Sandclue Pty Ltd v Mosman Municipal Council

[1999] NSWLEC 160

Land and Environment Court

of New South Wales

CITATION:

Sandclue Pty Ltd v Mosman Municipal Council [1999] NSWLEC 160

PARTIES

APPLICANT
Sandclue Pty Ltd

RESPONDENT
Mosman Municipal Council

NUMBER:

10194 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Development :- Town planning - failure of proposal to comply with zone objectives - detrimental impact upon amenity of adjoining properties and streetscape - limited circumstances in which requirements may be waived

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

08/02/1999; 08/03/1999; 08/04/1999

DATE OF JUDGMENT DELIVERY:

08/26/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay (Barrister)

SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Mr D Miller (Barrister)

SOLICITORS
Hill Thompson & Sullivan

JUDGMENT:

Introduction

1. In these proceedings a class one application filed on 18 March 1999 was made by Sandclue Pty Ltd (“the applicant”) to the Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) against the deemed refusal by the respondent (“the council”) of development application no 803 (“the development application”). The development application lodged with the council on 17 December 1998 sought approval for the demolition of an existing dwelling at 2 Burton Street Mosman (“the site”) and the construction of a new four bedroom residence with swimming pool and two car garage (“the proposal” or “proposed development”).

2. The site is located on the corner of Burton St and Congewoi Road in a residential 2(a1) zone pursuant to the provisions of the Mosman Local Environmental Plan No 1 (“the LEP”) which prevailed at the date the development application was lodged. In accordance with such zoning, the development proposal is permissible with consent.

Relevant Planning Instruments

3. By Government Gazette no 178 published 24 September 1998 the Mosman Local Environmental Plan 1998 became operative. It included various provisions which would, if applicable have operated to the detriment to the applicant. However cl 10(2) of such plan contains a saving provision as follows:-

10 (2) Despite their repeal by clause 4 of this plan, local environmental plans applying to Mosman that were in force immediately before the commencement of this plan continue to apply, as so in force, to development applications that were made but had not been finally determined before that commencement.

Accordingly the court is required to determine this appeal as if the current plan did not exist.

4. A Residential Development Control Plan (“the RDCP”) also adopted by the council establishes performance objectives and development standards within various zones of the Mosman municipality including the subject residential zone. The RDCP inter alia states:-

It is imperative that applicants satisfy the objectives. Mere compliance with the development standards does not ensure that development approval will be granted by Council.

5. Various objectives are included in the RCDP, the general objective of which is stated inter alia, as follows:-

2.1 The purpose of this plan is to preserve the environmental qualities and character of residential areas within the Mosman Council area, and to ensure that future development reinforces these qualities.

Certain specific objectives are identified including the following which are relevant:-

2.2.5 To ensure that all new residential development maintains and enhances the townscape qualities of residential areas.
2.2.6 To retain and improve residential amenity in terms of access to sunlight, views and privacy wherever reasonable.

6. The council has adopted a control plan specifically related to the development of swimming pools entitled Swimming Pools, Spa Pools/Baths and Water Features, which is also known as Development Control Plan No 4 (“DCP No 4”). Also tendered in evidence is a publication entitled Mosman Urban Design Study dated 22 November 1990. Such study identifies certain specific areas within the municipality of Mosman which according to the study have a distinctive character and have been subjected “ to considerable unsympathetic change ”. One such area includes Quakers Hat Bay Ridge which the parties have accepted includes Burton St.

7. Against objection by the applicant, a Draft Residential Development Control Plan dated May 1999 was tendered. Since such plan is only a draft it cannot provide any assistance to the court.

The Proposal and Expert Evidence

8. Expert evidence has been adduced by both the council and the applicant concerning various aspects of the proposal. In opposition to the proposal Mr Peter Moffitt, an architect engaged by the council has provided a statement, as has Mr Michael Blakeney an architect retained by the residents. For the applicant, Mr Terence P Byrnes an architect and town planner has been retained. Oral evidence was provided by two residents who are opposed to the proposal, and a petition of objection has been admitted into evidence.

9. The council challenged the credit of the expert witness for the applicant by referring to a similar case Melocco By Design Pty Ltd v Mosman Municipal Council (unreported no 10716 of 1994), in which Mr Byrnes and Mr Murray both expressed opinions alleged to be contradictory in nature to the present development proposal. Whilst the court recognises the difficulty in the transferral of expert evidence into opinion and the need for expert witness to avoid any ‘veiled’ advocacy a conclusion cannot be drawn that the same factual considerations apply.

