McNally v Mosman Municipal Council
[2013] NSWLEC 1074
•07 May 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: McNally v Mosman Municipal Council [2013] NSWLEC 1074 Hearing dates: 12 and 13 March 2013 Decision date: 07 May 2013 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld in part.
2. The development application for alterations and additions to existing dwelling at 25 Bond Street, Mosman, is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits D and F, may be returned.
Catchwords: DEVELOPMENT APPLICATION - alterations and additions to an existing dwelling. Condition of consent requiring deletion of double carport. Impact on dwelling and streetscape. Legislation Cited: Environmental Planning and Assessment 1979
Land and Environment Court Act 1979
Mosman Local Environmental Plan 2012Cases Cited: Zhang v Canterbury Council [2001] NSWCA 167 Category: Principal judgment Parties: James and Beth McNally (Applicant)
Mosman Municipal Council (Respondent)Representation: Ms S Leis (Applicant)
Ms J Walsh of Pikes Verekers Lawyers (Respondent)
Mr M Whelan of Mark Whelan Lawyer Pty Ltd (Applicant)
File Number(s): 11253 of 2012
Judgment
This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a condition imposed by Mosman Municipal Council (council) on its development consent issued on 22 June 2012 to a development application (8.2012.98.1) for a "New carport, front fence, timber arbour and landscaping to a dwelling house" at 25 Bond Street, Mosman (site).
Condition 2 of the development consent requires:
The double carport structure forward of the front building alignment is to be deleted. The double carport structure adds the additional bulk and scale to the site and streetscape and does not comply with the Mosman Residential Development Control Plan requirements for carport and garage design.
The carport, which is required to be deleted, is proposed to be within the front setback of the site. It would be approximately 5m wide x 6.43m long and accommodate two cars. It is to be constructed with timber posts and terra cotta tiled roof and accessed off the existing vehicular kerb crossing.
A hardstand was approved under DA 8.2004.219.1 but is different to the hardstand that exists on the site. The current development application seeks to enlarge and lower the hardstand area, which is not opposed by council.
The key issues in dispute between the parties are whether the proposed carport dominates the house and is acceptable within the streetscape.
Site and its locality
The site is located on the eastern, high side of Bond Street, between Ourimbah and Military Roads. It has a site area of 434.8m2 and a frontage of 12.19m. The site is developed with a dwelling that is a single storey at the front with a double storey to the rear. In front of the dwelling is a hardstand (6.43m x 5m), a below ground detention tank, access path and perimeter landscaping.
The properties on the eastern side of Bond Street are generally elevated above the footpath level, with a mixture of low and high style fencing along the front boundary.
To the north, the site adjoins a single storey detached house with an attached single garage to the side (27 Bond Street). To the south, the site adjoins a single storey detached house with a single carport to the side (23 Bond Street).
Development between the site and Military Road includes single storey detached and semi detached houses, residential flat buildings, a commercial building (4 Bond Street) and a dwelling used as a childcare centre (6 Bond Street). The residential flat buildings are located near Military Road and have basement parking.
Development between the site and Ourimbah Road is a mixture of semi detached houses and one and two storey detached dwellings. This pattern of development continues along Bond Street between Ourimbah Road and Awaba Street.
The frontage of dwellings and semi detached dwellings in Bond Street have either no parking facilities, hard stand areas, carports or garages to the front or side of dwellings.
Planning controls
The site is within the R3 Residential - Medium Density Zone under Mosman Local Environmental Plan 2012 (MLEP) and the proposal is permissible with consent.
The objectives of the R3 zone are:
· To provide for the housing needs of the community within a medium density residential environment.
· To provide a variety of housing types within a medium density residential environment.
· To enable other land uses that provide facilities or services to meet the day to day needs of residents.
· To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale.
· To encourage residential development that has regard to local amenity and, in particular, public and private views.
Clause 2.2(3) of MLEP provides that the consent authority must have regard to the objectives of the zone. There are no other provisions in the LEP of relevance to the application.
