Markakis v Mosman Council

[2015] NSWLEC 1033

Land and Environment Court

New South Wales

Medium Neutral Citation:	Markakis v Mosman Council [2015] NSWLEC 1033
Hearing dates:	10-11 February, 2015
Decision date:	03 March 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 8.2013.216.1 for a new dwelling at 103A Raglan Street, Mosman, is refused. 3. The exhibits, other than exhibits 7, B and D, are returned.
Catchwords:	DEVELOPMENT APPLICATION: two storey dwelling; inappropriate siting of dwelling on battle-axe site; inadequate landscaped area; impacts on adjoining dwellings; internal amenity; resolution of shared parts of site with adjoining property.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Terrace Tower Holding Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Category:	Principal judgment
Parties:	Anastasia and Dimitrios Markakis (Applicant) Mosman Council (Respondent)
Representation:	Counsel: Mr David Baird (Applicant) Ms Julie Walsh (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	10974 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 8.2013.216.1 for a two storey dwelling with basement storage (the proposal) at 103A Raglan Street, Mosman (the site) by Mosman Council (the Council).

2. The appeal was subject to mandatory conciliation on 10 February, 2014, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

3. The Council’s contentions in the matter can be summarised as:

• The proposal provides inadequate landscaped area;

• The proposal is unacceptably sited and is of excessive height, bulk and scale;

• The proposal will have unacceptable impacts on neighbouring properties in terms of overshadowing and privacy;

• The proposal will have unacceptable residential amenity for the occupants in terms of solar access, pedestrian accessibility and private open space;

• The proposal does not represent orderly development as it does not resolve the shared use of parts of the site with 105 Raglan Street.

4. The Council seeks to either include a condition requiring the consolidation of 103A and 105 Raglan Street or that the issue of the encroachment of the garage and the pool of 105 Raglan Street over the site be resolved by the proposal. Mr Baird submits that conditions can be included in the consent requiring an easement to be created to permit the existing structures that straddle the boundary of 103A and 105 Raglan Street and requiring a positive covenant on the titles of both properties to take appropriate action prior to the disposal of either property individually.

5. The Council seeks a condition be included to require a Construction Traffic Management Plan, on the basis that the existing garage and tennis court will frustrate access to the site during construction. The applicant opposes the inclusion of this condition.

The site and its context

6. The site comprises an allotment known as 103A Raglan Street and is located on the eastern side of Raglan Street, between Queen Street and Calypso Avenue. The site has an area of 980.5sqm and is irregular in shape, with an angled frontage of 5.37m to Raglan Street.

7. Existing on the site is part of the garage to 105 Raglan Street, part of the pool to 105 Raglan Street and a tennis court. The site is currently owned and used with 105 Raglan Street.

8. The irregular site can be described as containing three components (exhibit A, site survey). There is a 40.69m long access handle, which is approximately 5m wide, from Raglan Street to the west of the site, located between 105 and 103 Raglan Street. There is a rectangular area, approximately 28.4m x 18.3m, containing the north-south orientated tennis court, which joins the access handle at the north-western corner of the tennis court. There is a rectangular area to the east of the tennis court, at the southern end of the tennis court, which is 15.63m in an east-west direction and 16.9m in a north-south direction and this is the area proposed for the dwelling.

9. The site wraps around two boundaries shared with 34 Queen Street. The rear boundary of 34 Queen Street is the northern boundary of the portion of the site proposed for the dwelling. The southern portion of the western side boundary of 34 Queen Street is the eastern boundary of the site adjacent to the tennis court.

10. To the south of the site is 32 Calypso Avenue. The majority of the northern, side boundary of 32 Calypso Avenue forms the southern boundary of the site.

Background and the proposal

11. The rectangular area of land 15.63 x 16.9m to the east of the tennis court of 103A Raglan Street, proposed as the area upon which the dwelling is to be constructed, was once part of 32 Queen Street. In 2005, 32 Queen Street was subdivided to create 3 allotments (exhibit 2). Allotment 1 became 34 Queen Street and allotment 2 remained 32 Queen Street. The Council submits that 32 Queen Street was later further subdivided and the rectangular area of land, proposed in this matter for the dwelling, was sold to the owner of 105/103A Raglan Street.

