Modog Pty Ltd v Mosman Council

[2018] NSWLEC 1101

Land and Environment Court

New South Wales

Medium Neutral Citation:	Modog Pty Ltd v Mosman Council [2018] NSWLEC 1101
Hearing dates:	5, 6 February 2018
Date of orders:	06 March 2018
Decision date:	06 March 2018
Jurisdiction:	Class 1
Before:	Brown C and Walsh C
Decision:	1. The appeal is dismissed. 2. Development Application No 8.2017.47.1 for the modification of existing dwellings and the construction of new works to create a residential flat building at 24-26 Boyle Street, Mosman is refused. 3. The exhibits are returned with the exception of exhibit 1.
Catchwords:	DEVELOPMENT APPLICATION: partial demolition of existing dwellings and construction of a residential flat building; excessive height; excessive floor space ratio; unacceptable impacts on views; impractical car parking access and manoeuvrability; loss of privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 2012 Mosman Residential Development Control Plan 2012 State Environmental Planning Policy Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Texts Cited:	Australian /New Zealand Standard AS2890.1
Category:	Principal judgment
Parties:	Modog Pty Ltd (Applicant) Mosman Council (Respondent)
Representation:	Counsel: Ms S Duggan SC (Applicant) Ms J Reid (Respondent)   Solicitors: Swaab Attorneys (Applicant) Pikes & Verekers (Respondent)
File Number(s):	125508 of 2017
Publication restriction:	No

Judgment

1. COMMISSIONERS: This is an appeal against the deemed refusal by Mosman Council (the Council) of Development Application No 8.2017.47.1 for the modification of existing dwellings and the construction of new works to create a residential flat building at 24-26 Boyle Street, Mosman (the site).

The proposal

2. The proposal can be described as having three major components:

1. the retention of the existing building at 26 Boyle Street and its reconfiguration into two apartments

2. the demolition of the existing building at 24 Boyle Street and its replacement with a building providing three apartments, and

3. an additional three apartments, at lower level on the site, which straddle both 24 and 26 Boyle Street.

3. Eighteen parking spaces are also proposed (sixteen underground spaces accessed via a car lift; and two at-grade visitor spaces). Landscaping (including a wintergarden at the northern façade of 26 Boyle Street), drainage and earthworks (including considerable excavation works) are also proposed, along with the removal of an existing “prescribed” tree.

Outline of position of parties

4. The Council’s view on why the application can be refused can be summarised as follows:

1. a breach of the development standards relating to floor space ratio (FSR) and height; and the jurisdictional tests imposed which might otherwise allow for approval of a development which contravenes a development standard, have not been satisfied.

2. unacceptable impacts on views (from certain residences, Mosman Bay and other public places),

3. impractical car parking access and manoeuvrability within the basement car park, and

4. unacceptable impacts on privacy and visual amenity of adjacent properties.

5. The applicants believe the proposal passes the relevant tests in regard to contravention of development standards and has a scale in keeping with the surrounds, with appropriate provisioning to deal with potential impacts.

The site and surrounding area

6. Boyle Street is a split level road, with the lower or southern portion of the road reservation known as Lower Boyle Street. This lower portion of the carriageway is a “No Through Road” terminating at its eastern end. The site falls steeply away from this Lower Boyle Street road reserve to the south and towards Mosman Bay and Harnett Park along the bay foreshore

7. The site has an area of 1534m2, a total width of 30.48m and an irregular depth; the site’s fall to the south is around 16m. The existing building at 24 Boyle Street is of early 20th Century construction displaying a traditional pitched roof form and occupied by five apartments. 26 Boyle Street is a two storey dwelling house displaying the “Federation Arts and Crafts style”.

8. Apart from Harnett Park to the south, the area around the site is exclusively residential with single residential dwellings and some medium density residential development.

The site inspection

9. The hearing commenced with a site inspection, which allowed us to hear submissions directly from a number of local residents and to view the site and its context. The evidence indicates that Council received some 21 objections to the amended plans (for which leave was granted on 31 October 2017). We first visited properties of objectors whose residences fronted the upper section of Boyle Street. These properties enjoyed extensive views to Sydney Harbour and nearer Mosman Bay, including from a number of viewing positions within the dwellings. The submissions raised particular concerns about loss, or reduction, of near views to Mosman Bay and its environs.

