Markakis v Mosman Municipal Council

[2022] NSWLEC 1223

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Markakis v Mosman Municipal Council [2022] NSWLEC 1223

Hearing dates:

6 April 2022

Date of orders:

29 April 2022

Decision date:

29 April 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application 8.2021.279.1 for the consolidation of Lot 1 DP 1183122 and Lot 3 DP 173762, known as 103A and 105 Raglan St Mosman, the construction of a single-storey tennis retreat, ancillary to the existing dwelling house, and associated landscaping subject to the conditions in Annexure A.

(3) Exhibits A, B, 4, 5, 7 and 8 are retained. All other exhibits may be returned.

Catchwords:

APPEAL – development application – “tennis retreat” – consent orders – objections raised by residents – height, bulk and scale – privacy – overshadowing

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10

Environmental Planning and Assessment Regulation 2000, cll 3, 49, Sch 1 cl 2A

Environmental Planning and Assessment Regulation 2021, cl 3

Land and Environment Court Act 1979, s 39(2)

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 6.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 4.16

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Land and Environment Court Practice Note - Class 1 Development Appeals

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Anthony Markakis (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G Farland (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Lepouris Markakis Solicitors (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/362004

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant has made a development application (Council reference DA-8.2021.279.1) (DA) for consent to construct what is described in the application as a “tennis retreat” on the land currently described as Lot 1 DP 1183122 known as 103A Raglan St, Mosman (Site). In addition to the tennis retreat, the DA also seeks consent for the carrying out of landscaping around the proposed building and, following the amendment of the DA on 20 September 2021, for the consolidation of the Site with the land described as Lot 3 DP 173762 known as 105 Raglan St, Mosman (Proposed Development).

2. The DA was lodged with the Council on 11 August 2021 and was refused by the Mosman Local Planning Panel on 15 December 2021. The Applicant appeals from that decision pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. As originally proposed, the tennis retreat was a two storey building comprising the tennis retreat, lounge, kitchenette, bathroom, deck and landscaping on the ground floor and an office and balcony on the first floor.

4. On 1 April 2022 the Court, exercising the function of the Council under s 39(2) of the Land and Environment Court Act 1979 (LEC Act) agreed to the Applicant amending the DA to rely on an amended set of plans and documents. That amendment was uploaded to the NSW Planning Portal on 4 April 2022. The DA was further amended with the agreement of the Council on 6 April 2022 to rely on amended landscape plans and to incorporate an updated BASIX certificate. The amended landscape plans and updated BASIX certificate were lodged with the Court on 5 April 2022 and uploaded to the NSW Planning Portal on 6 April 2022.

5. The DA as amended now proposes a single storey building. The roof form is now hipped with small glassed gablets on each side and the bulk and scale of the building have been reduced and measures taken to minimise the adverse impacts on the amenity of adjoining properties. These measures include the provision of privacy screening and additional landscaping.

6. The amendments to the DA have satisfactorily addressed the contentions raised by the Council in its Statement of Facts and Contentions (Ex 3) and the Council now agrees to the DA being determined by the grant of development consent subject to conditions which have been agreed to by the Applicant. The parties have entered into Consent Orders to this effect dated 5 April 2022 (Ex 7).

7. While the Council agrees to the granting of development consent to the DA, I am nonetheless required to carry out an assessment of the Proposed Development in accordance with s 4.15 of the EPA Act to determine if it is lawful and appropriate to determine the DA by the grant of development consent. I am also required to consider the evidence and submissions of the objectors. The Practice Note - Class 1 Development Appeals sets out the procedural requirements at paragraph 99:

“Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.”

8. For the reasons set out below, I have determined that it is appropriate to grant development consent.  The Proposed Development is permissible in the zone and complies with the development standards for height and floor space ratio. While the Site is located within a heritage conservation area, the Proposed Development is located at the rear of the Site, will not be visible from Raglan St and is unlikely to create any significant adverse impact on the heritage conservation area. The Proposed Development does not comply with the landscaped area required by the relevant planning control but this is due to the existing development currently not providing the required amount of landscaping: the Proposed Development itself will increase the proportion of the Site comprising landscaped area from 12.43% to 16.3% as compared with the 50% required. I have considered the issues raised by the local residents but have concluded that those issues do not warrant the refusal of the DA.