12. The proposal is to construct a new, two storey dwelling with a basement storage area, to the east of the existing tennis court. The new dwelling will share the existing garage, located partly on the handle of the site, with 105 Raglan Street.

13. The proposal is to house a family member of 105 Raglan Street in the new dwelling at 103A Raglan Street.

14. The ground level of the proposal consists of one large space with room names listed within the space on the plan, including living, dining, breakfast and kitchen. On the northern side are the entry, stair and a toilet and laundry both accessed directly from the ‘breakfast’ area. On the first floor there is a living room and three bedrooms each with ensuite bathrooms, a study and a terrace occupying the north-western corner, with screening on the northern and southern sides.

Planning framework

15. The site is zoned R2 Low Density Residential pursuant to Mosman Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The relevant objectives of the R2 zone are:

• 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 seeks to achieve the desired future character.

• To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

• To minimise the adverse effects of bulk and scale of buildings.

16. The definition of landscaped area in LEP 2012 is:

Landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.

17. The definition of site area in LEP 2012 is:

Site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this plan.

18. LEP 2012 was amended by Amendment No 5 on 12 December 2014. The proposal was lodged with Council on 17 December, 2013. LEP 2012 (Amendment No 5) includes a savings provision, at cl 1.8, as follows:

(2) If a development application has been made before the commencement of Mosman Local Environmental Plan 2012 (Amendment No 5) in relation to a matter to which that Plan applies and the application has not been finally determined before that commencement, the application must be determined as if that Plan had not commenced.

19. LEP 2012 (Amendment No 5) amends LEP 2012 to include, among other things, cl 6.6, as follows:

(1) The objectives of this clause are as follows:

(a) to have the landscape and townscape area character of Mosman’s residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development,

(b) to have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores, while recognising the difficulty of achieving this on small lots where there are existing buildings such as semi-detached dwellings,

(c) to have adequate and usable ground level open space for recreation, landscaping and containing urban run-off.

(2) This clause applies to land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential.

(3) The consent authority may refuse to grant development consent to development involving the erection of a building unless at least the following minimum landscaped area of a site (as a percentage of the site area) is provided for the development:

(a) for development resulting in one dwelling per lot or for a non-residential building:

(vi) 50%, if the site area is at least 900m2

20. The proposal is subject to the relevant objectives and controls of the Mosman Residential Development Control Plan 2012 (DCP 2012). DCP 2012 includes, at 2.2 Site Analysis, the following in relation to the importance of undertaking a site analysis:

A site analysis is the first step in the design process. A site analysis is based on a survey plan and aims to ensure the qualities of the site and its context are properly considered to achieve development that is well designed, makes a positive contribution to its surroundings and establishes a positive relationship with neighbouring buildings.

A site analysis identifies and explains the key features of the site and its surroundings, and in particular, it should be used to:

assess how future development would relate to its immediate surroundings and to itself; and produce a design that minimises the negative effects on the amenity of adjoining or nearby developments.

21. DCP 2012 relevantly includes the following in relation to the siting and scale of dwellings, at 4.2:

The siting and scale of a building – its height, floor space ratio, setback from site boundaries and relationship in size to adjoining buildings – set the dominant character of any development.

Controls for these elements are important to facilitate an acceptable siting and scale of development that maintains a satisfactory relationship with neighbouring properties and the wider street context. Buildings should be designed “from the ground up” with ground floors located at or near ground level.

Height and FSR objectives

O1. To have the effects of bulk and scale of buildings arising from new development minimised.

O2. To have a scale of development which is not excessive and

is consistent with the existing or desired future townscape

area character.

O3. To have a built form that is typical of traditional building

types in Mosman, and encourage pitched and gabled roof

forms.

Building setback objectives and controls

O5 To have adequate side setbacks for basement excavations to allow for deep soil planting between buildings.