10. We also visited residences fronting Lower Boyle Street on either side of the site. Submissions heard at these premises raised concerns about amenity impacts including privacy, visual impact and parking inconvenience. There were general concerns raised that this was an overdevelopment of the site. One submission raised concern about geotechnical issues.

11. We walked along an informal pathway at the site’s southern boundary as well as a more formalised pathway within Harnett Park. This allowed an appreciation of existing vegetation and the potential for the proposed development to have a visual impact for passers-by. We did not view the site from Mosman Bay or the harbour but were taken to a viewing position above the western shoreline of the bay which allowed an understanding of the likely visual impact from the bay foreshore, Mosman Bay and the more distant harbour.

Relevant planning controls

12. The site falls within Zone R3 – Medium Density Residential in Mosman Local Environmental Plan 2012 (the LEP). The proposal is permissible in the zone. Clause 2.3(2) requires the Court to have regard to applicable zone objectives in the determination of development applications. The zone objectives 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.

13. The LEP has a number of planning controls of relevance to the assessment of the proposal. The most pertinent here are the development standards relating to height and FSR:

1. Clause 4.3(2) of the LEP relates to height. For this site a maximum height of 8.5m applies. The proposal would exceed this height control. In accordance with cl 4.6(3) of the LEP, a written request was provided that seeks to support the contravention of the development standard.

2. Clause 4.4(2) of the LEP relates to FSR. There is a maximum FSR of 0.55:1 over the site. The proposal would exceed this and again a written request was provided that seeks to support the contravention of the development standard.

14. There are other relevant provisions within the LEP which are mentioned below. There are also pertinent provisions in the deemed State Environmental Planning Policy known as Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SEPP). There are also a series of planning provisions in Mosman Residential DCP (2012) (the DCP) which has application.

15. However, it is the contravention of clauses 4.3(2) and 4.4(2) of the LEP which is most apposite to the current appeal, with potential to be determinative in this matter. Clause 4.6 of the LEP brings forward the opportunity to contravene development standards providing certain pre-conditions are met.

Framework for the use of clause 4.6 of the LEP

16. Clause 4.6 is reproduced, relevantly, below:

4.6 Exceptions to development standards

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

(a) to provide an appropriate degree of flexibility in applying certain

development standards to particular development,

(b) to achieve better outcomes for and from development by allowing

flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by sub clause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

…

17. Clause 4.6 places four preconditions upon the Court in exercising the power to allow a contravention to a development standard;

1. A first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard in question.

2. A second precondition requires the Court to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives for development within the zone.

3. A third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed.

4. A fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard, and with the Court finding that the matters required to be demonstrated have been adequately addressed.

18. The first two preconditions for the application of cl 4.6 are concerned with “consistency”. In regard to this concern, we have adopted the approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

19. It is notable that a negative finding on any precondition must see the appeal dismissed due to contravention of a development standard, whereas a positive finding would enliven the power to grant development consent subject to a merits assessment.

Floor space ratio - can the contravention of the standard be supported?

20. The LEP specifies a maximum FSR of 0.55:1 for the site and, according to the town planning experts, the proposed FSR is 0.86:1. The proposal’s consistency with relevant FSR-related objectives (cl 4.4.1(a)) is considered below.

First FSR objective: to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale

21. The applicant’s town planning expert, Mr James Lovell (who provided the “the written request) noted that the existing building at 26 Lower Boyle Street is retained and the new building at 24 Lower Boyle Street reasonably reflects the footprint of the existing building. The architecture and palette of materials and finishes (eg “pitched roof form, deep timber verandahs, and vertically proportioned windows and doors and openings, accompanied by sandstone loggias and deep planter boxes”) were seen to provide an acceptable interpretation of the ‘Federation Edwardian architectural finesse of the area”. In regard to the lower level apartments, Mr Lovell found that their configuration and architectural expression resulted in their appearance as “lower level base building elements”.

22. Mr Lovell indicates “the proposed development would have a compliant FSR of approximately 0.51:1, excluding the floor area of the proposed extension to the rear of 24 and 26 Boyle Street”. More generally, Mr Lovell felt that the proposed development had been designed to maintain the predominant rhythm and pattern of buildings along the southern side of Lower Boyle Street with the height of the proposed building at 24 lower than the adjacent buildings. Mr Lovell indicated that “the proposed building will not be perceived as offensive, jarring or unsympathetic to the existing and likely future character of the local area”.