The site and locality

9. The Site is located on the eastern side of Raglan St, between Queen St to the north and Calypso Ave to the south. The Site has a total street frontage of 25.54m to Raglan St, an area of 1814m² and falls approximately 2.27m to the east (rear).

10. The property known as 103A Raglan St has an area of 980.5m² and is irregular in shape, being a “battle-axe” block with a frontage of 5.37m to Raglan Street. The property known as 105 Raglan Street has an area of 948.5m² and is rectangular in shape, with a frontage of 17.14m to Raglan Street and a southern side boundary of 57.18m.

11. The Site presently contains a dwelling house (105 Raglan St) and a tennis court (103A Raglan Street). A detached garage and a swimming pool straddle both lots.

12. Surrounding development consists of large two storey detached dwelling houses.

13. The Site and its surrounds are shown in Figure 1 below:

Figure 1 – locality sketch

14. The hearing commenced with an inspection of the Site and the surrounding area. This enabled the Court to understand the likely impacts of the Proposed Development on the adjoining properties, and the Site was observed from the neighbouring properties at 34 Queen St and 32 Calypso Ave.

The statutory conditions to the grant of consent

The Conditions in the EPA Act and Environmental Planning and Assessment Regulation 2000 (EPA Regulation)

15. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act.

16. The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 cl 3. The DA has been made with the consent of the owners of the Site in accordance with cl 49(1)(b) of the EPA Regulation.

17. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

18. Clause 2A(1) of Sch 1 to the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate for the development. The proposed development is BASIX affected development as defined in cl 3(1) of the EPA Regulation. A BASIX Certificate (Certificate Number A417982_02 dated 4 April 2022 by BASIX Certificate Centre) accompanies the DA.

Mosman Local Environmental Plan 2012 (LEP)

19. The Site is located within Zone R2 Low Density Residential under the provisions of the LEP. Development for the purposes of a dwelling house is permissible with development consent on land within that zone. The Proposed Development is ancillary to the existing dwelling house on the Site and is therefore permissible with development consent.

20. Clause 4.3 of the LEP establishes a building height standard of 8.5m for the Site. The Proposed Development will be 5.85m in height and complies with this standard. Clause 4.3A imposes some additional requirements in relation to the height of buildings on the Site. It provides that development consent may be refused for a proposed building that has more than two storeys and that any building on the Site must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2m. The Proposed Development now has a single storey scale and no wall exceeds 7.2m in height.

21. Clause 4.4 of the LEP sets a maximum floor space ratio for the Site of 0.44:1. The Proposed Development complies with this standard, having a floor space ratio of 0.313:1.

22. The Site is not a heritage item but most of the Site is identified by the LEP as being within the Raglan Street Heritage Conservation Area (HCA). This includes the whole of the property at 105 Raglan St and the access “handle” and the land occupied by the tennis court on 103A Raglan Street. Clause 5.10 of the LEP provides that the effect of the Proposed Development on the HCA must be considered before granting consent to the Proposed Development. The Proposed Development will be located at the rear of the Site and will not be visible from Raglan St. I am satisfied that the Proposed Development will not have an adverse impact on the HCA.

23. Clause 6.6 of the LEP provides that the consent authority may refuse to grant development consent to development involving the erection of a building unless a landscaped area of not less than, in this case, 50% of the Site is provided. The existing landscaped area of the Site is 225.5m² or 12.43% of the total Site area. The Proposed Development is to be constructed on a part of the Site currently covered by artificial grass on a concrete slab. The Proposed Development will add 67.2m² of additional landscaped area which will increase the total landscaped area within the Site to 292.7m² or 16.3% of the Site. While this is still less than the 50% required by cl 6.6 of the LEP, in my view, it represents an improvement on the existing situation and is acceptable in those circumstances.

Mosman Residential Development Control Plan 2012 (DCP)

24. The DCP adopts a performance based approach to planning control and sets controls and objectives across a wide range of standards. Where a planning control cannot be satisfied, the DCP provides that an applicant must demonstrate that the intent of the objective has nonetheless been satisfied (DCP, clause 1.9).