O6 To have adequate side setbacks to provide spatial relief between buildings, encourage view sharing and minimise overshadowing of neighbouring properties.

O8 To have rear setbacks which complement existing setbacks

and which provide sufficient space for substantial planting,

provide adequate separation of buildings, and have regard

to cross views of neighbouring properties.

O9 To have buildings which are sited to relate to

the topography with minimal cut and fill, preserve existing

significant trees, vegetation, rock outcrops, water

courses, natural features and promote new vegetation links.

P11 Building bulk should be distributed to minimise overshadowing to neighbours, streets and public open space. Building forms should enable a sharing of views with surrounding residences and permit views from public streets and open spaces.

P12 Council may require an additional side setback to ensure adequate daylight and sunlight access to adjacent buildings or to minimise view loss. In particular, an additional side setback from the southern boundary for east-west oriented lots, especially for first floor additions, may be required.

P22 Buildings should be sited to preserve existing significant

trees, vegetation, rock outcrops, water courses and natural

features and promote new planting.

22. DCP 2012 relevantly includes the following in relation to landscaping at 4.4:

For land zoned R2 Low Density Residential, the minimum landscaped area is based on the site area to encourage planting whilst not unreasonably restricting development. The greater the site area, the greater the landscaped area required.

Objectives

O1 To have the landscape and townscape area character of Mosman’s residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development.

O2 To have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores and on land in Zone R2 Low Density Residential.

O3 To have adequate and usable ground level open space for recreation, landscaping and containing urban run-off.

P1 The minimum landscaped area of a site (as a percentage of the site area) should be: (a) For land zoned R2 Low Density Residential: (ii) 50% where the site area is 900sqm or more.

23. DCP 2012 relevantly includes the following objectives and controls in regard to solar access at 5.8:

O1 To have sunlight to habitable rooms and private open spaces, and daylight access to all habitable rooms to ensure high levels of residential amenity.

O2 To have the degree of overshadowing of neighbouring properties minimised.

P1 Buildings should be sited and designed to maximise sunlight to north-facing windows of living areas and principal areas of open space, having regard to the planning principles listed above.

P2 Windows should be appropriately located, sized and shaded to reduce summer heat load and permit entry of sun in winter.

P3 Windows to habitable rooms should open to the sky or a verandah.

P4 North-facing windows to living areas and main ground level private open space of neighbouring dwellings should not have sunlight reduced to less than 3 hours between 9am and 3pm on 21 June.

P6 Council may require an additional side setback to ensure adequate daylight and sunlight access to adjacent building. In particular, an additional side setback from the southern boundary for east-west orientated lots, especially for first floor additions, may be required.

24. DCP 2012 relevantly includes the following objectives and controls in regard to energy efficiency at 5.9:

O1 To have energy efficiency principles adopted in the site layout, design, construction and use of non-residential buildings.

P1 Buildings are to be orientated and designed to ensure optimum solar access and natural ventilation is achieved.

P4 The design of windows and other glazed surfaces are to provide maximum solar access during winter and reduce solar access during summer.

25. The site is located within the area identified by DCP 2012 as the Sirius Slopes Townscape. The description of the area and character is as follows:

The Sirius Slopes Townscape is a steeply sloping area in Mosman’s south located between two ridges, encompassing Little Sirius Cove and overlooking Sydney Harbour. The subdivision pattern is curvilinear with contour streets reflecting the relatively steep topography. The topography creates an enclosed feeling and affords views to Sydney Harbour and the city skyline.

Larger lots and dwelling house sizes are prevalent. An irregular pattern of house orientation is also evident. There is a diversity of buildings, with many erected in the Federation and

Interwar periods. These are substantial dwelling houses on large sites with some allotments having front and rear street frontages; many have formal gardens. There are pockets of intact Federation dwelling houses of the Queen Ann and Arts and Crafts style which have typical features including chimney stacks, steeply pitched roofs, gables and verandahs. The area is typified by moderately low stone fences.

