McWilliams v Mosman Municipal Council

[2020] NSWLEC 1055

Land and Environment Court

New South Wales

Medium Neutral Citation:	McWilliams v Mosman Municipal Council [2020] NSWLEC 1055
Hearing dates:	28 January 2020
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development Application No. 8.2018.158.1 for alterations and additions to the existing boundary fence fronting Bradleys Head Road and Thompson Street at 23 Bradleys Head Road, Mosman, is approved, subject to the conditions of consent at Annexure A. (3)   The exhibits, other than Exhibits 1, 2, 7, A, E and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to an existing fence – local heritage item – impact on the heritage significance of the heritage item and heritage conservation area – whether the height of the fence is warranted for acoustic privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012
Texts Cited:	Mosman Residential Development Control Plan 2012
Category:	Principal judgment
Parties:	Barry McWilliams (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: C Ireland (Applicant) R McCulloch (Solicitor) (Respondent)   Solicitors: Dentons (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/149574
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 8.2018.158.1 for alterations and additions to the existing boundary fence fronting Bradleys Head Road and Thompson Street (the proposal) at 23 Bradleys Head Road, Mosman (the site) by Mosman Municipal Council (the Council).

2. The appeal was subject to conciliation on 28 January 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application by relying on an amended proposal (Ex A).

4. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) of the LEC Act.

Issues

5. The Council’s contentions can be summarised as:

• The proposal will be visually intrusive and out of character with the heritage streetscape of Bradleys Head Road and Thompson Street and is contrary to the heritage values, objectives and controls in the applicable planning provisions.

• The proposal will result in the loss of the view of the landscaped setting of the dwelling.

• The proposal is not consistent with the significance of the property as a heritage item and its location within the Bradleys Head Road Heritage Conservation Area (HCA). The proposal would adversely impact upon the presentation and significance of the heritage item and the HCA.

• The application fails to demonstrate that the proposal will provide acoustic benefit to the grounds and dwelling and the need for an acoustic fence.

The site and its context

6. The site is on the north-eastern corner of the intersection of Bradleys Head Road and Thompson Street.

7. The substantial Federation Queen Anne dwelling on the site is located in the north-eastern portion of the site, leaving the front setbacks from Thompson Street to the south and Bradleys Head Road to the east as the only area of private open space associated with the dwelling. The driveway crossover is located at the south-eastern corner of the site and the carport is positioned adjacent to the eastern boundary. The former tennis court associated with the dwelling is to the east of the site and is now part of the adjoining property and this portion of the former property was sold by a previous owner.

8. There is an existing boundary fence along the street boundaries of Bradleys Head Road and Thompson Street, with a gate positioned on the splay at the south-western corner of the site. There is an existing path between the gate and the entry porch to the dwelling on the western elevation.

The proposal

9. The proposal is to retain the sandstone base of the existing fence and the base and caps of the sandstone piers on either side of the entry gate and to remove the metal framed cyclone wire fence over the sandstone base and replace it with a timber fence to a height of 1.7m measured from the existing ground level to the top of the timber palings. The proposal includes replacing the pier shaft with a new sandstone shaft that is approximately 450-600mm higher that the existing shaft to increase the height of the piers so that the pier caps are higher than the new timber fence on either side of the piers.

Planning framework

10. The site is zoned R2 Low Density Residential pursuant to the Mosman Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The relevant aims of LEP 2012 at cl 1.2(2) are:

…

(g) to protect and conserve the natural, built and Aboriginal cultural heritage of Mosman,

(h) to protect, conserve and enhance the landform and vegetation, especially foreshores or bushland, in order to maintain the landscape amenity of Mosman,

…

11. The relevant objectives of the R2 zone are:

• 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.

12. The site is listed as a local heritage item, “Lochwinnock” house (Item 41, Schedule 5, Part 1, LEP 2012) and is within the Bradleys Head Road Heritage Conservation Area (Bradleys Head Road HCA) (Schedule 5, Part 2, LEP 2012). The consent authority must consider the effect of the proposal on the heritage significance of the item and the HCA, pursuant to cl 5.10(4) of LEP 2012. The Heritage Inventory Sheet for the item contains the following statement of significance:

“A distinctive example of a Queen Anne house complemented by its garden setting.”

13. The proposal is subject to the provisions of the Mosman Residential Development Control Plan 2012 (DCP 2012). DCP 2012 includes relevant objectives and controls for site planning and design at Part 5 and heritage conservation at Part 5.6. The relevant objectives and controls for fences and walls, at Part 5.3, are as follows:

Objectives

Planning controls

O1. To have new fences and walls that are compatible with positive elements of the streetscape and satisfy the character objectives for the townscape area.

P1. Fences and walls must be consistent with identified streetscape and townscape area character elements.

O2. To have low open style front fencing as a means of reducing the visual impact of solid fencing styles, encourage safety through passive surveillance of streets and private property, and allow for public views.

O3. To allow higher front fencing only in certain circumstances where there is a dual street frontage, where consistent with the scale or heritage value of a property, or to mitigate noise on streets with a high traffic volume.