25. The Council’s expert planning witness, Mr Steven Layman, prepared an expert report dated 5 April 2022 (Ex 6) which assessed the Proposed Development against the relevant controls and objectives contained in the DCP. I accept Mr Layman’s evidence that the Proposed Development complies with both the control and objectives for: view sharing (clause 4.3), heritage conservation (clause 5.6), energy efficiency (clause 5.9), stormwater management (clause 5.13), excavation and site management (clause 5.14), waste management (clause 5.15) and townscapes (clause 7.4(17)). There are three areas in which Mr Layman’s evidence is that the Proposed Development does not comply with the relevant control but satisfies the relevant objectives of the control. These three areas are siting and scale (clause 4.2), landscaping (clause 4.4) and privacy and security (clause 5.7).

26. In relation to siting and scale (clause 4.2) Mr Layman’s evidence, which I accept, is that the void spaces under the originally proposed gable roof form resulted in unnecessary and excessive building bulk and scale. However, the hipped roof structure now proposed by the Applicant reduces the bulk and scale of the Proposed Development to an acceptable level.

27. In relation to landscaping (clause 4.4), as noted at par [23], the Proposed Development will increase the area of landscaping within the Site and is considered acceptable.

28. In relation to privacy and security, I accept Mr Layman’s evidence that the Proposed Development will be located adjacent to a single storey cabana currently under construction at the rear of 32 Queen St, a swimming pool at the rear of 34 Queen St and a dwelling house at 32 Calypso Ave to the south. It will have a 3m setback from the northern boundary shared with 34 Queen St, a 1.5m setback from the eastern boundary shared with 32 Queen St and a 2m setback from the southern boundary shared with 32 Calypso Ave. I am satisfied that these setbacks are adequate to provide spatial relief between the various buildings and minimise overshadowing of neighbouring properties.

29. The DA originally proposed large first floor windows which created overlooking impacts on the adjoining properties. The Proposed Development as amended is now of single storey design and the large first floor windows have been deleted. The balcony serving the first floor office in the original design would also have enabled overlooking of the private open space areas of 32 Calypso Ave and 34 Queen St but the deletion of the first floor in the amended design also overcomes this problem.

30. I am therefore satisfied that the Proposed Development satisfies the relevant objectives of the DCP in relation to privacy and security.

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP)

31. The SREP applies to all of Mosman as identified on the Sydney Harbour Catchment Map forming part of the SREP. While the SREP was repealed by the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) with effect from 1 March 2022, it continues to apply to development applications made but not determined before that date: Biodiversity SEPP, cl 4.16.

32. The Site is not identified by the SREP as being:

1. within the Foreshores and Waterways Area;

2. a strategic foreshore site;

3. a heritage item; or

4. within the wetlands protection area.

33. Accordingly, although the SREP applies to the Site, it does not impose any planning controls relevant to the determination of the DA.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP)

34. The provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) were transferred to Chapter 4 of the Hazards SEPP on 1 March 2022.

35. Clause 4.6 of the Hazards SEPP (previously cl 7 of SEPP 55) provides that a consent authority must not consent to the carrying out of development on land unless it has considered whether the land is contaminated and, if it is, unless the consent authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out.

36. The Site has been used for residential purposes for many years and there is no evidence to suggest that the Site is contaminated.

Contentions raised

37. In its statement of facts and contentions filed on 25 January 2022, the Council raised a number of contentions as to why the DA should be refused. Those contentions may be summarised as follows:

1. The Proposed Development is of inappropriate size and configuration.

2. The Proposed Development has excessive bulk and scale and is not of good design or amenity.

3. The Proposed Development will have an adverse impact on its neighbours.

4. The Proposed Development provides inadequate landscaping.

5. The Site is unsuitable for the Proposed Development.

6. The granting of development consent is contrary to the public interest.

38. The Council now agrees that each of the contentions have been resolved through the amendments that have been made to the DA and submits that it is lawful and appropriate to grant development consent based on the amended proposal.

