Sun v Mosman Council

[2022] NSWLEC 1608

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sun v Mosman Council [2022] NSWLEC 1608

Hearing dates:

Hearing on 5 and 6 May 2022, written submissions on 17 May, 24 June, 14 July 2022 and 20 October 2022.

Date of orders:

03 November 2022

Decision date:

03 November 2022

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) The Applicant is granted leave to rely on amended plans as set out in Condition 1 of Annexure A.

(2) The three written requests under clause 4.6 of the Mosman Local Environmental Plan 2012 relating to building height, building wall height and FSR are upheld.

(3) The appeal is upheld.

(4) Development Application DA 8.2021.400.1 for the demolition of an existing dwelling house and the construction of a new dwelling house including swimming pool, basement carpark and landscaping works at 23 Burran Avenue, Mosman is approved, subject to the conditions in Annexure A.

(5) All Exhibits are returned with the exception of Exhibits 2, P,Q and R.

Catchwords:

Development Consent:- proposed new dwelling and swimming pool in R2 Low Density Residential zone – breach of height standard – breach of floor space ratio standard – breach of wall height standard – view loss

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 8.7

Land and Environment Court Act 1979, ss 34AA, 39
Mosman Local Environmental Plan 2012 cll 4.3, 4.3A, 4.4, 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land, cl 7
State Environmental Planning Policy (Resilience and Hazards) 2021
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 25, 26

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Mosman Development Control Plan 2012

Category:

Principal judgment

Parties:

Wai Ping Sun (Applicant)
Mosman Council (Respondent)

Representation:

D Briggs (Solicitor) (Applicant)
S Patterson (Solicitor)(Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/22031

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Mosman Council (Council) of development application DA 8.2021.400.1 for the demolition of an existing dwelling house and the construction of a new part two/part three storey dwelling house and associated swimming pool and basement garage at 23 Burran Avenue, Mosman (Site).

Proceedings

2. The proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). However, no agreement was reached and the matter proceeded to hearing.

3. The conciliation conference commenced with a view on site, attended by me along with the solicitors and town planning experts for both parties. Oral submissions from five objectors or their representatives were heard and they invited the Court and the parties to view their sites at 3 and 5 Fairfax Road, 15 and 17 Kirkoswald Avenue and 21 Burran Avenue.

4. The key concerns of the resident objectors can be summarised as follows:

• the proposed dwelling is out of character with the local area and does not achieve the desired future character under the Council’s planning controls;

• the proposed dwelling is of a form and massing that is inconsistent with the provisions of the Mosman Local Environmental Plan 2012 (MLEP) and Mosman Development Control Plan 2012 (MDCP) and does not respond to the low density character of the surrounding locality;

• the bulk, height and scale of the proposed dwelling is excessive and non-compliant with the MLEP; and the proposed dwelling has adverse amenity impacts (in particular view loss) on adjoining properties.

5. 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 held forthwith on 5 May 2022. The hearing was conducted in a “virtual” courtroom arrangement under the Microsoft Teams platform.

6. In preparing for the s34AA conciliation conference the experts, Mr Kim Burrell, planner for the Applicant and Mr Steven Layman, planner and architect for the Council, conferred and prepared a “Joint Report of Planning Experts” dated 4 May 2022 (Exhibit 3) and a supplementary joint report on 5 May 2022 (Exhibit 4) (Joint Reports). The Joint Reports related to the following documents:

• amended plans prepared by Keith Pike Associates, Revision A, dated April 2022,

• stormwater concept plans prepared by Instruct dated 20 April 2022 and

• three Clause 4.6 variation requests in relation to clause 4.3 height of buildings, clause 4.3 height of buildings (additional provisions) and clause 4.4 Floor Space Ratio (FSR).

7. The key amendment to the plans was a reduction in the height of the building by 1210mm, which is illustrated in the amended plans prepared by Keith Pike Associates, Revision A, dated April 2022. These amendments were considered by the experts in their Joint Reports (Exhibit 3 and 4).

8. At the commencement of the hearing, the Applicant sought leave, unopposed, to rely on the amended plans that reflected discussions held during the conciliation conference and were marked as Exhibit A.

Site and locality

9. I rely on Council’s Statement of Facts and Contentions (Exhibit 1) (SOFC) for much of the factual material in this and the following section.

