Lipscombe Wall v Mosman Municipal Council

[2004] NSWLEC 342

Land and Environment Court

of New South Wales

CITATION:	Lipscombe Wall v Mosman Municipal Council [2004] NSWLEC 342
PARTIES:	APPLICANT Emma Diana Lipscombe Wall RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	11354 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- bulk and scale - amenity impact of the visual bulk - loss of privacy
LEGISLATION CITED:	Mosman Local Environmental Plan 1993 Mosman Residential Development Control Plan
CASES CITED:
DATES OF HEARING:	27/06/2004
EX TEMPORE JUDGMENT DATE :	06/27/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Young,solicitor RESPONDENT Ms J Walsh, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 June 2004

11354 of 2003 Emma Diana Lipscombe Wall v Mosman Municipal Council

JUDGMENT

1 This is appeal No. 11354 of 2003, which is an appeal against the council’s refusal of a development application for alterations to an existing residence at 80 Holt Avenue, Mosman. The proposal involves construction of a first floor level containing a new bedroom, en suite and balcony. At the ground floor, it proposes a living room, lowering and alterations to part of the rear deck, and provision of some perimeter landscaping.

2 The property is zoned Residential 2(a3) under Mosman Local Environmental Plan 1993 and the development is permissible with consent. The site is in the Holt Estate Conservation Area, within the Belmont Townscape area defined by the RDCP, so that it is also subject to Mosman Residential Development Control Plan. Clause 14(2) of the LEP contains the development standards and allows a maximum FSR of 0.5:1. This proposal has proposed FSR of 0.63:1 and the applicant has dealt with the variation by way of a SEPP 1 objection.

3 The detailed evidence in the case was presented by Mr Michael Neustein, project architect/planner and Ms H Ketelbey, council’s planner assessment officer. I have also considered the objections and submissions from the neighbours.

4 The planning hurdle in this matter concerns the bulk and scale of the extensions and the resultant amenity impacts of the visual bulk and loss of privacy to the neighbours. These matters are complicated in this case because of the existing rear deck, which is elevated and constrains the opportunity to provide at ground landscaping as preferred by the Development Control Plan. Its elevated height also limits privacy to the adjoining properties.

5 In terms of the primary hurdle in the SEPP 1 objection, this was addressed by Mr Neustein and there are the three following objectives stated for this development standard:

(a) compatibility with the housing characteristics of the locality,
(b) limit excavation and retain natural levels to contain runoff and,
(c) minimise effects of bulk and scale.

6 Council accepts that (a) and (b) are not in issue. The main one being (c), which is to minimise effects of bulk and scale. There has been discussion of the possibility on reducing the upper level and what affect that would have. However, in my consideration the bulk and scale is noticeable, observable from a number of points. Firstly, from the front elevation there is impact on the heritage streetscape and conservation area, but this has been considered by Mr Staas - heritage architect, who states that the impact on the street front of the property is acceptable. I rely on his opinion that this impact is satisfactory.

7 On the eastern side of the site, there is the common wall part the way along the property and given the position of the back of the proposed extension, I think there is very little impact on the adjoining property to the east, in terms of the bulk and scale of this proposed building, considering its proposed setback.

8 With respect to the western neighbour, the upstairs section has been setback to some extent from the side boundary and from my observations from this neighbouring property, I consider that the extent of building bulk will have marginal or relatively insignificant visual impact. I also understand this position was reasonably well accepted by the neighbour. His concern was overlooking opportunities from the proposed balcony and also the opportunity for screening the upstairs section. The proposal now involves cutting back the existing deck to provide cladding, which can screen to a reasonable extent that upper level of the bedroom.

9 It seems that in terms of the discussion about reducing the bedroom area relative to the retreat area, the visibility of that section of bulk is not discernable to any major extent. Although I note that in the SEPP 1 objection, Mr Neustein says that for this heritage, older style house to maintain its heritage context, it requires some upgrading in order to allow reasonable modern liveability. That seems reasonable in this particular case, because there are limited external impacts of the extension in my opinion and the zone critical objective is reasonably satisfactory. Under these circumstances then, I consider sepp 1 objection has been reasonably made out and is well founded in this case.

10 In terms of the other issue, which deals with landscaping, there is the opportunity of reducing the impact of this existing elevated balcony.