23. Ms Deborah Laidlaw, town planning expert for the respondent, provided evidence that the built form’s massing, bulk and scale, including the stepping of the building down towards the lower part of the slope and beyond an existing informal building line, result in a significantly greater impact in the locality than is characteristic of other development along this area of southern Mosman Bay foreshore. Ms Laidlaw made particular reference to scenic protection as a point of localised guidance as to desired future character. She indicated that the site falls within a Scenic Protection Area (LEP cl 6.4). Ms Laidlaw saw the development as inconsistent with the objectives of this clause which are:

(a) to recognise and protect the natural and visual environment of Mosman and Sydney Harbour

(b) to reinforce the dominance of landscape over built form

(c) to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments.

24. Concerns include visual impact on landscape setting, views from Mosman Bay, view loss from other dwellings, and privacy. As a result, the development is seen to be not compatible with the desired future character.

Second FSR objective: to provide a suitable balance between landscaping and built form

25. Mr Lovell noted that of the five “prescribed” trees on site, four are being retained, and that the proposal provides for a variety of new planting “including a series of trees located within the setback to the southern boundary”, one of which comprises an Angophora (prospective canopy tree) at the south-eastern corner. Landscaping within 750mm soil-depth planter beds (proposed in the environs of the lower level apartments) can accommodate “good quality landscaping” and, according to Mr Lovell, “achieve a seamless transition with the bushland surrounding Mosman Bay to the south” and “soften external views of the proposed development”. Mr Lovell believes that the proposal would “reasonably maintain the landscaped setting of the site and surrounds”.

26. Ms Laidlaw indicated the proposal does not provide a suitable landscaping/built form balance evidenced by provision of on-site open space. When compared to planning controls (proposed 35.7% site area as open space when cl 6.6 of the LEP requires 50%), Ms Laidlaw suggests that the variation may warrant refusal.

27. Ms Laidlaw believes the proposal does not retain the existing landform or character, with the proposed extent of excavation a notable feature in that regard.

Third FSR objective: to minimise the adverse effects of bulk and scale of buildings

28. A raft of different effects can arise as a consequence of “bulk and scale” of buildings. According to the evidence, matters of potential relevance here include: visual impact, immediate neighbour amenity impact, parking and available private landscape area.

29. On this point, Mr Lovell notes a significant component of the floor space is below existing ground level and suggests that “in most instances” such floor space “does not contribute to the bulk and scale of a building”.

30. In regard to minimising any adverse effects of building bulk and scale, Mr Lovell indicates that existing views from private dwellings would be substantially maintained with the proposed development, and there would be no material effect on public views. Ms Laidlaw disagreed and referred to the proposal’s bulk and scale as generating a considerable contravention of the intended building envelope.

31. There is some agreement by the experts that the privacy of adjoining properties need not be unreasonably affected (by limiting window openings directly adjoining windows opposite and, with more recent submissions, through provision of balcony screens). The key concern in regard to solar access raised by Ms Laidlaw related to the amount, or lack thereof, available to new apartments, rather than impact on existing residences.

32. The parking requirements of the building have a relationship to its scale. The proposed parking arrangement proposes a car lift, accessible from Lower Boyle Street, which descends to access eight pairs of tandem spaces to serve the proposed eight apartments (four tandem pairs on each of two underground levels). The area available on the parking levels is confined, and an intricate set of manoeuvres is required to facilitate parking for each of the tandem pairs.

33. Joint expert reports in relation to parking found considerable disagreement. The major concern was what happens when there is a need to remove a car from the rear of a pair of tandem spaces in circumstances where both spaces are occupied (or alternatively a need to park an entering car to the rear of an occupied tandem space).

34. Mr Robert Varga, for the applicant, provided evidence on the swept turning path arrangements for each of the parking levels (“in accordance with the requirements of AS2890.1 for the 85% vehicle”) indicating that the manoeuvres required to remove a car from the “rear” of the tandem was workable without the need for the “front” car to leave the carpark. The turning path diagrams included “300mm manoeuvring (clearances)” as required of Australian /New Zealand Standard AS2890.1 (AS2890.1). The experts agreed that to remove the rear car and re-park the front car involved a minimum of seven forward/reverse manoeuvres.