10. The site is located on the northern side of Burran Avenue, in an unmade landscaped circuit which provides driveway access to 21-23 Burran Avenue and 3 Fairfax Road. It is irregular in shape with a dog leg frontage of 17.28m to the Burran Avenue unmade circuit, and eastern boundary of 47.1m and a 15.24m rear frontage. 

11. The site has an area of 666.5m² and has an approximate rise of 12m from the front to the rear. The site is currently occupied by a two storey rendered and brick dwelling with a hip and gable tile roof.

12. Surrounding development also consists of dwelling houses of varying heights and styles. 21 Burran Avenue adjoins the site to the east and is occupied by a part two/part three storey dwelling with a low pitch metal roof and a swimming pool located in the east side setback.

Proposal

13. The main features of the proposal are outlined in the table below:

Basement Level one	3 x car garage, with rainwater tank room, pool plant, staircase and lift to all habitable floors.
Level 2	Bedrooms 1-3, 3 bathrooms, laundry, terrace and above ground swimming pool on the raised terrace to the front of the dwelling house.
Level 3	Living room, dining room, kitchen and scullery and upper front terrace with a bridge to the garden area.
Level 4	Bedroom 4 with bathroom, lounge area and terraces to the front and rear.

14. The existing terraced rear garden is to remain as part of the proposal.

The Evidence

15. The planning experts, Mr Burrell and Mr Layman, were available to provide oral evidence at the hearing.

16. A number of documents were tendered in evidence, of which the following were of particular relevance to my consideration of this matter:

1. The Joint Reports (Exhibit 3 and 4), and the SOFC (Exhibit 1) that had been addressed by the planners in the Joint Report.

2. The Amended Plans, for which leave was sought prepared by Keith Pike Associates, dated April 2022, Revision A (Exhibit A);

3. Council’s Bundle of Documents (Exhibit 2) that included the MLEP, MDCP and the public submissions.

4. Various documents lodged as part of the Class 1 Application that remained relevant notwithstanding the changes made to the plans.

5. Written submissions from the Applicant filed with the Court on 17 May 2022, the Respondents written submissions filed with the Court on 24 June 2022 and the written submissions in reply filed with the Court on 14 July 2022.

6. The Respondent’s draft conditions of consent filed with the Court on 5 May 2022 and the applicant’s conditions in reply (Exhibit N).

The Planning Controls

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

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (formerly Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour REP)).

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (formerly State Environmental Planning Policy No 55—Remediation of Land)

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

4. Mosman Local Environmental Plan 2012 (MLEP)

18. Satisfaction of the requirements of the first three of the above-listed environmental planning instruments was not in contention, nor pressed in the proceedings. I have nevertheless considered them, as set out at [19]-[21] below.

19. State Environmental Planning Policy (Resilience and Hazards) 2021 (formerly SEPP 55) and State Environmental Planning Policy (Biodiversity and Conservation) 2021 (formerly the Sydney Harbour REP) apply to the site however the provisions of neither are relevant to the contentions in the case. These policies commenced after the Council had assessed the original application however, similar provisions applied in earlier policies and the Council’s assessment of the relevant issues concluded the proposal would not adversely impact the waterways and ecology. Having regard to the matters for consideration detailed in the current policies and the Council’s original assessment of the relevant issues, I am satisfied that the provisions of each do not fetter the grant of consent.

20. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. I accept the advice in the original SEE (Exhibit E) that as the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. I also note that there are no contamination issues in contention, and there are suitable conditions of consent included in the unlikely event that any contaminated material is revealed during demolition or excavation works.

21. In relation to the BASIX SEPP a revised Certificate Number 1249627S (Exhibit G) has been provided, demonstrating compliance with the BASIX SEPP.

The Mosman Local Environmental Plan 2012 (MLEP)

22. The site is zoned as R2 Low Density Residential (R2 Zone) under the MLEP. The relevant provisions are set out on page 5 of the SOFC (Exhibit 1).

23. The objectives of the R2 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.

24. The development the subject of the DA is permissible with consent. It exceeds, however, the height of buildings development standard (HOB development standard) set out in cl.4.3 of MLEP, the height of buildings (additional provisions) development standard (the wall height development standard) set out in cl.4.3A of MLEP and the floor space ratio development standard (the FSR development standard) set out in cl.4.4 of MLEP.

