Lewis v Mosman MC

[2007] NSWLEC 20

Land and Environment Court

of New South Wales

CITATION:

Lewis v Mosman MC [2007] NSWLEC 20

PARTIES:

APPLICANT
Ian Lewis

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

11032 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- multiple dwellings, height bulk and scale, landscaping, visual impact, excavation.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Sydney Harbour Foreshores and Waterways Area Development Control Plan
Mosman Local Environmental Plan 1998
Mosman Residential Development Control Plan

CASES CITED:

Stromer v Woollahra Municipal Council [2006] NSWLEC 121

DATES OF HEARING:

16/11/2006 and 17/11/2006

 
DATE OF JUDGMENT: 

22 January 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Hill, solicitor
of Susan Hill and Associates

RESPONDENT
Mr M Connell, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

22 January 2007

11032 of 2005 Ian Lewis v Mosman Municipal Council

JUDGMENT

Introduction
The appeal

1 This appeal relates to a development application involving the residential redevelopment of land at 16, 16A and 18 Musgrave Street Mosman ("the subject application") comprising seven multiple dwellings. existing on No 16 Musgrave Street is a 2/3 storey 1930s Tudor style dwelling house. On 18 Musgrave Street is a 2/3 storey 1950s dwelling house and 16A Musgrave Street comprises vacant land.

The 1999 consent

2 In 1999 the Mosman Council granted development consent ("the approved development" and "the 1999 consent") for five multiple dwellings comprising:

• The demolition of the existing dwelling house at 18 Musgrave Street;
• The erection of two new dwelling houses on 16A and 18 Musgrave Street; and
• The conversion of the building at 16 Musgrave Street into three multiple dwellings above a basement car park servicing all five dwellings.

3 Works are presently underway on the building at 16 Musgrave Street and there was no dispute that the 1999 consent has been activated.

The proposed development

4 The now proposed development ("the proposed development") of these three sites comprises:

• The demolition of the existing dwelling house at 18 Musgrave Street;
• The erection of two buildings each containing two multiple dwellings on 16A and 18 Musgrave Street ("No. 16A" and "No. 18") and;
• The conversion of the building at 16 Musgrave Street ("No. 16") into three multiple dwellings above a basement car park servicing all seven dwellings.

5 The site the subject of the appeal comprises the above-mentioned three allotments and has a combined area of 2123 square metres. It is somewhat irregular in shape with a frontage of 14.2 metres to Musgrave Street and a frontage of 41.2 metres to Mosman Bay. It is quite steep falling approximately 23 metres from Musgrave Street to Mosman Bay.

6 Existing development surrounding the site comprises a mixture of two and three-storey dwelling houses and older style 2 – 4 storey walk up residential flat buildings as well as a number of more recent multistorey residential flat buildings. The character of the locality is shown by the photographs [Exhibit G] taken from Mosman Bay and Cremorne Point opposite.

Statutory context
Town planning controls

7 The following are the town planning controls that are applicable to this development application:

• Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ("SREP") and the associated Sydney Harbour Foreshores and Waterways Area Development Control Plan ("the Sydney Harbour DCP")
• Mosman Local Environmental Plan 1998 ("the LEP").
• Mosman Residential Development Control Plan ("the DCP")

The LEP

8 The site is zoned Residential 2(b) under the LEP and in this zone the proposal is permissible with development consent. The applicable design objectives in the LEP include the provision of a variety of housing types; the maintenance and enhancement of landscaping; compatible built form in terms of bulk height and scale; the provision of adaptable and accessible housing; and residential development that has an appropriate local amenity including public and private views. The proposed development complies with the foreshore building line applicable to the site.

9 There are also various other objectives, requirements and controls in the LEP relating to matters such as: protection of public views; the minimisation of visual impacts; compatibility with existing housing characteristics; appropriate landscaping; tree loss; heritage and conservation; and excavation.

10 The LEP contains the following applicable development standards:

• Clause 13(2) - maximum building height of 8.5 metres and maximum wall height of 7.2 metres;
• Clause 13(3) - maximum two-storey building height;
• Clause 14(2) - maximum floor space ratio of 0.55:1.