35. Ms Laidlaw saw the arrangement as “inconvenient and cumbersome”, requiring an unusual amount of care “and therefore time”. There was also a concern about larger 4WD vehicles using the site and that no turning paths had been provided for such vehicles which were not uncommon in the local area. It was noted that if the removal of one rear tandem car were to be underway (as described above) at a time when another resident’s car coincidentally entered the carpark area at that level (ie from the street above via the lift) then those cars involved in the egress manoeuvre, already, would need to revert back to their tandem parking spaces. A concern from Ms Laidlaw was the “cumbersome” arrangements could see households arrange themselves to decrease their own potential exposure to inconvenience by parking in the street; more frequently than would be needed with a larger carparking area or one accessed via a driveway rather than a lift.

28. Mr Varga’s view was that households would naturally make arrangements to reduce the risk of inconvenience and need for manoeuvring (eg make sure the car leaving first in the morning is parked at the front overnight). He noted that AS 2890.1 made particular reference to users, in developments with low turnover, being willing to accept some inconvenience. Mr Varga suggested that larger vehicles may need to also make a 3-point or 5-point turn but that this was consistent with the standard.

Fourth FSR objective: to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off

37. Ms Laidlaw’s was concerned about the extent of changes to landform involved in the proposal. On this point in particular she said the proposal does not limit excavation but rather “relies on (it) to achieve more floorspace”. Mr Lovell’s evidence indicated that the development was satisfactory in regard to landscaping and urban run-off.

FSR contravention - is the first precondition to the use of cl 4.6 satisfied?

38. The first precondition to “opening the gate” for a merits assessment of this proposal requires the Court to be satisfied that the proposal will be in the public interest because it is consistent with the FSR objectives in cl 4.4 of the LEP

39. While the FSR clause objectives have been dealt with individually above; the interrelationships of many of the matters in the objectives suggests that there is some sense in considering the objectives (and questions of character compatibility, effects of building bulk/scale, excavation/landscaping) in a more integrated way, as was often undertaken in the expert evidence itself.

40. We accept much of Mr Lovell’s evidence that the street level aspect of the proposal, its bulk and scale, is generally in harmony with the existing and desired future character of the area. One point of concern in regard to presentation to the north and Boyle Street, is the location of the lift outside the general building alignment. This provides building bulk which might not have been necessary were the FSR more compliant. The result is the loss of some public and private view lines to the near Mosman Bay area. We note the loss of the existing tree in this area brings positives (improvements to some view lines from Upper Boyle Street) and negatives (loss of existing landscape and its amenity effects). Nonetheless, this northern or upper level aspect of the proposal brings the least level of concern.

41. We agree with the shared opinion of the experts that key concerns with this proposal are as a consequence of its presentation to the south.

42. We find that the proposal is incompatible with what would be reasonably perceived as the desired future character (in building bulk and scale terms) for the land in the general environs of the site falling away from Boyle Street towards Mosman Bay. We believe it is reasonable to define “the area” (within the objective) with which we are adjudging building “compatibility” down to this scale level (ie a scale below other “area”-based factors which might be defined through differentiated FSR, height or landscaped area controls within the LEP). There is justification for adopting this interpretation of the term “the area” in the LEP provisions relating to scenic protection (cl 6.4), which apply as a consequence of the area’s identification in the LEP’s Scenic Protection Map. Clause 6.4 is reproduced (in part) below:

6.4   Scenic protection

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

(a)  to recognise and protect the natural and visual environment of Mosman and Sydney Harbour,

(b)  to reinforce the dominance of landscape over built form,

(c)  to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments.

…

(3) Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that:

(a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and

(b) the development will maintain the existing natural landscape and landform.

43. We found a visually significant, and quite perceptible, corridor of greenspace presenting along the foreshore of Mosman Bay in the site environs (the interruption by swimming pools or other less bulky structures do not dominate visually). The corridor is apparent from the viewer position we visited during the site view (ie along the western side of Mosman Bay foreshore) and, it can be reasonably assumed, from various other areas along the foreshore, within Mosman Bay itself and the near harbour. It is a visual presentation in the vertical plane which might be described as: waterway, then tidal area, then greenspace and then lower rather than higher density housing above.

44. In our reasoning cl 6.4 of the LEP is targeting “areas” with this kind of character as warranting special attention. Among other factors, the desired future character here suggests reinforcement of the dominance of landscape over built form. In contrast, the proposal brings prospects of, largely in isolation, a noticeably larger and more intensive vertical building massing (5-6 storeys) more or less across the (horizontal) width of the subject lands, with lower levels dropping (visually) into the existing greenspace corridor. We find this would have a significant adverse visual impact from the viewer positions mentioned above.