25. 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:

• It will provide for the housing needs of members of the community;

• It retains the single dwelling character of the environmentally sensitive residential areas of Mosman;

• 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 development and vegetation;

• 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;

• the development is of a height and scale that is consistent with surrounding dwellings and achieves the desired future character; and

• 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 requests.

26. The objectives of the height of buildings development standard at cl 4.3(1)(a) of MLEP are:

1. to share public and private views, and

2. to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

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

4. to minimise the adverse effects of bulk and scale of buildings.

27. The objectives of the wall height development standard at 4.3A(1A) of MLEP are:

1. to provide for view sharing,

2. to minimise the adverse effects of the bulk and scale of buildings,

3. to encourage 2-storey buildings consistent with the desired future character of the area.

28. The objectives of the FSR development standard at cl 4.4(1)(a) of MLEP are:

1. to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and

2. to provide a suitable balance between landscaping and built form, and

3. to minimise the adverse effects of bulk and scale of buildings.

4. to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off.

29. The applicant’s cl 4.6 requests (Exhibits P, Q and R) address the variations to these three development standards. It is agreed between the parties that the amended development proposal does not contravene any other development standards in the MLEP.

The Issues

30. The issues for consideration in this judgment are:

1. Adequacy of the three cl 4.6 written requests with respect to height of buildings, height of buildings (additional provisions) and FSR;

2. Height, bulk and scale;

3. View loss/sharing;

4. Siting of the swimming pool.

Issue 1- Contravention of height of buildings, wall height and FSR development standards

31. The Applicant provided three written cl 4.6 requests seeking to justify the contravention of the height of buildings development standard (Exhibit Q), the wall height development standard (Exhibit R) and the FSR development standard (Exhibit P). The applicant relied on the similar justifications for the exceedance of all three development standards, and so I deal with the three written requests together, other than to independently consider whether each written request has demonstrated that the specific objectives of each development standard are achieved (within the meaning of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (“Wehbe”) at [42]). I have also taken into account the oral evidence of Mr Burrell and Mr Layman.

32. The height of buildings development standard for the site is 8.5m. The variation, as agreed between the planners, involves a building with a maximum height of 8.95m, which is 450mm above the maximum building height of 8.5m in cl 4.3 of the MLEP.

33. The non-compliance with the building height control is limited only to the roof overhang to the front elevation at level IV, which extends across the terrace which is accessed from the lounge room and bedroom 4. In the western elevation (Drawing A14A(1)) (Exhibit L), the maximum height of the awning (which is shown to fall towards the front elevation) is 8950mm, a 450mm non-compliance with the development standard for a length of approximately 1300mm. That component is set back 3000mm from the western boundary. In the east elevation (Drawing A13A(1)) (Exhibit L), the maximum height of the awning is 8650mm, a 150mm non-compliance with the development standard, for a length of approximately 300mm. That component is set back 1500mm from the eastern boundary.

34. The wall height development standard for the site is 7.2m. The proposed development, as agreed between the planners, involves a variation with a maximum wall height on the west elevation of 8.29m and 8.25m on the east elevation. The non-compliance with the 7.2m wall height under cl 4.3A is therefore equivalent to 1.08m on the west elevation and 1.05m on the east elevation. 

35. The FSR development standard for the site is 0.5:1. There is disagreement between the experts regarding the extent of the FSR non-compliance. In the supplementary joint report filed with the Court on 5 May (Exhibit 4) it is agreed by the experts that the following gross floor area (GFA) is proposed:

• Level 4 – 66.45 m² - Exclusive of lift, duct and staircase

• Level 3 – 104.5m² - Exclusive of lift and duct space

• Level 2 – 148.5 m² - Exclusive of lift and duct space

36. The difference between the experts lies in the GFA attributable to Level 1. Mr Layman considers that if one accepts the applicant’s interpretation of the definition of GFA, the proposed GFA for Level 1 is 38.58m². This excludes from GFA the pool plant room, rainwater tank room, duct, MGB area, store, pedestrian access and manoeuvring for 2 car spaces. The third car space and its associated manoeuvring are included in GFA, as are other small areas not required for pedestrian access to car parking. This produces a total GFA of 358.03 m² or 0.5372 to 1. An excess of 24.78m².

