Mannah v Mosman Municipal Council
[2005] NSWLEC 174
•04/01/2005
Land and Environment Court
of New South Wales
CITATION: Mannah v Mosman Municipal Council [2005] NSWLEC 174
PARTIES: APPLICANT
Joseph MannahRESPONDENT
Mosman Municipal CouncilFILE NUMBER(S): 10872 of 2004
CORAM: Tuor C.
KEY ISSUES: Development Application :- Demolition of existing house - Torrens Title subdivision of one existing lot into three lots and construction of three dwellings.
SEPP 1 objection to allotment size and FSR
impact on residential amenity
provision of visitor parking and trafficLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 1998
State Environmental Planning Policy No 1CASES CITED: Nooramunga Holdings Pty Ltd v Gosford Shire Council (1988) NSWLEC 9;
Armitage & Ors v Sutherland Shire Council (2005) NSWLEC 94;
Galea v Marrickville Council (2005) NSWLEC 113DATES OF HEARING: 30/03/2005 & 01/04/2005 EX TEMPORE JUDGMENT DATE: 04/01/2005
LEGAL REPRESENTATIVES: APPLICANT
Mr M. Connell, solicitor
of Michell Sillar SolicitorsRESPONDENT
Mr S. Griffiths, solicitor
of Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
1 April 2005
JUDGMENT10872 of 2004 Mannah v Mosman Municipal Council
1 This is an appeal against the refusal by Mosman Municipal Council (the council) of a Development Application (8.2004.183.1) for demolition of an existing house, Torrens title subdivision of one existing lot into three lots and construction of three two-storey dwelling houses at 1 Medusa Street, Mosman (the site).
2 A description of the site, its context and the history of the application are set out in the Statement of Basic Facts and the Statement of Evidence and Supplementary Statement of Evidence of Mr Moody, town planner, the Court Appointed Expert.
3 Of particular note is that the site adjoins the rear gardens of four properties to the east fronting Spit Road, the side boundary of one property to the west and one property to the north. The site is rectangular in shape with a frontage to Medusa Street of 15.24 m and a depth of about 70 m. It has a fall of about 8.5 m from Medusa Street to its northern boundary.
4 The existing character of Medusa Street is predominantly one and two-storey houses on large allotments. Development along Spit Road in the immediate vicinity of the site is also single dwellings with a dual occupancy under construction at No. 220 Spit Road. Nearby development in Spit Road includes a range of residential flat buildings.
5 The site is zoned Residential 2(c) under Mosman Local Environmental Plan 1998 (LEP1998). The development is permissible with consent. The Mosman Residential Development Control Plan (DCP) is also relevant.
6 The Court undertook a view of the site and the surrounding area. A number of residents gave evidence from their properties. The main concerns of the residents can be summarised as:
- the height and bulk of the proposal is unacceptable. The residents consider the three houses to be an over-development of the site;
- the increase in overshadowing from both the buildings and the proposed landscaping;
- the privacy impacts, particularly overlooking of the private outdoor areas at the rear of the properties that face Spit Road; and
- the increased traffic. The residents consider access to the site to be dangerous due to the steep slope, reduced visibility and proximity to the primary school. They were also concerned about noise from the garage turntable.
Issues
7 The Statement of Issues before the Court contained eight issues. Issue 4 was resolved by the amendment to the landscape plan and issue 7 was resolved by amended stormwater plans and the joint statement of the stormwater experts, Mr C Covich, for council, and Mr M Ibrahim, for the applicant.
8 The outstanding issues reflect those raised by the residents and can be summarised as:
Allotment Size
1. Whether the size of the allotments and the bulk of the development is acceptable and the SEPP 1 objections to allotment size and floor space ratio (FSR) are well founded;
2. Whether the proposal has an acceptable privacy and over-shadowing impact on adjoining properties;
3. Whether the landscaping of the proposal along the eastern boundary has an unacceptable impact on the amenity of the proposal;
4. Whether the provision of no visitor parking space is acceptable.
9 Cl 12(2) of LEP 1998 permits a minimum allotment size of 300 sq m in the 2(c) zone. The relevant objectives of the standard are:
(a) to retain the pattern of subdivision in residential areas while allowing infill development of the smaller lots in some localities; and
(b) to ensure lots have a minimum size which would be sufficient to provide usable area for building and landscaping; and
(d) to provide small lot subdivision in some zones as an alternative to redevelopment for the purpose of multiple dwellings to ensure the retention of existing dwelling stock and the amenity of the area.