45. There is also potential for some, although less, adverse effect on the experiences of those walking along the pathways which run within this greenspace corridor, in the more immediate environs of the southern boundary of the site. Adverse visual impacts would be mitigated due largely to existing vegetative screening and because those walking along the paths would normally not be facing directly towards the site.

46. We have considered Mr Lovell’s view that the prospect of adverse visual effects from the lower level apartments would be reasonably mitigated through landscaping (existing vegetation, the provision of a new canopy tree in the rear setback and through “good quality landscaping” in the 750mm soil-depth planter beds on the Mosman Bay side of the apartments) and through the architectural conception (“architectural composition and external materiality”).

47. We are not convinced that these responses can adequately mitigate the problem raised here. The views we are most concerned about are not from close quarters, and in this setting it is the massing as a whole that is more at issue than the particulars of building composition or external materials. This places a heavy burden on the proposed landscaping’s capacity to screen buildings. But there seem likely to be mutually incompatible objectives at work here which are best not relied upon for mitigation purposes when applying cl 4.6. That is, those residing in the lower level apartments are likely to be more motivated to maintain and enhance views to the south than to the propagation of vegetation which filters or screens their harbour views. In our view, a development which was “designed to minimise its visual impact on the natural and visual environment” of Mosman Bay environs would be more inclined to minimise any extension down into the greenspace corridor.

48. We believe the proposal’s visual impact, in particular its extension down into the greenspace corridor described above, which would not be able to be appropriately mitigated by the proposed landscaping, means: (1) the proposed building bulk and scale is incompatible with the desired future character of the area, and (2) the proposal does not provide a suitable balance between landscaping and built form. The proposal is inconsistent with the first two zone objectives.

49. The proposal is also inconsistent with the third FSR objective; concerned with minimising the adverse effects of bulk and scale of buildings, as the adverse visual effect described above is largely as a consequence of the proposed bulk and scale of development. But, it is the bulk and scale of the proposal which also underpins concerns in regard to the subsurface car parking. While we acknowledge the view of Mr Varga that the turning movements indicated are technically possible for the 85 percentile car, we are persuaded by the view of Ms Laidlaw that the intricacies involved in arranging and manoeuvring cars (parked in tandem) would be likely to result in considerable inconvenience to new residents; an inconvenience which is likely to result in regular on-street parking which has not been accounted for. Overall we believe the parking solution is unacceptable and is demonstrative of the excessive building scale in this setting, manifested in its FSR.

50. Having regard to the final FSR objective, we are generally supportive of the advice from Ms Laidlaw and find that the proposal purposively adopts “excavation”, and of substantial scale, as a means of securing (additional) floor space. This excavation is a contributing factor to the proposal’s inadequate landscape response. In turn we find that the proposal is inconsistent with the fourth FSR objective.

51. We find that the proposed development would be inconsistent with the FSR objectives and is thus not in the public interest. This negative finding on the first precondition to the exercise of cl 4.6 of the LEP in regard to FSR must see the appeal dismissed and the development consent refused.

52. For completeness, below we consider other selected assessment factors relating to the proposal. There is an opportunity to be briefer by cross-referencing the above findings.

Building height - can the contravention of the standard be supported?

53. The LEP specifies a maximum building height of 8.5m. The proposal clearly exceeds this with a height of 11.8m-12.3m (with the opinions of the experts differing but not having any influence on our findings). A written request was provided by Mr Lovell seeking to justify the contravention of the development standard in accordance with cl 4.6 of the LEP.

54. The proper approach to the consideration of the preconditions in cl 4.6 is outlined above. The first precondition requires the Court to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard in question. The LEP’s cl 4.3, relating to the height of buildings, has four objectives which are considered in turn below.

First height objective: to share public and private views

55. The experts had difficulty commenting definitively on this objective, in regard to views from the north at least, because satisfactory height poles were unable to be erected. Those which were erected did not always represent the points of extremities of the proposed building and required some extrapolations or assumptions to be made, bringing some uncertainty. A height increase of 960mm was noted to the roof of the new building at 24 Boyle Street. Plans were submitted which altered the roof to this proposed new building to reduce the view loss from properties to the north.

