Rini Pty Ltd ATF Misamtay Trust v Mosman Municipal Council

[2019] NSWLEC 1636

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Rini Pty Ltd ATF Misamtay Trust v Mosman Municipal Council [2019] NSWLEC 1636
Hearing dates:	Conciliation conference on 22 October 2019; Hearing on 13 December 2019
Date of orders:	13 December 2019
Decision date:	20 December 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1)   Leave is granted to rely on the Revision H Amended Plans in Exhibit A and as described in the agreed conditions in Annexure A. (2)   The written request under clause 4.6 of the Mosman Local Environmental Plan 2012 is upheld. (3)   The appeal is upheld. (4)   Development Consent is granted to DA 8.2017.258.1 at 3 Sirius Avenue, Mosman for demolition of existing structures and construction of a two storey dwelling with basement parking, swimming pool and associated landscaping, subject to the agreed conditions in Annexure A. (5)   The exhibits are returned upon publication of my decision to be finalised at the earliest opportunity.
Catchwords:	DEVELOPMENT APPLICATION – dwelling house, clause 4.6 variation to wall height, view impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	Gregory International v Waverley Council [2004] NSWLEC 365 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Mosman Development Control Plan 2012
Category:	Principal judgment
Parties:	Rini Pty Ltd ATF Misamtay Trust (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) R McCulloch (Solicitor) (Respondent)   Solicitors: Madison Marcus Law Firm (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/58300
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Land and Environment Court (the Court) under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Mosman Municipal Council (Council) of Development Application No DA8.2017.258.1. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The development application relates to land identified as Lot 1 in DP 135102 at 3 Sirius Avenue, Mosman (the site). It seeks consent for demolition of an existing dwelling and construction of a new 2 storey dwelling house, with basement parking, swimming pool and landscaping works.

3. The development application was originally lodged with Council on 21 December 2017, and notified to adjoining residents and land owners between 28 December 2017 and 22 January 2018. Fourteen submissions were received in response to the exhibited plans. The plans were amended on 23 July and 8 October 2018 in response to issues raised by Council and objectors. The amended plans, prepared by CAD Plans Design Solutions are referred to as the “Issue B” plans, dated 20-06-18. Further objections to the amended “Issue B” plans were received from or on behalf of the owners of 2, 4, 6, 8 and 10 Sirius Avenue to the north of the site.

4. On 17 December 2018, Council issued its Notice of Determination setting out its reasons for refusal of the application based on the Issue B plans. The Applicant filed the Class 1 application with the Court on 21 February 2019 along with an Affidavit by the Applicant’s solicitor seeking leave to rely on further amended plans and associated documents prepared to address the Council’s reasons for refusal. The architectural plans filed with the Affidavit are referred to as the “Issue D” plans, dated 15 February 2019.

5. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference held on 22 October 2019. The conciliation conference commenced with a view on site and hearing oral submissions from representatives of the owners of 2, 4, 6 and 8 Sirius Avenue to the north of the site.

6. The parties failed to reach an agreement as to the terms of a decision that would be acceptable to them. I therefore terminated the s34AA conference and a hearing under the provisions of s 34AA(2)(b)(i) of the LEC Act was convened on 13 December 2019.

7. As a result of the conciliation conference, the development application plans were again amended. Those further amended plans were filed with the Court on 1 November 2019, and comprised:

1. amended Architectural Plans prepared by CAD Plans Design Solutions (Issue H) dated 31 October 2019 (the Issue H plans);

2. amended Landscape Plans also prepared by CAD Plans Design Solutions and dated 31 October 2019 (the amended landscape plans);

3. amended Stormwater Plans prepared by GHA Engineering Civil & Structural Consultants (Issue D), dated October 2019 (the amended stormwater plans);

4. Clause 4.6 Exceptions to Development Standards – Wall Height, prepared by GSA Planning dated 28 October 2019 (the Applicant’s Clause 4.6 written request); and

5. Final Conditions of Consent.

8. Leave was granted to rely on the Issue H plans and other documents listed in p 7 above. The changes between the Issue D plans filed with the Court on 21 February 2019 and the Issue H amended plans the subject of the s34AA hearing are set out in the “Schedule of Changes” document at Exhibit E. The main changes are:

1. The straight two-way driveway has been replaced by a curved two-way driveway, and the basement garage relocated further west.

