Poletto v Mosman Council

[2019] NSWLEC 1513

Land and Environment Court

New South Wales

Medium Neutral Citation:	Poletto v Mosman Council [2019] NSWLEC 1513
Hearing dates:	11 October 2019
Date of orders:	25 October 2019
Decision date:	25 October 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The orders of the Court are: (1)   The applicant is granted leave to rely on amended plans. (2)   The appeal is dismissed. (3)   Development consent to Development Application No. 8.2018.200.1 for alterations and additions to an existing dwelling house at 236A Raglan Street, Mosman is refused. (4)   The exhibits are returned other than Exhibits A, D, E and 1.
Catchwords:	DEVELOPMENT APPLICATION – dwelling alterations and additions including additional storey – whether compliant with LEP development standards of wall height and FSR – whether clause 4.6 written requests required – side setback non-compliances – bulk and scale – view impacts – privacy impacts – streetscape impacts – whether adjournment should be allowed for clause 4.6 request – request for ‘amber light’ consideration
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 Building Code of Australia
Category:	Principal judgment
Parties:	Carla Poletto (Applicant) Mosman Council (Respondent)
Representation:	Counsel: D Loether (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent)   Solicitors: Bartier Perry (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/50086
Publication restriction:	No

Judgment

1. COMMISSIONER: An appeal was lodged by Ms Carla Poletto (the applicant) under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal of a development application, No. 8.2018.200.1 (the application) by Mosman Council (the Council). The application proposed alterations and additions, including a partial additional storey, to an existing dwelling house at 236A Raglan Street, Mosman (the site).

2. The primary grounds for refusal were the contended non-compliances with wall height and floor space ratio (FSR) development standards as well as the view and privacy impacts associated with the proposed design and side setbacks of the development.

Background to the appeal

3. The site currently contains an existing 2 storey dwelling house comprising lower ground floor and ground floor levels.

4. The application proposed a number of internal alterations. To the lower ground floor, these comprised installation of a lift and stairs to access the parking located at that level as well as widening of the garage entry to create a double garage. At the ground level, alterations proposed included a foyer, 2 new bedrooms and a study, 2 bathrooms, a lounge room, a laundry and the internal stairs and lift. A new “first floor” addition was proposed comprising, in summary, a master bedroom with walk-in robes, bathroom, powder room, enclosed balcony, kitchen, living room, dining room, and the internal stairs and lift.

5. The main external changes were an enlarged garage, new terrace, entry steps, landing and planter box at the front of the dwelling, landscaping works, and new rear deck on the ground floor with external stairs connecting to the garden and to an upper level terrace at the rear. The proposed new upper level contained the new works described above along with the new rear terrace. Alterations to windows and doors were proposed, including a number of new windows and doors.

6. The proposal complied with the overall maximum permissible height under the Mosman Local Environmental Plan 2012 (the LEP). However, the Council contended that the development breached both the wall height and FSR permissible by the LEP as well as the side setback requirements of the Mosman Residential Development Control Plan 2012 (the DCP).

7. The application was notified and 8 submissions were received, being from or on behalf of the owners of 2/228, 231, 225, 234 and 234A Raglan Street and 34A Esther Road. The primary concern of most objectors was that the proposed development would have a significant detrimental impact on their views. Concern was also raised in terms of privacy impacts, bulk and scale (including impact on adjoining properties and the streetscape), non-compliance with Council controls, overshadowing, side setbacks, traffic and landscaping.

8. Modifications were undertaken to the application in an attempt to address Council and objector concerns however, the Council refused the application.

9. In the Statement of Facts and Contentions (SFC) filed with the Court in response to the appeal (Exhibit 1), the primary contentions raised were that there were non-compliances with the wall height and FSR standards in the LEP and that no written requests under cl 4.6 had been received, as required by the LEP, to support these non-compliances. As a consequence of these and other non-compliances, including DCP side setback controls, the development would have adverse impacts in terms of excessive height, bulk and scale in the streetscape, and would have view loss and overlooking impacts on nearby properties.

10. In terms of streetscape, it was contended that the proposal would present as a 3 storey development when viewed from neighbouring properties and did not meet the LEP requirements for a permissible third storey. Further, the non-compliance with the side setbacks required under the DCP for a building of this height resulted in the inability to provide adequate landscaping in side setback areas.

