Kenstrom Design Pty Limited v Mosman Council

[2008] NSWLEC 1428

Land and Environment Court

of New South Wales

CITATION:	Kenstrom Design Pty Limited v Mosman Council [2008] NSWLEC 1428
PARTIES:	APPLICANT Kenstrom Design Pty Limited RESPONDENT Mosman Council
FILE NUMBER(S):	10509 of 2008
CORAM:	Moore C
KEY ISSUES:	Development Application :- Impact on views
LEGISLATION CITED:	State Environmental Planning Policy No 1 Mosman Local Environmental Plan 1998
CASES CITED:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
DATES OF HEARING:	11 September 2008
EX TEMPORE JUDGMENT DATE:	11 September 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms H Irish, barrister INSTRUCTED BY Mallesons RESPONDENT Ms J Hewitt, solicitor HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

11 September 2008

10509 of 2008 Kenstrom Design Pty Limited v Mosman Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: The Scott family reside at 8 Redan Street, Mosman – which is to the south-west of 9 Redan Street. The Scott residence is on the high side of the street and 9 Redan Street is somewhat lower. As a consequence of both the topography and the geography, the Scott residence enjoys views across the rooflines of a number of properties, including 9 Redan Street, to various portions of Sydney Harbour and, across the isthmus at Manly between North Head and the other areas of the Manly-Warringah Peninsula, to the sea beyond Manly itself.

2 The present application is for alterations and additions to 9 Redan Street – which alterations and additions will impact, to some extent, on the views from the Scott residence. The alterations and extensions are proposed at three levels of the dwelling, including the two existing levels, and the addition of further space at a storey located in the present roof area and extending above the existing ridgelines.

3 I have concluded that the appeal should be conducted by me determining it on the following basis. First, that the views which I assess from the Scott residence should be those that are the least available views, on the basis of seasonality and point of observation. I do so because I consider that, if the appeal should be upheld on that basis, it is not necessary to go beyond that. I will return to that in a more descriptive fashion.

4 Second, the applicant has lodged four objections pursuant to State Environmental Planning Policy No 1 to compliance with development standards contained in the Mosman Local Environmental Plan 1998. With respect to one of those objections, being a control which relates to a number of storeys permitted in a development, there is disagreement between Mr Chambers, town planner for the applicant, and Mr Sheehan, a town planner employed by the Council, as to whether or not there is a breach of the storey development standard requiring such an objection pursuant to SEPP 1.

5 I consider I should deal with the matter on the basis that such an objection is required because, again, if the application is successful on that basis, I do not need to determine that issue. In summary, I have considered the application on the proposition that is most advantageous to the Council and most disadvantageous to the applicant.

6 With respect the views from the Scott residence, the assumptions that I have made are as follows:

• First, that the jacarandas to the north of the Scotts’ frontage to Redan Street (there being two such trees) have not been removed in accordance with a consent with which Mr Scott indicated he had been given by the Council for their removal; and
• Second, that those trees will be in full foliage – thus affording maximum disruption to the views that are enjoyed to the north-east from the Scott residence at various points.

7 I also have consider the views from the Scott residence on a sitting basis rather than a standing basis – that being as described by Roseth SC in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 as the more difficult of the viewing positions to preserve in an assessment of any views.

8 Finally, as agreed by Ms Irish, counsel for the applicant, and Ms Hewitt, solicitor for the Council, I have disregarded the possibility that a development application lodged by the Scotts with the Council (and presently undetermined) might be granted a development consent, thus creating additional opportunities in the north-eastern corner of the veranda (proposed to be created on the front of the property) giving expanded views and also removing an inhibition to views from the living room windows of the Scott property.

9 It is on that basis, in total, that I consider the appeal.

10 I also consider the appeal in the context where Mr Sheahan made the quite proper concession that the issues arising from non-compliance with the four development standards would not otherwise arise except in the context of the impact on the views from the Scott residence.

11 It is my view, therefore, that I do not need to consider or express an opinion on the first and second questions in the classic formulation of the necessary conditions to be considered on such SEPP 1 objections (there being agreement, as I understand it, between the experts concerning them) [see Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 – where Lloyd J formulated the matters to be dealt with as five questions to be addressed].