37. Mr Layman further notes in the joint report that that there is no requirement for vehicles to enter and leave a dwelling house site in a forward direction. Neighbouring garages, for example at 25 Burran, have a double garage from which vehicles reverse off the site. Mr Layman is of the view that the manoeuvring within the basement does not constitute “parking to meet the requirements of” Council and the GFA of Level 1 is 98.8 m² which produces a total GFA of 424.2 m² or 0.636 to 1 (an excess of 90.95 m²).

38. Mr Burrell considers that the GFA of Level 1 is 32.5 m². This produces a total GFA of 351.95 m² or 0.53:1 or an excess of 18.7 m². I accept Mr Burrell’s argument about calculating FSR and that the FSR exceedance is 0.53:1.

39. The Applicant’s written requests justify the contravention of the height of buildings, wall height and the FSR development standards on the basis that compliance is unreasonable or unnecessary for the following reasons, which are summarised below as follows:

• The proposal’s height and scale achieve the desired future character and are consistent with the emerging character of development in the locality. It minimises the adverse effects of bulk because of the provision of acceptable setbacks from adjoining residential properties (buildings and private open space) and effective use of articulation.

• The additional FSR proposed is 18.7m² which is equivalent to a 3% non-compliance, which is situated below existing ground level at the rear of the building and does not contribute any unreasonable visual scale and bulk.

• Careful design consideration has been provided for all areas of the proposed dwelling and there are no undercroft areas.

• The building sits well within the prevailing built form and the facades of the proposed dwelling are well modulated and not visually dominating when viewed from the harbour and neighbouring properties.

• The proposed landscaping in the side setbacks complements the vegetation in the road reserve and the existing vegetation in the rear yard are retained.

• The proposal satisfies the objectives of the FSR control by providing effective spatial separation, enhances views and acceptably minimises shading of neighbouring properties.

• The height and scale of the proposed part two and part three storey dwelling is consistent with the scale of adjoining and nearby buildings and that contributes to the desired future character.

• The proposal acceptably minimises its visual impact particularly when viewed from Hunters Bay, the harbour and surrounding foreshores because its form, scale and height are consistent with nearby dwellings, and because it is situated on the upper Wyargine slope it will be mostly obscured from view from the foreshore because of intervening buildings and vegetation.

• The proposal provides a low pitched hip roof in combination with the parapet roof and is compatible with roofs of adjoining development and has the same height as the existing dwelling house.

• The proposal maintains a reasonable standard of local amenity and in particular public and private views, particularly the private views enjoyed by the northern and western side neighbours which have significant views of Hunters Bay and beyond.

• The proposal provides for a reasonable sharing of private views and will not have any unreasonable impact on public views.

• The proposal is consistent in height and character with its closest immediate neighbour, 21 Burran Avenue to the east.

• The proposal provides a part two and part three storey dwelling that may appear as four storeys in the street elevation. However, this is not uncommon for the locality and consequently results in a bulk and scale that is commensurate with the prevailing character of the streetscape.

• The proposal is an appropriate design for the site and appropriately balances the broader envelope controls having regard to the topography of the site.

• The non-compliance with the building height and wall height standards is as a result of the abrupt fall in slope of the land in the middle of the building footprint. It is noted that the dwelling complies with both wall height and building height at the rear of the house but approximately in the middle of the side wall, the dwelling complies with building height, but not wall height. The non-compliance is also attributed to the rise in the slope of the land from the front to the rear of the site but also to its significant cross fall from east to west.

• The non-compliance in relation to the height of buildings development standard is 450mm. This non-compliance results in a building height that is the same as the existing dwelling on the site. The difference between the existing dwelling and the proposal is that the proposed development’s building mass has been pushed to the north (the rear) in the lee of adjoining dwellings, thereby enhancing of views from these adjoining properties.

• The proposal provides front and rear setbacks that are consistent with 21 Burran Avenue. The consistency with front and rear setbacks also provides landscaping (front and backyards) generally consistent with this neighbour and other nearby dwellings generally.

• The bulk and scale of the proposed dwelling as viewed from the adjoining dwellings across boundaries is also acceptable because it is articulated, and its building height and side setbacks are generally consistent with its neighbours.

