Hewitt, a traffic consultant. He calculates that the maximum vehicle generation will be around 8 vehicle trips per hour and 75 vehicle trips per day. On this basis, the change in traffic amenity in Dalton Road will not be discernible from the existing situation. Further, as the proposal will satisfy all parking needs on-site, rather than using street parking as currently exists for the existing uses, there will be an overall beneficial outcome for nearby residents.

45. The council did not challenge Mr Hewitt's conclusions and while there may be instances where on street parking from visitors may occur, I accept his conclusions. I also accept that if reasonable levels of care are taken in entering and leaving the proposed development then safety should not be a concern. I note that no specific issues were raised in relation to a non-compliance with any relevant Australian standards.

Overshadowing

46. Overshadowing was also raised by a number of local residents, particularly those adjoining the subject site.

47. The applicant provided shadow diagrams indicating the additional shadows cast by the proposed development. These diagrams indicate some additional shadowing, at 9 am, on the setback area of the adjoining aged persons development in midwinter. No additional shadowing is created by the proposed development at midday on the same day.

48. As I understand, previous shadow diagrams indicated a greater impact on the adjoining property and this was the basis for a number of objections. The shadow diagrams before the Court do not indicate an impact that would warrant the refusal of the development location.

Height and design

49. There was no dispute that the proposed development satisfies the 11 m height requirement so it is difficult to argue that the proposal is excessive in height. Because of the existing low scale development on the subject site, the proposal will be clearly more visible and obvious. This is, however a direct result of the councils planning controls for the subject site and as such little weight can be given to this particular concern.

50. The design is contemporary however this is not a valid reason for the rejection of the application. While the subject site adjoins a Conservation Area, I am not convinced that the design has any impact on the appreciation of the buildings within this area. The relationship with the aged persons housing development and other single dwellings in Dalton Street has been discussed earlier in the judgment.

Heritage

51. The impact on the Conservation Area has also been addressed earlier in the judgment although specific reference was made to a Curtilage Survey undertaken by the Historic Houses Trust. No details were provided to the Court on this document so it is not possible consider its impact on the proposed development.

Noise

52. Noise, particularly associated with construction was seen as an issue by a number of residents. I accept that this concern has some validity particularly to the residents of the aged persons housing development. Some discussion took place over the appropriate access for construction vehicles required by Construction Traffic Management Plan in condition 2.20. It was however agreed that this was more appropriately addressed through a more general condition to allow further consultation with the Roads and Traffic Authority over possible access from Spit Road.

53. Of a more general nature, conditions 4.16.1 to 4.16.9 provide specific conditions that seek to minimise any impact on nearby properties from vibration, operating hours and noise through a reference to particular standards. While it is not possible to ensure that there will be no impact on adjoining properties, I accept that the conditions make a positive contribution to maintaining a reasonable level of amenity for the nearby properties.

54. For the reasons mentioned previously, the Orders of the Court are:

1) The appeal is upheld,
2) Development Application No. 8.2003.079.1 for the demolition of three existing dwellings and erection of a residential flat building at 88-92 Spit Road, Mosman is approved subject to the conditions in Annexure A,
3) The exhibits are returned with the exception of the exhibits 1,9 and C.

G T Brown

Commissioner of the Court