P3. Front fences, and side fences forward of the building line, should be no more than 1.2m in height above footpath level.

P4. In certain circumstances Council may allow front fences, and side fences forward of the building line, greater than 1.2m in height above footpath level only where:

(a) there is dual street frontage, provided fences are articulated and do not have an adverse streetscape impact; or

(b) in the case of a heritage item or property in a heritage conservation area, where consistent with the scale or heritage value of a property and where historical evidence can be provided to support this; or

(c) the property adjoins one of the following streets with high traffic volume:

Belmont Road,

Cowles Road (south of Ourimbah Road),

Macpherson Street (south of Ourimbah Road),

Military Road (west of Spit Road), Ourimbah Road,

Rangers Avenue,

Spit Road,

Spofforth Street (north of Reginald Street).

In such cases, Council may allow a fence up to 1.8m in height of solid material provided it can be shown that the fence acts as an effective noise barrier. Such fences are to be either set back from the boundary to allow landscaping to soften the bulk or the structure is to be articulated as an alternative to a solid blank wall.

O5. To have fences and walls that are sympathetic to heritage items and heritage conservation areas.

P10. Modifications to the front fence of a heritage item or within a conservation area must be designed in a manner which contributes to the historic style of the building and streetscape context.

P11. A variety of fence types may exist in the vicinity of the site. The predominant character should be adopted and interpreted to maintain visual continuity and cohesion.

P12. The visual impact of fences is to be limited by selecting materials compatible to the age of the house. As a guide:

Federation to interwar arts and crafts – timber picket and brick, stone or a combination of these materials

Expert evidence

14. The applicant relied on the expert evidence of Howard Tanner (heritage), Stephen Davies (planning) and Stuart McLachlan (acoustic). The Council relied on the expert evidence of Robert Moore (heritage), Kerry Nash (planning) and Stephen Gould (acoustic).

15. All pairs of experts prepared joint reports addressing the contentions raised by the Council and the heritage and acoustic experts were required to give oral evidence.

Heritage evidence

16. The heritage experts agreed on the heritage significance of the dwelling as an example of the Federation Queen Anne style of architecture which has had sympathetic minor alterations. The experts agreed that a Federation period style of fence is appropriate for this property. Mr Tanner obtained a photograph of the fence of the adjoining property at 15 Thompson Street taken in c1905 (Ex J) and the experts agreed that the style of the fence shown in the photograph is an appropriate example upon which to base the design of the proposed fence.

17. The heritage experts agreed that a timber fence over the existing sandstone base is acceptable; that the proposed height of the fence between 1.7m and 1.8m above the footpath is acceptable; and that the decorative tops of the posts and pickets would project a minimal distance above the top of the fence (Ex 4, 8.3).

18. The experts disagreed on two matters; the style of the timber fence and whether the gate piers could be extended in height by the replacement of the pier shaft.

19. In Mr Moore’s view, the fence should be constructed so that the timber boards are not in a single plane, but form two layers of lapping boards so that the surface of the timber fence has some relief. In Mr Tanner’s view, the style of the fence shown in Ex J is a timber fence with palings in a single plane with no evidence of articulation and with curved tops to the palings. According to Mr Tanner, the style of the fence shown in Ex J is typical of the Federation period and it forms a suitable prototype as a basis for the proposal. Mr Tanner noted that the fence gates and piers shown in Ex J are grander than what is proposed. The experts disagreed on the height of the fence shown in Ex J, according to Mr Moore, fences of the period are typically 1200-1600mm high and according to Mr Tanner, the fence shown in Ex J is approximately 1700-1800mm high, excluding the decorative tops of posts.

20. In Mr Moore’s view, the existing piers on either side of the gate should be retained and the pier shaft should not be extended, either by the addition of a new section of a pier shaft or by the replacement of the pier shaft. In his opinion, the intact original fabric of the piers should be retained as it flies in the face of 40 years of heritage practice to change the piers to match the new height of the fence. The design of the timber fence should instead respond to the existing height of the piers, by stepping down either side of the piers by at least 300mm. Mr Moore suggested during the conciliation phase of the proceedings that a new, higher fence and gate could be constructed inside of the existing piers and gate.

21. In Mr Tanner’s view, it is appropriate to replace a section of the pier shaft to increase the height of the pier so that the piers and the new fence are consistent in height and the pier cap is positioned above the new timber fence. To not do so, in his view, would result in a gate entry that looked out of proportion with the new fence and it would appear to be a “mistake”.

Acoustic evidence

22. The acoustic experts struggled to agree on anything at all, as Mr Gould was critical of Mr McLachlan’s report and his methods and Mr McLachlan, based on the evidence before me, did not provide his acoustic modelling to Mr Gould in a timely manner despite being requested to do so during the experts’ joint conference.

23. The experts did agree that a barrier in the line of sight connection between the source of noise and the recipient generally results in about 5 dB(A) attenuation, although Mr Gould noted that some buses that travel along Bradleys Head Road have an exhaust at the top of the rear of the bus and a fence will not be effective in ameliorating the noise resulting from the exhaust in this position.