Expert evidence

39. Mr Steven Layman, consultant planner and architect, and Mr Daniel McNamara, consultant town planner, gave expert opinion evidence concerning the town planning issues in the appeal. That evidence is contained in a Joint Expert Report filed on 24 March 2022 (Ex 2) and a Supplementary Joint Expert Report filed on 5 April 2022 (Ex 3).

Contention 1: Inappropriate Size and Configuration

“The proposal should be refused because the size of the proposed building significantly exceeds the size required for a tennis retreat and the configuration of the proposed building is incongruent with a building to be used as a tennis retreat as ancillary development on land zoned R2 Low Density. The proposed development does not constitute the orderly and economic use and development of land.”

40. The planning experts agree that the deletion of the mezzanine and associated balcony satisfactorily reduces the size of the Proposed Development and that the single storey nature of the amended proposal is consistent with ancillary development on land within the R2 Low Density zone. They are also agreed that the development complies with the relevant height standards contained in cll 4.3 and 4.3A of the LEP.

41. The evidence of the planning experts is that the Proposed Development is consistent with the relevant planning controls in the DCP relating to siting and scale (height and floor space ratio) and “sits comfortably in the existing context without being visually dominant or overly prominent” (Ex 3, par 1.5). Importantly, they now also agree that the amended roof form (at 32 degrees) is consistent with other roof forms in the locality which they agree range between 30 and 40 degrees.

42. I accept the experts’ joint position that the size and configuration of the Proposed Development, as amended, is appropriate for the Site. Some of the residents expressed concerns about the size of the development being similar to that of a dwelling and could be used for that purpose in the future. However, the DA must be considered on its merits for what it proposes and not what may happen in the future and in this regard I note that a condition of consent (condition 54) will require that the Proposed Development be occupied solely for the approved use as a tennis retreat and that the use of the premises is not to change without development consent (unless permitted as exempt development).

Contention 2: Bulk, Scale, Design and Siting

“The proposal should be refused because the development is not of good design or amenity in the built environment, as a consequence of its excessive bulk and scale, poor siting and poor form in the local built environment. The proposed development is inappropriately sited and is of excessive bulk and scale for its immediate curtilage. The proposed development fails to meet the objectives of Clause 4.2 of the DCP.”

43. The parties’ experts are agreed that the Proposed Development complies with both the height controls in the LEP. The Proposed Development is now a single storey building and, with a proposed height of 5.85m, is well below the maximum height limits imposed by cll 4.3 (8.5m) and 4.3A (7.2m). The experts also agree that the Proposed Development has a floor space ratio of 0.313:1 and thus complies with the maximum floor space ratio permitted by cl 4.4 of the LEP of 0.44:1.

44. The experts also agree that the Proposed Development is consistent with the planning controls in the DCP relating to siting and scale and will be set back by more than 900mm from each boundary. Their shared opinion is that the elimination of the Dutch gables in favour of traditional gablet windows will provide ample natural light from above while achieving an appropriate scale and character for the Proposed Development in its setting.

45. For the reasons that follow, I agree with the parties’ experts that the bulk, scale design and siting of the Proposed Development are appropriate for the Site. The Proposed Development complies with the height and floor space ratio standards in the LEP so the height and floor space ratio are clearly within the range of what the controls intend for the Site. The hipped roof form and gablet windows now proposed, in my opinion, reduce the visual impact of the development to an acceptable level. As a result, I am satisfied that the bulk, scale, design and siting of the Proposed Development is appropriate given its context and the surrounding development.

Contention 3 – Adverse impact on amenity of neighbours

“The proposal should be refused because it does not satisfy cl 1.2(2)(a) of the LEP in that the proposed development does not maintain the existing residential amenity of the locality having regard for bulk, scale and potential use impacts on surrounding housing.”

46. I have already addressed the bulk and scale issues in the context of contention 2.

47. The parties’ experts agree that the deletion of the first floor balcony assists in minimising privacy impacts on neighbours and that the proposed setback of the elevated deck of between 900 and 3,000 mm from the northern boundary with the property at 34 Queen St together with the proposed 1.8m high fencing will provide adequate privacy to the occupants of 34 Queen St. Their opinion, which I accept, is that the proposed landscaping also enhances the sense of privacy.