The Issues

Landscaping

10. Clause 16(1) of the LEP provides:-

16 (1) The aims of this clause are:-

(a) to control building bulk by controlling the relationship of total floorspace to site area; and

(b) to maintain and enhance the landscape and townscape character of Mosman’s residential areas.

An issue exists between the parties concerning compliance with the requirements of the LEP. The site has an area of 584 m2. Pursuant to cl 16 of the LEP, 90 per cent of gross floor area is to be landscaped. The extent of the gross floor area of the proposed dwelling is not agreed. The areas in dispute comprise the loggia, a column, a void on the first level and an area within the garage.

11. The LEP adopts the Environmental Planning & Assessment Model Provisions 1980. The definition of “ gross floor area ” in such Provisions includes the sum of the areas of each floor within the outer face of the external enclosing walls, subject to certain exclusions. Various calculations have been provided to the court. Upon the council’s calculations, the maximum compliance for the provision of landscaping under the proposal is 88.2 per cent, namely 1.8 per cent less than the requirement of the LEP. If the area comprised in the loggia is deleted from the calculation of gross floor area the landscaping provision amounts to 92.7 per cent of the gross floor area which would result in compliance. If the loggia and void are excluded from the calculations of gross floor area, the ratio of landscaped area rises to 93.4 per cent.

12. I reject the proposition that the floor space of the loggia which is bounded by the external walls of the building and covered by a roof should be excluded from the gross floor area calculations. Such space, being enclosed by external walls, constitutes floor space to be included in gross floor area. Further, to exclude the column on the eastern face of the building is erroneous. The definition of gross floor area contained in the Model Provisions requires that the column be “ outside the general line of the outer face of the external wall ”. It could not be said that such column is “ outside ” the general line of the external wall. Rather the column forms part of it and accordingly the area contained therein cannot be excluded from the definition of gross floor area.

13. In respect of the void it is argued by the council that one must have regard to the gross floor area of each floor. This Court has already determined in Darlinghurst Residents Association v Elarosa Investments Pty Ltd & Anor (No 2) (LEC no 40225 of 1991 Stein J) that a void is not to be regarded as part of gross floor area. The court will follow that decision with the result that the void area on the first floor of the proposal is not to be included in the calculation of gross floor area. Such an approach is consistent with the definition of “ floor ” as contained in the Model Provisions which provides:-

“floor” means that space within a building which is situated between one floor level and the floor level next above or if there is no floor above, the ceiling or roof above

14. The definition of gross floor area excludes “ car-parking needed to meet any requirements of the council and any internal access thereto ”. The council contends that the area of the garage exceeds council requirements of 28 m2 for two car spaces. The total proposed garage area is 36 m2. Such definition excludes car-parking only to the extent needed to meet any requirements of the council. Accordingly if council does not require any area in excess of 28 m2 for such purpose, the excess area is to be incorporated in the calculation of gross floor area.

15. Taking into consideration the above, the maximum gross floor area is that calculated by council namely 349.725 m2 less the void which is 2.42 m2 leaving a gross floor area of 347.30 m2. Ninety percent of this area amounts to 312.57 m2 which is the requirement for landscaping prescribed by cl 16(4) of the LEP. As far as the evidence establishes, the landscape area is less that the minimum requirement by approximately 11.51 m2.

Noise and Proximity of Swimming Pool

16. The council’s DCP No 4 incorporates objectives which include the following:-

(i) To ensure that the siting of Pools, Spas and Features minimises their impact on adjoining properties, buildings and people;

(ii) To minimise the adverse impacts on amenity enjoyed by adjoining properties, buildings and people;

More specifically, cl 2.11 of DCP No 4 which relates to the siting of a pool states as one of the objectives:-

To ensure the maintenance of the amenity of the residential area, particularly as it relates to privacy, noise and landscape quality…

Clause 2.21 of DCP No 4 which deals with the amenity of a pool requires consideration be given to “ possible adverse impacts of a pool, spa and/or feature to the amenity of the adjoining residents, property and the public domain .” In this respect, cl 2.22 thereof makes specific provision concerning impact of noise and requires that pools or spas shall be located no closer than 8 m from any habitable room window and 4 m from any usable recreation space of an adjoining property.