11. These factors, combined with a lack of articulation in side elevations and the height and FSR, would result in a dominant built form which was an unacceptable response to the desired future character of the area.

12. View impacts were of particular concern in terms of the proposal not sharing private views and the loss of these views to neighbours, in particular views towards Middle Harbour and the harbour foreshore areas.

13. The appeal was listed initially for conciliation under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). It commenced on-site on 10 October 2019 where the Court viewed the site including from locations within a number of adjoining objector properties said to be the subject of view and/or privacy impacts.

14. The site view was in the company of the parties as well as the planning experts, Mr Neustein for the applicant and Mr Layman for the Council (the experts). The experts had conferred and produced an expert Joint Report for the proceedings filed on 24 September 2019 (Exhibit 4).

15. As agreement could not be reached, the conciliation was terminated and the matter proceeded to a hearing before me held forthwith pursuant to the provisions of s 34AA(2)(b)(i) of the LEC Act.

16. Prior to terminating the conciliation and proceeding to a hearing the following day, I reminded Mr Loether, the solicitor for the applicant that, if the Court accepted the Council’s arguments on either wall height or FSR non-compliances, then there would be no power to grant consent in the absence of a written request as required under cl 4.6 of the LEP. Mr Loether indicated that, for abundance of caution, he would have a cl 4.6 request prepared and filed that day.

17. However, the applicant did not provide a cl 4.6 written request until the following day, being the day of the hearing. Mr Loether maintained the applicant’s position that no breaches of the standards arose but, if the Court determined otherwise, the written request would address the jurisdictional requirement to provide such a request. If necessary, the Court could adjourn the proceedings to enable the Council time to respond to the request.

18. Ms McCulloch, solicitor for the Council, objected to the lodgement of the cl 4.6 request on the morning of the hearing, submitting that the Council would be unfairly prejudiced with inadequate time and extra cost to respond to the statements contained within the request. The Council had documented in the SFC the need for cl 4.6 requests based on the Council’s assessment of non-compliances with the applicable development standards and this had been reiterated by Mr Layman in the expert Joint Report, both lodged well before the hearing. She also noted the requirements of s 34AA of the LEC Act that I must dispose of the appeal following a hearing “held forthwith” after terminating the conciliation. Therefore, the hearing should not be adjourned to enable assessment and consideration of the request.

19. I agreed with the Council and, for the reasons advanced by Ms McCulloch, I did not allow the cl 4.6 request advising that the applicant would have to rely on convincing the Court that the standards were in fact met, as was the applicant’s consistent position, supported by the applicant’s expert, Mr Neustein.

20. The applicant did however seek, and was granted leave without objection from the Council, for further minor amendments to the application (Exhibit A). These reflected the amendments to the plans considered by the experts in their Joint Report in an effort to respond to a number of Council contentions. The amended plans also deleted a parapet from the upper level of the development to reduce the overall wall height.

21. The applicant also offered a number of further modifications to the application in response to the Council’s filed conditions of consent (which comprised Exhibit 3). These included a reduction in the size of the upper level rear balcony (and the removal of a roof over it and external stairs to it), increased side boundary setbacks to this balcony and to a rear portion of the upper level from the eastern boundary, installation of various privacy screens and measures, conversion of a central balcony on the western elevation of the upper level to a non-trafficable landscaped area, and provision of an elevator (lift) control unit in an enclosed area to exempt this area from inclusion in the FSR calculation.

22. The only condition the applicant did not agree with was to narrow the existing driveway. This was sought by the Council in order to increase the available area on the street for on-street parking. The applicant argued that the application retained the width of the existing driveway and that the additional area created on the street would not facilitate the provision of an additional on-street parking space, which the Council accepted. However, the Council maintained that narrowing the driveway would improve the useability of the on-street parking spaces that do exist.

23. The parties agreed, as is required under s 34(12) of the LEC Act, that I could have regard to comments made by objectors on-site prior to the conciliation commencing and to what I saw during that site visit, including views from objectors’ properties. However, I could not have regard to the conciliation discussions.

The site and surrounds

24. The site is 527.9m² in area, is situated on the northern side of Raglan Street between Balmoral Avenue and Esther Road, and has a 2.4m fall to the east with views to Middle Harbour.

