Lovrovich v Mosman Council

[2013] NSWLEC 1217

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lovrovich & Anor v Mosman Council [2013] NSWLEC 1217
Hearing dates:	12-13 November 2013
Decision date:	15 November 2013
Jurisdiction:	Class 1
Before:	Morris C
Decision:	See paragraph 43
Catchwords:	Development application; compliance with planning controls, impact on streetscape
Legislation Cited:	Land and Environment Court Act 1979
Cases Cited:	McNally v Mosman Municipal Council [2013] NSWLEC 1074; State Environmental Planning Policy (Infrastructure) 2007;
Texts Cited:	Mosman Residential Development Control Plan; Mosman Urban Design Study Residential Areas Study Report
Category:	Principal judgment
Parties:	Susan Lovrovich Chris Valacos (Applicants) Mosman Council (Respondent)
Representation:	Ms F Berglund (Applicant) Ms J Walsh Pikes & Verekers Lawyers (Respondent)
File Number(s):	10703 of 2013 10706 of 2013

Judgment

1. These are two appeals relating to building works associated with a dwelling house at No. 31 Clanapline Street, Mosman. Matter No. 10703 of 2013 is an appeal against conditions of consent imposed by Mosman Council when it modified Development Consent No. 8.2009.100.3 (original consent) on 22 March 2013.

1. Matter No. 10706 of 2013 is an appeal against the council's deemed refusal of Development Application No. 8.2013.111.1.

1. The parties agreed that the matters be heard concurrently.

Background and the proposals

1. The original consent was granted by the council on 11 June 2009 and authorised alterations and additions to the existing dwelling house at 31 Clanalpine Street, Mosman (site). The works approved included construction of new internal stairs, internal layout changes, new entry and verandahs, changes to carport roof, construction of a masonry front boundary fence, maximum height of 1.2m and change of use from dual occupancy to single occupancy.

1. On 17 August, 2012 the original consent was modified so as to retrospectively approve the construction of a retaining wall towards the rear, lower section of the site.

1. A further application to modify the consent was lodged with the council on 27 December 2012 and sought to amend conditions of consent that required the construction of privacy screens to the side elevations of the verandah extensions. The council determined the application however did not accept all of the changes sought by the applicant. The council amended condition 5 and approved, through condition 1, alternate plans, which indicated the extent of the screens to be constructed.

1. Matter No. 10703 of 2013 is an appeal against those conditions and seeks to:

• Amend condition 1 to include reference to amended plans submitted with the modification application which detail the erected privacy screens of 1.8m height above the finished deck level along the north-eastern side of the lower ground floor and ground floor rear balconies.

• Delete condition 5 which states:

To maintain adequate visual privacy for 29 Clanalpine Street and 3 Kallaroo Street the installed balustrading on south-western side of the lower and upper decks shall be removed and/or shall be augmented by the erection of a privacy screen 1.8m in height, measured from the finished floor level of the deck, along the south western side of both the upper and lower decks. The privacy screens shall have vertical slats oriented at 45 degrees in a north-south orientation in order to direct outlook away from these neighbouring properties.

1. In addition to the application to further modify the original consent, a new development application, DA 8.2013.111.1 (new DA), was lodged with the council on 6 August 2013 and sought consent to:

• convert the double carport into a double garage by enclosing the garage with masonry walls and fitting a garage door,
• install 18 solar panels on the roof of the garage,
• demolish the existing chimney,
• construct an awning over the rear door,
• construct a 2m high pedestrian entry structure,
• construct a 1.8m high front boundary fence with entry canopy
• construct a new brick wall to the underside of the lower ground floor rear verandah along the north-east side of the dwelling
• construct a swimming pool to the rear of the dwelling
• increase the height of the approved retaining wall and carry out earthworks to bench the site to provide a trafficable lawn area
• landscaping works
• removal of two existing tree ferns

1. The application has not been determined and Matter No. 10706 of 2013 is an appeal against the deemed refusal of that development application.

