Pagliuso v Mosman Municipal Council

[2010] NSWLEC 1100

Land and Environment Court

of New South Wales

CITATION:

Pagliuso v Mosman Municipal Council [2010] NSWLEC 1100
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Robert Pagliuso

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

10984 of 2009

CORAM:

Tuor C

KEY ISSUES:

DEEMED REFUSAL :- under s 96 to modify a development consent for works carried out without consent.
Impacts on privacy and view loss and increase in floor space.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 1998
Environmental Planning Policy No 1 - Development Standards
Mosman Residential Development Control Plan

CASES CITED:

Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408

DATES OF HEARING:

10 March 2010

EX TEMPORE JUDGMENT DATE:

12 March 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee (solicitor)
SOLICITOR
McKees Legal Solutions

RESPONDENT
Ms J Hewitt (solicitor)
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

12 March 2010

10984 of 2009 Pagliuso v Mosman Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Mosman Municipal Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (8-2006-417-1) approved by council on 20 September 2007.

2 The development consent approved the demolition of an existing dwelling and the erection of two dwellings (A and B), and Torrens Title subdivision at No. 244 Raglan Street, Balmoral.

3 The s 96 application seeks approval for external and internal changes to both dwellings A and B. The changes are outlined in the Amended Statement of Facts and Contentions filed by council on 9 March 2010.

4 The works for which approval is sought have already been constructed without consent. Council did not raise issue with the majority of the proposed changes. Its main contentions relate to:

(1) the view impact from the roof construction above the master bedroom of dwelling B;

(2) the additional floor area and excavation for a basement cinema room in dwelling A; and

(3) the privacy impacts from the bedroom windows of dwelling B to adjoining properties at the rear.

5 The site, its context, the history of the application and the planning controls are set out in the Amended Statement of Facts and Contentions. The hearing commenced as a s 34 conciliation conference on site on 10 February 2010. No agreement was reached and the parties agreed to me disposing of the proceedings under s 34(4)(b)(i). They also agreed that the site view and evidence from the s 34 conference were admissible in the further hearing, which was held on site on 10 March 2010.

6 On both occasions the Court heard evidence from adjoining residents at 9A Esther Road and 242 Raglan Street and expert planning evidence from Mr D Livingstone, for the council, and Mr W Long, for the applicant.

Privacy

7 The main concern of the owner of 9A Esther Road was the privacy impact on her living area from the full height bedroom windows of dwelling B. The development consent approved a brick wall to 1050 millimetres with clear windows above. The windows have been constructed as full height clear windows. The planners initially agreed that full height external vertical louvres would mitigate overlooking of the adjoining properties to the rear, (9A and 9 Esther Street). They also agreed that the louvres should be operable to an angle of 45 degrees and that it was open to the applicant to revert to the original approval if that window arrangement is preferred.

8 The applicant has indicated that the amenity impacts to the bedrooms of providing 45 degree angled full height louvres are unacceptable and that 90 degree louvres would provide adequate screening and mitigate privacy impacts to a reasonable level and improve privacy impacts when compared to the windows approved in the development consent.

9 The experts agreed that the distance from the closest window on the site to the boundary is 7.5 metres and from the boundary to the living room at 9A Esther Street is a further 16.7 metres. In Mr Long's opinion the separation distance, use of the rooms as bedrooms and the proposed planting would result in acceptable privacy impacts without the louvres. However, he acknowledged that the full height windows resulted in a perception of overlooking and adverse privacy impacts to the owner of 9A Esther Street, which would be mitigated by the 90 degree louvres and the pergola at 9A Esther Street. He noted that 9 Esther Street also had potential privacy impacts but its owner had accepted a proposal for full height louvre windows and did not specify whether these should be fixed or operable.

10 Mr Livingstone considered the privacy impacts to be a sensitive issue and that the appropriate solution is to have the operable louvres fixed to 45 degrees.

Findings

11 I accept Mr Long's evidence that the perceived privacy issues to the properties to the rear is adequately addressed by the full height vertical louvres operable to 90 degrees. This, in conjunction with the separation distance, use of the rooms, proposed landscaping and the pergola at 9A Esther Street would achieve reasonable privacy that is an improvement on the approved clear grazed windows. I therefore accept the applicant’s version of condition 2(a) for louvres operable to 90 degrees.