11 These development standards are variously exceeded and objections under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") have been provided.

12 Also applicable is the landscaped area requirement in cl 15(2) of the LEP, which is not said to be a development standard. It relevantly requires that 50% of the site area be set aside as landscaped area. No. 16 does not meet this requirement.

Other controls

13 Clause 4.2 of the DCP relevantly requires that there be adequate side setbacks to provide spatial relief between buildings, maintaining public views and minimise disturbance to bushland. The SREP and its DCP also require the protection of the scenic amenity of the harbour.

Advertising and consultation

14 The application was advertised and five objections were received raising matters of concern including: noise impacts associated with the lift, air-conditioning plant and the car park; geotechnical concerns including hours of operation associated with excavation; height, bulk and scale; amenity impacts including loss of privacy and views; loss of on street parking and traffic generation generally; and unsatisfactory landscaping arrangements.

15 The hearing began on-site and the following residents provided an explanation of some of these concerns:

• Ms S Ferguson of Units 7/6 – 20 Musgrave Street Mosman
• Mrs Cole of Unit1A - 20 Musgrave Street Mosman
• Ms L Lee of Unit 5 - 20 Musgrave Street Mosman

16 NSW Maritime did not object to the proposal advising that it did not wish to be heard at the hearing.

Council's decision

17 The application was refused by notice of determination dated 24 September 2004 citing reasons including excessive height and floor space ratio; insufficient landscaped area; excessive excavation; insufficient setbacks; and non-compliance with the objectives of the applicable planning controls.

The issues

18 The finalised statement of issues raises issues involving non-compliance with the objectives and the planning controls particularly in relation to height bulk and scale and landscaping and the protection of the scenic amenity of Sydney Harbour.

19 During the hearing, Mr Connell for the respondent explained that the principal issue in the case involved, taking into account its height bulk and scale, the visual impact of the proposal, on the landscape as viewed from the harbour and from Cremorne Point. In this context the planning controls are of particular relevance. A related issue involves the extent of excavation and the resulting modification to the land form.

20 By way of comment, had the principal issue been formulated in the manner now presented by Mr Connell this would have enabled the preparation of a joint planners report that more simply addressed the issue without the need for repetition.

21 Mr Connell also submitted that the existing approval was of little relevance to this development application. Conversely, Miss Hill said that it was a relevant circumstance of the case because it has been commenced and represents an approved building form.

Expert evidence

22 On behalf of the respondent Council, expert town planning evidence was given by Mrs D Dunford. On behalf of the applicant, expert town planning evidence was given by Mr W Long and expert architectural evidence by Professor J Haskell. The Court had the benefit of a joint report prepared by Miss Dunford and Mr Long.

Visua l impacts
Planning controls

23 In addition to the above-mentioned provisions of the planning controls, the planning instruments variously and relevant to the visual impacts issue require that a range of matters be taken into consideration.

24 Clause 25 of the SREP requires that in dealing with a development application consideration will be given in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways around the harbour. Such consideration includes the scale, form, design and siting of buildings in the context of the likely future character of the locality and the maintenance, protection and enhancement of the harbour's foreshores.

25 The applicable design objectives in the LEP include the provision of a variety of housing types; the maintenance and enhancement of landscaping; compatible built form in terms of bulk height and scale; the provision of adaptable and accessible housing; and residential development that has an appropriate local amenity including public and private views. There are also various other objectives and requirements in the LEP and other controls relating to matters including the protection of public views; the minimisation of visual impacts; compatibility with existing housing characteristics; appropriate landscaping; tree loss; heritage and conservation; and excavation.

26 The relevant objectives in the DCP require the enhancement and protection of the scenic amenity of the Harbour and seek to limit potential for large bulky houses whilst encouraging the sensitive siting of buildings and a leafy garden character.