• The proposal affords significant improvement to the amenity of the approved dwelling.

• The proposed height and scale are consistent with the prevailing pattern of development in the locality and satisfactory in its context, and despite the non-compliances it will not result in any unreasonable residential or environmental impact.

• The proposal achieves the objectives of the three development standards.

40. In accordance with the requirements of cl 4.6(3)(a) of the MLEP, I am satisfied that the cl 4.6 requests have demonstrated that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. Applying the first test established by Preston CJ in Wehbe, the objectives of the standards are achieved notwithstanding the non-compliance with the standard. I accept the reasons contained in the cl 4.6 requests as demonstrating achievement of the objectives, and specifically that the proposed development provides for view sharing of public and private views, is compatible with the desired future character of the area in terms of building bulk and scale, that the adverse effects of that bulk and scale are minimised, that there is a suitable balance between landscaping and built form, and that excavation is limited.

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

42. The applicant’s written request defends the exceedance of the height of buildings development standard, the wall height standard and the FSR standard for the reasons listed above at [39]. I am satisfied that the applicant’s written requests have adequately addressed that that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, and that there are sufficient environmental planning grounds to justify contravening the development standards.

Desired Future Character - Height Bulk and Scale

43. The evidence provided by Council’s expert, Mr Layman is that the cumulative non-compliances with the HOB development standard, the wall height development standard and the FSR development standard, result in a bulk and scale that is inconsistent with the desired future character of the area. Mr Layman is also of the view that the design of the building is bulky, higher and larger than its immediate neighbours, and does not integrate well with the landform (Exhibits 3 and 4 Joint Expert Report).

44. Mr Layman has suggested that the proposed development (as amended) should be further lowered in height by 1090mm. Mr Layman says that the proposal could comply with the maximum building height control and maximum wall height control by excavating the basement to lower it to a further 1090mm, and that a reduction in the building height and wall height, along with re-siting of the swimming pool could address a number of the Council’s contentions.

45. Mr Burrell, on the other hand, submits that the proposed development, as amended, is compatible with the existing and desired future character of development in the locality. Mr Burrell was also of the view that a further lowering of the building, beyond the height reduction in the amended plans, (Exhibit A) is unreasonable in view of the fact that the non-compliance is equivalent to 450mm. Further, that the amended plans have resulted in a building with the same height as the existing dwelling on the land and the non-compliance with the maximum building height and wall height are comparable to neighbouring dwellings, in particular 21 and 25 Burran Avenue. I accept and prefer Mr Burrell’s evidence that the proposed dwelling, as amended in Exhibit A, is compatible with the existing and desired future character of the area and has minimal impacts on the amenity of neighbouring dwellings.

View loss/sharing – public and private views

46. In relation to the issue of view loss and view sharing, the Court had the benefit of a site inspection and to hear from the owner of 3 Fairfax Road and town planning experts providing oral submissions to the Court on behalf of the owners at 5 Fairfax Road and 13 & 15 Kirkoswald Avenue.

47. I note that at the site view, Mr Arnold, the owner of 3 Fairfax Road made clear that no objection is raised to the proposal and indeed the proposal is supported over the current Council approved plans and acknowledged that their views to north head will improve by the removal of the existing house and replacing it with a house of the same height, that steps back, as it rises.

48. The representatives of 13 and 15 Kirkoswald Avenue also acknowledged that there would be no view loss as a result of the proposed development.

49. In relation to 5 Fairfax Road, the experts agreed that the lowering of the building by 1210mm (refer to Exhibit A) to a level the same as the ridge level of the existing building has reduced the view impact from 5 Fairfax Road Mosman compared to the original proposal.

50. Mr Layman is of the view, that the proposed development will still adversely affect private views, in particular those from 5 Fairfax Road, and compliance with the maximum building height standard would reduce the bulk of the building and minimise its impact on views of the waterway from 5 Fairfax Road (Exhibit 3 and 4).

