Muller v Mosman Municipal Council

[2005] NSWLEC 482

Land and Environment Court

of New South Wales

CITATION:

Muller v Mosman Municipal Council [2005] NSWLEC 482

PARTIES:

APPLICANT
Dr S & Mr D Muller

RESPONDENT

Mosman Municipal Council

FILE NUMBER(S):

11502 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Installation of an inclinator and associated facilities - demolition of an existing garage - construction of a new double garage - noise reduction walls - landscaping - visual impacts - privacy .

LEGISLATION CITED:

State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries
Sydney Regional Environmental Plan No. 23
Mosman Local Environmental Plan 1998
Mosman Residential Development Control Plan

CASES CITED:

Super Studio v Waverley Council [2004] NSWLEC 91

DATES OF HEARING:

01/08/2005

 
DATE OF JUDGMENT: 

09/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Cole, solicitor
SOLICITORS
Abbott Tout

RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

7 September 2005

11502 of 2004 Dr S & Mrs D Muller v
Mosman Municipal Council

JUDGMENT

The appeal

1 This appeal relates to Mosman Municipal Council's refusal of Development Application No. 8.2003.36.1, which is for the installation of an inclinator rail and associated facilities, the demolition of an existing garage and the construction of a new double garage with integrated inclinator station together with associated pathway reconfiguration, noise reduction walls and landscaping. The matter was dealt with as an on-site hearing.

The site and locality

2 The site is known as 30A Kardinia Road, Clifton Gardens (" No 30A"). It comprises an allotment with two relatively narrow access corridors that provide pedestrian access only to the house located within main area of the site. The southern corridor is 5.4 m wide and very steep linking it to the northern side of Iluka Road and the northern corridor is 1.8 m wide linking it to the southern side of Kardinia Street. The new garage and inclinator rail are to be constructed within the southern corridor to provide secure carparking and access to the house.

3 Adjoining the southern corridor where the development is to take place are two properties developed with detached dwelling houses known as 25 and 27 Iluka Road. The owners of these properties strongly object to the proposal.

4 Number 30A including the southern corridor overlooks the harbour and in turn can be seen from various vantage points on the harbour.

Statutory controls

5 The site is subject to the provisions of State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries (“SEPP 56”) and Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours ("SREP 23"). Relevantly these instruments require the consideration of likely impacts that development might have on the visual qualities of the harbour and its foreshores. Noise impacts on nearby land are also to be taken into consideration in the determination of a development application.

6 The site is also subject to the provisions of Mosman Local Environmental Plan 1998 ("the LEP") wherein it is zoned Residential 2(a1). In this zone the proposal is permissible with development consent being ancillary to a dwelling house. Relevant objectives of the zone in effect require the protection of local amenity and the surrounding living environment. It is also included in a Foreshore Scenic Protection Area.

7 The Mosman Residential Development Control Plan ("the DCP") is also relevant, containing objectives dealing with character and townscape including the enhancement and protection of scenic amenity and the amenity of adjoining properties. In s 7.5 there are particular objectives and guidelines for the development of inclinators. The relevant objectives are:

O1. To have the landscape setting of the site when viewed from the harbour and public spaces protected and enhanced.
O2. To have the visual impact of inclinators when viewed from the harbour, public places and adjoining properties minimised.
O3. To have the effects of the operation of inclinators on the amenity of adjoining residents minimised.

8 The relevant planning guidelines in the DCP are as follows:

P2. The siting and operation of an inclinator and associated structures should not affect adversely the amenity of adjoining residents by reason of noise, light spill, loss of privacy, loss of vegetation or loss of outlook.
P6. Any inclinator and associated structures are set back a sufficient distance from the side boundary to ensure planting of an appropriate scale can be established adjacent to that boundary.
P7. The siting of an inclinator and associated structures adjacent to the windows and private outdoor areas of buildings on adjoining properties is to be avoided to minimise the impact on adjoining residents.
P9. The siting of an inclinator motor is to be as far as possible from the property boundary to minimise the impact on adjoining residents and the motor is to be housed in an acoustically treated enclosure so it is not audible beyond the boundaries of the site.

Public notification and objections

9 The application was notified on two occasions the second notification involving the amended plans now before the Court. Submissions were received objecting to the proposal from Nos. 25 and 29 Iluka Road.

