Leckie v Mosman Municipal Council

[2006] NSWLEC 49

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Leckie v Mosman Municipal Council [2006]  NSWLEC 49

PARTIES:
APPLICANT
Tansin Leckie

RESPONDENT
Mosman Municipal Council

CASE NUMBER:     10948 of        2005

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 1998

CORAM:        Brown C

DATES OF HEARING:        18/11/05, 10/02/06

DECISION DATE:    17/02/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr G Halpin, solicitor
SOLICITORS
Gregory J Halpin

RESPONDENTS
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

17 February 2006

10948 of 2005     Tansin Leckie v Mosman Municipal Council

JUDGMENT

1. COMMISSIONER: This is an appeal against the refusal of DA No 8.2004.514.1 by Mosman Municipal Council (the council) for the construction of a plunge pool adjoining the deck of an approved, but not yet constructed dwelling at 14 Wolseley Rd. Mosman (the site). The deck is located at the Wolseley Rd. frontage and has significant views to Balmoral and Middle Harbour. 

1. The plunge pool is located 2 m from the common boundary with 16 Wolseley St. and has dimensions of 5.8 m x 2.8 m.  It is setback on a similar alignment to the deck and ground level garage from the street.

1. The appeal was conducted as an On Site Hearing on 18 November 2005 however the proceedings were adjourned for the preparation, readvertising and further assessment by the council of amended plans.  The amended plans provide for the construction of a pergola over the deck that incorporates noise protection measures on the western side.  The judgement reflects the findings given on site and the further submissions of the amended plans on 10 February 2006.

2. The site is generally rectangular in shape with a frontage of 13.605 metres and an area of 522.9 square metres.  The general area consists predominantly of dwelling houses of one and two-storey constructions of various types, designs and age.

1. The site is zoned Residential 2 (a1) under Mosman Local Environmental Plan 1998. The propose use is ancillary to a dwelling house and is therefore permissible with consent.

1. Mosman Residential Development Control Plan (the DCP) also applies and provides specific objectives and planning guidelines for Swimming Pools, Spa Pools/Baths and Water Features at cl 7.4.

1. Objective O2 seeks pools/spas to be "appropriately located for visual or privacy and where they will not detract from the appearance of the property when viewed from the street or public place". 

1. Planning Guideline P1 states that pools/spas should be located behind the building line, preferably at the rear of the main building.  Planning Guideline P7 requires a minimum 2 m setback to the external edge of the pool surround although a greater setback may be required.  Planning Guideline P8 requires that pools/spas must be located at or below the existing ground level.  Planning Guideline P9 states that elevated pools/spas above the natural ground level are "expressly discouraged".

2. The council filed a Statement of Issues containing 4 separate issues. These can be conveniently grouped into two main areas:

   1) whether the proposed plunge pool will create unacceptable noise impacts, and

   2) whether the proposed plunge pool will have an unacceptable impact on the streetscape.

3. In relation to noise, the parties agreed to the appointment of Mr Louis Challis as the Court appointed acoustic expert.  Mr Renzo Tonin, an acoustical engineer, provided additional evidence on behalf of the applicant.  The experts conferred and there was general agreement that any noise issues could be satisfactorily addressed through the construction of an acoustical wall along the western side of the plunge pool.  The wall would be 1.8 metres high with a further 1.8 metre long section at an angle of 45° extending over the plunge pool.  Mr Challis recommended additional self-regulating restrictions on the hours and use of the plunge pool.

1. The additional self-regulating restrictions recommended by Mr Challis were opposed by the council on the basis that it potentially required the council to attend the site if any breaches were reported.

1. The owners of the adjoining property at 16 Wolseley Rd., Mr and Mrs Toltz provided evidence on site and raised concern that the noise associated with the plunge pool would unacceptably impact on the rooms adjoining the site.  These rooms were the main bedroom, dressing room and bathroom.  They opposed the amended plans for similar reasons.

1. The owner of the adjoining property at 12 Wolseley Rd., Ms Yvonne Poon provided evidence on site and stated that the pool and noise structure would unacceptably impact on the appearance from the street.  She further states that sufficient area is available in the rear yard for a swimming pool.  Ms Poon opposed the amended plans for similar reasons.

2. In relation to the impact on the streetscape, the Court was taken on an inspection of the properties in the immediate area.  A number of swimming pools located within the front setback area were pointed out to the Court although a number were approved under different planning controls to those that exist at present.

1. Based on the inspection of the properties in the immediate area and the necessary construction of the acoustic fence, the parties were advised at the On Site Hearing on 18 November 2005 that the impact on the streetscape of the original proposal was inconsistent with Objective O2 of the DCP.  While there were swimming pools located within the front setback area of a number of dwellings within the immediate area, these were approved under previous planning controls.  In my opinion, the proposed acoustic fencing would appear as a discordant and foreign element in a varied but attractive streetscape.

1. The amended plans however suitably address this unacceptable streetscape impact by incorporating the necessary noise attenuation measures into a pergola that sits behind the building line and is designed as part of the proposed building.  I accept that the amended design for the noise attenuation structure sits comfortably within the streetscape.  Mr Challis has assessed the amended proposal and considers that the noise attenuation features reduce any noise impacts to an acceptable level when considered with restrictions on the use and operating hours and also subject to confirmation of the structural stability of the proposed pergola. 

2. On this basis and while the proposal does not strictly comply with the requirements in Planning Guideline P1, P7, P8 and P9, I accept that the amended proposal is consistent with Objective O2 and is suitable for approval.  In coming to this conclusion I am mindful that plunge pool is located behind the building line to Wolseley Rd. and a 2 metre side setback is provided.

1. Mr Challis proposed additional conditions for the use of the pool (Conditions 44-49).  These conditions placed restrictions on the times the pool may be used by adults and children (Condition 44), a limit on the number of visitors (Condition 45), a restriction on the type of games conducted in the pool (Condition 46), supervision of children (Condition 47), the maximum number of people on the deck or in the pool (Condition 48) and a warning for guests using the pool against excessive noise (Condition 49).  The council opposed the conditions, as they would be difficult and cumbersome to enforce.  Instead, the council sought a single condition that restricted the hours of use to 8.00 am to 7.00.pm. 

1. I agree with the council on the conditions at issue, although I propose to extend the use of the pool to 8 00 pm as this is a time that is not likely to cause any impact on adjoining properties while providing a reasonable opportunity for use.

2. For the foregoing reasons, the Orders of the Court are:

   1) The appeal is upheld. 

   2) The construction of a plunge pool adjoining the deck of an approved, but not yet constructed dwelling at 14 Wolseley Rd. Mosman is approved subject to the conditions in Annexure A.

   3) The exhibits are returned with the exception of exhibits 7 and J.

   ____________
   G T Brown
   Commissioner of the Court