51. On the other hand, Mr Burrell’s evidence is that the proposal will not adversely affect views from 5 Fairfax Road and will have no impact on views from its main living areas and will enhance views from the lowest recreation level opening up a more iconic view of Middle Head (Exhibit 3 and 4). Mr Burrell’s evidence is that:

1. The occupants of 5 Fairfax Road have the benefit of substantial views of Sydney harbour, from the south of Middle Head to the north of North Head, taking in expansive areas of the harbour water itself and beyond the opening to the ocean;

2. Those views are available over 3 levels and most of the lowest fourth level without any impact;

3. The extent of the impact is limited to a small portion of the room identified as “Kitchen 2” that has its primary orientation to the pool and its surrounds. The water views form part of that broader field of view;

4. The existing dwelling obstructs the interface between North Head and the water from a seated position within that room however it is available from the standing position. That circumstance will not change as a consequence of the proposal;

5. The extent of the field of view available from that location as is the case generally, is that more easterly views improve as a consequence of the demolition of the existing dwelling and the construction of the proposed dwelling;

6. The proposal will provide for more views of the water from 5 Fairfax Road, enhancing the view extent - as is sought by the controls - than that which is currently available with the existing dwelling.

52. In consideration of the expert evidence, I accept the opinion of Mr Burrell that the view loss to 5 Fairfax Road constitutes reasonable view sharing. There are expansive views available from a standing position within the open plan living area and from an outdoor terrace at the upper level of 5 Fairfax Road and the extent of views will be enhanced by the proposed development. 

53. On assessment of the proposed development against the planning principles set out in Tenacity Consulting v Warringah Council [2004} NSWLEC 140 (“Tenacity”) the extent of view loss from the adjoining properties is limited in qualitative and quantitative terms, particularly having regard to the expansive views available from 5 Fairfax Road, from all levels of that dwelling and pool terrace. The extent of view loss is largely limited to a seated position within the lowest level of that dwelling.

54. Applying the Tenacity view sharing principles and the relevant provisions of MDCP 2012 (Part 4.3), it is my view, based on the evidence, that the proposed development does not significantly obstruct the views enjoyed from the living and entertainment areas on 5 Fairfax Road or other surrounding private dwellings. I therefore accept the Applicant’s evidence that proposal does not result in the material loss of any private or public views.

Clause 4.6 Variation Requests - Environmental Planning Grounds

55. Having viewed the site and considered the evidence of the two planning experts and the Applicant’s three clause 4.6 variation requests, I accept and prefer Mr Burrell’s evidence, that compliance with the three development standards is unreasonable and unnecessary, and that there are sufficient environmental planning grounds to justify contravening the development standards.

56. Mr Burrell asserts that the height and scale of the proposed dwelling is consistent with the scale of adjoining and nearby buildings which contributes to the desired future character. He also noted that the proposal provides a suitable balance between landscaping and built form, provides for acceptable view sharing between adjoining properties and has limited impacts on public views from Hunters Bay and the public realm.

57. I accept the Applicant’s assertion that the proposal’s height and scale achieve the desired future character and are consistent with the emerging character of development in the locality. I also accept the Applicant’s argument that the proposal minimises the adverse effects of bulk because of the provision of acceptable setbacks from adjoining residential properties and effective use of articulation. I am also satisfied that the proposed dwelling sits comfortably in its context and is consistent with the surrounding built form, which consists predominantly of three storey dwelling houses. In particular, the proposed dwelling is similar in height, bulk and scale to its immediate neighbour to the east, 21 Burran Avenue.

58. In accordance with the requirements of cl 4.6(3)(b), I am satisfied that the three cl 4.6 requests have demonstrated that there are sufficient environmental planning grounds to justify contravening the development standards of building height, wall height and FSR. I have reached this conclusion for the reasons set out in the three cl 4.6 requests and taking into account Mr Burrell’s oral evidence that there were, as a result of the amendments illustrated in the Amended Plans, now sufficient environmental planning grounds to warrant the proposed departure from the building height, wall height and FSR standards.

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

60. 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 the cl 4.6 requests, and

2. it is consistent with the objectives for development within the “Zone R2 Low Density Residential” zone in which the development is proposed to be carried out, for the reasons set out in the cl 4.6 requests.

Issue 2 - Height Bulk and Scale

61. The issue of height, bulk and scale is dealt with above in my consideration of the adequacy of the three cl.4.6 written requests in paragraphs [43] to [45].