10 Prof. and Mrs Spearritt from No. 29 elaborated on their written objections during the hearing. Their concerns mainly comprise:

• Loss of privacy from persons using the inclinator who will be able to look into or onto their back deck, family room, and front door.
• Visual impact resulting from the inclinator carriage passing close to their front door, back deck and family room. Where the inclinator rail enters the inclinator station there will be a narrow canyon-like effect. Visual impacts also result from the appearance of the structure from the street.
• Noise impacts associated with the inclinator's motor and noise generated by it moving along the track. This will be of particular concern at night, this being a quiet neighbourhood.
• Light spill into their home.
• Construction work may adversely affect their property.

11 Mr and Mrs Nell of No. 25 also elaborated on their written concerns during the hearing. Their concerns mainly comprise:

• The unsightly appearance of the inclinator rail and its tunnel into the garage, the inclinator carriage and the acoustic fence.
• The access corridor is not wide enough to accommodate pedestrian steps and an inclinator.
• The inclinator carriage will pass in very close proximity to their front door.
• They will suffer a significant loss of privacy for their patios and outside entertaining areas. There is not enough width in the corridor to facilitate landscape screening.
• Various noise impacts from the inclinator including its motor and movement along the rail. Suggested noise screens will be ineffective.
• Loss of landscaping from within the corridor.
• The acoustic fence will reduce airflow into their property.
  

12 The application was recommended for deferred approval by the Manager Development Services, however, council decided to refuse it on 27 October 2003. The application was the subject of a subsequent review under s 82A of the Environmental Planning and Assessment Act 1979 and council accepted the resulting recommendation for refusal. The reasons for refusal were, in essence:

• Inconsistency with zone and LEP objectives.
• Inconsistency with aims, objectives and planning principles in SREP 23.
• Inconsistency with the requirements of the DCP.
• Adverse impacts on the visual and scenic qualities of the location.

The issues

13 Having considered all of the evidence, and having inspected the site, its environs and visited the two neighbours’ properties I have concluded that there are two issues of concern that require the determination of the Court:

1. Whether the proposal will have any adverse visual impacts when viewed from the harbour.

2. Whether the proposal will have any adverse impacts on the two neighbouring properties in terms of privacy, noise and visual impact.

14 Mr G Falson a consultant town planner considered the visual impacts of the proposal when viewed from the harbour in the light of the applicable planning controls and concluded that:

It is my view that the proposed garage and inclinator and associated acoustic fence and landscaping will not be able to, or will be distinguishable from other residential development when viewed from the harbour or its foreshores. This is due to a combination of existing vegetation on site and between it and the harbour, proposed landscaping and particularly from the separating distance of the site from the harbour. … The development will certainly not be visually intrusive or stand out within the landscape.

15 In my view the garage structure and with its integrated inclinator facility will not be out of place in the Iluka Road streetscape, having a built form not uncharacteristic by comparison with other built forms in the street. I expect that this structure will be little seen if at all from the harbour.

16 Whilst on site I contemplated the extent to which the inclinator rail, inclinator carriage and associated works and facilities might be seen from the harbour, and agree with the conclusions reached by Mr Falson. Even without landscaping these structures will be difficult to see and would not in my opinion adversely affect the appearance of the residential area when viewed from the harbour. With appropriate landscaping this will be further improved.

17 In terms of its appearance, the foreshore protection area and the requirements of the DCP would not be so infringed as to warrant rejection of the proposal.

Noise

18 Mr R Tonin a consulting acoustic engineer inspected the site and assessed potential noise amenity issues arising from the proposal. He determined that noise from the inclinator will be audible at the property boundary and as a consequence would not meet the requirements of guideline P9 of the DCP as to audibility beyond the boundaries of the site. However, he pointed out that a satisfactory noise level of 60 dB(A) LAmax could be achieved by the inclinator by application of noise control treatment to the motor drive if necessary.

19 Mr G Atkins the applicant's acoustic consultant, agreed that in accordance with council guidelines the relevant maximum noise standard was 60 dB(A) LAmax. In assessing likely noise impacts he assumed that an acoustic rated screen would be constructed on the eastern side of the inclinator track. In addition noise levels generated by the inclinator could be further reduced by incorporating additional features into the inclinator design including neoprene wheels, stiffening plates, acoustic isolation absorption panels and a "soft start" variable speed motor.