2. The swimming pool has been reduced in size, located closer to the dwelling and reoriented 90 degrees to run parallel to the rear building line in an east-west direction so as to protrude less far south and less above ground.

3. The ground and first floor levels in the central portion of the building, between gridlines B and C, have been lowered by 720mm.

4. The first floor plan has been narrowed between gridlines B and C such that the eastern wall to Bedroom 2 has been set back a distance of 3.0 metres from the eastern side boundary and the western wall to the master robe has been set back a distance of 3.0 metres from the western side boundary.

5. The roof and parapets levels have been changed, including a 200mm lowering of the front parapet between gridlines A and B, the introduction of a new intervening step between gridlines B and C, that results in a parapet 920mm lower than previously over this section of the building, a vault (verses flat) roof over the mansard section between gridlines C & D and lowering of the vault roof by 100mm.

The Planning controls

9. The following environmental planning instruments apply to the site:

1. Deemed SEPP – Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

2. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

4. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

5. Mosman Local Environmental Plan 2012 (the LEP)

10. Satisfaction of the requirements of first 4 of the above-listed environmental planning instruments was not in contention, nor pressed in the proceedings.

11. The site is zoned R2 Low Density Residential under the LEP. The relevant provisions are set out in the Statement of Facts and Contentions tendered with the Court as Exhibit 2. The amended application as shown on the Issue H plans exceeds the wall height standard found at cl 4.3A Height of Buildings (additional provisions). The Applicant’s clause 4.6 written request tendered as Exhibit D addresses the proposed variation to this standard.

12. It is agreed between the parties and their experts that the amended development proposal does not contravene any other development standards in the LEP, namely the 8.5 metre maximum building height at cl 4.3, the Floor Space Ratio at cl 4.4, and the landscaped area at cl 6.6.

13. The site is located within a “Scenic Protection Area” as identified on the Scenic Protection Map in the LEP. Under the provisions of cl 6.4 of the LEP, consent must not be granted unless I am satisfied that measures will be taken to minimise the visual impact of the development to and from Sydney Harbour, and the development will maintain the existing natural landscape and landform.

The Contentions

14. A Statement of Facts and Contentions prepared by Council and filed with the Court on 10 April 2019 was tendered in the hearing as Exhibit 2. The five contentions that Council originally claimed in support of refusal of the application may be summarised as:

1. Excessive building height, and non-compliance with the 8.5m maximum building height and 7.2m maximum building wall height in the LEP.

2. Loss of harbour views caused by the height non-compliances referred to in subpar (1) above and the side setback controls in the Mosman Residential Development Control Plan 2012 (the RDCP).

3. Inadequate clause 4.6 variation (prepared by GSA Planning and dated October 2018) to building height and wall height.

4. Insufficient setbacks and failure to comply with the RDCP section 4.2 requiring side setbacks of 3.0m where the wall height exceeds 7.2 metres, and the failure to provide spatial relief between buildings and encourage view sharing.

5. The swimming pool is inappropriately located too high (3.9 metres) above natural ground level and does not minimise visual impact on adjoining residents.

15. As a result of the Issue H amending plans largely resolving the issues in contention, the Council did not press any of the contentions, subject to the evidence of its town planning expert and the proposed Final Conditions of Consent tendered by Council as Exhibit 4.

16. Both planners acknowledged that the 8.5 metre maximum building height development standard was now achieved and that Contention (1) was no longer in contention.

17. Both planners also agreed that the revised swimming pool location, orientation and levels, along with the associated changes to the landscape plan have resolved Contention (5) and this was also no longer in contention.

18. The remaining 3 contentions were effectively inter-related and could be considered together as they relate to the building envelope, and how it impacted on views. The evidence therefore focused on these issues as the crux of the remaining contentions.

The evidence

19. At the hearing, the parties agreed that I could rely on oral submissions made from objectors and on my observations at the site view, and discussions at the s34AA conciliation conference. In addition, the Applicant tendered a set of photographs of the site taken from adjoining properties and showing height poles representing the earlier Issue B building envelope. These photos were discussed at the site view.

