MacCormick P and Peterson C v Mosman Municipal Council

[2003] NSWLEC 283

>

Land and Environment Court

of New South Wales

CITATION:	MacCormick P & Peterson C v Mosman Municipal Council [2003] NSWLEC 283
PARTIES:	Mosman Municipal Council
FILE NUMBER(S):	10687 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Consent :- s96 application to delete conditions impact on views and privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 1998
CASES CITED:
DATES OF HEARING:	23 and 24 October 2003
DATE OF JUDGMENT:	11/13/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson, Barrister SOLICITORS Mallesons Stephen Jaques RESPONDENT Mr P Jackson, Solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10687 of 2003

Tuor C

13 November 2003

MACCORMICK P & PETERSON C

Applicant
v

MOSMAN MUNICIPAL COUNCIL

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Mosman Municipal Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (DA 8.2002.221.1) for the construction of a two to three storey house at 7 Fairfax Road, Mosman. The s96 application proposes to delete three conditions of consent.

The site and its context

2 The site (being lot 24 DP6910) is located on the eastern side of Fairfax Road, about 50m from its intersection with Kirkoswald Avenue. It has an area of 733.9m2 with a frontage of 16.9m to Fairfax Road and a slope of about three metres from north to south across this frontage. The site has a depth of 51.8m along its northern boundary and 44.5m along its southern boundary with a fall of about 10m between Fairfax Road and the rear of the site.

3 Surrounding development is characterised by two and three storey houses of a variety of heights and styles. The properties to the north (No 9 Fairfax Road) and opposite the site (No 7 Kirkoswald Avenue) enjoy views over the site towards Middle Harbour. The site overlooks the rear garden of the adjoining property to the south (No 5 Fairfax Road) and also enjoys views of the harbour.

Background and the proposal

4 A development application (DA8.2002.221.1) for the site was approved 14 April 2003. The application was for “demolition of the existing dwelling, and erection of new two storey dwelling house, pool and garage, including work on council land”. The application was approved subject to conditions including the following:

1.10 In order to have the value of existing views from private dwellings recognised in accordance with Mosman RDCP 1998, the overall height of the proposed development must be reduced by 0.5 metres such that the maximum of the third level ridge is to be RL 59.30 and the maximum of the second level ridge is to be RL 56.20. Details must be submitted with the Construction Certificate.
1.13 In order not to impact on views, the fixed awnings and pergolas must be deleted from level 2 and level 3 eastern balconies and replaced with retractable awnings. Details must be submitted with the Construction Certificate.

1.17 The proposed swimming pool is to remain at natural ground level. Details must be submitted with the Construction Certificate.

5 The applicant lodged a s96 application to delete the above conditions on 29 April 2003. The application was advertised and council received four submissions. The main issues of concern related to: loss of views; loss of privacy from the pool and overdevelopment of the site. Council staff recommended approval of the s96 application. Council refused the application on 26 August 2003.

Statutory framework

6 The proposal satisfies the requirements of s96(2)(a) and (c) in that:

· The development as proposed to be modified is substantially the same as the development for which consent was originally granted; and
· The application was notified by council.

7 The site is zoned Residential 2 (a1) under Mosman Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent. Mosman Residential Development Control Plan (RDCP) is also relevant to the proposed modification.

Issues

8 The Statement of Issues before the Court contains 5 issues. The key issue is whether the imposition of the conditions is reasonable and necessary to achieve satisfactory view sharing and privacy.

9 The following experts gave evidence:

· For the council

Mr NR Dickson, urban designer

Mr C Henson, traffic engineer

· For the applicant

Mr MH Sanders, town planner
Mr C Hallam, traffic engineer

10 The Court also heard evidence from the following residents:

Mr B Ahearne, 9 Fairfax Road, Mosman
Mr CJ Cassar, 7 Kirkoswald Avenue, Mosman

11 The main issue raised by these residents was loss of views, which is discussed below. The owners of No 5 Fairfax Road objected to the deletion of Condition 1.17 on the basis of privacy impacts on their property. They did not give evidence but their property was visited on the view and the issue is discussed below.

Views

12 The purpose of conditions 1.10 and 1.13 is to minimise impacts on views. In relation to condition 1.10, the parties agreed that the wording of the condition was incorrect and that the lowering of the development by 0.5m would result in a maximum third and second level ridge height of RL 59.65 (not 59.30) and RL 56.40 (not 56.20) respectively.