The SEPP 1 objections

27 The above-mentioned development standards are relevant matters to be taken into consideration in dealing with the visual impact of the proposed development particularly having regard to its height bulk and scale. In relation to these development standards the town planners agreed that:

• In relation to the maximum floor space ratio of 0.55:1 the floor space ratio for No 16 is 0.98:1 and the overall floor space ratio for the entire proposal is 0.66:1;
• By comparison with the maximum prescribed height of 8.5 metres in the LEP, No 16 has a maximum height of 11.07 metres and No 18 a maximum of 10.03 metres. Similarly by comparison with the maximum wall height prescribed by the DCP of 7.2 metres, the maximum wall height of No 16 is 8.1 metres, the maximum wall height of No18 is 9.9 metres and the maximum wall height of No 16A is 7.43 metres;
• In relation to the prescribed maximum two-storey height limit in the LEP, No 16 is 4 storeys and Nos 16A and 18 part 3 and part 4 storeys.

Floor space ratio

28 The SEPP 1 objection dealing with floor space ratio (0.55:1) notes that it is proposed to develop the land in a manner that respects the existing subdivision pattern and arrangement and it is therefore appropriate to consider the floor space ratio as it relates to each of the three allotments. The intended strata subdivision of the development contemplates a subdivision of each allotment maintaining the existing subdivision pattern.

29 Relevant to the maximum floor space ratio of 0.55:1 the objection identifies the proposed floor space ratios as follows:

No. 18 0.5:1
No. 16A 0.54:1
No. 16 0.98:1

30 Hence it is only No. 16 that exhibits an exceedence, indeed a significant exceedence of the floor space ratio development standard.

31 The objection identifies the purpose of the development standard by reference to the objectives in cl 14(1) of the LEP, which are:

(a) To control the scale of development so that it is compatible with the 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 runoff, and
(c) To minimise the effects of bulk and scale of new development.

32 In relation to the identified exceedence it notes that the size of the building will be essentially the same as the approved development and will be similar in appearance when viewed from Mosman Bay. The changes to the roof form and the proposed balconies will not result in a discernible increase in visible bulk and scale by comparison. Together with the two separate/complying buildings it is responsive to and maintains the dwelling house scale and characteristic height and form of development in this locality. It also points out that some of the additional floor space is contained within the attic space of the existing steeply pitched roof.

33 The objection also points out that there will be no adverse impacts arising from the proposed additional floor space and the size, design and density of the development is acceptable in this medium density residential area that comprises a diverse range of residential development in terms of size, height, density and architectural style. In dealing with the proposed excavation the objection points out that some excavation is inevitable on steeply sloping sites such as this, so as to achieve the appropriate stepped building form of mainly two storeys.

34 For these reasons objection concludes that the proposal will be consistent with the objectives of the standard and also with the objectives of the 2(b) zone. It will also be consistent with the aims and objectives of the SREP particularly in relation to the visual environment and the form, scale and appearance of development along this part of the foreshore. Hence, strict compliance with the development standard would be unreasonable or unnecessary and in the circumstances the objection is well founded.

Height and storeys limits

35 The second SEPP 1 objection deals with maximum building height (8.5m), maximum wall height (7.2m) and maximum number of storeys (2). Based upon the town planners' joint report and the objection, the non-compliances are as follows:

Building height
No. 18 10.03m.
No. 16 11.07m.
No. 16A not stated but < 8.5m.

Wall height
No. 18 9.9m.
No. 16 8.1m.
No. 16A 7.43m.

Storeys
No. 18 part 3 part 4 storeys.
No. 16 4 storeys.
No. 16A part 3 part 4 storeys.

36 It is to be noted however that these non-compliances do not necessarily relate to each of the three buildings in their entirety. There are instances of lesser non-compliance and compliance. It is also to be noted that No. 16 in terms of height and storeys and apart from the introduction of the dormers remains essentially unchanged by comparison with the approved development.

37 The objection identifies the purpose of the development standard in cl 13(1) of the LEP, which are:

(a) To protect public and private views, and
(b) To minimise the visual impact of buildings when viewed from the harbour and surrounding foreshores, and
(c) To ensure buildings resulting from new development are compatible with existing buildings in terms of height and pitched roof form, and
(d) To minimise the effects of bulk and scale of buildings arising from new development in the existing residential areas.