25. The site has a common boundary with 5 other residential properties: 234A Raglan Street to the west, 236 Raglan Street and 36 Esther Road to the east, and 32 and 34A Esther Road to the north (rear).

26. Surrounding development consists of 1 and 2 storey dwelling houses, multi dwelling housing, residential flat buildings and detached dwellings. Given the topography of the site, and of surrounding properties, a number of properties currently enjoy views across the site to Middle and Sydney Harbours, and their foreshores.

Statutory Context

27. The site is located in the Low Density Residential R2 zone under the LEP where the proposed development is permissible with consent. The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

• 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.

28. As indicated, the Council accepted that the proposal complied with the overall maximum permissible height of 8.5m stipulated at cl 4.3 of the LEP but contended that the development breached both the wall height of 7.2m required by cl 4.3A and FSR of 0.5:1 established by cl 4.4 of the LEP.

29. The wall height and FSR standards can be varied under the provisions of the LEP at cl 4.6, with the relevant provisions as follows:

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 subclause (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.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.

(6)    …

30. As indicated, the applicant did not accept that the standards were breached and therefore did not file a cl 4.6 written request with the application to vary either the wall height or the FSR standard.

31. The site is also located within a Scenic Protection Area pursuant to cl 6.4(2) of the LEP as it is shown on the Scenic Protection Map. The Council contended the proposal was inconsistent with the objectives of the Scenic Protection Area given the height, bulk and scale impacts on the natural and visual environment of Mosman, including the limited on-site landscaping.

32. Clause 6.4 reads as follows:

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.

(2) This clause applies to land identified as “Scenic Protection Area” on the Scenic Protection Map.

(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.

33. Development is also subject to the provisions of the DCP. The site is located in the Balmoral Townscape area under the DCP and various controls apply including in order to meet the desired future character for the area.

The issues and evidence

Wall height exceedence

34. The height of development on the site is set by the provisions of cl 4.3 of the LEP relevantly as follows:

4.3 Height of buildings

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

(a) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential:

(i) to share public and private views, and

(ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

(iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and

(iv) to minimise the adverse effects of bulk and scale of buildings,

(b) …

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

35. Clause 4.3A sets a maximum wall height for development on the site as follows:

4.3A Height of buildings (additional provisions)

(1) This clause applies to all land in a residential zone to which a maximum building height of 8.5 metres applies as shown on the Height of Buildings Map.

(2) The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing).

(3) However, the consent authority may grant development consent for an additional storey in the foundation space of an existing building on land to which this clause applies if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale.

(4) A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres.

(5) In this clause:

dormer window means a window in the roof plane that measures no more than 25% of the width of the roof in that plane.

wall height means the vertical distance between the ground level (existing) and the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest.

36. The experts agreed that the height limit for the site under cl 4.3 was 8.5m, and that the development did not exceed this height but was, in part, 3 storeys, and was therefore subject to the provisions of cl 4.3A. They disagreed as to whether the measured wall height exceeded 7.2m, whether one of the storeys was in the foundation space of the existing dwelling, and whether the additional storey was appropriate in form and scale.

37. There are no objectives for the wall height control at cl 4.3A but Ms McCulloch submitted that the objectives of the height standard at cl 4.3 apply. This was not disputed by the applicant.

38. In their expert Joint Report (Exhibit 4), the experts did not agree that the additional storey was confined to the foundation space of the existing dwelling or how to calculate the proposed wall height. In particular, they disagreed on how to determine the level of ‘ground floor (existing)’ which is defined in the definitions in the LEP as follows:

ground level (existing) means the existing level of a site at any point.

39. Mr Layman argued that the garage and storage areas at the lowest level were not in ‘the foundation space of an existing building’. As shown in the southern and eastern elevations, these are wholly above ground. Whilst ‘foundation space’ is not defined in the LEP, that space is, in his opinion, that part of the ground on which the footings of a building rest.

40. In terms of wall height, the LEP definition requires the height to be measured from any point of the existing ground level of the site where a wall commences which is situated under the underside of the eaves. The underside of the eaves is at RL28.2. Therefore, where a wall to these eaves commences at an existing level of the site lower than RL21, there would be a breach of the 7.2m maximum wall height control.