10 Cl 12(3) states:
For the purpose of subdivision access handles shall not be included in the calculation of site area.
11 There is no definition of “access handle” or “site area” in LEP 1998. The parties agreed that it was unclear whether the shared rights of way across lots A and B would comprise an access handle and therefore be excluded from the allotment size. If excluded, allotments A and B would not meet the 300 sq m standard.
12 The allotments have the following areas:
Lot Area without right of way (sqm) Area with right of way (sqm) A 295 389.4 B 288 378 C 300 300
13 The applicant has submitted a SEPP 1 objection which states that the proposal meets the objectives of the standard.
14 Mr Connell’s submission, for the applicant, was that the right of way was not an access handles in conformity with the conclusion reached by Stein J in Nooramunga Holdings Pty Limited v Gosford Shire Council (1988) NSWLEC 9. In dealing with a similar application, albeit only for subdivision into two lots, his Honour stated that:
In my opinion it is unnecessary to exclude the area of the right of way from Lot 41. The right of way or “access corridor” does not comprise any part of the rear lot. It is part of the front lot but subject to the rear owner’s right to utilise the right of way. The area of the easement remains in the ownership of the front lot, is not fenced off and can be utilised as part of that land. I do not believe that cl 26(3) was directed to a situation such as this but rather to the exclusion of an access handle from the calculation of area of a rear lot.
15 Pain J in Armitage & Ors v Sutherland Shire Council (2005) NSWLEC 94 reached a similar conclusion. However, in that case the site area was defined in the LEP to include a right of carriageway but to exclude an access corridor.
16 I accept Mr Connell’s submission that legally the right of way forms part of the site area. However, in practical terms there is little distinction between the use of a right of way, which is included in the site area, and an access handle, which is expressly excluded from site area under the LEP.
17 If I am incorrect in accepting that the right of way should be included in the lot size, I have also assessed the proposal under the SEPP 1 objection.
18 Mr Moody agreed that the objectives of the minimum lot size were met and stated that even if the rights of way were not included as site area they
contribute to a greater curtilage area for each of the proposed lots A and B (and their associated dwellings). A greater curtilage area provided by the rights of way allows greater landscaped area on each of the proposed lots A and B and greater separation distance from the proposed dwellings A and B to adjoining dwellings. In fact, the proposed dwellings have side boundary setbacks well in excess of the relevant requirement. In other words, when viewed from adjoining properties the rights of way and rights of footway will be seen to be part of the proposed lots A and B.
19 Mr Moody noted that the allotments provided landscaped areas in excess of that required by the controls and in his opinion met objective (b) of cl 12. In relation to objectives (a) and (d), Mr Moody did not accept that the existing dwelling house needed to be retained for the proposal to be “infill development” and to maintain “existing dwelling stock”.
20 I accept Mr Moody’s evidence, even though the intention of the controls, particularly in s 4.1 of the DCP, appears to encourage the retention of existing dwelling houses it is not a mandatory requirement for small lot subdivisions. The allotment sizes proposed are clearly smaller than the predominant allotment sizes in the immediate area but are consistent with the intent of the planning controls.
21 The 2(c) zone permits houses, semi-detached dwellings and multiple dwellings, which includes residential flat buildings. The planning controls envisage that the area will change and permit small lot subdivisions of 300 sq m. A site of this area will not be able to provide a similar ratio of open space to built form that currently exists in the area, however this is not the test. Rather the Court must decide whether the site is large enough to provide sufficient usable area for building and landscaping. I accept Mr Moody’s evidence that this has been achieved.
22 The proposal provides adequate side, front and rear setbacks for landscaping to soften the development from adjoining properties. Each dwelling has a north-facing courtyard for private open space and the buildings are of a size, which do not dominate their site or adjoining properties, which I will discuss further later. The rights of way, even if not part of the site area, provide extra space around the buildings and separation from the adjoining house to the west.