11 However, the applicant chooses not do this, as it is an existing structure and if no development occurs, this level of amenity will remain. It appears that on balance there is the opportunity, that if it remains as part of the extensions, of making improvements to the screening effects by augmenting and landscaping it as proposed. Also cutting back part of the lower deck and erecting high screening adjacent to the western property, so that the privacy impact will also be improved and this can be achieved by the proposed timber screening, which the specification has to be finalised.

12 I also consider that in terms of the bulk and scale impacts, it is consistent with the neighbourhood, particularly the property to the east. It has a two-storey presentation and even though I am told it has a small, numeric FSR, I think that its visual appearance and its presentation is similar to the proposal. But considering that the proposal is setback further and it is concealed to some extent by the existing elevated deck, I consider the exceedance in FSR is reasonable in this case. Therefore I rely on Mr Neustein’s conclusions in the circumstances of this case, that in this particular location the upstairs alteration and reconfiguration is satisfactory and complies reasonably with the relevant controls.

13 Accordingly the Court orders that:

1. The appeal is upheld.

2. The SEPP 1 objection to the F.S.R. development standard contained in cl 14(2) of the Mosman LEP is allowed.

3. Development consent is granted to Development Application 8.2003.312.1 for alterations to an existing dwelling at 80 Holt Avenue, Mosman, in accordance with the conditions in Annexure ‘A’.

___________________________
R R Hussey
Commissioner of the Court
Mp/rjs

Annexure “A”

Conditions of Development Consent

Emma Diana Lipscombe Wall v Mosman Municipal Council

i. Premises: 80 Holt Avenue, Mosman

ii. Development Application No. 8.2003.312.1

Approved Plans and Documentation

1 The development must be carried out in accordance with the following stamped approved plans and documentation, except where amended by later conditions of consent:

Plan Nos.	Date of plan	Prepared by
DA01 Issue B	25 June 2004	Neustein Rosenberg Partnership
Landscape concept plan and planting plan	No date	Roxana Vlack
201179-2 Issue B	21 February 2003	G V Hull & Associates

Document title	Date of document	Prepared by
Statement of Heritage Impact	No date	Neustein Rosenberg Partnership
Statement of Environmental Effects for alterations and additions to existing building	29 August 2003	Neustein Rosenberg Partnership

Prior to the release of the construction certificate
The following conditions must be satisfied prior to the release of the Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate application. Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein.
Construction Certificate Application Plans – Design Changes
Construction Certificate Application Plans

2.1 Two copies of architectural and Structural Engineer’s plans must be submitted with the Construction Certificate application. The structural engineering plans must be signed by a qualified practicing Structural Engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent.

For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works.

2.2 A certificate shall be provided to the Council from a suitably qualified structural engineer that the rear deck can support the planter boxes proposed on the rear deck as shown on the landscape plan by Roxana Vlack as amended by condition 2.3. Note: This consent does not include any reinforcement to the existing rear deck.

2.3 The landscape plan by Roxana Vlack shall be amended as follows:

The concrete troughs shown as 5 x 1m planted with x 15 Acmena Smithi “Minor” 5 litre pot size shall be amended to 5 x concrete troughs 1m (long) x 500mm(wide) x 600mm (deep) planted with 15 Acmena Smithi “Minor” planted at 25 litre minimum pot size or 15 Sygygium panniculatum planted at 25 litre minimum pot size. Such plantings to reach and be maintained at a height of 2 metres above the level of the deck.

2.4 The balcony off the upstairs bedroom shall be reduced to the following dimensions:

Length – 1700mm
Depth – 400mm

2.5 The reference to “remove last lattice panel” on the west elevation on plan DA01 B by Neustein Rosenberg Partnership dated 25 June 2004 is to be deleted and the lattice panel is to remain.

2.6 The notation on plan DA01 B “Deck to be reinforced to support planter troughs” shall be deleted.

2.7 The privacy screen on the rear western boundary will be constructed with vertical louvres fixed at a 45 degree angle as shown on the A4 sketch plan no. PS1 dated 4 August 2004 by Neustein Rosenberg Partnership (attached marked “A”). The objective of this condition is to minimise vision from the deck on the rear of the property to 82 Holt Avenue.

2.8 The privacy screen on the rear eastern boundary will be constructed with vertical louvres fixed at a 45 degree angle as shown on the A4 sketch plan no. PS1 dated 4 August 2004 by Neustein Rosenberg Partnership (attached marked “A”). The objective of this is to minimise vision from the deck on the rear of the property to the rear of 78 Holt Avenue.