62. In summary, having inspected the site and considered the evidence provided by the planning experts, the clause 4.6 requests and the written submissions, I am satisfied that the proposal has an appropriate relationship to its neighbouring development and to the topography and in that context, the proposal has an acceptable height, bulk and scale.

63. It is my view that the proposal is of a height, bulk and scale that is consistent with the emerging character of development in the locality, in particular the adjoining dwelling at 21 Burran Avenue and consequently does achieve what is sought by the desired future character.

Issue 3 - View loss/sharing

64. The issue of view loss/sharing is dealt with in detail in my consideration of the three clause 4.6 requests in paragraphs [46 -54]

65. In summary, having considered the evidence of the experts, the clause 4.6 requests, the written submissions and inspected the site I am satisfied that there is an appropriate sharing of private and public views. The development is of a height and scale that achieves the desired future character of the area and has been designed to maintain local amenity and, in particular, public and private views and allows the sharing of those views.

Issue 4 - Siting of the proposed swimming pool

66. A primary focus of the dispute is the location of a swimming pool at the front of the property, and in an elevated position on the Level 2 terrace of the proposed dwelling facing Burran Avenue.

67. The Respondent submits that the objectives and controls of the MDCP do not support swimming pools, being located forward of the front building line, or where the coping level of the pool protrudes above the ground level and that elevated pool structures are expressly discouraged.

68. According to Part 6.2 of MDCP the following objective and planning controls apply in relation to the siting of swimming pools:

“O1. To have pools, spas and water features appropriately located to minimise the visual impact of the structure, and their impact on the amenity of adjoining residents.

Siting:

P1. Pools/spas should be located behind the front building line, preferably at the rear of the main building.

P4. Any pool/spa surround must be located at or below ground level (existing). Elevated pool/spa structures above the natural ground level are expressly discouraged. If a pool/spa structure is proposed that is located above the ground at any point, the finish of the structure should blend into the background environment and or landscaping and not be visible from a public place.”

69. The Applicant considers the pool to be fully integrated into the front façade of the dwelling and, due its elevated position, it will not be possible for any person passing the site in the public domain to realise that a pool is located behind the stone faced wall, and it will not appear any different than if it were another kind of outdoor amenity such as a deck or terrace.

70. The Respondent considers it likely that the pool will be read from the public domain whenever it is in use. For example, the splashing and bobbing heads of those in the pool are likely to be visible from Burran Avenue. According to Mr Layman, the pool would be better located at ground level and to the side or rear of the dwelling house.

71. The Respondent submits that the proposed objective of the MDCP is not met which states:

“To have pools, spas and water features appropriately located to minimise the visual impact of the structure, and their impact on the amenity of adjoining residents”

72. However, the Applicant submits that due to its location on a terrace which is integrated into the design of the house it will blend into the background environment, which minimises the visual impact of the structure so that it will not be visible from a public place.

73. Mr Burrell’s evidence is that the proposed pool is not visible from a public place, as it is integrated into the design of the dwelling and located on Level 2, more than 2.5 metres above the ground level (Exhibits 3 and 4). Mr Burrell noted that the public will not be able to discern the swimming pool, except when it is being used and to that extent only minimally because it is behind a stone faced wall and a considerable distance from the street.

74. Mr Layman was of the contrary view, that the location of the pool is visible from a public place due to the elevation and position in front of the proposed dwelling and that a person standing in the public domain within the road reserve would identify a person in the pool would be from their heads above the waterline (Exhibits 3 and 4).

75. I accept that the pool is, the forward-most element in the front setback, and so is deserving of careful consideration in relation to Part 6.2 of MDCP which advises that pools should be located behind the front building line and preferably at the rear of the dwelling.

76. Having inspected the site, prior to the hearing commencing, I concur with Mr Burrell’s evidence that the proposed location of the swimming pool would not be visible from the public domain, due to its elevated nature on the terrace which is approximately 2.5m above street level.

72. In arriving at this conclusion, I consider it relevant that the angled stone plinth enclosure to the pool provides none of the usual visual cues traditionally associated with a swimming pool that would suggest its use or distinguish it as anything other than part of the façade composition.

73. From an amenity perspective, I consider the likely use of the pool, being largely a daytime activity, to be unlikely to conflict with the use of the adjoining dwellings, noting that the adjoining neighbour at 21 Burran Avenue has a swimming pool in the side setback.