23 A negative feature of the development is the lack of landscaping along part of the rights of way on the western boundary. However, this was not raised as an issue by council and would not be sufficient reason to refuse the application.
24 For these reasons I find that compliance with the minimum lot size standard is unnecessary and that the SEPP 1 objection is well-founded.
Floor space ratio
25 Cl 14(2) of LEP 1998 permits a maximum FSR in the 2(c) zone of 0.6:1. The relevant objectives of the standard are:
(a) to control the scale of development so that it is compatible with housing characteristics in the locality;
(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 of scale of new development.
26 The parties agreed that the rights of way should be included as site area for the purpose of calculating FSR. If excluded, all three dwellings would exceed the FSR standard. If included, dwelling C exceeds the standard by 6 sqm, having an FSR of 0.62:1. The applicant submitted a SEPP 1 objection for Lot C, which states that the proposal meets the objectives of the standard.
27 I accept Mr Moody’s opinion that dwelling C is of similar or smaller bulk to other developments in the area and will not result in adverse effects. The bulk of the additional 6 sqm is unlikely to be perceptible from adjoining properties. I also note that dwelling C is not visible from the street, only minimal excavation is required and urban runoff is contained on site.
28 For these reasons I find that compliance with the FSR standard is unnecessary and that the SEPP 1 objection is well-founded.
Height, bulk and scale
29 The residents were concerned about the overall height, bulk and scale of all three dwellings on the site, even if they did comply with the controls. This was of particular concern to the residents whose open space currently adjoins open space on the subject site but, with the proposal, will adjoin a building.
30 The evidence from the residents along Spit Road was that they value the rear of their properties as an escape from the traffic noise along Spit Road. They felt that their open space would be enclosed by buildings stepping down the site and that the overall height and bulk of these buildings was unacceptable.
31 Mr Moody recognised the sensitivity of this relationship and in response to his concerns the application has been amended. The amendment increases the setback of the buildings along the eastern boundary to a maximum setback of 2.8 m, which exceeds the 1.5m requirement of the DCP. The overall height of the buildings is well below the ridge height control of 8.5 m and the wall height control of 7.2 m, each dwelling is two storeys and the landscape area exceeds the control.
32 While I accept that the proposal would change the outlook currently enjoyed by these properties and that in some cases there will be a building where there is currently none, I find that this is acceptable as the proposal is anticipated by the planning controls. The increased side setbacks, the lower height and the greater landscaped area than required under the controls, recognises the sensitivity of the relationship of the site with the adjoining properties and achieve a development of acceptable bulk, scale and height.
33 Council also raised an issue with the nil setback of the garage excavation of dwelling A from the boundary of dwelling B and the nil setback of the garage of dwelling C from its western boundary. Mr Moody did not consider these breaches to have significant impacts.
34 The setback of the basement between dwellings A and B will not create amenity impacts between these dwellings or adjoining properties.
35 The garage of dwelling C occupies a short distance and in Mr Moody’s opinion, has an acceptable impact, particularly as its overall bulk is acceptable, being single-storey for a short distance.
36 Mr Connell submitted that the garage met the principle espoused by Senior Commissioner Roseth in Galea v Marrickville Council (2005) NSWLEC 113 that “short lengths of single-storey walls (such as garages) are usually acceptable on the boundary”. I do not accept Mr Griffiths’ submission, for the council, that this should be limited only to garages at the front of the site. I find that the impact of the garage is acceptable.
Impact on privacy and overshadowing of adjoining properties
37 The residents were also concerned that the proposal would have an unacceptable impact on their privacy and solar access. Again, this was of particular concern to the residents whose open space currently faces open space on the subject site. The amenity enjoyed by these residents will change but I accept Mr Moody’s evidence that the change is reasonable.
38 The proposed buildings will increase overshadowing to the back gardens of some adjoining properties. These areas will still enjoy solar access well in excess of the DCP requirement for two hours in mid-winter and, what Mr Moody considers to be the more reasonable standard in AMCORD of three hours in mid-winter.