Cinema Room

12 The experts agreed that the gross floor area of dwelling A had increased from 212.3 square metres to 287.3 square metres and that the floor space ratio (FSR) had increased from 0.57:1 to 0.776:1. The increase results from various changes to dwelling A. Mr Livingstone did not raise issue with most of these changes but was concerned about the increase resulting from the cinema room of about 40 square metres. He acknowledged that this room is generally below ground level within the building footprint and does not contribute to bulk and scale. However, Mr Livingstone considered that the cinema room resulted in an increase in excavation and loss of natural features and deep soil.

13 In Mr Livingstone’s opinion, the overall bulk of the dwelling from the streetscape was a key issue in the original assessment. The development consent complied with the FSR control in Mosman Local Environmental Plan 1998 (LEP 1998) of 0.6:1, whereas the proposal exceeds this control. Ms Hewitt, for the council, did not press that an application under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was required but submitted that a similar consideration required by SEPP 1 should be undertaken to vary the FSR.

14 Mr Long stated that even though the proposal exceeds the FSR standard, its objectives will be met and there is no adverse impact arising from the additional excavation. In his opinion, the additional excavation for the cinema room meets the objectives of cl 14(b) and cl 31 of LEP 1998 and the controls in the Mosman Residential Development Control Plan (DCP). The cinema room is under the approved footprint of the house and does not reduce the amount of landscaping, effective runoff or existing trees or rock features of the site.

15 While no SEPP 1 objection is required it is relevant to consider whether the proposed increase in FSR meets the objectives of cl 14 of LEP 1998:

(a) to control the scale of development so that it is compatible with housing characteristics of the locality, and
(b) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban runoff, and
(c) to minimise the effects of bulk and scale of new development.

16 The experts agreed that the proposal does not increase the bulk and scale of development and therefore meets objectives (a) and (c). They disagreed as to whether it met objective (b). Ms Hewitt submits that the proposal does not meet objective (b) as it increases excavation and changes natural features. Mr McKee, for the applicant, submits that the purpose of limiting excavation and retaining natural features as stated in objective (b) is achieved as there is no reduction in landscape area or impact on urban runoff.

17 I accept Mr McKee’s submission that the increase in FSR meets the objectives in cl 14 and is acceptable. I note Mr Livingstone's concerns that the overall bulk of the proposal may have been different if the FSR now proposed formed part of the original assessment. However, of itself, the cinema room does not add to the bulk of the house which has been approved by council as having acceptable bulk.

18 There is no evidence before me that the excavation does not meet cl 31 of LEP 1998 or s 5.14 of the DCP other than that there is an increase in excavation which is below the approved building footprint.

View loss

19 The owner of 242 Raglan Street was concerned about the view loss from the additional height of the roof of dwelling B above the main bedroom. In her opinion the view loss resulting from the development consent was significant and beyond what she understood would occur. The additional height would further increase the view loss from her deck, kitchen and dining room and severely impact on the amenity of her property. She considered that prior to the construction of dwelling B she had extensive water views (exhibit 4) and that the vegetation on the site (exhibit E), which limited these views, had existed only for a few years.

20 The experts agreed that prior to the development consent there were filtered water views to Middle Harbour, across a side boundary. Through the process of negotiation, the height of the original proposal was reduced by 950 millimetres and the development consent approved a parapet height of RL 17.55m. The parapet, as built, is RL 17.76m, an increase of 110 millimetres above the approved height with skylights built at RL 17.89m.

21 The experts agreed that the development consent and the proposal are below the maximum building height of 8.5 metres in cl 13 of LEP 1998 and that there is a minor exceedence of the maximum wall height of 7.2 metres in cl 13 of LEP 1998. A SEPP 1 objection was considered to be well founded as part of the assessment of the development consent as the exceedence results from the change in the land form.

22 The experts agreed that the extent of view loss between the development consent and the proposal is shown in exhibit D, but disagreed on whether the view loss is significant and whether further changes should be required, other than the reduction in the height of the skylights.

23 Mr Livingstone considered the roof will result in substantial loss of water views and exacerbates the wall height non-compliance and is not considered to achieve reasonable view sharing. He estimated the reduction in water views to be 30 per cent from what was approved but conceded under cross examination that this was not an estimate based on the total water view but on individual sections.