1. The matters commenced as a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979 and as a result of that process, the parties agreed to an alternate treatment to the rear yard and retaining walls so that the area would be terraced rather than the height of the existing retaining wall increased. The council is satisfied that the terracing arrangement and the provision of screen planting would address its concerns provided additional planting was implemented along the north-eastern boundary and the planting is maintained to nominated heights. The council has also agreed to changes proposed to the treatment of the front fence and gate. The applicant has provided amended plans to reflect those changes, which involve the addition of open metal fencing with a minimum 75mm gap and maximum 25mm bars above the approved 1.2m fence with similar treatment to the gate, to a maximum height of 1.8m. Those plans were tendered as Exhibit G and the council has provided consent conditions to ensure the implementation of those changes. The enclosure of the area below the verandah on the north-eastern side of the dwelling, the demolition of the chimney and the construction of the awning over the rear door of the dwelling are all acceptable to the council.

1. No agreement was reached in relation to that part of the new DA that proposes to convert the approved carport into a garage through the installation of a garage door and enclosure of the side and rear walls. The installation of the solar panels on the roof remains in contention however the council concedes that, subject to the method of installation, the panels would be exempt development pursuant to the provision of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). As sufficient detail was not available to ensure the provisions of the policy were met, the council has prepared consent conditions to address the issue. The council continues to oppose the construction of the entrance canopy adjacent to the Calalpine Street boundary.

1. As final agreement on the remaining contentions could not be reached, the conciliation conference was terminated and a hearing held forthwith in accordance with the requirements of s 34AA(2)(b)(i) of the Land and Environment Court Act 1979.

1. The matter that remains in the s96 application is whether there is a need to install privacy screens on the upper level verandah extension as the council no longer presses the need for the screen on the lower level.

1. The matters that remain before the Court in the DA appeal are whether the carport should be converted to a garage, whether the pedestrian entry structure should be approved and whether the privacy screen is required on the south-western side of the upper level verandah extension.

The planning controls

1. The site is in Zone R2 Low Density Residential under Mosman Local Environmental Plan 2012 (LEP). The development is permissible with consent. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.
• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.
• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.
• To ensure that development is of a height and scale that complements the desired future character.
• To encourage residential development that has regard to local amenity and, in particular, public and private views.

1. The provisions of Clause 6.4 Scenic Protection apply to the applications as the site with within a Scenic Protection Area. The objective of that clause are:

(a)   to recognise and protect the natural and visual environment of Mosman and Sydney Harbour,

(b)   to reinforce the dominance of landscape over built form,

(c)    to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments.

1. In accordance with the provisions of Clause 6.4(3) development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that:

(a)   measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and

(b)   the development will maintain the existing natural landscape and landform.

1. Mosman Residential Development Control Plan (RDCP) applies to the land. Of particular relevance to the application are Parts 4.3 - View sharing; 5.2 Carport and garage design and 5.7 Privacy and security.

1. Part 7 of the RDCP identifies specific townscape areas and the site is within the Sirius Slopes Townscape (7.23). Planning controls relevant to the applications are:

Building form and design:

(a) Careful design consideration should be given to exposed undercroft areas which should be integrated into the design of the residence.

Fences

(c) Front fences should be low and traditional in style, made of brick/timber material. High front walls/fences may be acceptable on Raglan Street (north of Canrobert Street) to reduce vehicle noise impact.

Landscaping

(d) Large forma gardens should be maintained.

Traditional gardens here are with enclosed grass space defined by shrub plantings forming formal and informal hedges.

Views

(m) Public views between buildings from public walkways and streets and those identified on the townscape map should be maintained.

The evidence

1. The Court, in the company of the parties and their experts, undertook a site view. The view included observation of the site from three adjoining properties, No 4A Sirius Cove Road, a property to the rear and south of the site and Nos 29 and 33 Calalpine Street, the two neighbouring properties. The owners of these properties gave evidence in relation to their concerns regarding the applications. The issues raised by the Sirius Cove Road resident were the impact of the proposed retaining wall and landscaping on the enjoyment of their rear yard and living area within their dwelling, particularly in terms of overlooking and loss of sunlight and openness.

1. The owner of No 33 Calalpine Street says the impact of the works as constructed, in particular the privacy screens approved by the council under the modified consent, are unacceptable visually when viewed from the verandah of the property as it adds to the bulk of the building, the colour of the privacy screens does not blend with the building and the proposal to further enclose the undercroft area would exacerbate the impact of the wall and the building's bulk. He also said the screens as erected have resulted in a loss of the small views to the Harbour that were available from the property and requested that the screens be reduced in height and that no further enclosure of the wall be permitted.