48. The agreed position of the planning experts is that the 1.8m high privacy screen at the southern end of the proposed deck and 2.0m setback to the southern boundary will provide adequate privacy to the residents of 32 Calypso Ave.

49. I am satisfied that the amendments which have been made to the Proposed Development referred to in pars [47] and [48] will ensure that the Proposed Development will not have adverse privacy impacts on the adjoining properties.

Contention 4: Inadequate Landscaping

“The proposal should be refused because there is inadequate landscape provision, including there being no indigenous tree plantings, producing an adverse impact on the natural environment.”

50. As discussed earlier, the Proposed Development falls short of the 50% landscaped area required by cl 6.6 of the LEP but this is a product of the existing situation which already falls short of what the LEP requires. The Proposed Development will include landscaping which the parties’ experts agree will mitigate the visual impact of the Proposed Development and which will increase the total amount of landscaped area from 12.44% to 17.55%. The amended landscape plans now provide for the planting of a canopy tree adjacent to the northern boundary and a condition of consent will require the area between the proposed Arbor and the common boundary with 34 Queen Street to be landscaped by continuing the line of dwarf Lilly Pilly trees along the boundary.

51. I am satisfied that the landscaping proposed by the DA, as amended, and as supplemented by the proposed conditions of consent, is adequate for the development proposed.

Contention 5: Unsuitability of the Site

“The area of the site occupied by the proposed “tennis retreat” is unsuitable for a development of such excessive bulk and scale and inadequate landscaping.”

52. The Council originally contended that the Site was unsuitable for the Proposed Development by reason of its excessive bulk and scale and inadequate landscaping. As discussed above, I agree with the parties’ planning experts that the Council’s contentions in relation to bulk and scale and landscaping have been resolved by the amended proposal. It necessarily follows that this contention is also resolved.

Contention 6: Public interest

“The development does not represent orderly development of appropriate bulk, scale or amenity impact in the locality and approval of such a development would be prejudicial to local present and future amenity as well as desired future character and therefore is not in the public interest.”

53. The parties’ experts agree, and I accept, that the matters raised by this contention have been satisfactorily addressed for the reasons given in relation to the specific contention relating to bulk and scale (contention 2), size and configuration (contention 1), amenity (contention 3) and landscaping (contention 4). In my opinion the public interest would not be served by the refusal of the DA.

Resident evidence and submissions

54. The original application was notified to nearby and adjoining owners by letter dated 13 August 2021 and submissions were invited prior to 30 August 2021. The Council received five letters of objection raising concerns which may be summarised as follows:

1. The proposed use of the development as a “tennis retreat” and whether the use will change to that of a dwelling at some time in the future.

2. The lack of any street presence given that 103A Raglan St is a battle axe block.

3. The Proposed Development will overlook adjoining and nearby properties.

4. The proposal does not comply with the landscaping requirements of the LEP.

5. Concern about physical impacts on the dwelling house at 32 Calypso Ave during construction and the need for a dilapidation report.

6. Overshadowing and loss of morning sunlight to the ground floor of 32 Calypso Ave.

7. Drainage – whether the existing drainage easements should be surrendered and a new stormwater drainage system designed for the Site and the property at 32 Calypso Ave.

8. Loss of outlook from adjoining properties.

55. The Council gave the residents notice of the amended proposal by email dated 31 March 2022 (Ex 5, Tab 1) and of the proposed consent orders and conditions of consent by email dated 1 April 2022. One of the objectors to the original application indicated that his concerns had been addressed by the amended proposal. However, the other residents maintained their opposition to the DA both by making a further written submission and, in the case of two of the residents, by giving oral evidence at the commencement of the hearing. The issues raised covered much of the same ground as the original submissions but also included concerns about:

1. Visual privacy;

2. Acoustic separation;

3. Alleged inaccuracies in the design drawings.

56. Most of the residents’ concerns are addressed in my findings on each of the contentions raised by the Council as discussed above. However, some of the issues raised by the residents went beyond the contentions raised by the Council and I have considered those of relevance to the appeal below:

Street presence

57. The Proposed Development now involves the consolidation of the Site with the adjoining property at 105 Raglan St on which a dwelling house is already situated. The consolidated site will have an appropriate frontage to Raglan St.