Mosman Residential Development Control Plan (DCP) applies to all land zoned residential. Part 4 includes primary planning controls for the siting and scale of buildings. Part 5 sets out general design criteria for all development in residential zones. Part 5.2 relates to carport and garage design. Part 7 provides detailed planning controls for townscape areas. The site is within the Ourimbah Townscape and there are no specific controls for carports in Part 7.19.
Evidence
A conciliation conference under s 34AA of the Land and Environment Court Act (LEC Act) was held on site. The parties did not reach agreement and the conciliation conference was terminated and a hearing was held forthwith. The parties agreed that only the view, which was undertaken at the conciliation conference, could be evidence in the hearing.
The Court heard planning evidence from Mr A Betros, for the applicant, and Ms A Plumb, for the council. The applicants provided statements, which outlined their family situation and their need for the proposed carport.
The key issue in dispute between the planners was whether the proposed carport for two cars met the objectives and controls for carports in Part 5.2 of the DCP. They held different opinions about the streetscape and locality, its character and the impact of the proposal on the dwelling and the streetscape.
What is the streetscape?
Ms Plumb considers that the assessment of streetscape should be limited to the visual catchment surrounding the site, being Bond Street, between Military Road and Ourimbah Road. In her opinion, Ourimbah Road is a main road that divides Bond Street. She referred to the definition of streetscape in the DCP to support her opinion.
Mr Betros considered that the whole of Bond Street, between Military Road and Awaba Street, should be included in the assessment of streetscape as it is all within the Ourimbah Townscape. In his opinion, Ourimbah Road is not a barrier and people would walk from the northern end of Bond Street to Military Road. He accepted that the "immediate locality" of the site is between Military Road and Ourimbah Road.
Character of the streetscape
Ms Plumb and Mr Betros held different opinions on the character of the streetscape. Mr Betros considered the primary characteristics of the streetscape to be its canopy trees with a range of uses and built forms. The treatment of the street frontage is not consistent with a mixture of structures, hardstands and landscaping.
Ms Plumb considers the character of Bond Street to be primarily residential, with landscaped front setbacks and some single garages, carports and hardstand areas. She acknowledged the large residential flat buildings near Military Road, but considered that these formed part of the commercial precinct.
Ms Plumb and Mr Betros reviewed a survey of garages, carports and hardstands in the street frontage between Military Road and Awaba Road prepared by the Applicant (Exhibit B). The experts agreement is summarised in the following table:
PARKING STRUCTURES IN FRONT SETBACK AREA
Bond Street (between Military Road and Awaba Road)
Bond Street (between Military Road and Ourimbah Road)
Bond Street (between Ourimbah Road and Awaba Road)
Carport
9
3*
6**
Garage
1
1
0
Side Street
3***
2
1
13
6
7
* single carports at 10, 12 and 13 Bond Street
** single carports at 42, 44, 44A, 59 and 53 Bond Street. Double carport at 41 Bond Street.
*** double garages at 81A and 40 Ourimbah Road and single carport at 12 Earl Street which front Bond Street.
In addition, a number of the dwellings and the childcare centre have hardstand areas. The residential flat buildings have driveways to basement car parks and newer houses have double garages integrated into the building.
Mr Betros considered the survey indicated a predominance of carports in the street in the immediate locality. Ms Plumb considered it did not, rather the majority of dwellings have no structures forward of the building line.
Impact on the dwelling and the streetscape
Mr Betros considered the proposal to be a single carport that accommodates two cars and meets the criteria in Part 5.2 P5. The carport had been designed to minimise its impact on the dwelling and the streetscape. The level of the hardstand was to be lowered to reduce the height of the carport relative to the dwelling. It is a single open structure with lightweight posts, shallow roof pitch and materials and colours, which are complimentary in style to the dwelling. Although the width of the carport marginally exceeds 40% of the street frontage it is less than 6m wide and meets the intent of the control in Part 5.2 P7(c) as it occupies a lesser proportion of the street frontage than other carports in Bond Street and the precinct. In his opinion, the carport will not dominate the existing house. Further, the carport will respect the existing character of the street given the variety of built form and uses, the presence of other carports and garages and established street trees. Mr Betros also referred to a recent approval of a double carport in 33 Macpherson Street as an example of a double carport in front of a house as well as to other examples in the area (Exhibit C).