1. He also objects to the proposal to increase the front fence height and enclose the carport saying that it will adversely impact the streetscape and is inconsistent with the council's planning controls. He had also applied to construct a garage at the front of his dwelling but was told this was contrary to the council's planning controls and has subsequently obtained development consent from the council to construct a carport within the front building alignment and considers that this form of development is what is anticipated by the controls and should be consistently applied.

1. The owners of No 29 Calalpine Street say that there is a need to construct privacy screens along the entire south-western edge of the upper and lower level verandahs to protect their privacy, particularly the view into the windows of the bedrooms on the upper and mid level of their dwelling house and the adjacent living areas and the upper floor bathroom. They also say that the proposed pool access will increase the usage of the side passageway and are concerned that this will add to the visual impacts of the development to their rear yard. The solar panels proposed to the garage roof are also an issue and they say that these will add to the bulk of the structure, be out of character with the streetscape. They were also concerned that they will overshadow an area at the side of their dwelling that is used for clothes drying.

1. Expert town planning evidence was heard from Ms B Mitchell for the applicant and Mr R White for the council.

1. In relation to the privacy screens, the experts agree that there is no need to construct any screen on the lower verandah level as they say there is no unreasonable overlooking at that level. Mr White says that overlooking to living areas of 29 Clanalpine Street and 3 Kallaroo Street does occur from the upper level verandah because the sightlines are more level with the windows to habitable rooms and the existing vegetation is deciduous so does not provide effective screening. He says the screen is required to adequately protect the visual privacy of these adjoining properties as required by Part 5.7 of the RDCP. Planning control P2 states:

Above ground balconies, terraces, decks, verandahs, and outdoor spaces must not directly overlook rooms and private open space of adjoining properties unless screening can mitigate overlooking. When overlooking would be likely, permanent screening will be required to mitigate overlooking.

1. For this reason, Mr White says that the extent of screening required is less than that called for under the modified consent and would be a privacy screen of approximately 3.2m in length between the rear south-western corner of the upper, rear verandah to the rear building alignment.

1. Ms Mitchell says that there is no unreasonable overlooking because of the oblique angle, difference in level, existing landscaping, orientation and separation distance and concludes that no privacy screens are required to that elevation.

1. The experts disagree on whether it is appropriate to enclose the carport so that it becomes a garage and if the pedestrian entry structure is necessary and appropriate in its context. Ms Mitchell says proposed entry gate and roof fits neatly within its juxtaposition between the existing adjoining structures, the proposed garage door is located within an existing and approved structure and the garage is consistent with the low density residential scale of the street, is appropriately detailed with sympathetic materials and colours to compliment the streetscape, all three elements are designed to improve the security of the site and streetscape presentation and are consistent with the character of (and recently approved) frontages in Clanalpine Street. She says the proposal would enable existing views of the dwelling from the street due to the open style fencing, that any view loss is not significant and is reasonable in accordance with the view sharing principles contained at clause 4.3 of the RDCP.

1. Mr White disagreed and says the proposal does not have due regard to local amenity in that it would adversely affect the amenity of the streetscape due to the excessive bulk and scale across the site's street frontage. He says the garage would become a dominant feature of the site, is inconsistent with the objectives of the LEP and RDCP and would obstruct views of the district that are obtained from the footpath abutting the property.

1. The experts also disagree on the extent of visual catchment to which regard should be had. This difference contributes to the number of properties that presently contain garages adjacent to the site frontage. Ms Mitchell relies on a larger catchment including the whole length of Clanalpine and Kallaroo Streets, from Magic Grove to Sverge Street. Mr White says it is a smaller area and excludes those properties south of the intersection of Clanalpine Street with Kallaroo Street. Mr White says that within the visual catchment he has identified the council has not approved any garages forward of the front building line under the RDCP, nor the preceding development control plan or since 2000. Ms White says there are numerous garages on front boundaries and the installation of a garage door to the existing carport has planning merit as it is consistent with the streetscape within the visual catchment she has identified.

Conclusion and findings

1. In order that the two matters before the Court can be determined, I must be satisfied that there is merit in those matters agreed between the parties as well as determine the merits of the remaining contentions.

1. In relation to the amendments made to the treatment of the rear yard as detailed in the plans in Exhibit G, I am satisfied that the impact of that work on the adjoining properties, in particular No 4A Sirius Cove Road and No 33 Clanalpine Street is acceptable. The deletion of the proposal to increase the height of the approved retaining wall, the introduction of an intermediate retaining wall between that wall and the proposed pool and the provision of additional planting away from the rear boundary is, according to Ms Walsh for the council, an appropriate outcome and addresses the concerns of the adjoining owner to in Sirius Cove Road. I agree.