17. According to the council’s expert Mr Moffitt, the proposed swimming pool would be located too close to the adjoining property to the west namely No 4 Burton St. The pool would be constructed in close proximity to the boundary between the site and No 4 Burton St. At least one window of the house at No 4 Burton St containing a habitable room is less than 8 m from the edge of the proposed swimming pool and the existing recreation space in the rear yard of those premises is only 2 m from the proposed swimming pool rather than the 4 m specified. Mr Moffitt is concerned that a pool located in such a proximity to the adjoining premises would result in an unacceptable noise impact to its occupants.

18. Mr Byrnes for the applicant has contended that the location of the pool and its elevation up to 500 mm above natural ground level will not cause adverse impact to the amenity on the adjoining property. Clause 2.16 of DCP No 4 requires that any pool must be located at natural ground level but does give council a discretion to consider approval to a pool which is not to be located at natural ground level if certain specific conditions are satisfied. One condition requires that it should not “ effect [sic] the privacy enjoyed by adjoining neighbours ”.

19. To counteract the concerns, the applicant has offered to build a glass screen which it claims would have the effect of limiting noise transmission. Such screen would be constructed to a height and in a location along a proposed planter box to ensure that noise would be minimised.

20. Mr Murray gave detailed evidence of noise associated with swimming pools and expressed his opinion that such noise is generally accepted as a typical residential noise. He has provided data concerning the impact of various types of noise. He did not perceive that noise known as “canyoning” namely reverberation between buildings, would of itself necessarily constitute a difficulty. He observed that whether noise is disturbing depends on the receptor and that there was not a significant noise problem associated with the proposal.

21. It is apparent from the data that very loud voice level used beside the pool would exceed daytime, evening and night time criteria and that at times there would be other interference. In his report Mr Murray said:-

Based on the assumption of people standing on the deck, there is a potential that noise levels from the louder activity may cause intermittent disturbance to the occupants of 4 Burton St depending upon their attitude and where they are located within the premises.

22. I prefer the evidence of Mr Moffitt. Having considered the expert evidence I am satisfied that the proximity of No 4 Burton St to the swimming pool has the potential to cause significant impact upon the amenity of residents of No 4 Burton St. Such disturbance would be caused by noise associated with the activity surrounding a pool and by the normal use of the swimming pool.

Townscape Considerations

23. The proposal involves the erection of a two storey house of substantial proportions. Although the building would now, as a result of certain adjustments, be within the height limit prescribed by the LEP, its proximity to Congewoi Rd and the bulk of the building itself would present a very prominent structure. Such prominence is caused because of the topography. Congewoi Rd tends to rise up near the intersection with Burton St as one travels in a northerly direction along Congewoi Rd towards the site. The location is bounded on the east side by houses set on a steep ridge and to the west by houses which are predominantly hidden or inset.

24. Mr Byrnes has described the dwellings surrounding the site as follows:-

The immediate area abounds with a variety of building styles from different periods and fashions ranging from a nearby timber cottage with a metal roof a few doors away, through to the currently fashionable neo-Tuscan villa diagonally opposite. The area is dominated by the pitched roofs of the generally very individual dwellings: dictated by the terrain and the extent of additions in many cases.

25. In relation to the proposed development he described it as follows:-

The proposed development is representative of contemporary architecture with concrete rendered walls and a flat colour bond roof. The contemporary design is characteristic of several other existing dwellings found throughout the area and would be in keeping with the above Character Description and Planning Objectives.

26. Mr Moffitt and Mr Michael Blakeney take issue with Mr Byrnes’ opinion. Both Mr Moffitt and Mr Blakeney express the opinion that the development would create a negative impact upon the streetscape and is out of character with the existing development. Mr Blakeney expresses the view that the proposed metal deck roof forms are totally out of character with the surrounding pitched and tiled roofs.

27. There was much cross-examination of the experts concerning the extent of the streetscape and of the notion of “precinct”. Ultimately the proposal must be considered against its appearance in the streetscape and against all of the evidence including the Planning Objectives of the Design Guidelines adopted by the council which have been summarised in Mr Byrnes report:-

5.23 The Planning Objectives of the Design Guidelines are as follows:

· Keeping those buildings and all their architectural details which contribute to the identity and character of these townscape areas;

· Encouraging changes (as opportunities arise) which will redress unsympathetic development; and,

· Encouraging new development to fit in with the existing character of these townscape areas.