41. Mr Layman argued that the north-eastern elevation of the wall is approximately 400mm in excess of the 7.2m. The 400mm comes from the thickness of the existing concrete slab at ground level, as he determined ground level (existing) to be the level at the underside of the existing slab.

42. Further, Mr Layman argued in oral evidence that, based on the survey submitted with the application (Exhibit D, Tab 6), there were parts of the site which did not contain a slab on ground, which were below RL21, and which were proposed to be excavated for a new slab and covered by the building. Any wall proposed to be constructed in these locations to the underside of the eaves at RL28.2 would exceed a height of 7.2m.

43. Whilst the applicant argued that there was a 460mm setback of the new upper level portion of the eastern wall relative to the existing wall below, Ms McCulloch submitted that this degree of setback was insignificant to offset the height of the wall in terms of impacts. It also did not address the height of the wall at all locations.

44. In the Joint Report (Exhibit 4), Mr Neustein argued that the wall height should not be measured from the underside of the slab but from the upper level of the slab which better represented ground level (existing). He considered the 460mm setback of the top section of the eastern wall meant the wall was not of continuous length and therefore it should not be measured as a single wall height. He also noted that approval to the additional storey could be supported if it was of an appropriate form and scale and, in this instance, what was proposed was appropriate, particularly having regard to the similar form and scale of the adjoining dwelling at 234A Raglan Street.

45. However, in oral evidence, and based on the survey plan at Exhibit D, Mr Neustein conceded that there was part of the proposed wall of the development to the upper level eaves which would be constructed above the existing ground level where there was no existing slab. Based on the survey of the existing ground levels in these locations, where there were levels at or below RL21, he agreed that the wall height in these locations would in fact exceed 7.2m. Accordingly, a cl 4.6 request was required in order for consent to be granted to the application as proposed.

FSR

46. The experts did not agree on what should be included in determining the proposed FSR. Clause 4.5(2) of the LEP defines FSR as the ratio of the gross floor area (the GFA) of all buildings within the site to the site area.

47. The difference between the experts was in determining what GFA should be counted. The definition of GFA in the LEP is as follows:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a) the area of a mezzanine, and

(b) habitable rooms in a basement or an attic, and

(c) any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes:

(d) any area for common vertical circulation, such as lifts and stairs, and

(e) any basement:

(i) storage, and

(ii) vehicular access, loading areas, garbage and services, and

(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g) car parking to meet any requirements of the consent authority (including access to that car parking), and

(h) any space used for the loading or unloading of goods (including access to it), and

(i) terraces and balconies with outer walls less than 1.4 metres high, and

(j) voids above a floor at the level of a storey or storey above.

48. Whilst the experts agreed that the parking spaces should be excluded from GFA, Mr Neustein also excluded the area of the stairs and the lift at all levels. He argued that these elements met the definition of areas to exclude as they provided access to the car parking as required by the consent authority, including providing equitable disabled access (namely the lift). There was otherwise no reasonable access to the parking from the dwelling. He also argued that the area agreed to be excluded comprising the lower ground floor corridor access to the lift and stairs should be extended to include a reasonable area for disabled manoeuvring to access the lift.

49. Mr Layman did not exclude the area of the lift or the stairs at all levels, arguing it would not otherwise be possible to determine where access to these elements started or ended within the dwelling. He also did not exclude the area of the access corridor beyond the lift door openings for disabled manoeuvrability claiming disabled access to the lift should still be possible.

50. There was also disagreement between the experts as to whether small areas of the dwelling marked as ‘ducts’ for services should be included or excluded. However, these areas were insignificant in determining compliance with the FSR as were the thickness of the garage walls which were disputed in terms of their inclusion.

51. On the basis of the amended plans, and taking on board the amendments the applicant was prepared to accept as conditions of consent, Mr Layman calculated an FSR of 0.537:1, being non-compliant with the maximum permissible FSR of 0.5:1. Mr Neustein calculated an FSR of 0.487:1 being compliant with the FSR.

52. The difference between the experts was in the order of 12m² of GFA. If the Court accepted that the lift and stairs at all levels provided the required access to the car parking, and their areas were therefore exempt GFA under the exclusions in the LEP definition, the FSR would be compliant as almost all of the GFA in dispute was associated with these elements.