13 To satisfy condition 1.10 it would be necessary to lower the level of the garage and lower the ceiling levels in the development. Mr Robson’s, counsel for the applicant, submission was that the development had an acceptable impact on views and that to further improve views by the lowering of the development was unnecessary and also unreasonable.

14 Mr Dixon and Mr Sanders agreed on the extent of view loss but disagreed on its impact and whether it was reasonable to lower the development to reduce the view loss. In Mr Dixon’s opinion the view loss from No 7 Kirkoswald Avenue was of concern because the ridge of the proposal coincides with the ridge of North Head. While the headland itself is still visible, its connection to the land is removed. He was also concerned that the proposal obscured views of Grotto Point Reserve. In his opinion these landscape features framed the harbour views. Lowering the proposal would reduce the impact on the views of these features.

15 In relation to No 9 Fairfax Road, the main impact on views was at ground level and resulted from the rear of the proposal. Mr Dixon accepted that this was approved, and that the deletion of Condition 1.10 would not change the impact on views from this level, except the extent of sky exposure. He recognised that this property would still enjoy extensive views of the harbour from its upper levels but considered that the view loss from the first floor terrace and living area would be reduced if the building were lowered.

16 Mr Dixon accepted Mr Henson’s evidence that it was feasible to lower the garage and provide adequate driveway access to the property. While he recognised that this would involve excavation to the street, he considered this work to be acceptable due to the extent of work that was already being undertaken in the street to achieve access. Mr Dixon also considered the lowering of the ceiling heights in the development to be acceptable and to provide sufficient amenity.

17 Mr Sanders held the contrary opinion that the view loss to both No 7 Kirkoswald Avenue and No 9 Fairfax Road was acceptable and that the development achieved appropriate view sharing. Mr Sanders also did not consider that it would be reasonable to lower the garage and driveway due to the works involved, including excavating the road and altering the kerb levels. Nor did he consider it reasonable to lower the ceiling heights of the house, as the implications of doing this had not been fully considered in relation to the garage door and services. Further the amenity of the upper level would be diminished if the ceiling were lowered.

18 Mr Sanders opinion was based on the extent of view loss, the amount of view retained, the substantial compliance of the development with the controls in the LEP and the bulk and scale of the development in relation to other properties in the street. Mr Sanders and Mr Dixon agreed that the approved variation to the height control relating to the number of storeys and the building wall height occurred at the overlap point of the upper and lower floors and did not impact on views. The development was below the height control at its Fairfax Road frontage and a complying development would have more impact on the views from No 7 Kirkoswald Avenue.

19 Mr Hallam and Mr Henson agreed that the proposal to lower the garage would not meet the driveway gradient design requirements of AS2890.1-1993, but they disagreed on whether this was acceptable. Mr Henson’s opinion was that the driveway was workable as the area of non-compliance was at the extremities of the garage and was not a substantial exceedence in the standard. He also considered the extent of work to the roadway to achieve the levels was reasonable “in the circumstances of the case”.

20 Mr Hallam did not accept that the non-compliance with the standard would be of little consequence. He stated that there were eight points of change in grade of which three did not meet the standard. He accepted that the degree of change was greatest at the extremities but said that it also occurs on the wheel tracks. In Mr Hallam’s opinion the approved development, without condition 1.10, met the standard and was preferable to the proposal, which satisfied the condition and involved lowering the garage and driveway. He stated “that in the circumstances of the case, with replacement of one dwelling with another, the requirement to excavate the road and alter the kerb levels is unreasonable”

21 I accept Mr Sanders evidence that, in relation to views, the development meets the objectives of the LEP 1998, the zone objective and the objectives of the height control. In particular it meets the objectives and planning guidelines in RDCP in relation to views. The purpose of conditions 1.10 is to reduce view loss that results from the proposal. The lowering of the building by 0.5 m as required by this condition, would reduce the view loss to No 7 Kirkoswald Avenue but not to any significant extent and is unnecessary as views from both this property and No 9 Fairfax Road are retained and appropriate view sharing is achieved. The development therefore meets objective O2 of RDCP:

To have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscape design.