74. For the reasons stated above, I am satisfied that the pool, is integrated with the design of the main dwelling in a coherent architectural expression, and I am further satisfied that due to its elevated nature above the street the view of the pool from the public domain is minimised. For these reasons, I am satisfied pursuant to 6.2 of MDCP that the development is located to minimise the visual impact of the structure, and its impact on the amenity of adjoining residents is acceptable.

Conditions of consent are disputed

80. The Respondent’s without prejudice conditions of consent were filed with the Court on 5 May and the Applicant’s conditions in reply were provided to the Court as Exhibit N. Several conditions were disputed by the Applicant, including Conditions 11, 16, 20, 27, 28 and 33.

81. Regarding Condition 11, the Respondent Council says the properties listed for dilapidation reports are all adjoining properties to the subject site and given the proposal involves a significant amount of excavation and change to the landform of the site it is necessary to include all adjoining properties in this condition. The Applicant says the condition is too onerous in the circumstances and says the amended condition allows the appointed Accredited Certifier to determine the extent of dilapidation reports upon assessment of the bulk excavation plans and geotechnical advice. I concur with the Council’s reasoning that there is significant excavation proposed and therefore all of the adjoining properties should be included in the condition requiring a dilapidation report to be prepared.

82. Condition 16 relates to the need for onsite detention. The Council says this is a standard engineering condition and confirms the need for OSD. The applicant says it is met by the drainage plans proposed by the application. I am satisfied that this condition should be retained.

83. Condition 20 requires the preparation of a new landscaping plan. The applicant says that the Respondent Council has not contended that the landscape plan is inadequate nor the proposed plantings are unsatisfactory. Further, the late receipt of the Council’s contentions has prejudiced the applicant’s ability to respond to the proposition put by the Council by this condition. The Respondent Council does not oppose the applicant’s proposal to delete this condition and therefore this condition has been deleted in the final conditions in Annexure A.

84. Condition 27 relates to stormwater management and the Respondent Council says this is a standard engineering condition and confirms need for to connect stormwater to the street gutter. The applicant says it is met by the drainage plans proposed by the application. I am satisfied that this condition should be retained.

85. Condition 28 relates to stormwater drainage and the Respondent Council says this is a standard engineering condition. The applicant repeats the same argument above (Condition 27) and says it is met by the drainage plans proposed by the application. I am satisfied that this condition should be retained.

86. Condition 33 relates to tree protection and the Council says this is a standard condition that is based on the Australian Standards for tree protection, regarding any inconsistencies reference should be made to AS 4970 - Protection of Trees on Development Sites for clarification. The applicant proposes an alternative form of condition and relies upon the “CAPS” remarks in the applicant’s version of the conditions. I am satisfied with the Respondent’s condition which requires compliance with the Australian Standards.

Decision

87. Having considered the submissions of the objectors, the evidence of the expert planners and the written submissions of the parties, as well as the matters for consideration under s 4.15 of the EPA Act, and taking into account my own observations at the site view, I am satisfied for the reasons set out in this judgment that:

1. The cl 4.6 requests for a variation to the building height, wall height and floor space ratio development standards (Exhibits P,Q & R) are well founded; and

2. The proposed development, as amended by the Amended Plans (Exhibit A), is acceptable in terms of its environmental impacts, subject to conditions; and

3. There are no jurisdictional impediments to the granting of consent.

88. I therefore find that the proposed development should be approved, subject to the conditions as agreed between the parties.

Orders

89. The Court orders that:

1. The Applicant is granted leave to rely on amended plans as set out in Condition 1 of ‘Annexure’ A.

2. The three written requests under clause 4.6 of the Mosman Local Environmental Plan 2012 relating to building height, building wall height and FSR are upheld.

3. The appeal is upheld.

4. Development Application DA 8.2021.400.1 for the demolition of an existing dwelling house and the construction of a new dwelling house including swimming pool, basement carpark and landscaping works at 23 Burran Avenue Mosman is approved, as set out in the conditions in Annexure A.

5. All Exhibits are returned with the exception of Exhibits 2, P, Q and R.

……………….

L Sheridan

Acting Commissioner of the Court

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Decision last updated: 03 November 2022