Ms Plumb considered the proposal to be a double carport and that it does not meet the criteria in Part 5 P5, particularly as there are no other carports of similar width in the immediate locality of the site. She acknowledged that the carport was well designed and compatible with the style of the dwelling. However, its siting in the front of the dwelling with limited setback and occupying more than 40% of the street frontage does not comply with Part 5.2 P7(c) and results in adverse visual bulk to the dwelling and the streetscape. She noted that the adjoining dwellings to the north and south have a single garage and single carport which are setback from the street frontage and located on the side boundaries. A single carport closer to the side boundary may also be acceptable on the site. Ms Plumb explained that the approval of the carport at 33 Macpherson Street replaced an existing double carport and that it is not clear when or under what circumstances the other carports in the wider area were approved. Nevertheless, the current DCP controls require an assessment of the streetscape in the "immediate vicinity" of the site and not the wider area.
Submissions
Ms Leis, for the applicant, provided extensive written submissions which centred on the proposal's compliance with MLEP. In particular, the site is within a R3 Residential - Medium Density Zone which permits a range of residential and other uses, including residential flat buildings. The objectives of the zone are a mandatory consideration and the provision of a carport within a medium density environment is acceptable.
Ms Leis submits that there is a clear legislative intent in MLEP to prioritise amenity and use and that this has not been adequately considered by the council. The applicants have provided valid reasons why they "need to, and aspire to, have a carport" which include:
...that they use the car parking area to load and unload children and goods and that this is uncomfortable during inclement weather, that there is hazard and inconvenience caused by tree debris falling within the car parking area, that they cannot safely park one of their cars on site because of security and protection issues, and that it would be a safer place for them and their children if the proposal was built.
The applicant's opinion is supported by Mr Betros who states:
Overall it is considered that the proposed carport and landscaping works will significantly improve the amenity, security and liveability of the subject dwelling without adverse streetscapes or amenity impacts
Mr Leis submits that given the size of the dwelling, and its use as a family residence, it is not an unreasonable expectation for the occupants to have the amenity that would be provided by the proposal. Further, she submits that this is consistent with the objectives of the zone.
Ms Leis submits that the evidence of Mr Betros should be preferred over that of Ms Plumb. He is more experienced and has identified the facts and assumptions upon which his evidence is based.
Part 7.19 of the DCP describes the existing and desired future character for the Ourimbah Townscape area, which makes no reference to carports, unlike other townscape areas that have specific controls for carports. In Ms Leis' submission, the evidence of Mr Betros is that the proposal would be consistent with the desired future character sought for the street. It also meets the controls in Part 5.2 as the reference to a "single carport" in Part 5.2 P5 is to a single structure not a carport for a single car and the criteria (a) to (i) are met. The non compliance with the 40% frontage control in Part 5.2 P7 is minor (1%) and is below the 6m maximum, which is appropriate given the context of the site.
In Ms Leis' submission, the planning controls had not been consistently applied and, as each application should be considered on its merits, the proposal would not be a precedent for future applications. Furthermore, there is limited potential for other carports in the street.
Ms Lies' written submissions also included matters that were not pressed in her oral submissions or that go beyond relevant considerations for a Class 1 appeal, which I have not addressed.
Ms Walsh, for the council, submits that cl 2.3 of MLEP requires that regard must be given to the objectives of the R3 zone. The "needs of the community" and the "local amenity" are informed by the DCP which provides controls that reflect the "aspirations of the wider community". The DCP balances the needs of individual occupants against wider objectives and provides detailed guidelines on how the objectives in MLEP are to be implemented. The specific controls for garages and carports in Part 5.2 of the DCP are relevant to the application and are not read down by the controls for Ourimbah Townscape. Part 5.2 provides a hierarchy for the siting of carports, which are not to be considered in front of the building alignment unless certain criteria are met. In Ms Walsh's submission, the evidence of Ms Plumb should be accepted and the proposal does not comply with Part 5.2.