Overshadowing

58. The expert report of the Council’s expert town planning witness, Mr Layman (Ex 6) indicates that the shadow diagrams submitted with the original application showed that all windows on the north elevation of 32 Calypso Ave would receive more than 3 hours of solar access between 9am and 3pm in mid-winter and that the Proposed Development therefore met the relevant solar access planning controls in the DCP. Mr Layman’s evidence, which I accept, is that the amended proposal reduces the bulk of the proposal and its roof and so reduces overshadowing which would have been created by the original proposal. As the extent of overshadowing meets the relevant control in the DCP, I have concluded that the overshadowing likely to result from the Proposed Development would not justify the refusal of the DA.

Drainage

59. While several residents gave evidence of there being drainage issues affecting their properties, these are existing issues and not the result of the Proposed Development. In those circumstances it would be inappropriate to refuse consent or impose conditions of consent to deal with the concerns raised.

Loss of outlook from adjoining properties

60. Mr Layman’s evidence (Ex 6) is that “the amended proposal, along with agreed consent conditions will achieve a development of reasonable scale, bulk and amenity affectation”. I agree with Mr Layman’s evidence and find that the outlook from adjoining properties will not be adversely affected by the Proposed Development to such an extent as to warrant refusal of the application.

Conditions of consent

61. Several conditions are included in the proposed conditions of consent that respond specifically to issues raised by the local residents.

62. To address the concerns expressed in relation to the use of the Proposed Development, a condition will be imposed (condition 54) which provides that the tennis retreat premises are to be occupied solely for the approved use as a tennis retreat and not as a separate occupancy or dwelling. The condition expressly provides that no change of use or additional use of any part of the premises is permitted without prior development consent (unless permitted as exempt development).

63. To address concerns about the possible physical impact of construction work on adjoining buildings, a condition will be imposed (condition 12) which requires the Applicant, prior to release of a construction certificate, to provide the Council with a dilapidation report for the adjoining properties at 32 Calypso Ave, 32 and 34 Queen St which documents and photographs the condition of buildings and improvements on those properties within 5 m of their common boundaries with the building works.

64. In their supplementary joint expert report (Ex 3) the parties’ planning experts agreed that the landscape plan was unclear as to the proposed treatment of the area between the proposed Arbor and the common boundary with 34 Queen St. They agree, and I accept, that this area should be treated by continuing the line of dwarf Lilly Pilly trees and proposed condition 1A requires the submission of an amended landscaping plan to this effect.

65. Finally, to further address the concerns expressed by the residents of the property at 32 Calypso Ave, a condition of consent (condition 1B) will be imposed requiring a gate with a height equal to the proposed privacy screen along the southern edge of the tennis retreat deck to be installed across the proposed steps leading from the deck to the landscaped area adjoining 32 Calypso Ave. The gate is to be of matching or equal design and detail to the privacy screen and is to ensure continuous privacy screening between the western wall of the proposed tennis retreat and the western extent of the proposed privacy screen.

Outcome of the appeal

66. As set out above I find that the Proposed Development is an appropriate response to the Site’s constraints, the applicable planning controls, and the location and context of the Site. While I have given consideration to the issues raised by the local residents, I have found that none of the issues raised is such as to warrant the refusal of the DA. Accordingly, the DA is determined by the grant of development consent in accordance with the consent orders signed by the parties and subject to the conditions of consent annexed to those consent orders.

67. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application 8.2021.279.1 for the consolidation of Lot 1 DP 1183122 and Lot 3 DP 173762, known as 103A and 105 Raglan St Mosman, the construction of a single-storey tennis retreat, ancillary to the existing dwelling house, and associated landscaping subject to the conditions in Annexure A.

3. Exhibits A, B, 4, 5, 7 and 8 are retained. All other exhibits may be returned.

Annexure A (262724, pdf)

Plans (2890271, pdf)

……………………………………

A Bradbury

Acting Commissioner of the Court

**********

Amendments

09 May 2022 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, the judgment has been amended by replacing the words “two-storey” in Order No. 2 with the words “single-storey”.

Decision last updated: 09 May 2022