22 The development satisfies planning guideline P2 of RDCP as it does “not significantly obstruct views from neighbouring properties”

23 I do not consider the imposition of the condition to be reasonable for the reasons in Mr Sanders evidence. In particular, the view loss to No 7 Kirkoswald is caused by the height of the proposal at its Fairfax Road frontage. This height is already below the standard and the proposal was amended prior to approval to reduce view loss. The main impact on views to No 9 Fairfax Road will not benefit from the proposed reduction in height as it results from the rear of the proposal. The bulk and scale of the development is consistent with the character of other dwelling in the area and the controls. It achieves an appropriate balance between “sharing of views whilst not restricting the reasonable development potential of a site” and therefore achieves objective O3 of RDCP.

24 I also do not consider that the amendments required to achieve the lowering of the building to be reasonable. In particular, the lowering of the garage requires works to the roadway and compromises the driveway access. While it is technically feasible to lower the garage, I accept Mr Hallam’s evidence that the approved driveway, which complies with the standard, is to be preferred over one that does not. I do not accept that because work is already being done to the roadway that it is reasonable to require even more work. Nor do I accept that it is reasonable to require amendments to the ceiling height of the proposal to reduce it, in part, to the minimum under the BCA. Condition 1.10 is therefore deleted.

25 In relation to the removal of the pergola and fixed awning required by Condition 1.13. The applicant has agreed to an amended condition, which stipulates a retractable awning and no privacy screens. Mr Dixon agreed that a retractable awning largely ameliorated his concerns. However, he still considered the structure to be unnecessary and to impact on the enjoyment of views. Mr Sanders opinion was that the pergola and the retractable awning provided architectural interest and the opportunity for sun shading. They would have no real impact on harbour views nor add to the bulk of the building. I accept that, with the amended condition, the only permanent intrusion into the view will be from the pergola structure itself. This is essentially a frame structure that will have minimal impact on views or bulk and is acceptable. Condition 1.13 is therefore deleted and replaced with the amended condition.

Privacy

26 Condition 1.17 requires the proposed swimming pool to be at ground level. The experts agreed that the purpose of this condition was to minimise privacy impacts on the adjoining property at No 5 Fairfax Road. They disagreed on whether the pool as proposed was at ground level and on whether it would result in an acceptable privacy impact.

27 Mr Sanders evidence was that due to the slope of the land, both towards the east and the south, the level of the pool is set at the point that reflects natural ground level at the midpoint of the northern length of the pool. This results in the southern side of the pool being about one metre above natural ground and involves roughly equivalent cut and fill.

28 Mr Sanders did not consider that the pool being out of the ground on its southern side would impact on the privacy of No 5 Fairfax Road as people could not stand on the edge of the pool, it was set back two metres from the boundary and screened with landscaping. The level of the pool on the northern side was at natural ground level with limited area between it and the retaining wall. This area currently overlooks the adjoining property but this will be reduced by the proposed landscaping. To lower the southern side would result in more excavation and would increase the retaining wall along the northern side from about two metres to three metres.

29 Mr Dixon’s opinion was that the pool should be designed so as not to require landscaped screening to satisfy privacy concerns. Otherwise he conceded that the landscaping, once established, would improve privacy compared to the current situation. Although he considered that the use of the area was likely to increase.

30 I accept that the deletion of the condition is reasonable for the reasons in Mr Sanders evidence. In particular, the level of the pool in relation to ground level is logical as it minimises cut and fill and does not result in adverse privacy impacts. From the pool itself it is not possible to overlook the adjoining property. The landscaping along the southern boundary is a lower level than the pool and access to this area and the edge of the pool is restricted and will therefore not impact on privacy. The northern edge also provides limited access and is at about existing ground level and therefore retains the current relationship with the adjoining property. The proposed landscaping will improve this relationship.

Orders

1. The appeal is upheld.

2. Under section 96 of the Environmental Planning and Assessment Act 1979, the development consent (DA 8.2002.221.1) granted by Mosman Municipal Council on 14 April 2003 for the property at 7 Fairfax Road, Mosman, is amended to delete conditions 1.10, 1.13 and 1.17 and to insert a new condition 1.13 as follows:

1.13 The pergolas on the eastern terraces of levels 1 and 2 shall be fixed framed with retractable awnings. No privacy screening is to be provided at either end of the pergolas.

3. The exhibits, except exhibit 3, may be returned.



____________________
Annelise Tuor
Commissioner of the Court