12 I turn, therefore, to the third of those questions. I am satisfied that compliance with the development standards (treating all four of them globally) for this proposal would hinder the attainment of the objectives contained in the relevant sections the Environmental Planning and Assessment Act 1979 because they would act as an unreasonable inhibition on the orderly economic development of the property at 9 Redan Street - particularly having regard to the fact that it is an item listed in the appendix to the LEP as a heritage item. I will return to that issue more fully later on the question of responses to the fourth of the so-called Winten tests

13 The fourth Winten test is in the alternative. That is, I am required to consider whether compliance with the relevant development standards is unreasonable. I am also required to consider whether compliance with the relevant development standards is unnecessary in circumstances of the case.

14 I turn first to the question of “unreasonableness”.

15 As I have earlier noted that house at 9 Redan Street is listed as a heritage item in the LEP’s list. Part 9 of the LEP is entitled Heritage Conservation and creates obligations on the consent authority to protect and preserve heritage values and to make sure that, if heritage items such as 9 Redan Street are to be modified, they are to be modified in an acceptable fashion. On this point, I have, in evidence, a note from Mr Robert Staas, the Council's heritage adviser, in which he said:

I consider that the original proposal was more sympathetic to the overall character of the item and would result in a better outcome [I interpolate that the original proposal had a higher ridgeline and a greater impact on the views from the Scott residence] . Against this must be balanced minor view loss from neighbouring properties. In my opinion the original concept is better from the public domain.

16 It is, however, clear from Mr Staas’s comment that the present proposal is acceptable from a heritage perspective. Today, I have heard evidence from the proposal’s architect who has explained to me why alterations to the proposed ridgelines (by either moving the ridgeline further to the south or lowering it in some fashion) would have impacts on the heritage values and presentation of 9 Redan Street when viewed from the public domain.

17 I am satisfied that the loss of the ability to continue with a terracotta ridge capping of the type presently existing on the property and the inability to retain slating to the roof (although it would be replaced with some copper roofing) would be further adverse heritage impacts.

18 Although I do not have further evidence from Mr Staas on that point, I consider that the evidence from the architect enables me to draw the conclusion that any additional amelioration of the impact on the views from the Scott residence would involve further impacts on the heritage values of the property. I do not need to consider whether those impacts, if they were to be occasioned, would themselves warrant refusal on the basis of heritage impact but it is appropriate to consider that it would be unreasonable, in the context of the fourth Winten test to require (absent any other unacceptable impacts), to impose changes that would themselves have further adverse heritage impacts on the dwelling. I am therefore satisfied, provided I also conclude that it is unnecessary to comply with the standards that it would be unreasonable to do so.

19 The necessity question takes me, in my opinion, back to considering the impact on the views from the Scott residence and, in this context, the assessment of the impact on those views utilising the process set out by Roseth SC in paras 25 to 29 in Tenacity Consulting.

20 First, I turn to be consider the question of the views which are be affected. As I have indicated, I do so assessing them on the basis of the minimisation of availability by assessing them with the trees in the full foliage and taken from a sitting position.

21 There are two critical places, in my view, from the inspection we undertook of the Scott property, where such an impact would arise. They are from the veranda in front of the secondary bedroom and from the enclosed area of the veranda on the northern side of the house. Turning to the veranda, there is no evidence of its present use. It is the area from which Mr Scott presses the greatest impact but, indeed, I note parenthetically, that as he was describing that impact on people arriving or departing from the property, they are unlikely to be views enjoyed from the sitting position upon which I am basing this assessment.

22 However, the views that would be interrupted there I expect to be primarily of the water parts of the harbour. To the extent that there would be any interruption of the shoreline view, I am satisfied that that will be comparably limited and that there will still remain significant views of the land and water interface through the Grotto Point area and to the north along the foreshore. The views across Manly Peninsula will be retained. I am satisfied that, at most, that loss could be described, in terms of the third of the steps are set out by the Senior Commissioner, as being a minor impact.

23 A similar position applies to a sitting view from the enclosed veranda area on the north. Any view loss will be primarily of the water part of the harbour. To the extent that there might be some loss of a view of waves breaking over the bombora at the front of Dobroyd Point, I am satisfied, concerning any loss of the breaking water view around Dobroyd Point, that such view across the face of Crater Cove will not be that interrupted and that the totality of that loss, to the extent that it might occur (and there is some doubt as to that because of the imprecise location of the height poles on the southern end of the site) will also be minor.

24 From the kitchen area, the views are more easterly, primarily, in my assessment and are views into a tree slightly to the north of east from the site and, other than the tree, are otherwise merely of water areas. To the extent that this is an important part of the Scott residence from which a Tenacity assessment should be undertaken, I am satisfied that this view also is interrupted to a minor extent. The view, indeed, from this area is likely to be significantly modified, in any event, by the foliage which would be on the jacarandas. The interruption, below the jacaranda, would be, I am satisfied, minor.

