Modog Pty Ltd v Mosman Municipal Council
[2015] NSWLEC 1396
•30 July 2015
|
New South Wales |
Case Name: | Modog Pty Ltd v Mosman Municipal Council |
Medium Neutral Citation: | [2015] NSWLEC 1396 |
Hearing Date(s): | 29,30 July 2015 |
Date of Orders: | 30 July 2015 |
Decision Date: | 30 July 2015 |
Jurisdiction: | Class 1 |
Before: | Brown ASC |
Decision: | 1. The appeal is upheld. |
Catchwords: | DEVELOPMENT APPLICATION: demolition of two separate buildings on two separate lots and the construction of a single building across both lots - streetscape and local character - internal amenity issues – inadequate information on stormwater disposal, impact on existing trees, privacy screening details, and overshadowing |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Cases Cited: | Tenacity Consulting v Warringah Council [2004] NSWLEC 140 |
Category: | Principal judgment |
Parties: | Modog Pty Ltd (Applicant) |
Representation: | Counsel: |
File Number(s): | 10097 of 2015 |
Publication Restriction: | No |
JUDGMENT
COMMISSIONER: This is an appeal against the refusal by Mosman Municipal Council of Development Application No 8.2014.245.1 for the demolition of two existing dwellings and the construction of a building containing 8 x 3 bedroom units and basement car parking at 2 and 4 Lavoni Street, Mosman (the site).
The council maintains the development should be refused because the proposed development would
1. have an unacceptable impact on streetscape and local character,
2. have an unacceptable impact on adjoining and nearby residents,
3. have unacceptable internal amenity issues, and
4. have undetermined impacts based on inadequate information in relation to stormwater disposal, impact on existing trees, privacy screening details, and overshadowing diagrams.
At the hearing there was agreement as to the means that the stormwater generated by the proposed development would be disposed of. A number of adjoining and nearby properties were inspected on the site inspection and a number of residents provided evidence at this time. They supported the contentions raised by the council and raised the following additional concerns:
1. impact on adjoining heritage item;
2. additional traffic movements, particularly being close to an existing school;
3. insufficient landscaping and setbacks;
4. overlooking and loss of privacy;
5, view loss;
6 risk to properties through carpark excavation; and
7. loss of trees.
The site
The site comprises adjoining lots, lots 1 to 4 in Strata Plan 15522, (2 Lavoni Street) and Lot 25 in DP 6648 (4 Lavoni Street). The site is an irregular rectangle with a combined area of 1,410.6 sq m with a frontage of approximately 32.1 m to Lavoni Street.
No. 2 Lavoni Street contains in Inter-war two storey multiple dwelling containing four units constructed in the 1920s. The frontage contains a large hard stand vehicle, a parking area, and a significant mature Sydney Red gum and Tallowwood. The rear of the site contains a raised grassed area for clothes drying and external rear access to the upper level units.
No. 4 Lavoni Street contains a two and part three storey multiple dwelling containing four residences. Vehicular access and two off street car parking spaces in a tandem arrangement are located adjacent to the southern boundary.
A heritage item adjoins the site to the north.
The topography of the site has been partially modified to accommodate the existing residential flat buildings and generally falls from the southwest to the northeast with a level change of approximately 5 m. Most of the change of level occurs in the rear setback area of the site. Surrounding development consists of mainly detached residential dwellings of two to three storeys in height intermixed with a number of attached dual occupancy, semi‑detached dwellings and residential flat buildings. Queenwood School for Girls is located within proximity of the site to the east.
The site has easterly views to Hunters Bay and Middle Harbour.
Relevant planning controls
The site is zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (LEP 2012). Residential flat buildings are prohibited in this zone. The applicant asserts that the site has existing use rights and this is accepted by the council. The council’s records indicate that the erection of four flats at 2 Lavoni Street was approved on 18 August 1923 under Application No. 23/274. Council records also showed that the erection of four flats at 4 Lavoni Street was approved on 27 June 1929 under Application No. 29/182.
Clause 41(1) of the Environmental Planning and Assessment Regulation2000 provides that an existing use may be, (a), enlarged, expanded, or intensified, or (c), rebuilt. Clause 42 requires that development consent is required for enlargement, expansion, and intensification of an existing use. Clause 44 provides development consent is required for any rebuilding of an existing use. Section 108(3) of the Environmental Planning and Assessment Act1979 provides that any provision “which would derogate or have the effect of derogating from the incorporated provisions has no force or effect while the incorporated provisions remain in force.”