Ms Walsh submits that there are other nearby sites where an application for a carport could be made. In assessing such an application, Part 5.2 P5(i) requires that "consideration is given to the predominance (or otherwise) of carports in the street in the immediate locality of the site. An approval of the current application would therefore set a precedent for other carports.
Findings
The site is within the R3 Residential - Medium Density Zone under MLEP which permits a range of residential uses, including residential flat buildings. However, the height and storey controls for dwellings in the R3 zone are the same as those for dwellings in the R2 Low Density Residential Zone. Further, the floor space ratio and height controls for residential flat buildings and single dwellings in Bond Street are the same. Therefore the location of the site in the R3 zone, of itself, is not a reason to grant consent to the application.
Under cl 2.3 of MLEP, regard must be had to the objectives of the zone. Clearly the applicants have a need for a carport to accommodate two cars, which will provide them with considerable amenity, but this does not meet the objectives of the zone. I accept Ms Walsh's submission that regard to the objectives of the zone is informed by the DCP which express the wider needs and amenity of the community.
Consistent with the decisions in Zhang v Canterbury Council [2001] NSWCA 167, the DCP must be the focal point for consideration of the proposal. The provisions in Part 5.2 of the DCP provide specific controls for garages and carports, which apply to all residential areas and deal with the range of housing and the varied character of different streets in both the R2 and R3 zones. Clearly these provisions are of most relevance to the proposal and against which the application should be considered.
It is uncontested that the applicants have a need for a carport, however, the introduction to Part 5.2 explains that:
The provision of car parking should reasonably satisfy the needs of current and future residents but recognise the need to balance car parking access and provision with design, heritage and sustainability objectives.
Careful consideration should be given to the effect of the garage or carport on the overall appearance of the building and the streetscape, particularly a dwelling house or semidetached dwelling. In almost every case garages and carports have a substantial impact if constructed on or near the front boundary; for this reason Council has identified preferred locations for garages and carports - at the rear, side and, finally, at the front of the dwelling house or semi-detached dwelling.
The objectives of Part 5.2 include:
O1. To have carports and garages designed to be in sympathy with the residential building without becoming the dominant feature on the site.
O2. To have areas forward of the front building alignment reserved predominantly for vegetation and landscaping and to make a positive contribution to the streetscape.
O3 To have the siting of carparking structures respect the character of the streetscape and retain public views where they exist over the site.
...............
Part 5.2 P2 provides the following hierarchy for the siting of carports and garages for existing development:
(a) garage or carport located at rear of the site with access from a rear lane; or
(b) garage or carport located at the rear of the site with access from the street frontage or at the side of the dwelling behind the front building alignment; or
(c) where a garage or carport cannot be provided at the rear or side of the dwelling, a handstand area (preferably in the form of wheel strips) forward of the front building alignment which is integrated into the landscape character of the front yard is the preferred approach.
Part 5.2 P5 provides that "a single carport" may be considered forward of the front building alignment only where:
(a) there is no rear lane or side access;
(b) the site does not contain a heritage item or is not within a heritage conservation area (some exception to this may be permitted in certain circumstances as outlined in this Part);
(c) the site is of sufficient width where the carport will not dominate the existing building;
(d) the distance between the building and the front property boundary is a minimum 5.5m,
(e) it is of a simple posted design, with no side panel infill, not over elaborate in its decoration and colour; and does not detract from the existing building and its setting;
(f) there is no solid panel lift or roller shutter door proposed and security is afforded by inward swinging or sliding gates or a panel lift type shutter which has the appearance of a low type open style fence;
(g) the structure has a minimal visual impact (an open form pitched roof may be appropriate to reduce the presence of the carport; the use of large gables which have a dominating presence to the street are not appropriate),
(h) a public view would not be adversely affected, and
(i) consideration is given to the predominance (or otherwise) of carports in the street in the immediate locality of the site.