25 The views from the secondary bedroom and from the art room are areas that were put by Mr Scott as being of concern.

26 The view from the bedroom, in the Senior Commissioner's process, is one which is accorded lesser weight but is still relevant - lesser weight because it is not from a living area. That view is more directly to the north. It is through an area also interrupted by the trees to a significant extent and it is not one that I am satisfied would be regarded, in a Tenacity process as more than a negligible interruption to that view.

27 I was invited to go behind the furnishings in the lounge room and look out the window. It is clear that the furnishing arrangement in the room does not envisage that room being used for the purposes of enjoying the views which are available. I have, however, made the assumption for the purposes of this analysis, that the furnishings of that room will be arranged in a fashion to maximise the available enjoyment of the views out those windows. The present wooden partition wall between this room and the outer veranda area interrupts those views. They are views, however, which are also interrupted by the assumptions of made about the foliage on the trees.

28 The existing ridge line of the existing residence at 9 Redan Street provides significant shielding of the elements of the view that might be impacted from that point and that such views as will be lost, I am satisfied, from here, will primarily be of water rather than of the land and water interface. This loss also does not provide any basis for intervention.

29 In short, I have concluded that the loss of views from the Scott residence are in the negligible to minor category as to each of the relevant individual losses of view. I am satisfied that this is also the appropriate characterisation of the loss of the view from is currently described as the art room. Again, it is not a significant living area. Again, from a seated position, there will be a loss of some views but, again, almost exclusively of water area rather than of the land and water interface.

30 In addition to categorising each of those losses of views as negligible to minor, I am satisfied that a proper consideration of the cumulative impact on those views would, at its highest, require an assessment at that impact, in totality, was minor.

31 I am therefore satisfied that I am not required to go to the question of necessity.

32 However, because I am not obliged to do so does not mean that, for completeness in these reasons, I ought not do so because the proposal is a non-compliant one.

33 I am satisfied that the question of whether a better or modified design which was undertaken to protect further (or completely) the views from the Scott residents would be desirable or not

34 I am satisfied, from a view protection perspective, that it is unreasonable to do this and, as a consequence it is unnecessary, to require, in terms of the Winten tests, compliance with all four of the relevant development standards (on the assumption that they apply).

35 Having assessed the application on the position of the Council's case at its highest and the applicant's case at its lowest as being one of where the applicant should prevail, it is unnecessary for me to continue to deal with it on any more disadvantageous basis to the Scotts (such as considering what would be the impact with the removal of the jacarandas or the assessment of the views at a standing position or the approval of the Scotts’ development application or any combination of these – each and all of which would provide significant additional view benefits in undertaking such an assessment from the Scott residence).

36 As a consequences the conclusions I have reached concerning the third and fourth the tests in the Winten formulation, I am satisfied that each of the four SEPP 1 objections (assuming that they are required) are well founded and should be sustained. The consequence is that the orders the Court will be that the four objections under SEPP 1 are sustained; the appeal is upheld; the development application will be granted consent subject to the conditions of consent; and the appropriate exhibits will be returned.

37 That leaves simply the question for my determination of the appropriateness or otherwise of the provisions of cl 63 of the conditions of consent. The conditions of consent, as proposed by the Council, require the obtaining of a final occupation certificate for the development at the time of its conclusion and, if the owners of the property wish to reside in the property at some point after the renovations and additions have been partially completed, an interim occupation certificate would be required.

38 Ms Irish does not press the original objection to the requirement for a final occupation certificate but does press an objection to any requirement for any interim occupation certificate.

39 I have considered the extent to which the renovations and additions will impact on those areas which are likely to require inspection prior to the issuing of an interim occupation certificate. The plans clearly show that all sanitary areas and the kitchen will be significantly altered. None of the sanitary areas remain without alteration on my reading of the plans – that is the bathroom on the present ground level is shown as being significantly altered as is the bathroom in the lower level.

40 I am satisfied that it is appropriate, for the purposes of protection of public health and environmental amenity, that there be a requirement for an interim occupation certificate so that there can be satisfactory demonstration that the relevant standards are being met for the sanitary and kitchen areas prior to occupation on an interim basis. Therefore condition 63 as proposed by the Council will remain unamended.

Tim Moore

Commissioner of the Court