The site is also located within the Balmoral Townscape, as identified as a “separate townscape” area under the Mosman Council Residential Development Control Plan (the DCP). The effect of the existing use rights is that the existing numerical controls have no force or effect but they may be used as a guide to establish the anticipated streetscape and character of the site. Expert arborial evidence was provided by Mr Guy Paroissien for the council and Ms Catriona McKenzie for the applicant. They produced a joint report on the impact of the proposed development on streetscape and local character from a landscape perspective. They agreed that:
1. the landscape plan needs amendment to replace the loss of the jacaranda in the rear garden and canopy tree replacement in the front setback;
2. the amended stormwater design provides new alignment to protect an existing tree;
3. subject to a detailed design the access pathway between units 1 and 2 and the courtyard so that there will be no effect on existing tree;
4. the redesign of the basement footprint to be outside the tree protection zone for tree 3; and
5. the provision of additional information to demonstrate that there will be no impact on tree 2 or tree 3.
Following the submission of amended plans and further information, Mr Paroissien and Ms McKenzie agreed that there were no arborial or landscape issues that would prohibit the approval of the development application.
On the planning issues, the council’s town planning expert Ms Laidlaw maintained that the impact on the streetscape and character of the area was unacceptable but suggested the following amendments that would address her concerns. The amendments were;
1. the provision of an additional visitor car parking space in the basement;
2. the reduction in the height of the building by a further 350 mm; and
3. the setback between the two building forms being increased.
The applicant agreed to these changes and further amended plans were provided which became Revision D. The Revision D plans also included the amendments sought by Mr Paroissien and Ms McKenzie.
Collectively the experts concluded that the proposed development with the agreed amendments was acceptable in terms of streetscape and local character.
In terms of the matters raised by residents, I make the following comments. On heritage, and accepting that the heritage report was prepared by the project architect, the proposed development was considered on two occasions by the council’s heritage adviser, Mr Staas. The first for the original plans and second for the amended design. On both occasions Mr Staas provided qualified acceptance of the design, although the amended design was seen as more desirable. Mr Staas commented that the significance of the adjoining heritage item does not rely on the retention of the two interwar buildings proposed to be demolished as part of this application.
Traffic was not a matter raised by the council but by the residents. In the absence of any other expert evidence that rebuts the traffic and parking assessment report by Varga Traffic Planning, I accept the conclusions of this report which state at p 12:
The projected increase in the traffic activity as a consequence of the development proposal is statistically insignificant and will clearly not have any unacceptable traffic implications in terms of road network capacity.
Insufficient landscaping and loss of trees, in my view, is addressed through the amendments sought by Mr Paroissien and agreed to by Ms McKenzie. I accept that adequate landscaping is provided to be consistent with that part of the character that relates to landscaping. I note the agreed position of Mr Paroissien and Ms McKenzie that many of the backyards of the existing dwellings do not have substantial plantings because of swimming pools and hardstand areas.
Overlooking and loss of privacy was a significant issue raised by residents, particularly the two adjoining properties. The Revision D plans provide details of the proposed screening of windows. The vertical slats were acceptable to Ms Laidlaw and I also agree that they are acceptable. While I accept that screening of windows is not the optimal solution, it is a situation contemplated by DCP 2013 (at pt 5.7) where window to window distances are less than 9 m. Conversely, the DCP contemplates that no screening is required where the window to window distance is more than 9 m, or more for habitable rooms.
In relation to potential damage during excavation, I accept that conditions relating to geotechnical requirements and dilapidation reports for adjoining dwellings satisfactorily address this concern.
View loss was an issue raised largely by the residents with properties in The Grove. The extent of the intrusion into the existing view corridors was able to be assessed from each of the likely affected properties and with height poles located strategically on the site. With the benefit of the view from the properties and the height poles, I agree with the position of the town planning experts that view loss would not be a matter that would warrant the refusal of the application. I note that in some instances views to Middle Harbour will be increased through the removal of some existing trees.
The impact on views was self-evident from the site inspection. Consequently I do not accept it is necessary to consider this matter under the planning principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. I understand that there was agreement that any overshadowing impact, particularly at the adjoining property to the south, was acceptable.
The only condition in dispute was condition 134A where the council sought to impose a condition that included a public, positive covenant to be registered to provide that no structures, cables, wires, photovoltaic cells or any other projections shall be allowed on the roof area.
In this matter I accept the approach generally adopted by the Court that where a requirement for a positive covenant simply reinforces the condition of consent that it is unnecessary. In my view condition 134A is unreasonable and unnecessary in this instance. Consequently, the last sentence of condition 134A can be deleted.
There being no reasons why development consent should not be granted, the orders of the Court are
(1)The appeal is upheld.
(2)Development Application No 8.2014.245.1 for the demolition of two existing dwellings and the construction of a building containing 8 x 3 bedroom units and basement car parking at 2 and 4 Lavoni Street, Mosman is approved subject to the conditions in Annexure A.
(3)The exhibits are returned with the exception of exhibits 2 and A.
_______________
G T Brown
Acting Senior Commissioner
10097 of 2015 gtb (C) (162 KB, pdf)
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