Consideration

24. I accept and agree with Mr Moore’s evidence that in principle and on the basis of established heritage conservation methodology, wherever possible, original fabric should be retained and new work should appropriately respond to the constraint set by the original element/s. However, in considering all the circumstances of this case, I am minded to agree with Mr Tanner that it is appropriate to replace the pier shafts of the gate piers to raise the height of the piers so that the existing pier caps will be above the 1.7m high timber fence. Although the original elements of the boundary fence form part of the heritage item, the sandstone elements of the original gate are very modest in scale and detail when compared to the grand Federation Queen Anne dwelling and its intricately detailed joinery. The remaining elements of the original gate have been altered and are as less significant than much of the original fabric on the site and I accept Mr Tanner’s opinion that replacing the pier shaft is a practical approach to achieving a simple and unified boundary treatment that will not detract from the aesthetic significance and integrity of the existing dwelling and its garden setting.

25. I accept and prefer Mr Tanner’s evidence regarding the style of the fence. The experts agreed that the style of the fence shown in the photograph is an appropriate example upon which to base the design of the proposed fence and I am satisfied that the photographic evidence shows a timber fence with palings in a single plane.

26. It is not necessary, in my opinion, to establish that the road traffic noise necessarily causes sleep disturbance in accordance with the terms of the NSW Road Noise Policy (Ex K) in order to justify a higher boundary fence, instead it is sufficient to establish that the property adjoins a street with a high traffic volume and that the fence will act as an effective noise barrier. I am satisfied that Bradleys Head Road carries a significant traffic volume because it is a major bus route (with 260 bus trips per day) and this was evident during the site view. I accept that the resulting traffic noise impacts on the acoustic privacy of the residents of 23 Bradleys Head Road and I accept the agreed evidence of the acoustic experts that a barrier in the line of sight connection between the source of noise and the recipient generally results in about 5 dB(A) attenuation.

27. This property at 23 Bradleys Head Road is more vulnerable to the road traffic noise because the outdoor open space associated with the Federation dwelling is located between the dwelling and road. The position of the dwelling does not conform to the common layout of a semi-private front yard and a private open space area at the rear of the dwelling. Instead, the Federation dwelling is positioned in the corner of the site furthest from the intersection of the two streets and orientates to both Bradleys Head Road and Thompson Street, with the garden setting being entirely the generous landscaped setback to these two roads. Furthermore, the position of the substantial dwelling in the corner of the site allows for expansive views of the dwelling from the public domain even with a 1.7m high fence along the boundaries, because the dwelling is setback from both boundaries and it is higher up the gentle slope of the hill.

28. The layout of the site is in contrast to the more conventional layout of the property at 51A Bradleys Head Road (viewed by the parties and their experts) because the dwelling at 51A Bradleys Head Road orientates only to Cross Street with a large front garden setback to Cross Street and a narrow, side setback to Bradleys Head Road. As a consequence, the fencing along Bradleys Head Road is higher adjacent to the rear private open space and the side setback and drops down adjacent to the front garden. Because the dwelling at 23 Bradleys Head Road orientates to both street elevations and has an equally generous landscaped front setback to both roads, the proposal cannot be fairly compared to the side fence of 51A Bradleys Head Road.

29. I am satisfied that the unusual configuration of the site, coupled with the road traffic noise generated by Bradleys Head Road and the agreement of the heritage experts that a 1.7m high fence is acceptable, adequately justifies the proposal for a 1.7m high fence along the boundaries of Bradleys Head Road and Thompson Street. The 1905 photograph of 15 Thompson Street (Ex J) provides sufficient historical evidence, along with the physical evidence of timber posts having being fixed into the sandstone base, to establish that there was a timber fence on a sandstone base on the boundaries of the site, to satisfy P4(b) of Section 5.4 of DCP 2012.

Conclusion

30. I am satisfied that the proposal is compatible with the heritage character and streetscape of Bradleys Head Road and Thompson Street as there are other examples of boundary fences that are at least 1.8m high along Bradleys Head Road.

31. I am satisfied that the proposal is consistent with the significance of the property as a heritage item and its location within the Bradleys Head Road HCA and that the proposal will not adversely impact upon the presentation and significance of the heritage item and the Bradleys Head Road HCA, because the design of the fence is sympathetic to the heritage item and the HCA.

32. I am satisfied that the extent of the landscaped setting of the dwelling currently visible from the public domain will remain visible over the new fence and that a substantial portion of the Federation dwelling will be visible over the new fence, particularly because the land falls to Thompson Street.

33. I am satisfied that the proposal will provide some acoustic attenuation to the grounds and dwelling and that it will provide a greater degree of visual privacy to the only private open space on this site.

Orders

34. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 8.2018.158.1 for alterations and additions to the existing boundary fence fronting Bradleys Head Road and Thompson Street at 23 Bradleys Head Road, Mosman, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 1, 2, 7, A, E and F, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (62.0 KB, pdf)

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Decision last updated: 12 February 2020