20 To ensure an appropriate level of residential amenity for the neighbours Mr Tonin recommended a number of conditions be imposed if consent is to be granted. In essence these conditions comprise:

• A maximum of 24 inclinator movements a day between 7 a.m. and 10 p.m. and two movements between 10 p.m. and 7 a.m.
• A maximum noise level of 60 dB(A) LAmax.
• The construction of a screen wall (noise barrier).
• Additional noise control treatment of the inclinator carriage (if necessary).
• The preparation of a noise compliance report prior to the operation of the inclinator.

21 I agree with the evidence provided by that noise experts and am satisfied that subject to appropriate conditions the noise impacts resulting from the proposed inclinator on neighbouring properties would not be unreasonable.

22 Appropriate conditions are to be imposed including conditions to minimise noise below the 60 dB(A) LAmax and to avoid the need for an acoustic fence, if possible. If such a fence is not required a better landscaping outcome is possible although the removal of the fence, whilst being preferable, is not critical.

23 In the circumstances I am satisfied that the effects of the operation of the inclinator on the amenity of adjoining residents in terms of noise will be minimised and as a result amenity should not be adversely affected.

Privacy

24 It is clear that persons travelling on the inclinator will have the opportunity to look into the two adjoining properties from a position somewhat higher than is presently available to persons using the existing footpath. In addition it is likely that overlooking opportunities will be more frequent as a result of the relative ease with which the inclinator will provide access to and from the reconstructed and as a result, usable garage.

25 I agree that the applicant is entitled to the reasonable use of this strip of land comprising the access way off Iluka Road. Such use includes the provision of a garage, being the only location on the site where such a facility could be provided. Similarly, given the gradient of this access way, I also agree that it can be used for the provision of an inclinator. Such facilities are not uncommon for sites having comparable gradients. I have reached these conclusions notwithstanding the applicant's personal reasons for wanting such a facility.

26 Whilst on site I noted that there is a degree of common overlooking between Nos. 25 and 29 and that the proposal will add to this, absent any screening devices. I accept that the proposed screen wall might prevent some overlooking. I also accept that appropriate landscaping could eliminate overlooking to a significant extent.

27 However, in Super Studio v WaverleyCouncil [2004] NSWLEC 91, Senior Commissioner Roseth said that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight.

28 Taking into account the transient nature of the potential overlooking from the inclinator carriage and given that overlooking opportunities will occur during a period of about 30 seconds during each pass of the carriage together with the likelihood that the facility is likely to be used typically only on a relatively few occasions each day the loss of privacy for the neighbouring properties will not be significant.

29 I have nevertheless decided that a comprehensive landscaping scheme should be designed and installed in an endeavour to minimise existing and likely future overlooking. This is provided for in the amended conditions of consent.

Other impacts

30 It is clear to me that the inclinator rail being generally positioned close to ground level will be largely inconspicuous. The associated structures including the inclinator station and landings will be more conspicuous but in my view these structures will not produce any adverse impacts, particularly noting the nature of development in this area. Again the landscaping that will be required to be provided in accordance with conditions of consent should reduce possible views of these structures.

31 Finally, I do not accept that the proposal will result in any loss of outlook for the neighbours, nor will it have any adverse reduction in access to breezes across the site.

Conclusions

32 As I have already concluded, I am satisfied that any visual impacts including outlook associated with the garage and the inclinator rail and its associated facilities will be within reason. It will not critically infringe any relevant aspects of the DCP, SREP 23 and SEPP 56.

33 Whilst there will be some privacy and noise impacts on the neighbouring residential properties I am not convinced, having taken into account the relevant amenity provisions of the DCP that these are sufficient to warrant refusal of the application. I have reached this conclusion for the reasons I have already given and particularly taking into account the likely limited use of the inclinator, the constrained nature of the site and the not unreasonable expectations of the applicant. I have also taken into account the proposed conditions of consent accepted by the applicant.

1. The appeal is upheld.

2. Development Application No. 8.2003.36.1 for the installation of an inclinator rail and associated facilities, the demolition of an existing garage and the construction of a new garage with integrated inclinator station is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.

3. Exhibits 3 and A are retained.

___________________

T A Bly
Commissioner of the Court

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