1. The enclosure of the undercroft on the north-eastern elevation is consistent with the planning controls and similar to the works approved on the adjoining property. The issue of the existing privacy screens on that elevation is not before the Court.

1. The council does not oppose those works proposed in the new development application that involve demolition of the chimney, construction of an awning and swimming pool nor does it oppose the removal of the tree ferns subject to the imposition of the draft consent conditions proposed for site landscaping within the rear yard. I am satisfied that the conditions are appropriate having regard to the planning controls.

1. That leaves the issue of the privacy screens and the front garage and entry canopy. In regard to the screens, I have particular regard to the provisions contained within the RDCP at 5.7P2 and the benefit of the site view. Whilst I agree that the separation distance to the living areas of No 3 Kallaroo Street is sufficient to address privacy, the experts agree that it is possible to see into the living areas of No 29 Clanalpine Street from the upper deck. The original consent required the construction of screens to the upper and lower levels of the verandahs and the construction certificate (CC) plans also show that work.

1. I am not satisfied that the works cannot be completed in some form and accept Mr White's evidence that a screen of approximately 3.2m in length should be constructed along the side of the upper verandah extension only. In the event that it cannot be attached to the existing balustrade as was proposed in the CC plans, some other form of free-standing structure could be constructed. The council has provided appropriate conditions to reflect that work and the consent should be modified to delete the requirement to install the screens at the lower level verandah extension.

1. I accept Mr White's evidence that the conversion of the carport to a garage through the installation of a solid door and side and rear walls will add to the bulk and scale of the structure as approved and also adversely affect the streetscape and amenity of Clanalpine Street.

1. It is clear from the evidence provided that the council has, since the early 1990s sought to limit the extent of built form within the front building alignment of residential properties through a series of development controls plans that have evolved since that time. The background for that position is described in a document entitled Mosman Urban Design Study Residential Areas Study Report dated 22 November 1990. It is uncontroversial that this study informed the 1994 DCP and subsequent development control plans prepared by the council for residential development, the most recent being the RDCP which contains extensive provisions in relation to the design of carports and garages as well as the public interest issue of preserving views from the street including those views through sites.

1. The impact of garages built to the site boundary, particularly on narrow lots was evident when the view was undertaken. The garages and associated front fences that exist at Nos 41 and 43 and to a lesser extent No 45 Clanalpine Street, demonstrate exactly what the council is looking to avoid through the controls contained within the current RDCP. All according to the council's records, were approved prior to the current planning controls and the predecessor to those controls, with perhaps the exception of No 41 however no precise information was available on the date the original structure was approved. According to Mr White's evidence, it was approved in 1969 however, other records confirm it was constructed prior to 2002.

1. The further proliferation of similar development within Clanalpine Street is not appropriate, would detrimentally affect its streetscape and would be inconsistent with the planning controls and expectations of the broader community consulted during the preparation of those controls. Those expectations outweigh the individual needs of an applicant wishing to provide increased security to a property or deliver private amenity through development that is inconsistent with planning controls. There is not a prevalence of double garages forward of the building line in the immediate visual catchment and I therefore distinguish the application from that described by Roseth SC in Taylor v Mosman Council [2005] NSWLEC 233. The needs of an individual must be balanced against the public interest. Tuor C has considered this matter in McNally v Mosman Municipal Council [2013] NSWLEC 1074 and I adopt those findings.

1. I accept the position, that, subject to the solar panels being installed in accordance with and satisfying the controls contained within the provisions of SEPP Infrastructure, consent for that work is not required. The council's condition of consent would ensure the works are exempt development and if not, I accept the council's position that they do not enhance the streetscape and should be repositioned behind the front building line.

1. For these reasons, that part of DA 8.2013.111.1 which proposes the enclosure of the carport to form a garage and the installation of an entry canopy adjacent to the front gate should not be approved. All other aspects of the application as amended are consistent with the planning controls and merit approval, subject to the draft conditions of consent provided by the council. At the conclusion of the hearing, final conditions had not been provided.

1. To allow the making of final Orders in these matters, the council is directed to file final conditions that reflect the agreed position between the parties and the findings made in this Judgment by 4pm, Monday 18 November 2013.

___________________

Sue Morris

Commissioner of the Court

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Decision last updated: 15 November 2013