Merit issues

53. The Council contended that the wall height exceedence and third storey, FSR non-compliance, and the side setbacks proposed, cumulatively resulted in excessive bulk and scale with adverse impacts on privacy and views as well as adverse streetscape impacts.

54. In this regard, Mr Layman argued that the broader Balmoral locality is steeply sloping in places and the development context is of building forms stepping down with the topography. The desired future character and the controls recognise and seek to reinforce this. However, the dwelling’s proposed new upper level does not respond adequately. The 3 storey scale to the southern and eastern elevations, as well as the northern corner of the development, will be bulky and inconsistent and incompatible with the desired future character of the locality. The front and western elevations would be highly visible from Raglan Street.

55. The eastern side setback is also less than the minimum 3m required by the DCP with this setback ranging from 1.73m to 2.23m. This setback does not enable screen planting in the setback area and leads to potential overlooking. Therefore, the development does not maintain the existing residential amenity in the area. The proposal should not rely on neighbours’ landscaping to provide privacy and there would be privacy impacts from the new upper level to the rear private open space at 36 Esther Road and 236 Raglan Street. This was exacerbated by the two very large rear decks (or terraces) proposed.

56. Mr Layman accepted that a degree of overlooking in a sloping foreshore area is a consequence of the topography and the evident willingness of residents to trade off privacy for better views. However this was not a situation where adjoining allotments traverse downhill resulting in reciprocal overlooking for mutual benefit.

57. Mr Layman also argued that large terraces had the potential to give rise to large gatherings which may give rise to noise impacts.

58. Mr Layman’s main concern however, was that the built form arising from the non-compliances did not minimise impacts on views from neighbouring properties, particularly from 234A Raglan Street. He argued that the view loss impacts were unreasonable. This was particularly exacerbated by the proposal for a roof over the rear upper terrace and erection of external rear stairs from this upper deck to the rear private open space.

59. The Joint Report (Exhibit 4) included view impact assessments prepared by each of the experts which collectively showed the view impacts from sitting and standing from: the dining, kitchen and living rooms, bedrooms and office, and bathroom balcony of 234A Raglan Street; the terrace of 234 Raglan Street; and the balcony and sitting room of 2/228 Raglan Street.

60. Mr Layman considered the water and foreshore view impacts to 234 Raglan Street to be moderate to severe and, from 234A Raglan Street, to vary from minor to moderate for bedrooms, office, living room, kitchen and bathroom balcony, to severe from the sitting room and part of the master bedroom. He considered the impacts to be severe to devastating from the entry to this dwelling and from part of the living room and master bedroom. Finally, he considered there to be a severe loss of water views from the sitting room and balcony of 2/228 Raglan Street.

61. Mr Neustein argued that the dwelling was compliant with the LEP maximum height control and FSR, and view impacts should therefore be considered acceptable. He considered there to be minor impacts on the views available from 234A Raglan Street. He noted this dwelling overlooks the site over a side boundary and argued that the view loss from the living areas of this dwelling had been reasonably minimised and were generally not affected to a significant degree. Further, an acceptable degree of view loss is to be expected from any development on the site.

62. Mr Neustein had not visited 2/228 Raglan Street. He considered that most of the view from the terrace of 234 Raglan Street had already been eliminated by the development at 234A Raglan Street. Whilst the proposal would result in the further loss of a corner of this view, including a section of the water/land interface, water views would still be available.

63. In summary, Mr Neustein considered that there was reasonable view sharing available across all properties given the topography and location of dwellings. Further, increasing side setbacks would not assist in increasing the views available to 234A Raglan Street and any additional landscaping in these setbacks would further threaten the views currently available. Finally, the development proposed a very low roof form designed to the minimum height required to meet the Building Code of Australia.

64. In response to Mr Layman’s other merit based concerns, Mr Neustein argued that the proposed dwelling was not dissimilar in scale and form to the adjoining newly altered dwelling at 234A Raglan Street, which is 2 storeys above a garage. As what is proposed is a generally compliant design, it meets the desired future character of the residential area in which it is located, being of a single dwelling character in this part of Mosman. In this regard, the development proposed is characteristic of the bulk and scale of many other dwellings in the immediate locality, whilst the broader locality includes multi dwelling housing and residential flat buildings.

65. Mr Neustein also argued that, to the north, the view of the proposed dwelling would be restricted due to planting on the boundary and the 3 storeys are unlikely to be visible, other than from angled glimpses, from the street.