20. The Council tendered as Exhibit 2 a bundle of documents, including resident objections and copies of the LEP and RDCP. It also tendered as Exhibit 3 a “Joint Expert Report – Planning” prepared by Mr G Karavanas (for the Applicant) and Mr P Wells (for the Council) dated 3 October 2019 (the Joint Expert Report).

21. Oral evidence was also provided in the hearing by the planning experts Mr Wells and Mr Karavanas. They were specifically asked their opinion as to whether the Issue H amended plan satisfactorily resolved the contentions that related to earlier plans. Both expressed their opinion that the development as amended was satisfactory.

The wall height breach and impacts

22. Both experts agreed that the Issue H amended plans resulted in a breach of the 7.2 metre high wall height standard, assuming the wall height was measured from the interpolated known exposed existing ground levels closest to the new walls, as illustrated on the Building Height Limit Diagram (drawing sheet 3-DA 205.1 in the Issue H plans (Ex A). The 7.2 metre Wall Height Limit Diagram on DA 205.1 shows that the wall height breach occurs in the south-east corner of the building, and involves:

1. a minor breach of the eastern wall of the Bedroom 2 ensuite, and

2. if the sloping sides of the mansard roof are included as part of the western wall, then the proposed building also breaches the 7.2 metre wall height further south where Bedroom 3 and its associated ensuite are located.

23. Mr Wells agreed that the wall height non-compliance was limited to the eastern side wall, although he was unable to verify the precise extent of the breach due to the lack of surveyed existing ground levels under the existing building. Mr Wells also maintained that the sides of the mansard roof should be deemed to be ‘walls’ for the purpose of calculating the wall height.

24. Mr Karavanas confirmed that the Wall Height Limit Diagram in DA 205.1 was an extrapolation of the known surveyed ground levels immediately adjacent to the external walls of the existing dwelling, which he understood was the position taken by Mr Wells and this methodology was not contested. Mr Karavanas maintained that the sides of the mansard roof were not walls but part of the roof structure and should not be included in the calculation of wall height.

25. Both experts focused primarily on view impacts and in particular the impact of the additional built form arising from the breach of the wall height standard. Other key impacts such as shadowing or privacy were resolved and not in contention.

26. Based on the Wall Height Limit Diagram in DA 205.1, the view impact photographs at Ex F and the photographs with superimposed wire frame outline of the envelopes in the Joint Expert Report (showing height poles for the larger envelope of the Issue D plans) Mr Karavanas was satisfied that the Issue H plans reduced slightly the view impacts of the development and those impacts were acceptable.

27. Mr Wells agreed that the view impact of the development from numbers 6, 8 and 10 Sirius Avenue had been addressed and the bulk and scale improved, resulting in an outcome that was now acceptable. Mr Wells also advised that a numerically compliant scheme could in fact potentially “take more views” than the proposed design.

28. Mr Pickles SC submitted that the sloping sides of the mansard roof were best characterised as part of the roof structure and did not constitute a wall to which the wall height control would apply. In support of his claim, Mr Pickles referred to Gregory International v Waverley Council [2004] NSWLEC 365 (Gregory International) in which Roseth SC found that the sides of that mansard roof constituted walls as they were near vertical with a pitch of some 1 or 2 degrees off vertical. Mr Pickles’ submission was that in the current matter, the walls of the mansard roof with a pitch of 24 degrees off vertical were clearly sloping and differentiated from the circumstances in Gregory International. Mr Wells had no objection to the mansard roof per se and considered its angled roof and vertical windows offered a level of visual relief and modulation of design.

Clause 4.6 variation

29. In relation to cll 4.3A(4) and 4.6 of the LEP, and in particular cl 4.6(3), I have considered the Applicant’s clause 4.6 written request to vary the wall height development standard. The variation in wall height involves an increase of between 0.4 to 1.4 metres above the maximum wall height of 7.2 metres, depending on the interpolated sloping ground level. If the sloping sides of the mansard roof were considered to be walls for the purposes of this calculation the extent of non-compliance would be greater, at up to approximately 2.2 metres for a small section at the south-east corner of the mansard roof. In this instance, however, I agree with Mr Pickles that the 24 degree pitched sides of the mansard roof are not ‘near vertical’ or sufficiently steep to warrant their characterisation as walls, and that the mansard roof does not therefore involve a breach of the wall height control. In any event, the impact of the mansard roof forms part of the development that was considered in the Applicant’s clause 4.6 written request.