Dilapidation Report – Council Assets

3. To assist with an assessment of claims for the refund of the security deposit over Council’s property, a dilapidation report must be submitted. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant’s expense or compensated by deduction from the security deposit.

Dilapidation Report – Private Assets

4. The applicant shall supply Council with a dilapidation report for the adjoining property at 78 Holt Ave which documents and photographs the condition of buildings and improvements on that property. The report will be held by Council and will be made available in any private dispute between the neighbours regarding damage arising from site and construction works.

5. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to “Your Business” section of Sydney Water’s web site at then see Building & Developing then Building & Renovating, or telephone 13 20 92.

The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.

Materials & Finishes

6. Materials and finishes shall be complimentary to the character and streetscape of the area. Highly reflective roofing materials shall not be used. Details of finished external surface materials, including colours and texture, must be to be submitted to the satisfaction of Council or the Accredited Certifier.

Long Service Levy

7. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant shall pay a long service levy at the prescribed rate of 0.2% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more.

Security Deposit

8. A cash deposit or bank guarantee to the value of $2,500 in favour of Council shall be provided for the making good any damage caused to Council property. A request for a refund of unused funds may be made following the completion of works and an inspection of the property by Council.

Prior to the Commencement of Site Works
The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal.
Notice of Intent to Commence Site Works

9. In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979, no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until:

i. the Construction Certificate has been issued;

ii. the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent);

iii. in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent.

iv. the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C):

· appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and

· notified the PCA of any such appointment; and

· unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and

v. the person benefiting from the consent has given Council at least 2 days’ notice of the person’s intention to commence the erection of the building by way of completing Form 7D.

Home Building Act

10. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

a. in the case of work to be done by the holder of a contractor licence under that Act:

i. the name and licence number of the contractor; and

ii. the name of the insurer by whom the work is insured under Part 6 of that Act,

b. in the case of work to be done by the holder of an owner-builder permit under that Act, the name and permit number of the owner-builder.

If arrangements for doing the residential building work are changed while the work is in progress so that the information notified above becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

Protection of Adjoining Areas

11. If site or building works will:

1 cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or

2 involve the enclosure of a public place; or

3 have the potential to damage adjoining private land by way of falling objects

then a temporary hoarding, fence or awning must be erected between the work site and the adjoining area. Any such hoarding, fence or awning must be removed when the work has been completed. The fence must be constructed prior to the commencement of works and where adjoining public land shall be covered in cyclone wire mesh to discourage the fixing of posters or graffiti.

Sediment & Erosion Controls

12. Temporary sedimentation and erosion controls shall be constructed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be designed and installed in accordance with the requirements of the NSW Department of Conservation and Land Management's "Urban Erosion and Sediment Control" manual. Note: this document is now available from the Department of Infrastructure, Planning and Natural Resources.

Lapsing of Consent if Site Works Not Commenced

13. In accordance with Section 95(1) of the Act, this consent shall lapse unless work has physically commenced on the land within 5 years from the date of the consent or in instances where no work is required, the use has commenced within 5 years from the date of the consent.

Public Liability Insurance

14. Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier.

During Site Works / Construction
The following conditions must be satisfied during site and construction works.
Compliance with the Building Code of Australia

15. All works are to be carried out in accordance with the requirements of the Building Code of Australia.

Demolition

16. All demolition work must be carried out in accordance with the provisions of Australian Standard 2601-2001: The Demolition of Structures.

17. Where asbestos material shall be removed or disturbed as a result of any proposed demolition, alteration or addition, all work must be carried out by a person licensed under Chapter 10 of the Occupational Health and Safety Regulation 2001 and undertaken in accordance with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996. All asbestos to be removed must be disposed of at a tip recommended by the NSW Environment Protection Authority and under no circumstances shall be re-used or sold.

Signs for Building and Demolition Sites

18. A sign must be erected in a prominent position on any work site on which building work or demolition work is being carried out:

a. showing the name, address and telephone number of the principal certifying authority for the work; and

b. showing their name of the person in charge of the work and a telephone number at which that person may be contacted outside work hours; and

c. stating that unauthorised entry to the work site is prohibited.

Any such sign shall be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed.
This condition does not apply in relation to building work or demolition work that is carried out inside, and does not affect the external walls of, an existing building.