The area is characterised by medium to light tree cover and landscaping. Tree cover is light along the Raglan ridge increasing in density toward the lower slopes. Bradleys Head Road ridgeline has a heavier tree cover. Large formal gardens are also prevalent. The Brush Box is a dominating streetscape element.

Important community facilities include Sirius Cove and Curraghbeena Park, churches including the Blessed Sacrament and St Clements Church; and private schools. Taronga Zoo abuts the townscape area at the southern end of Bradleys Head Road.

26. The relevant planning controls for the Sirius Slopes Townscape, at 7.23.2, are:

Landscaping:

(d) Large formal gardens should be maintained,

(e) Landscaping within side setbacks adjacent to public reservations should complement the vegetation of the reserve and existing natural vegetation should be retained,

(f) Use selected trees to give a structure and reference point between the dwelling house and garden, and garden and landscape. Distinctive valley slope trees should grown here, such as, Sydney Red Gum (Angophora costata) and Sydney Peppermint (Eucalyptus pipenta) with colour accents from flowering trees such as Illawarra Flame trees (Braclychiton acerifolium) and Jacaranda (Jacaranda mimosifolia).

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

27. The site is partly located within the Raglan Street Heritage Conservation Area Townscape (Raglan Street HCA). The tennis court and access handle are within the Raglan Street HCA, however the area proposed for the dwelling, being the portion of the site formerly part of 32 Queen Street, is outside of, and adjacent to, the Raglan Street HCA. The Raglan Street HCA is within and forms a part of the Sirius Slopes Townscape. The planning controls for the Raglan Street HCA at 7.20.3 of DCP 2012 include, in relation to landscaping at (f), ‘maintain ample gardens and street plantings which are of great significance in the conservation area’.

28. The dictionary of DCP 2012 includes the following definition for amenity:

The ‘liveability’ of a place that makes it pleasant and agreeable to be in for individuals and the community. Access to facilities and services impacts on a place’s amenity. A building’s amenity is affected by its features, access to sunlight and views and general design.

Public submissions

29. Three resident objectors provided evidence at the commencement of the matter on site and the Court, in the company of the parties, viewed the site from each of the objectors’ properties. Their objections to the proposal can be summarised as:

• The resident at 34 Queen Street objects to the proposal on the basis of the bulk of the proposal, its location adjacent to his rear boundary, privacy and landscaping.

• The resident at 34 Calypso Avenue is concerned that the future occupants of the proposal will overlook his sons’ bedrooms and bathroom windows and his backyard, particularly from the first floor terrace; and

• The resident at 32 Calypso Avenue objects to the proposal as it will overshadow the northern windows of his dwelling which include bedrooms and living areas and the future occupants will be able to overlook his backyard.

Expert evidence

30. Expert planning evidence was provided by Mr Paul Grech on behalf of the Council and Mr Scott Barwick on behalf of the applicant.

31. The experts agreed on the following:

• If the surface of the tennis court is natural grass, the proposal would amply satisfy the numerical control for landscaped area at 4.4 P1 of DCP 2012;

• The portion of the site proposed for the dwelling is burdened by drainage easements and sewer lines;

• The proposal’s roof ridge, at RL71.4, complies with the height of buildings development standard for the site, in LEP 2012 of 8.5m.

• The proposal’s FSR of 0.29:1 complies with the maximum FSR development standard in LEP 2012 of 0.5:1.

• The shadow diagrams demonstrate that the overshadowing impact of the proposal on 32 Calypso Ave is acceptable and complies with the control for solar access at 5.8 P4 of DCP 2012.

Landscaped Area

32. The experts agreed that the landscaped area of the proposal is 178.2sqm, whereas applying the DCP control at 4.4 P1 results in a landscaped area of 490sqm for the site.