30. In accordance with the requirements of cl 4.6(3)(a), I am satisfied that the Applicant’s clause 4.6 written request has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Applying the first test established by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe), the objectives of the standard are achieved notwithstanding the non-compliance with the standard. I accept the reasons contained in section 4.1 of the Applicant’s clause 4.6 written request as demonstrating achievement of the objectives, and specifically that the sharing of public and private views is acceptable, the visual impact of the building when viewed from the harbour and surrounding foreshores has been minimised, the building is compatible with the desired future character of the area in terms of building height and roof form, and adverse impacts of the bulk and scale have been minimised.

31. As the first test in Wehbe is satisfied, and bearing in mind the circumstances of the current matter, there is no need to demonstrate that compliance is unreasonable or unnecessary in more than one of the ways outlined in Wehbe (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) Preston CJ at 22).

32. In accordance with the requirements of cl 4.6(3)(b), I am satisfied that the Applicant’s clause 4.6 written request has also demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. I have reached this conclusion for the reasons set out in section 4.2 of the Applicant’s clause 4.6 written request and taking into account Mr Wells’ oral evidence that he agreed that there were sufficient environmental planning grounds to warrant the proposed departure from the standard.

33. For the reasons above, I am therefore satisfied that the Applicant’s clause 4.6 written request has adequately addressed the two matters referred to in cl 4.6(3) as required under cl 4.6(4)(a)(i).

34. In accordance with the requirements of cl 4.6(4)(a)(ii), I am also satisfied that the proposed development will be in the public interest because:

1. it is consistent with the objectives of the particular standard for the reasons set out in section 4.1 of the Applicant’s clause 4.6 written request, and

2. it is consistent with the objectives for development within the zone in which the development is proposed to be carried out for the reasons set out in paragraph 36 below.

35. The objectives for development within the Zone R2 Low Density Residential contained in Part 2 of the LEP are:

Zone R2 Low Density Residential

1 Objectives of zone

• 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.

36. Based on the evidence of the planners and my observations on the site view, the development is consistent with the relevant R2 Zone objectives in that:

1. it will provide for the housing needs of members of the community;

2. it retains the single dwelling character of the environmentally sensitive residential areas of Mosman;

3. it maintains the general dominance of landscape over built form, particularly on harbour foreshores, noting that much of the development will be obscured from the foreshore by the intervening dense vegetation on the immediately adjoining public reserve to the south;

4. with an area of 1,341.0 m² the site is of sufficient size to provide for the building, suitable vehicular and pedestrian access and landscaping, as well as retaining the natural topographic features;

5. the building complies with the floor space ratio and height of buildings controls in the LEP, and presents as a two storey dwelling house in a landscaped setting consistent with the existing and desired future character of the Sirius Slopes Townscape, as described in the RDCP and Applicant’s clause 4.6 written request. The development therefore is of a height and scale that achieves the desired future character; and

6. local amenity and, in particular, public and private views are maintained and the adverse effects of bulk and scale are minimised for the reasons set out in the Applicant’s clause 4.6 written request.

Decision

37. For the above reasons, the appeal is upheld.

Orders

38. The Court orders:

1. Leave is granted to rely on the Revision H Amended Plans in Exhibit A and as described in the agreed conditions in Annexure A.

2. The written request under clause 4.6 of the Mosman Local Environmental Plan 2012 is upheld.

3. The appeal is upheld.

4. Development Consent is granted to DA 8.2017.258.1 at 3 Sirius Avenue, Mosman for demolition of existing structures and construction of a two storey dwelling with basement parking, swimming pool and associated landscaping, subject to the agreed conditions in Annexure A.

5. The exhibits are returned upon publication of my decision to be finalised at the earliest opportunity.

………………………….

J Bindon

Acting Commissioner of the Court

Annexure A (119 KB, pdf)

Architectural Plans (19.7 MB, pdf)

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Amendments

30 December 2019 - Correction to typographical error in Parties section of cover sheet

Decision last updated: 30 December 2019