19. In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays.

Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works.

Excavation, Backfilling and Support for Neighbouring Buildings

20. If an excavation extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must:

4 preserve and protect the building from damage;

5 if necessary, underpin and support the building in an approved manner; and

6 at least 7 days before excavating, give notice of an intention to excavate to the adjoining owner and furnish particulars to the owner of the proposed work.

21. All excavations and backfilling must be executed safely and if necessary properly guarded in accordance with appropriate professional standards to prevent them from being dangerous to life or property.

Sediment & Erosion Controls

22. Sedimentation and erosion controls must be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.

Council Property

23. The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from Council’s Traffic Committee for the establishment of a Construction Zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within Council property.

Landscaping

24. The applicant must plant 5 Acmena smithii (Lily Pilly) each of 100 litre pot size along the western boundary where portion of the deck has been removed.

Water Conservation

25. To minimise domestic water consumption, water conservation devices with an AAA rating must be used, including low flow tap and shower head roses, dual flush toilets and six litre/minute flow regulators in all bathroom basins, kitchen and laundry sinks.

Energy Efficiency

26. To promote energy efficiency all hot water system/s installed must have a minimum rating of 3.5 stars.

Toilet Facilities

27. To provide reasonable worker amenity, toilet facilities shall be provided at or in the vicinity of the work site for the duration of site work activities.

Local Government Act 1993

28. This consent does not authorise the carrying out of any of the following activities which require the separate approval of Council under Section 68 of the Local Government Act 1993:

7 Place a waste storage container in a public place

8 Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway

Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993 .

29. A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the Principal Certifying Authority or an officer of the Council.

30. To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and or with relevant Australian Standards, the following critical stage inspections are to be carried out:

· At the commencement of the building work;
· After the excavation for, and prior to the placement of, any footings;
· Prior to pouring any in-situ reinforced concrete building element;
· Prior to covering of the framework for any floor, wall, roof or other building element;
· Prior to covering waterproofing in any wet areas;
· Prior to covering any stormwater drainage connections;
· Fire separation if the building is within 900mm of the property boundary prior to any occupation certificate being issued in relation to the building;
· Smoke alarms prior to any occupation certificate being issued in relation to the building; and
· Final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

The critical stage inspections must be carried out by the Principal Certifying Authority PCA, or if the PCA agrees, by another certifying authority excepting the final inspection which must be carries out by the PCA.

Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate – see later conditions of consent.

If you intend engaging Council to undertake inspections, please telephone the area Building Surveyor or Council’s Case Officer on 9978 4044 to arrange a suitable time.

Prior To The Release Of The Occupation Certificate
The following conditions must be satisfied prior to the issue of the Occupation Certificate.
Record of Inspections Carried Out

31. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for the critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the PCA, the PCA is to forward a copy of all records to Council.

The record must include details of:

· The development application and construction certificate number;

· The address of the property at which the inspection was carried out;

· The type of inspection;

· The date on which it was carried out;

· The name and accreditation number of the certifying authority by whom the inspection was carried out; and

· Whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.

32. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use.

33. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with.

Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.

34. Landscaping in accordance with the approved landscaping plan (as amended by conditions 2.3 and 24) shall be maintained at all times. This includes the plants in pots on the rear deck.

___________________

Commissioner of the Court
rjs

Advice / Notes
The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination.

i. Headings such as “Prior To The Release Of The Construction Certificate” together with bolded notes that immediately follow, form part of this Notice of Determination. Conditions under the respective headings shall be read in the context of the heading and note.

ii. A public inquiry by a Commission of Inquiry was not held under Section 119 of the Act.

iii. Other public authorities may have separate requirements and should be consulted in the following respects:

a) Australia Post

for the positioning and dimensions of mail boxes in new commercial and residential developments;

b) AGL Sydney Limited

for any change or alteration to gas line infrastructure;

c) Energy Australia

for any change or alteration to electricity infrastructure or encroachment within transmission line easements;

d) Telstra, Optus

or other telecommunication carriers for access to their telecommunications infrastructure.

iv. This decision does not ensure compliance with the Commonwealth Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act.

v. Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court.

vi. In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading “Critical Stage Inspections” in this consent. If additional inspections are required, further notice will be provided.

vii. All references to “the Act” under this consent relate to the Environmental Planning and Assessment Act 1979.