33. Mr Barwick is of the view that the area of the access handle should be excluded from the 50% landscaped area calculation. In his opinion, the tennis court contributes to the landscaped corridor between the dwellings facing Raglan Street and the dwellings facing Calypso Avenue and provides an open area as outlook from adjoining properties, notwithstanding that it is a hard paved area and thus excluded from the landscaped area calculation when applying the definition of landscaped area in LEP 2012. In Mr Barwick’s opinion, the proposal meets the objectives of 4.4 of DCP 2012 and the objectives of cl 6.6 of LEP 2012 (Amendment 5) if held to be relevant, for the following reasons:

• because the site is a battle-axe allotment and plays a negligible role in the landscaped character of Mosman;

• the proposal results in an overall reduction in the hard surface area of the site;

• the site is not visible from the harbour foreshores;

• the proposal includes a 2m setback around the proposed dwelling which will provide a landscaped buffer between the site and the adjoining properties; and

• the tennis court provides a substantial ground level open space amenity.

34. According to Mr Grech, the proposal is deficient 312sqm in landscaped area when measured against the control at 4.4 P1 of DCP 2012, which is numerically significant, particularly as there are no site constraints that justify the variation. Mr Grech disagrees with Mr Barwick’s view that the overall reduction in hard surface area of the site is a reason to accept a variation of the landscaped area control in DCP 2012, particularly given that the dwelling is to be located on what is now a vacant portion of the site.

35. Mr Grech is of the view that the proposal’s lack of opportunities for canopy trees on the site is significant, as canopy trees on a battle-axe site can be seen from the public domain above roofs and between buildings and would contribute to the landscaped character of Mosman.

Siting of the dwelling, setbacks, bulk and scale

36. The experts disagree on the appropriateness of the siting of the dwelling.

37. According to Mr Barwick the proposal is of a height and scale anticipated for development in the R2 Low Density Residential zone, as demonstrated by the proposal’s compliance with the maximum height and FSR development standards in LEP 2012. In his view, the siting of the dwelling is a response to the constraints of the site, including easements, sewer lines and an understandable desire to retain the tennis court.

38. In Mr Barwick’s view, the proposed dwelling aligns with the existing dwellings fronting Calypso Ave, as it is positioned on the site in a similar location to what would have been expected had Calypso Ave continued northward and with a side elevation to the side elevation of 32 Calypso Ave, with a greater side setback to the shared boundary with 32 Calypso Ave than may have been otherwise expected.

39. In Mr Grech’s opinion, the siting of the proposed dwelling does not adequately respond to the constraints of the site, because of the following:

• The bulk of the development is exacerbated by the inclusion of a basement level, which elevates the ground floor [to the same level as the existing tennis court];

• An alternative siting of the dwelling would provide increased opportunities for greater setbacks and screen plantings;

• The easements and sewer lines are not significant constraints and the primary reason for the siting of the dwelling is the desire to retain the tennis court;

• The impact of the proposed dwelling on the adjoining properties is exacerbated by the proposal’s non-compliance with the landscaped area control in DCP 2012.

Internal amenity of the proposed dwelling

40. Mr Barwick considers that the internal amenity, including solar access, of the proposed dwelling is acceptable. He notes that the tennis court will be able to be used for multiple recreation purposes.

41. Mr Grech is concerned about the adequacy of the amenity of the proposed dwelling for the following reasons:

• Internal living areas face west and do not gain much solar access from the northern façade;

• The proposal provides poor pedestrian connection to the street and the area between the garage and the tennis court has a poor functional relationship with the proposed dwelling;

• The deck is the only usable outdoor living area for tables and chairs.

Shared use parts of the site with 105 Raglan Street

42. The experts disagreed as to whether the conditions proposed by the applicant, requiring an easement to be created to permit the existing structures that straddle the boundary of 103A and 105 Raglan Street and requiring a positive covenant on the titles of both properties to take appropriate action prior to the disposal of either property individually, are acceptable. In Mr Grech’s view, this issue should be resolved to ensure the independent occupation of the site and 105 Raglan Street.

Submissions

43. Mr Baird submits that the applicant acknowledges that the tennis court, with a surface of acrylic grass on a concrete slab, constitutes hard paving when using the definition of landscaped area in LEP 2012. Nevertheless, it is the applicant’s submission that the tennis court contributes to the landscaped character of the site because there are trees and palms planted in planter beds along the eastern and western sides of the tennis court and the tennis court is an open area used for recreation. However, should the court be minded to refuse the appeal on the basis that the tennis court is hard paved and therefore does not contribute to the landscaped area calculation for the proposal; then the applicant would prefer a requirement that the existing tennis court be replaced with a natural grass surface, in preference to a refusal of the application.