28. The RDCP contains provisions concerning set-backs of buildings to preserve streetscape. Many of the objectives are to minimise the impact of new developments upon adjacent existing places and to ensure that new buildings “ fit in with the alignment of adjacent buildings or the general building alignment of the street ”. The planning measures in relation to set-backs are contained in cl 7.2 of such plan. Various matters are to be taken into consideration including streetscape characteristics (7.2.1.1); visual impact of the proposal on existing development (7.2.1.2); and relationship of the scale and bulk of the proposed development to the townscape attributes of the locality (7.2.1.3). Further, special considerations relate to garages. Clause 7.8.5 of the plan requires a minimum of 1 m set-back from all alignment boundaries. The proposal provides only 0.4 m set-back from the side or southern boundary. In this respect the proposal does not accommodate the objectives of the RDCP.

29. Whilst it may be true that the houses on either side of Congewoi Rd in the vicinity of the site do not exhibit any specific uniformity, they are not discordant with one another in terms of comparative bulk and prominence. The effect of the proposal would be one of dominance which is exacerbated by the sheer walls and curved metal roof. It is clearly not in keeping with the existing streetscape. Having considered the evidence and held a view, I accept Mr Moffitt’s expert opinion that the proposed development is not compatible with objectives of the RDCP.

Views

30. Clause 8.1 of the RDCP states the objectives in relation to various matters including views. Clause 8.1.2 states as follows:-

To minimise the obstruction of views from adjoining buildings and to keep where possible and enhance, existing public views.

Clause 8.3 provides that buildings should be sited to minimise obstruction of existing private views from existing buildings.

31. Numerous objections to the proposal have been received from neighbours in the vicinity, especially those whose views might be affected. The houses on the eastern side of Congewoi Road namely number 37, 39, 41 and 43 will to some extent be affected by the proposal. The current vistas from each of these houses would be impaired by the very intrusive bulk of the proposed development. It would be exacerbated by the use of the building materials proposed namely colour bond roofing and stark exterior surfaces.

32. No 41 Congewoi Rd currently enjoys views to the north and to the west where a bay and ridge line can be seen. The proposal would obliterate the current vista to the west from 41 Congewoi Rd. A suggestion to lower the height of the rear portion of the proposed building by 500 mm would not greatly ameliorate the substantial impact of the presence of the proposal and its intrusion into the westerly aspect from No 41 Congewoi Rd. The proposed building does not accord with the objectives nor the requirements of the RDCP in relation to views.

Public Interest

33. Objections received by council indicate a substantial aversion by the local residents to the proposal predominantly for reasons of “bulk”, “scale” and the feeling of “dominance” it would impose on the surrounding neighbourhood.

34. The evidence suggests a lack of adequate consideration for the amenity of the streetscape the importance of which should be a foremost and integral consideration of any development proposal. The result is a proposal that displays an absence of empathy with the site and its surrounds.

Conclusion

35. The importance of meeting not only numerical compliance but satisfying the objectives of relevant planning instruments was conceded by both parties. However the applicant argued that compliance with numerical requirements of a planning requirement implied a compliance with its objectives. An applicant must establish that all of the relevant requirements of a planning instrument are to be satisfied. It can be assumed that they have been formulated by the council following the due process of consultation and consideration, and represent the culmination of sound planning objectives for the locality. Such standards are to be observed unless there are extenuating circumstances which justify a departure. Satisfaction by an applicant of numerical standards for development is but one consideration.

36. Consideration of both criteria by the court has found the proposal does not comply with the numerical requirements of the LEP in relation to landscaping and the RDCP in relation to set-backs; the swimming pool; garage and gross floor area. The architectural design is also inappropriate for the site. It does not represent thoughtful town planning and adversely affects the amenity of surrounding residences contrary to the clear objectives of the RDCP. There are no circumstances before the court to justify a departure from the specified criteria relating to the proposed development and therefore the council’s decision to refuse the development application should be upheld.

Orders

37. The court orders:-

1. The appeal be dismissed.

2. The exhibits be returned.