39 The residents were concerned about overshadowing from landscaping. I accept Mr Moody’s opinion that shadow from trees is different to that from buildings and is not normally a consideration in overshadowing impact.
40 In relation to privacy, conditions for obscure window glazing or similar devices and privacy screens for the balconies to prevent overlooking along the side boundaries have been included. The applicant has also accepted a condition, which reduces the size of the upstairs terrace of dwelling B. A degree of overlooking from the upstairs terraces will occur but there is sufficient distance between these and the adjoining gardens and dwellings to be acceptable. The landscaping, although not relied upon, will also assist in mitigating a perception of overlooking.
41 While I note that the area is characterised by dwellings that overlook each other, I do not accept Mr Connell’s submission that the privacy conditions should not apply to the upstairs bedroom windows. The windows are secondary windows to these bedrooms and the condition will not materially reduce the amenity of these rooms. However, while privacy impact from a bedrooms are less than from a living area, it is still a relevant consideration. For adjoining properties, which currently experience little or no overlooking, there is a greater degree of sensitivity and it is appropriate that the condition be imposed. With the measures proposed, I accept the development will have an acceptable privacy impact.
Landscaping
42 Mr Richards, landscape architect for the council, considered that the landscaping along the eastern boundary would adversely impact on the amenity of the proposed dwellings as it would block light and ventilation to the rooms facing the boundary. Mr Carritt, landscape designer, for the applicant agreed that the trees may reduce the light and air but that this was acceptable.
43 Mr Moody stated that the windows along the eastern boundary were secondary windows and the excellent solar access and ventilation enjoyed by the development was not reliant on these windows. I accept this opinion and note that there are only limited windows along this boundary. While the vegetation may reduce sunlight and ventilation to these windows, the amenity of these rooms will still be acceptable.
Visitor Parking and traffic
44 The traffic experts, Mr B Leckie for council and Mr C Hazel for the applicant, held different opinions on whether a visitor parking space was required to serve the needs of the development. The key difference in opinion was whether there was adequate on-street parking in the area within an easy walking distance of the site.
45 The DCP does not specify parking requirements for new dwelling houses, either for residents or for visitors. P1 of s 5.2 states:
For new dwelling houses, no minimum or maximum parking provision applies. Applicants need to demonstrate that the parking provision is appropriately provided, designed and integrated with the dwelling.
46 The proposal provides two garage spaces for each dwelling, which the experts agreed was appropriate resident parking. Medusa Street experiences shortages of parking during school pick-up and drop-off times but at other times there is spare capacity. The proposal is close to a major transport route and there are no parking restrictions on commuter parking.
47 On this basis, I find that the proposal provides appropriate parking and that the provision of no visitor space of itself would not be a reason to refuse the application.
48 The residents were concerned about the safety of vehicles entering and leaving the site due to the steep driveway and poor visibility. The experts agreed that the amended driveway, fence and planting design provided sufficient visibility and would have a acceptable safety impact.
49 In relation to Mr Connell’s submission to delete the positive covenants proposed in conditions 68 and 69. I find that condition 68 is reasonable as it requires maintenance of the planting near the driveway entry to ensure visibility for safety reasons resulting from the agreed opinion of the traffic experts. The covenant in relation to privacy screens required by condition 69 is not necessary as such requirements are normally a condition of approval and I consider that there are no special circumstances in this case to require the covenant. The conditions have been amended to reflect these findings.
50 I accept that the residents’ concerns in relation to the noise from the parking turntable have been dealt with by a condition that limits the noise level.
Orders
51 For the above reasons, the proposal is acceptable and the orders of the Court are:
1. The appeal is upheld.
2. Development Application (8.2004.183.1) for demolition of an existing house, Torrens title subdivision of one existing lot into three lots and construction of three two-storey dwelling houses at 1 Medusa Street, Mosman, is approved subject to the conditions at Annexure A.
3. The exhibits, except exhibits 1, 2, 11, A, B, D and F, may be returned.
4. No order as to costs.
_________________________
Annelise Tuor
Commissioner of the Court
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