Findings

Landscaped Area

44. Clause 1.8A of LEP 2012 (Amendment 5) is a savings provision requiring development applications, made before the commencement of the amended plan and not finally determined, to be determined as if the amended plan had not commenced. Sub-clauses 6.6(1), (2) and (3) of LEP 2012 (Amendment 5) have come from O1, O2, O3 and P1 of DCP 2012 (sub-cl 6.6(1)(b) has been augmented to acknowledge the difficulty of achieving the visual dominance of landscaping on small sites). At the time the application was made, the relevant landscaped area objectives and control were contained in the DCP and not the LEP. Section 79C(1)(a)(ii) of the EPA Act requires that any proposed instrument that is or has been the subject of public consultation be a mandatory, relevant consideration in evaluating the proposal. On this basis, I would have given the provisions of cl 6.6 significant, but not determinative, weight (Terrace Tower Holding Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195).

45. However, in this matter, not a great deal turns on the weight given to the relevant provisions of cl 6.6 of LEP 2012 (Amendment 5) because the applicant submits that if I were minded to refuse the application on the basis of the proposal’s numerical short-fall in landscaped area, the applicant is willing to amend the proposal to replace the tennis court’s surface with grass. The experts agreed that if the tennis court was grassed, the proposal would amply satisfy the numerical control for landscaped area in DCP 2012 and therefore also comply with the requirement for landscaped area in LEP 2012 (Amendment 5). As a consequence of the applicant’s submission, any inconsistencies of the proposal with the objectives for landscaped area or non-compliance with the numerical requirement for landscaped area are not determinative. The only question before me in relation to landscaped area is whether to require the application to be amended to provide a grassed tennis court. Given my findings in the following paragraphs in regard to the other contentions, there is no need to come to a conclusion on whether or not the proposal should be amended to provide a grassed tennis court.

Siting of the dwelling, setbacks, bulk and scale

46. I accept the evidence of both experts that the desire to retain the existing tennis court has driven the layout of the proposal. This has, in my view, resulted in a compromised configuration for the site layout. The proposed site layout requires pedestrian access to the dwelling to be provided through the existing garage, which occupies the full width of the access handle of 103A Raglan Street and straddles the shared boundary with 105 Raglan Street, and then pedestrian access must cut across the middle of the existing tennis court to the front door of the proposed dwelling. I am not satisfied that should 103A Raglan Street be separately disposed of in the future, the configuration of the site layout would function satisfactorily as a single family dwelling.

47. I accept the agreement of the experts that the overshadowing impact of the proposal on 32 Calypso Ave is acceptable and I accept Mr Barwick’s evidence that the position of the proposed dwelling aligns with the row of existing dwellings on the western side of Calypso Ave. I accept that the setback from the shared boundary with 32 Calypso Ave provides an adequate side setback, notwithstanding that the owners of 32 Calypso Ave had an expectation that the portion of the site proposed for the dwelling, which was once the rear yard of 32 Queen Street, would remain as open space. I accept that the proposal does not readily provide an opportunity for the occupants to overlook the rear yard of 34 Queen Street, as the windows in the northern elevation are to have a translucent glazing in a fixed lower sash to a height of 1.6m above finished floor level (FFL), nor does it provide an opportunity to overlook the bedrooms of 32 Calypso Ave, as the sill heights of the southern elevation are shown as 1.6m above FFL.

