Richards v Mosman Municipal Council

[2022] NSWLEC 1700

Land and Environment Court

New South Wales

Medium Neutral Citation:

Richards v Mosman Municipal Council [2022] NSWLEC 1700

Hearing dates:

2 November 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) The Modification Application, to modify Development Consent 8.2021.20.1, is approved and the Development Consent granted to Development Application 8.2021.20.1 by the Respondent on 19 August 2020, is modified as set out in Annexure “A”.
(3) The Development Consent to Development Application 8.2021.20.1, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B”.
(4) The Exhibits are returned with the exception of Exhibit 1 and B, which are retained.

Catchwords:

MODIFICATION APPLICATION – Dwelling – amended plans – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.56, 8.9
Mosman Local Environmental Plan 2012, cll 4.3A, 4.6

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Antoinette Richards (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor)(Applicant)
S Patterson (Solicitor)(Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/199634

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Antoinette Richards (Applicant) against the actual refusal by Mosman Council (the Respondent) of a Modification Application made pursuant to s 4.56 of the EPA Act.

The Proposal

2. The application is to further modify Development Consent 8.2021.20.1 granted by the Land and Environment Court in proceedings No 227864 of 2021. This modification application seeks approval for proposed modifications to an approved dwelling, and associated buildings, including various ancillary works.

3. Broadly, the Modification Application seeks approval for the following amendments as described in the Statement of Facts and Contentions (SOFAC’s) before the Court:

• Introduction of a 700 mm high clerestory style pop-up window elements above the entry foyer and living room;

• Changes to the balustrade detailing around the approved carport;

• Introduction of a bin storage area to the western side of the approved driveway to facilitate waste storage and collection;

• Amendment of Condition 1 of the Development Consent to reflect the amended plans; and

• Deletion of condition 1A (i) and 1A (ii) relating to the provision of amended plans on the basis that the amendments required by the conditions have been included in the Modification Application plans.

The Site and Locality

4. The site is identified as Lot B in DP 345994 and is known as 26 Kirkoswald Avenue, Mosman. The site is located on the northern side of Kirkoswald Avenue, between Hopetoun Avenue and the unmade portion of Rosherville Road.

5. The SOFAC’s note that the site has an area of 466.2 m², that the site is regular in shape with a street frontage of 18.48 m and a 7 m fall to the north. It is further noted that the site currently contains a dwelling house and that surrounding development consists of dwelling houses of varying heights and styles.

6. The hearing commenced with a site visit to view various elements of the proposal and to hear oral submissions raising concerns on views from properties on the southern side of the street. Height poles were provided for the upper elements of the proposal to enable viewing of the scheme from various locations.

Public Submissions

7. The application commenced notification on 19 September 2022 for a period of 14 days. The notification period expired on 4 October 2022. At the time of preparation of the SOFAC’s a single submission had been received raising several issues with the development.

8. At the commencement of the site visit an oral submission was given on behalf of objectors to the development in respect to properties on the “high” side of Kirkoswald Avenue, Mosman. The oral submission summarised comments made in the written submissions that are provided to the Court.

The Issues in Dispute

9. The parties rely on the Joint Experts Report prepared by the Town Planners being Mr G Boston (Applicant) and Mr S Layman (Respondent). Whilst the SOFAC’s cover a range of matters, the parties agree that the remaining issue of dispute is one element of the proposed modification application, that being the “pop up” style roof element over the living room.

10. The parties agree that it is open to the me to approve the modification application in its entirety, or alternatively, to approve the application with a condition requiring deletion of the single roof element. This is also on the presumption that I find the other elements of the Modification Application satisfactory, notwithstanding the position of the parties.

The Assessment Framework

The Environmental Planning and Assessment Act, 1979

11. A key jurisdictional requirement for Modification Applications is the precondition that the application, as modified, must be “substantially the same” development as the development for which consent was originally granted and before that consent, as originally granted, was modified (if at all) (cl 4.56(1)(a).

12. The qualitative and quantitative assessment that assists in determining whether the development is “substantially the same” is best undertaken after an assessment of the various aspects of the development that will contribute to the outcome.

The Mosman Local Environmental Plan 2012 (MLEP 2102)

13. The proposal does not comply with the Development Standards, for both Height of Buildings and Wall Height, contained in cl 4.3A of the MLEP 2012. As this is a Modification Application, a written request to vary the Development Standard is not required, but it is still appropriate to undertake a merit assessment against the relevant planning controls in the MELP 2012. This includes the zone objectives and the objectives that underpinned the Development Standards, particularly in respect to the various height requirements.

14. The site is in the C4 Environmental Living Zone of MLEP 2012. The objectives for this zone are as follows:

•   To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

•   To ensure that residential development does not have an adverse effect on those values.

•   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 and landscaping and to retain natural topographical features.

•   To ensure that development is of a height and scale that achieves the desired future character of the area.

•   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.

15. Clause 4.3A, relating to height, reads as follows:

4.3A   Height of buildings (additional provisions)

(1A) The objectives of this clause are as follows—

(a)  to provide for view sharing,

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

(c)  to encourage 2-storey buildings consistent with the desired future character of the area.