66. Further, the revised landscape plan demonstrates that landscaping would soften the visual effect of the built form on the site. The proposal does not include any significant change to the existing on-site landscaping except to widen the driveway.

67. The only views of the third storey element would therefore be from adjoining private properties. In this regard, whilst the development is non-compliant with the eastern side setback, privacy for the adjoining sites to the east and north-east is ensured by screen planting on these adjoining properties, including side hedging. In his view, the applicant can therefore rely on the existing planting on these adjoining properties, with privacy in the control of these neighbours. Overlooking of these properties is also mitigated by the location of their dwellings with their rear yards facing the proposed development. Further, a degree of overlooking is expected from any development on this hillside which looks down to Middle Harbour.

68. In order to maintain the privacy of neighbouring residents to the west at 234A Raglan Street, fewer windows were proposed on the western facade and the outdoor terraces would be screened by privacy louvres. A number of windows at the upper level are also highlight windows to provide daylight without having direct sightlines to neighbouring properties.

69. Furthermore, overshadowing had been minimised and there was no reason to assume that a larger house on the site will generate unacceptable noise to a greater degree than any other house in the locality. Increasing side setbacks would make no perceptible difference to noise levels generated by a single dwelling such as that proposed.

70. Any significant reduction in the design of the dwelling as sought by the Council would put the site at a great disadvantage in particular with regard to what had been developed on the neighbouring property at 234A Raglan Street.

71. As indicated, in response to proposed conditions to address the contentions, the applicant agreed to various additional privacy screens and treatments to reduce the scale of the rear terraces, and to eliminate the roof over the upper level rear terrace and the rear external stairs to it.

72. Mr Layman conceded that, if the amendments proposed in response to the conditions were undertaken, they would go a long way to addressing his view impact concerns. However, without the time or accurate plans to assess the agreed changes, he could not confirm that his concerns would be resolved. Irrespective, the Council still remained concerned with the side setbacks of the upper level and maintained the non-compliant third storey and wall height had unacceptable impacts for neighbours and in terms of bulk and scale.

Findings

73. In determining this appeal, it is first necessary to deal with any pre-conditions to the granting of consent. Of relevance to this appeal, those pre-conditions comprise compliance with the wall height and FSR development standards within the LEP.

74. The Council maintained prior to, and throughout, the proceedings that both standards were breached and required written requests pursuant to cl 4.6 of the LEP. Up to, and at, the commencement of proceedings, the applicant maintained that no such breaches existed and therefore no cl 4.6 written requests were required to be lodged or considered in order for consent to be granted.

75. However, as indicated, during oral evidence on the proposed wall height, the applicant’s expert, Mr Neustein, agreed that part of the proposed wall would in fact exceed the 7.2m maximum height permitted by the LEP and would therefore require a cl 4.6 request in order to be approved.

76. In response to this evidence, Mr Loether requested that I adjourn the proceedings to allow the preparation and consideration of the required cl 4.6 written request.

77. Ms McCulloch objected to this course of action, largely for the same reasons she had objected to allowing a cl 4.6 request to be submitted at the commencement of the proceedings, namely: the requirement for such requests always having been contended by the Council; the applicant having had ample opportunity and time to prepare such a request; the fact that the matter was being heard under the provisions of s 34AA of the LEC Act which requires consideration and disposal forthwith; and the time and cost associated with an adjournment. Further, the need for the cl 4.6 request had not arisen as a result of amendments to the application during the proceedings.

78. I did not allow Mr Loether’s request to adjourn the proceedings.

79. Further to the concerns with such an adjournment raised by the Council, which I agreed with, it should have been evident from the plans comprising the application (Exhibit A), and Section B on Drawing No. DA9 in particular, that the wall height standard would be breached. In this regard, any new wall over the existing undeveloped part of the site where the level of the ground is below RL21 and which extends to the underside of the eaves proposed at RL28.2 would result in that section of the proposed wall exceeding an overall height of 7.2m. Such development was proposed and was detailed on, and therefore evident from, the plans comprising the application when read in conjunction with the survey plan accompanying the application.

80. This wall height exceedance did not arise as a result of amendments undertaken to the application, nor to the plans as part of the proceedings, nor in response to proposed conditions.