24 Mr Long considered that there is no discernible change in the available water views or in their quality between the development consent and the proposal. In his opinion when the view loss is assessed against the planning controls in LEP 1998 and the DCP and the planning principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 and when compared to the development consent, acceptable view sharing is achieved. In his opinion lowering the parapet would not materially increase water views and is of little benefit. The parapet is also necessary to direct water flow to the water tanks. He also considered that lowering the slab would be of little benefit.

Findings

25 The objectives of LEP 1998 (cl 2(g)), the 2(c) Residential Zone (point 7) and cl 13 - height limits in residential zones (cl 13(1)(a)) seek to retain views. Section 4.3 of the DCP provides the following objectives for views:

01 To have opportunities for public vistas and public views from streets and public places protected and enhanced;

02 To have the value of existing views from private dwellings recognised and encourage view sharing through building design location and landscape design;

03 To have sharing of views whilst not restricting the reasonable development potential of a site.

26 Tenacity also provides principles for view sharing.

27 The experts agreed that water views were important but disagreed on the extent and significance of the view loss. The owner of 242 Raglan Street held a different opinion about the extent of her views prior to the construction of dwelling B. This difference of opinion between the owner and the experts centres on the weight to be given to the trees that were previously on the site. Clearly the removal of trees has opened up views but these trees may not have been on the site for a length of time and even with the trees there were filtered views from her property.

28 The original application was reduced in height by 950 millimetres and has a flat roof. It is below the maximum building height and generally below the wall height control in cl 13 of LEP 1998. The council assessment of the development application accepted that the non compliance with the wall height was acceptable and met the objectives of the control, including view loss to adjoining properties.

29 In relation to views, the assessment states:

The proposal has appropriately situated house B such that the immediately adjoining residents at 242 Raglan Street will retain views over. The proposal will result in no or negligible additional view loss from that or surrounding properties. The proposal is assessed as satisfactory with regard for objectives and guidelines at s 4.3 of the MRDCP.

30 In oral evidence, Mr Livingstone raised some concerns about this conclusion and the view loss from the development consent is clearly not what the adjoining owner understood would result.

31 However, it is not possible or appropriate for me to adjudicate on the accuracy of council's planning assessment of the development application. The question is whether the changes above what was approved meet the requirements of the planning controls; the main issue being whether appropriate view sharing is achieved.

32 I accept Mr Long's evidence that there will not be a discernible difference in the view that would be achieved under the development consent and as now proposed. I note that the experts have agreed to a reduction of the height of the skylights to RL 17.76m (condition 2(a)). A further lowering of the parapet or reduction in the height of the slab would provide no material increase in the available water views. The view loss from the proposal is therefore reasonable and I accept the applicant’s version of condition 2(a).

33 I note that part of the impact on 242 Raglan Street is that the development, as approved, presents a blank wall to her property. A condition has been included (condition 2(e)), which requires Lilly Pillies to be planted along the wall to screen it and the water tank.

34 The owner of 242 Raglan Street was also concerned about the location of the stink pipe and that any requirement that this be increased may result in further structures above the roof. It was agreed during the hearing that a condition would be included to require approval of any further structures above the roof to support the stink pipe (condition 2(c)). However, the parties have subsequently advised that such a condition cannot be imposed, as any changes to the stink pipe are the responsibility of Sydney Water. Council also proposed a condition (condition 2(b)), which required the removal of an existing antenna and small pipe. I accept that these existing structures do not intrude into the view in an unacceptable manner. Conditions 2(b) and 2(c) are therefore deleted.

35 In reaching this decision, I note the parties' agreement that the relevant legal framework to assess an application under s 96 for work that is constructed without consent is set out in a number of judgments of the Court, most recently by Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408. Ms Hewitt summarised these principles as being that it is not a relevant consideration to punish an applicant for illegal work nor should the applicant benefit from these works. Consideration of the actions of the applicant and the potential costs or inconvenience is not relevant. Within this context, the s96 application is acceptable and the development consent is amended to include the applicant’s version of the conditions.

36 The orders of the Court are.

(1) The appeal is up held.
(2) The application under s 96(6) of the Environmental Planning and Assessment Act 1979 to modify development consent (8-2006-417-1) for the demolition of an existing dwelling and erection of two dwellings and Torrens Title subdivision at 244 Raglan Street, Balmoral is approved subject to the conditions in Annexure A.
(3) The exhibits, except exhibits 2, A and B, may be returned.

___________________

Annelise Tuor
Commissioner of the Court

07/05/2010 - typographical error - Paragraph(s) on Coversheet and paragraph 35