56. It is noted that a view sharing report, prepared by Cracknell & Lonergan Architects Pty Ltd, was tendered at the hearing.

Second height objective: to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores

Third height objective: to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form

Fourth height objective: to minimise the adverse effects of bulk and scale of buildings

57. There is considerable overlap between the expert evidence on these height related objectives and that related to FSR. We believe this evidence is sufficiently presented already in this judgment.

Building height contravention - is the first precondition to the use of cl 4.6 satisfied?

58. Notwithstanding the lack of satisfactory height poles, as outlined previously, we generally agree with the evidence of Mr Lovell that the proposal is consistent with the first height objective in regard to sharing of public and private views, as far as outlooks from the north and views to Mosman Bay and the harbour are concerned. We are concerned about other views which are best considered below.

59. The proposed vertical building massing (5-6 storeys), with lower levels dropping (visually) into the existing greenspace corridor above Mosman Bay would have a significant adverse visual impact when viewed from the harbour and foreshores. As indicated previously, a development which was “designed to minimise its visual impact on the natural and visual environment” of Mosman Bay environs would minimise any extension down into the greenspace corridor.

60. For the reasons described above in consideration of the FSR objectives, we find the proposed building height, bulk and scale is incompatible with the desired future character of the area; and the proposal does not minimise the adverse effects of bulk and scale of buildings.

61. We find that the proposed development would be inconsistent with the height objectives and is thus not in the public interest. This negative finding on the first precondition to the exercise of cl 4.6 of the LEP in regard to building height contravention must see the appeal dismissed and the development consent refused.

Other Considerations

62. For completeness, attention is given to a number of other assessment considerations below.

63. The second precondition to the exercise of clause 4.6 in regard to the proposal’s contravention of both FSR and height standards requires the Court to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives for development within the zone. For the record, it is our conclusion that the proposed development is not consistent with the fourth and fifth objectives of the R3 zone for the reasons which follow.

Fourth zone objective: To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale –

64. For the reasons already outlined (when considering FSR and height) we believe the development is not compatible with the desired future character of the area in terms of bulk, height and scale.

Fifth zone objective: To encourage residential development that has regard to local amenity and, in particular, public and private views

65. For the reasons already outlined (when considering FSR and building height standards) we believe the proposal’s likely impact on views from Mosman Bay and foreshore shows lack of regard for public and private views.

66. In regard to the third and fourth preconditions to the exercise of clause 4.6, and having regard to the above analysis of the proposal’s FSR and building height, we find that the applicable written requests have not adequately addressed the questions of (1) whether “compliance with the development standard is unreasonable or unnecessary in the circumstances of this case”, or (2) “that there are sufficient environmental planning grounds to justify contravening the development standard”.

67. These negative findings on the second, third and fourth preconditions to the exercise of clause 4.6 of the LEP would, also, see the appeal dismissed due to contravention of the both FSR and height development standards.

68. Were we to be erroneous in our determination that there is no jurisdiction to exercise clause 4.6 in the circumstances of this appeal, we find that the proposal would need to be refused on merits. Here we note the proposal’s inconsistency with:

1. The objectives of the R3 zone – as discussed above.

2. The provisions of cl 4.3A of the LEP (height of building additional provisions) and inferences relating to maximum two storeys above ground level and wall height of 7.2m – noting our previously stated view that in this instance the building height and bulk is other than “of an appropriate form and scale”.

3. The objectives and consequent provisions of LEP cl 6.4 in regard to scenic protection - in this instance we are not satisfied that: “(a) measures (have been taken), including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and (b) the development will maintain the existing natural landscape and landform.”

4. the objectives and numerical controls cited in LEP cl 6.6 in regard to landscaped areas – noting that in this instance a more compliant design could better meet the objective of having “visual dominance of landscape over buildings maintained, particularly on harbour foreshores”.

5. The planning principles at cl 14 of the SEPP – in that the proposal would act against the principle to “maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores”.

69. We have also considered the DCP. In our view these planning controls offer nothing of particular weight in support of the proposal, and thus there is no need to consider them further in this judgement.

Orders

70. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 8.2017.47.1 for the modification of existing dwellings and the construction of new works to create a residential flat building at 24-26 Boyle Street, Mosman is refused.

3. The exhibits are returned with the exception of exhibit 1.

____________

G Brown

Commissioner of the Court

_______________

P Walsh

Commissioner of the Court

Decision last updated: 06 March 2018