(1)  This clause applies to all land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living 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.

mansard roof means a roof that has—

(a)  a pitch of more than 45°, and

(b)  2 slopes on each side, with the lower slope significantly steeper than the higher slope.

wall height means the vertical distance from ground level (existing) to—

(b)  the underside of the eaves at the wall line, parapet or flat roof, whichever is highest, or

(a)  for a building with a mansard roof—1.8m above the finished floor level of the roof space.

Mosman Residential Development Control Plan (MRDCP)

16. The SOFAC’s are silent on the MRDCP but it is raised by Mr Boston, in the Joint Town Planning expert report, in the context of view and “bulk and scale” issues raised in Contention 1. The MRDCP contains a number of townscape assessments that make up the locality. Part 74 (18) Rosherville/Wy-ar-gine Townscape applies to the subject site and the immediately surrounding area. The townscape assessment outlines character elements which Mr Boston has individually addressed in consideration of the overall height and form of the development.

17. The MRDCP, Section 4.3 – View Sharing, was also raised during the hearing. The relevance of view sharing is dealt with in the assessment of view impacts below.

Is the height and design of the roof element acceptable?

18. Although the planners agree that there is no significant impact on views, they agree that the roof element will be visible. The disagreement arises as to whether the visual presence of the roof element is acceptable given the numerical non-compliance with the planning controls. Mr Layman says that the roof element results in an unacceptable visual presence on the basis that it is over the height limit and in his opinion is not a necessary architectural element for the adequate form and function of the living room and the roof.

19. The experts have differing opinions regarding the extent that the proposal contravenes the numerical requirements mostly based on what constitutes the “wall” in respect to the roof element and therefore to what extent does the proposal vary the wall height Development Standard.

20. The planners agree the location and extent of the roof element in the views, from adjoining residences, and the residences on the southern side of the street (at pages 4 and 5 of the Joint Report (Exhibit 3)). The planning experts also agree as to the extent that the proposal impacts on views, that is, there is no loss of view.

21. The roof element in dispute is an element that is consistent in form and design with the roof element at the front of the dwelling. I also note the agreed facts in the SOFAC’s that the locality is comprised of buildings of varying height and forms. It is because of these demonstratable outcomes that I agree that the proposed roof element will not be inconsistent with the objectives for the desired future character of the locality as set out in cl 4.3A relating to the development standards for Height of Building and Wall Heights.

22. The experts agree that there is no impact on views, in terms of view loss or sharing. It is for these reasons that I find that the proposal cannot be said to be inconsistent with the objectives, relating to views, that underpin the numerical requirements.

23. There is agreement, at page 5 of the Joint Report, that the “non-compliant building height breaching element has been designed to reduce adverse effects of bulk and scale compared to the previous refused proposal. In this regard, the experts agree that the non-compliant building height breaching element will not give rise to unacceptable shadowing or privacy affectation.”

24. Mr Boston separately says, “The non-compliant building height pop-up roof window element has been designed and sited having regard to the maintenance of appropriate local amenity in particular public and private views.” (Page 10 of the Joint Report). The agreement by the planners that there is no view loss associated with the proposal verifies that this design outcome is achieved.

25. It is for these reasons that I agree that the design has considered a number of elements to minimise the adverse effects of the proposal in terms of bulk and scale, including the location and height of the roof element. It is because of these outcomes that I agree that that the design is not inconsistent with the objective to minimise bulk and scale.

Is the proposal substantially the same?

26. A consideration of the acceptability, or otherwise, of the proposed roof element over the living room has demonstrated that this element of the proposal is of such a minor nature that it does not change the description of the development, being a residential dwelling of varied architectural elements, in a locality which is recognised in the SOFAC’s as being an area of varied dwelling design.

27. Mr Boston says that the contested roof element is a minor component of the building, both in terms of description and physical presence, resulting in an all but minor impact on adjoining or nearby properties. The roof element does not alter the proposal in a manner such that the proposal is not “substantially the same” as the development for which consent was originally granted. This is also reflected in both a qualitative and quantitative assessment of the proposal wherein the evidence has demonstrated that there are but minor impacts resulting from the proposal. It is for these reasons that I agree that the proposal meets the substantially the same test.

28. The EPA Act s 4.56 Modification Application was notified by the Respondent and subsequent submissions considered by the parties. The concerns of adjoining and nearby neighbours were conveyed to the Court. This included oral submissions at the commencement of the hearing on behalf of nearby property owners.

Other Matters

29. The applicant has provided the requisite certificate pursuant to State Environmental Planning Policy (BASIX) 2004. 

Conditions

30. The draft conditions of approval contained a condition, Condition 1C, that the Respondent pressed so as to allow for the deletion of the roof top element over the living room. As this judgment supports the retention of the roof element, the proposed condition 1C has been removed.

Conclusions

31. The Modification Application by Antoinette Richards warrants approval subject to the conditions in Appendix B.

32. The Court Orders that: 

1. The appeal is upheld.

2. The Modification Application to modify Development Consent 8.2021.20.1 is approved and the Development Consent granted to Development Application 8.2021.20.1 by the Respondent on 19 August 2020, is modified as set out in Annexure “A”.

3. The Development Consent to Development Application 8.2021.20.1 as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B”.

4. The Exhibits are returned with the exception of Exhibit 1 and B, which are retained.

S Harding AC

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 15 December 2022