Part 5.2 P7 provides provisions for the design of all garages and carports, whether they are located to the rear or side of a site, as sought by P2 or forward of the front building line if the additional criteria in P5 are met. The proposal meets the requirements in P7, with the exception of P7(c) which provides that the carport should:
not exceed 40% of the block frontage or up to 6m, whichever is the lesser, depending on frontage width (this does not apply to heritage conservation areas; refer to controls above);
Part 5.2 P6 limits the width of a single carport forward of the building line in a conservation area to 3m or 20% of the width of the block frontage, whichever is the lesser. The site is not a heritage item or in conservation area but Ms Leis and Mr Betros noted the reference to "single carport" in both P5 and P6 to support their position that it means a single structure that can be up 6m wide under P7(c), except in a conservation area. I do not support this position, as P7 applies to all garages and carports wherever they are located on the site. It is qualified by other controls such as P5, P6 and P9, which may permit garages on the street frontage on steeply sloping sites. Even if "single carport" in P5 does refer to a single structure, the consideration in P5(i) of the predominance of carports would include a consideration of their width.
The hierarchy in the Part 5.2 for the siting of carports does not support carports in front of the building line due to the potential to impact on the dwelling and the streetscape. Where it is not feasible to place parking to the rear or side of a dwelling, the preference is for a hard stand. This meets the needs for off street parking while minimising the potential impacts. Under Part 5.2 P5 a "single carport" may be considered in front of the building alignment subject to certain criteria. The experts disagree whether criteria (c), (e), (g) and (i) of P5 are met.
While, I accept that the carport is well designed to reduce its impact and respond to the style of the dwelling, it still places a large structure in front of the dwelling that will "detract from the existing building and its setting" to a greater extent than a hardstand or a carport for a single car (P5(e)).
I accept Ms Plumb's evidence that the streetscape, particularly for the purpose of Part 5.2 P5(i), is that in the immediate vicinity of the site. However, even if the wider streetscape is considered, the survey demonstrates that there is not a predominance of carports forward of the building line, and no double carports within Bond Street between Military Road and Ourimbah Road and only one, in the wider streetscape up to Awaba Road. The proposal therefore does not meet Part 5.2 P5(i).
While the character of the street changes towards Military Road and there are examples of other uses, such as the childcare centre across the road. It remains predominantly residential, with one and two storey dwellings. I do not accept that the desired future character for the Ourimbah Townscape or the R3 zone would result in structures forward of the building line. Future residential flat buildings are likely to have basement parking and future dwellings are likely to have garages that are incorporated into the building.
The structure also occupies marginally more than 40% of the street frontage specified in P7(c) while, of itself, this would not be a reason to refuse the application, it does contribute to the dominance of the carport over the existing building (P5(c)). I acknowledge Mr Betros' opinion that a single carport in front of a semi detached dwelling, which already occurs in the street, has a greater impact than the proposal. However, this does not justify the proposal but merely demonstrates the potential for increased impact where a greater percentage of the frontage is occupied, particularly if this is directly in front of the building. Similarly, I do not accept that the examples of carports in other streets demonstrate that the planning controls have been applied inconsistently or justify the proposal. However, given that P5(i) requires consideration of the "predominance (or otherwise) of carports in the street in the immediate locality of the site", I accept that the approval of the double carport would set a precedent for the approval of other carports in the immediate vicinity of the site.
The hardstand meets the applicants' need for off street parking for two cars. The greater amenity to be provided by a carport over the hardstand is not justified when considered against Part 5.2 of the DCP and having regard to the objectives of the R3 zone. For these reasons the condition requiring deletion of the carport is retained. The council did not raise issues with the other elements in the development application, which are therefore approved, subject to conditions imposed by council on its development consent issued on 22 June 2012.
Orders
1. The appeal is upheld in part.
2. The development application for alterations and additions to an existing dwelling at 25 Bond Street, Mosman, is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits D and F, may be returned.
Annelise Tuor
Commissioner of the Court
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Decision last updated: 07 May 2013