Steinberg v Mosman Municipal Council
[2008] NSWLEC 65
•11 February 2008
Land and Environment Court
of New South Wales
CITATION: Steinberg v Mosman Municipal Council [2008] NSWLEC 65 PARTIES: APPLICANT
RESPONDENT
Amanda Steinberg
Mosman Municipal CouncilFILE NUMBER(S): 11172 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- balcony, view loss, privacy. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Super Studio v Waverley [2004] NSWLEC 91 DATES OF HEARING: 11 February 2008 EX TEMPORE JUDGMENT DATE: 11 February 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr G. McKee, solicitor
of McKeesRESPONDENT
Miss J Walsh, solicitor
of Pike Pike and Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
11 February 2008
JUDGMENT11172 of 2007 Amanda Steinberg v Mosman Municipal Council
Introduction
1 This appeal relates to Development Application No 8.2007.55 which is mainly for the construction of a swimming pool in the rear of 22 Cobbittee Street Mosman.
2 The pool is to be 11.4 m long by 6.8 m wide and will, at the lowest part of the site extend about 2 m above ground level. It is to have "wet edges" along the its northern and western sides. Also to be constructed are associated privacy screens, hard paving, decking and pool coping together with retaining walls and steps to provide access to landscaped areas and the existing dwelling. Other aspects of the development application not in dispute include a balcony at first-floor level off bedrooms and associated doors, the installation of a rainwater tank and a number of soft landscaped area changes (to meet statutory requirements). The proposed pool structure is set back 2 metres from the northern (side) boundary and 2.1 m from the west (rear) boundary of the site.
3 The rectangular shaped site is situated on the western side of Cobbittee Street between the military reserve of HMAS Penguin and Dayrell Avenue. It falls to the north (rear) at an average gradient of 25%. Relevant to its relationship with 24 Cobbittee Street there is a stone retaining wall on the boundary that, towards the north western corner of the site is about 2 m high.
4 The site is developed with a part two and part three storey detached dwelling house. Surrounding development mainly consists of two and three storey detached dwelling houses.
5 The proposed development is permissible with development consent in the applicable residential zone under Mosman Local Environmental Plan 1998. The Mosman Residential Development Control Plan 1999 contains in section 7.4 particular provisions associated with swimming pools. The relevant objectives seek to minimise the impact of swimming pools on adjoining properties particularly in relation to visual and aural privacy and to maintain and enhance the landscaped quality of the locality. The associated planning guidelines deal with height and amenity. Section P8 requires that any pool surround must be located at or below existing ground level and section P9 requires that all structures above ground level are discouraged. Section P10 requires that any disturbance of the private amenity enjoyed by the occupants of adjoining properties is minimised.
6 The development application was advertised and three submissions were received. The submission from the then owner of 24 Cobbittee Street adjoining to the north expresses concerns about environmental insensitivity as a consequence of the loss of vegetation and habitat for native wildlife and its replacement with paved areas. This property has since been sold and the new owner no longer objects to the pool but is concerned to ensure that its appearance when viewed from her property is satisfactory. The submission from 20 Pretoria Avenue raises no objection to the proposed swimming pool taking into account the provision of a privacy screens and the retention of certain existing vegetation. The third submission relevantly seeks an assurance that there will be landscaping conditions to protect the privacy of adjoining properties.
7 The application was refused by notice of determination dated 19 July 2007 for 17 reasons. These reasons essentially comprise the unacceptable scale of the pool and its failure to respond to topography; in adequate setbacks from site boundaries; and unacceptable privacy impacts for neighbouring properties . According to the statement of contentions provided by the council these matters continue to be of concern, the reasons for refusal essentially being reflected in the statement of contentions. This statement particularises these as: unacceptable changes to the topography of the site resulting from the pool’s unacceptable height; the removal of significant vegetation; changes to ground levels and the resulting dominance of buildings over landscape; and the appearance from 24 Cobbittee Street is particularly problematical. Also, rock outcrops and the natural landform will be unacceptably altered. In relation to the requirements of the DCP the provision of soft landscaping is insufficient. Additional impacts on 24 Cobbittee Street involve the loss of visual and acoustic privacy.
8 In response to the concerns regarding the impacts on 24 Cobbittee Street and the height of the structure the pool design was modified by lowering it a little over 1 m and increasing its setbacks from the site and rear boundarys. Also the wet edge of the pool was extended to its western edge so as to limit opportunities for overlooking.
9 I was assisted by the expert town planning evidence of Ms S Winnacott and Mr W. Long by way of their joint report and oral comments as the hearing proceeded on site.
10 As a consequence of the changes to the pool design the remaining concern for the council as expressed by Ms Winnacott in the joint report comprises the height of the swimming pool above existing ground level, this being contrary to the DCP requirement that pool surrounds must be located at or below existing ground level. She was also concerned at the apparent height of the structure projecting as it will above the retaining wall on the common boundary, would not, as required by the DCP minimise the visual impact of the pool on the adjoining property. She also explained that the use of landscaping in an attempt to mitigate this impact was not an appropriate approach by reference to Super Studio v Waverley [2004] NSWLEC 91.
11 Whilst contemplating the scale and nature of the pool structure when viewed from 24 Cobbittee Street I observed that the character of the area surrounding the proposed pool was dominated by existing weathered sandstone walls, sandstone outcrops and a variety of vegetation types and sizes. In this context I suggested that if the exposed pool walls were to be clad in sandstone this would result in the pool being more sensitive to its environment. It would thus not need to be hidden by the proposed hedge that could be replaced with a variety of plantings more consistent with those existing. Mr Long agreed with these suggestions that were subsequently adopted by the applicant. Ms Winnacott agreed that this would produce a better outcome but reminded me that by not being at or below ground level the pool is contrary to the DCP requirement to this effect.
12 Having considered the amended proposal in the light of the requirements of the DCP I am now satisfied that the proposed pool (and associated facilities and works) now meets the objectives of the DCP in relation to visual and aural privacy and in terms of maintaining and enhancing the landscaped quality of the locality. In the circumstances, I am also satisfied that the specific requirement of section P8 need not be met.
13 For the above reasons I have thus decided that the appeal should be upheld and development consent granted in accordance with the agreed conditions.
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- T A Bly
Commissioner of the Court
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