38 In relation to the minimisation of visual impact the objection recognises the increase in the width of No. 16 and the introduction of dormer windows but points out that these will be hardly discernible when viewed from Mosman Bay and from Cremorne Point. The building will continue to be similar in height size and appearance by comparison with the existing building. As for the two foreshore buildings at Nos. 18 and 16A the height, width and stepped profile with their pitched roofs make them responsive not only to the constraints of their sites but also the objectives of the LEP and the development standards. The staggered arrangement of the dwellings and the terraced gardens and landscaping in between and along the foreshore will ensure that the buildings have the appearance of two detached buildings that will be compatible with the form size and pattern of development along the foreshore.

39 As for the requirement that new buildings be compatible with existing buildings in terms of height and pitched roof form, the objection points out that all three buildings will have pitched tile roofs and sandstone is to be used for the lower level walls of the basis of the buildings. The height of the two foreshore buildings will be similar in height to the existing building at Nos. 14 and 18A Musgrave Street These design features indicate compatibility.

40 In relation to the need to minimise the effects of bulk and scale the objection notes that the height form and siting of the buildings will ensure that the impact of visual bulk and impacts on privacy and sunlight access to adjoining properties is minimise. The proposed development will be compatible with the height and form of surrounding development and will not affect any private views from Musgrave Street or private views from surrounding properties.

41 The objection then explains that the actual departures from the height, wall height and storey height standards only comprise small sections of roofs on the buildings and in relation to the stepping form of the design of the buildings. The departure will not result in any adverse impacts. Also strict compliance with the development standards would not produce buildings that were more in character with the existing and indeed the desired future character of development in this locality. It concludes, taking into account that the objectives of the standard are met that it is well founded

The evidence - Miss Dunford

42 According to Miss Dunford proposed development would have an overbearing and unacceptable visual impact when viewed from the harbour and from Cremorne Point. This impact results from the development's excessive height, bulk, scale and insufficient landscaped area and in this context she refers to the non-compliances with the floor space ratio, height and landscaped area standards. In particular the extension to No. 16 will have a significant adverse effect when combined with the exceedence of the height controls. Similar consequences result from the exceedence of the height controls by Nos 16 A and 18 combined with the interconnecting structures which result in and unacceptable horizontal massing. The development will appear as 4 storeys when viewed from the harbour and will thus be inconsistent with the existing two and three-storey dwelling house character. Moreover the buildings have not been sensitively sited and failed to respect the natural landform and are sited to close to site boundaries.

43 As a consequence the development will adversely affect scenic amenity and thus fails to maintain protect and enhance the unique visual qualities of the harbour and its foreshores. It will be visually intrusive and an over development of the site, failing to meet the LEP and SREP objectives. Considered together and taking into account the unsatisfactory landscaping, the three buildings will be out of character with the existing pattern of development along the foreshore.

44 In relation to proposed site excavation that the extent of this is excessive and would be contrary to the objective in the DCP that requires the minimisation of cut and fill.

45 For these reasons it was Ms Dunford's opinion that the proposal was unsatisfactory and the SEPP 1 objections should not be upheld.

The evidence - Mr Long

46 According to Mr Long the area in which the site is located has a diverse character comprising a mixture of dwelling houses of the Federation and Post Federation style, interwar residential flat buildings of various sizes and multistorey residential flat buildings. The site is constrained by its steep topography and the vehicular and pedestrian access to the adjoining properties. The proposed development is responsive to that diversity and the site's constraints.

47 In relation to landscaping, compliance with the foreshore building line in essence preserves almost all of the lower part of the site and the landscaping here comprises almost 50% of the site area. The majority of trees on the lower foreshore part of the site will be retained and supplementary plantings provided. This foreshore area is most important visually in terms of scenic amenity and appearance from Mosman Bay.

48 Whilst the landscaped area requirement in the LEP is not met this is a discretionary standard. Also, although the landscaping above structures is not technically included as landscaped area, it can be taken into consideration because there is adequate soil depth to sustain planting in these areas. This landscaping will contribute to the overall landscape presentation of the site when viewed from Mosman Bay.