48. However, I am not satisfied that the proposal has been designed in response to the not inconsiderable constraints of this battle-axe site. The area proposed for the dwelling is constrained, yet the proposal is essentially a large, raised box with an upper level setback on the southern side and a ground floor unrelieved setback 2m from the northern, eastern and western boundaries of the small portion of the site proposed for the dwelling. In my view, a more skilful design would have dealt more effectively with the opportunities and constraints of this site and achieved an articulated proposal with varied setbacks, greater opportunities for planting and much better amenity for future occupants. The qualities of the site and its context have not been properly considered and the proposal does not achieve an outcome that is well designed. The proposed dwelling would not make a positive contribution to its surroundings, nor would it establish a positive relationship with neighbouring buildings, because the poorly articulated bulk of the proposed dwelling provides little relief and this is exacerbated by the narrow setback from the boundaries on three sides.

49. The proposed configuration of the site layout provides no opportunities, regardless of the surface of the tennis court, for a canopy tree or a distinctive valley slope tree (control 7.23.2(f) of DCP 2012). Canopy trees are a feature of Mosman and the Sirius Slopes Townscape. I do not accept Mr Barwick’s evidence that canopy trees located on a battle-axe allotment do not contribute to the ambience of the locality and the landscaped character of Mosman.

Internal amenity of the proposed dwelling and inconsistencies in the documentation

50. The documentation is not consistent with Schedule A of the Court’s practice note, ‘Class 1 Development Appeals’ as it includes a number of inconsistencies. I pointed out some of these inconsistencies to the parties, as I noticed them, during the hearing. For example, the roof profile is shown on Section A-A (exhibit B, drawing B17) as two gables or a hipped roof with a central box gutter and on Section B-B (exhibit B, drawing B17) as a hipped roof with a flat top. One must be incorrect and I understand it to be Section A-A, based on the roof plan. The basement level is shown in different positions on the sections. It is shown on the western side of the footprint on Section B-B and on the northern side of the footprint on Section A-A. One must be incorrect. There is no plan of the storage area and no access indicated to the storage area, either internal or external.

51. I accept Mr Grech’s evidence in regard to the inadequacy of the internal amenity of the proposed dwelling. The ground floor is documented as one large, amorphous space with only the northern side occupied by the entry, a stair, a toilet and a laundry. The western elevation is fully glazed, albeit with an overhang of the first floor and the principal outdoor living area is positioned on the first floor. The windows bear little relationship to the internal spaces. The layout includes some odd quirks, such as two doors into the ensuite bathroom of bedroom 3, one sliding door from the hall and a door from bedroom 3, which conflict with each other. The bedroom 3 ensuite has no windows, yet had the two adjoining ensuite bathrooms to bedrooms 2 and 3 been positioned in an east-west direction, it would have permitted both to have natural light and ventilation, without the use of a skylight in a flat roof. While I accept that some of these design issues are not necessarily worthy of refusing the application, they do demonstrate the poor resolution of the design and the consequent implications for internal amenity.

52. All the windows in the northern elevation are to have a translucent glazing in a fixed lower sash to a height of 1.6m above FFL and all the sills in the southern elevation are shown as 1.6m above FFL. The first floor terrace has screening on both the northern and southern sides. The proposal has no outlook at all on the northern and southern sides. Had the proposal been better articulated and more skilfully designed, it would not have been necessary to employ such a blunt solution to deal with impacts on neighbours and compromise the internal amenity of the dwelling. I am not satisfied that the proposal has been orientated and designed to ensure optimum amenity and respond sensitively to its context.

Conclusion

53. I am not satisfied, for the reasons given in the judgment, that the proposal is consistent with the objectives of the R2 Low Density Residential zone, to maintain or enhance local amenity and to minimise the adverse effects of bulk and scale of buildings. A more skilful design would have dealt more effectively with the opportunities and constraints of this site and achieved an articulated proposal with varied setbacks, greater opportunities for planting and much better amenity for the future occupants. I am not satisfied that should 103A Raglan Street be separately disposed of in the future, the configuration of the site layout would function satisfactorily as a single family dwelling.

54. Given my findings, I do not need to deal with the disputed and alternative versions of the conditions of consent.

Orders

55. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 8.2013.216.1, for a two storey dwelling at 103A Raglan Street, Mosman, is refused.

3. The exhibits, other than exhibits 7, B and D, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 03 March 2015