81. As indicated, the Council consistently raised a concern with the wall height non-compliance and the need for a cl 4.6 request. The applicant had the ability to provide such a request even if only in response to the potential for the Court to determine wall height calculation in favour of the Council’s argument rather than the applicant’s. No such cl 4.6 request was provided.

82. It is not appropriate for the Court to adjourn proceedings to enable a jurisdictional pre-condition to (potentially) be met where the applicant has had plenty of notice that such a pre-condition was in dispute. Nor is an adjournment appropriate where such a breach has always existed but is not realised by the applicant’s expert until giving oral evidence in the proceedings.

83. The matter was required to be determined under the provisions of s 34AA of the LEC Act whereby I must dispose of the proceedings at a hearing held forthwith once conciliation is terminated. It is therefore similarly expected that s 34AA matters will be determined in a timely manner. The applicant was always aware that this was the case.

84. There would be cost, resource and time implications for both the Council and the Court associated with any such adjournment. Given it was not a result of a new contention, but rather the applicant’s incorrect determination that a pre-condition had been met, I did not consider there was a basis to support the requested adjournment and I therefore did not allow it.

85. Mr Loether then requested that, if all other contentions were addressed to my satisfaction, including FSR compliance, I consider applying the ‘amber light approach’ that is sometimes utilised by the Court. In essence, this would entail me indicating that the development was approvable subject to satisfaction of cl 4.6 in terms of any wall height breach.

86. I do not consider that such an approach is appropriate or even lawful.

87. Firstly, and of most concern, it would require the Court to indicate agreement to support a development application and propose to grant consent to it, without knowledge of whether or not a pre-condition to that consent will be satisfied, namely the requirements of cl 4.6 of the LEP. It implicitly presumes that I would be satisfied that the tests required by cl 4.6 are met: namely that the submitted cl 4.6 request adequately addresses various tests to my satisfaction and that I would also be satisfied that the development would be in the public interest.

73. This is in circumstances where the final form of that development, as offered by the applicant in the proceedings, is not sufficiently detailed to enable assessment of its ultimate impacts.

74. Secondly, there are various options available to the applicant to address the agreed wall height breach. One option would be to revise the proposal to meet the standard. Another could be to further amend the design to better demonstrate that the cl 4.6 tests are met, whilst still being non-compliant. The merit impacts of such options are unknown and therefore the acceptability to the Council, the objectors and the Court is unknown.

75. Finally, I am not satisfied that I have adequate information to determine that the merit issues in dispute between the parties are satisfactorily resolved based on the application before me for determination.

76. This is even having regard to the applicant’s proposed amendments to respond to the Council’s proposed conditions of consent. Whilst the Council’s expert agreed that these amendments would ‘go a long way’ to addressing a number of the contended matters, he was concerned that there was inadequate time, detail or assessment to confirm that in fact all of the merit issues had been adequately addressed. I share that concern.

77. The circumstances of the application, and my assessment of it, do not lead to a position where an amber light determination is appropriate as it would suggest that a relatively minor amendment, which is not a jurisdictional consideration, could resolve the only outstanding issues. This is not the case.

78. There is, therefore, no basis for an amber light consideration in this instance.

79. Given the absence of a cl 4.6 request for an agreed breach of a development standard within the LEP, I am unable to grant consent to this application even if I was disposed to do so. Accordingly, the application must be refused.

80. Further, as a pre-condition to the granting of consent was not met, it is therefore not necessary for me to address the remaining contentions, namely whether or not the development is FSR compliant, the merit issues that remained between the parties, and the disputed condition of consent requiring the driveway widening.

81. The applicant now however, has the benefit of understanding the issues that remain with the Council in pursuing a future application, in the terms offered during the proceedings or otherwise. Such an application can consider and address these issues whilst also satisfying the pre-conditions to the granting of consent.

Orders

97. The Court makes the following orders:

1. The applicant is granted leave to rely on amended plans.

2. The appeal is dismissed.

3. Development consent to Development Application No. 8.2018.200.1 for alterations and additions to an existing dwelling house at 236A Raglan Street, Mosman is refused.

4. The exhibits are returned other than Exhibits A, D, E and 1.

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Jenny Smithson

Commissioner of the Court

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Decision last updated: 25 October 2019