49 The two proposed new buildings will, given their stepped profile be two storeys in appearance and their height, width and profile and their pitched roofs are very acceptable in terms of responding to the steepness of the site, the character of the area and the applicable planning controls. The arrangement of the dwellings and the terraced gardens and landscaping in between and along the foreshore will ensure that the buildings do not appear as one single horizontal mass but rather as separate detached buildings. By themselves these buildings comply with the floor space ratio and the landscaped area standards. They also comply with the foreshore building line, which will be maintained in its present state thus enhancing the visual appearance of the entire development. In relation to the side setback of the new building adjoining the northern boundary of the site, there are no windows in the northern wall. Taking into account that the upper levels of this building are setback 3 metres from the boundary, built form outcome will be compatible with the general siting of buildings in the vicinity.

50 He observes that the existing three-storey dwelling at No 16 does not comply with the previously applicable and current planning controls. By comparison with approved development this building will once modified be very much the same, even taking into account the minor addition to the north so as to improve access for the adaptable unit. The changes will, including the reduced landscaped area, not be discernible when viewed from the Mosman Bay.

51 When viewed from Mosman Bay and from Cremorne Point the stepped form of the of the proposed development down the site is acceptable and compatible with the form and staggered siting of buildings in the locality. Despite the proposed modifications including the increase in width and the introduction of dormer windows the end result for No16 is the practical and orderly use of an existing building and its effective height bulk and scale will remain unchanged. Also, the building to the south at No. 14 appears higher and bigger, visibly three storeys, 4 storeys plus on high sandstone walls near the foreshore. Whilst this is a large building, when viewed in its context it is dwarfed by the adjoining multiunit building to the north and other multistory, multiunit development on the ridge line.

52 The vehicular access and parking arrangement is a practical orderly and efficient planning outcome. The excavation to accommodate the car stackers is confined to the footprint of No. 16 and the additional excavation will not be discernible because it will be below the level of the approved car park that is below the surrounding ground level.

53 The proposed development is consistent with council's housing objectives and the objectives of the LEP to locate medium density zones such as the zone applicable to the site in appropriate locations.

54 In the circumstances it was Mr Long's opinion that the SEPP 1 objections are well founded, demonstrate that the objectives of the standards will be met and should therefore be upheld.

Prof Haskell

55 According to Prof Haskell the site's context comprises a wide range of architectural styles which generally maintain a consistent scale and height. By comparison however the building at No. 14 is blatantly and visually intrusive. In contrast the proposed development is responsive to its environs in terms of its features, materials and general massing that are consistent with the prevailing surrounding character. The end result is a harmonious building ensemble that will sit comfortably within the existing and proposed vegetation - the excellent landscaped proposal will make a distinctive contribution to this part of Mosman Bay. It is an appropriate imaginative architectural solution with minimal excavation

56 The proposed development is in all essential respects virtually identical with the previously approved proposal and the underlying design and planning principles of the original proposal are unaffected in any substantive way

Court’s conclusions

57 Having considered all of the evidence I find that the evidence marshalled on behalf of the applicant to be persuasive and have reached the conclusion that the proposed development has no impacts that are such as to warrant refusal of the application. The following matters are particularly relevant regarding how I have arrived at my decision to uphold the appeal.

58 First, I accept the submission on behalf of the applicant that, notwithstanding the presently applicable planning controls, the 1999 consent should be given significant weight. In Stromer v Woollahra Municipal Council [2006] NSWLEC 121, Watts C acknowledged that an existing consent that had not been activated was relevant, as a circumstance of the case, but should attract little weight. In that case the existing consent was approved under statutory planning provisions that were not applicable at the time of the hearing. Recognizing that there are certain similarities between Stromer and this case and taking into account that I am not obliged to strictly follow another commissioner's decision I have decided to give significant weight to the 1999 consent, because it has been activated. Whilst the proposed development contains two additional dwellings and a number of other differences including an increased floor space ratio and a reduced landscaped area it nevertheless closely resembles the approved development and will have similar impacts.

59 Second, regarding excavation I note that the main area involved is underneath No.16 and once the development is completed this will be largely unapparent. Given the steep slope of the site and its relationship of the two new buildings on the lower part of the site to Musgrave Street the provision of basement car parking in the location proposed is clearly appropriate.

60 Third, in the context of the LEP objective that existing residential amenity be maintained there will be minimal impact on the residential amenity of adjoining properties in terms of privacy, view loss and overshadowing. Whilst there will be some loss of amenity generally for No 16 as a result of the modified landscaping scheme and the new vehicular access and the parking arrangement this is not critical.

61 Fourth, although the proposed development does not meet the landscaped area requirement, the non-compliance over the entire site is relatively small. I accept that the additional landscaping to be provided above structures is likely to be successful and will make a contribution to the landscaped scheme which I also accept will provide an appropriate landscaped setting for the development, responsive to the character of the surrounding area. Also the proposed development complies with the foreshore building line requirement.

62 Fifth, I have examined the west elevations together with the north and south elevations of the proposed development in order to understand the built form in its three dimensions including the spatial separation between the buildings. I have considered this built form, taking into account the manner that it steps up the hill slope and the existing and proposed landscaping, in the context of the photographs of the site taken from Mosman Bay and Cremorne Point. Whilst the two proposed foreshore buildings would have an appearance in excess of two storeys these will certainly not be out of place taking into account the numerous close-by buildings that, in terms of height have a similar presentation. The existing building at No. 16 is to remain, essentially retaining its existing form. In these circumstances I accept the evidence of Prof Haskell that the proposed development would be appropriately responsive to the prevailing surrounding and likely future character. As a consequence I am satisfied that the objectives of the planning controls involving the protection of the scenic amenity of the harbour are satisfied.

63 Sixth, taking into account the quality of the design in its landscaped setting and the available outlook from the dwellings a quality amenity will be available for prospective residents. This will be further improved by the availability of the proposed right of way to the foreshore, providing access to off-site recreational open space.

64 Seventh, the concerns of the residents in relation to noise and vibration associated with excavation are provided for in the conditions of consent. Other noise impacts associated with lifts and air-conditioning plant are also similarly dealt with. There will be no unreasonable loss of privacy or loss of any significant views. Compliance with council's car parking requirements should ensure that there are no unreasonable traffic impacts in Musgrave Street.

65 Eighth, in relation to the exceedences of the development standards involving building height, storeys and floor space ratio I accept the rationale contained in the SEPP 1 objections. More particularly I accept the conclusions therein regarding amenity impacts and importantly the conclusions that, taking into account the variations from the standards, the relevantly applicable objectives are met by the proposed development. Draft State Environmental Planning Policy (Development Standards) 2004 was exhibited in 2004 but has not been gazetted, however I am satisfied that upholding these two objections would not result in any conflict with that draft policy.

66 Finally, taking the above conclusions into account I am satisfied that the proposal sufficiently meets the relevant objectives of the LEP, the SREP and the DCP’s and that the development consent as sought should be granted. In relation to the without prejudice conditions of consent (Exhibit 12), condition 35 was opposed insofar as it provides for the lapsing of the consent within two years as compared to the standard five-year period provided for in the Environmental Planning and Assessment Act 1979. I understand that the lesser period is sought to be imposed because a review of the LEP is underway. However I do not accept that this is a sufficient reason for the reduction of the standard period and have changed to the condition accordingly.

Orders

67 The orders of the Court are therefore:

1. The appeal is upheld

2. The development application for the residential redevelopment of land at 16, 16A and 18 Musgrave Street Mosman involving:
• The demolition of the existing dwelling house at 18 Musgrave Street;
• The erection of two buildings each containing two multiple dwellings on 16A and 18 Musgrave Street ("No. 16A" and "No. 18") and;
• The conversion of the building at 16 Musgrave Street ("No. 16") into three multiple dwellings above a basement car park servicing all seven dwellings is determined by the granting of development consent subject to the conditions in an Annexure ‘A’ hereto.
3. Exhibit C is retained.

___________________

T A Bly
Commissioner of the Court
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