Sybele Christopher v Mosman Council

[2020] NSWLEC 1140

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sybele Christopher v Mosman Council [2020] NSWLEC 1140
Hearing dates:	Conciliation conference on 13 March 2020
Date of orders:	25 March 2020
Decision date:	25 March 2020
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1)   Leave is granted to amend the application to include subdivision (boundary realignment) with 7 Sirius Avenue, Mosman and to rely on the Issue E plans and subdivision plan as described in condition 1 in Annexure “A”. (2)   The written requests under clause 4.6 of the Mosman Local Environmental Plan 2012 are upheld. (3)   The appeal is upheld. (4)   Development Consent is granted to DA 8.2017.259.1 at 5 Sirius Avenue, Mosman for demolition of existing semi-detached dwelling and construction of a new dwelling, garage, fence and fence, and boundary adjustment (subdivision), with associated works subject to the agreed conditions in Annexure “A”. (5)   The exhibits are retained except for Exhibits 1 and F.
Catchwords:	DEVELOPMENT APPLICATION – dwelling house – clause 4.6 variations for wall height and minimum lot size – view impacts – minor boundary adjustment (subdivision) – objections
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:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Rini Pty Ltd ATF Misamtay Trust v Mosman Municipal Council [2019] NSWLEC 1636 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Mosman Development Control Plan 2012
Category:	Principal judgment
Parties:	Sybele Christopher (Applicant) Mosman Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) R McCulloch (Solicitor) (Respondent)   Solicitors: Szabo and Associates Solicitors (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/215059
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 (the EPA Act) against the refusal by Mosman Council (the Council) of Development Application No DA8.2017.259.1 (the application).

2. The application relates to land identified as Lot X in DP 440037 at 5 Sirius Avenue, Mosman (the site). As lodged, the application sought consent for demolition of an existing semi-detached dwelling and construction of a new 3 storey dwelling house, with a garage and swimming pool.

3. The application was notified and 3 objections were received from residents of 2, 8 and 10 Sirius Avenue, all being on higher properties on the opposite side of the street with current views across the site to the harbour. The main concerns raised were with the bulk, scale and height of the dwelling, the limited landscaping proposed, and the impacts on harbour views and the streetscape.

4. A letter of support was submitted from the adjoining property to the west at 3 Sirius Avenue.

5. In January 2019, the Council refused the application. The applicant sought a review of the application based on amended plans. The Council advertised the amended plans and one objection was lodged from the residents opposite the site at 8 Sirius Avenue. The objection raised concerns with the size of the development, the floor space ratio (FSR), privacy impacts, setbacks and view loss, particularly given applications had also been lodged for the redevelopment of the neighbouring properties, being 3 and 7 Sirius Avenue.

6. In June 2019, the review was refused by the Mosman Local Planning Panel. The primary grounds for refusal were the height, bulk and scale of the development proposed and the resultant non-compliances with core standards in the Mosman Local Environmental Plan 2012 (the LEP) namely: height, wall height, FSR and minimum lot size.

7. Further, the development sought would have adverse impacts on the streetscape and on neighbouring properties.

8. A Statement of Facts and Contentions (SFC) was filed by the Council with the Court on 6 September 2019. The contentions were:

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

2. No clause 4.6 variation requests for the non-complaint building height or FSR, and an inadequate request in terms of the wall height.

3. Loss of harbour views for 8 and 10 Sirius Avenue caused by the non-compliances which could be addressed with an amended, compliant design.

4. Non-compliance with the side setback controls in the Mosman Residential Development Control Plan 2012 (the DCP), which also contributes to view loss for surrounding properties.

5. Failure to meet the landscape requirements of the LEP and with the objectives for the scenic protection area in which the site is located. Further, these would be an unacceptable loss of trees on the site and on the adjoining Council land.

6. Inadequate information in terms of construction methods, FSR calculation, and required details to be shown on the architectural plans.

9. On 22 February 2020, the Court made orders that the parties’ expert town planners, Mr Karavanas for the applicant and Mr Wells for the Council, confer in relation to the contentions and prepare a joint Expert Report, which was filed on 9 March 2020.

10. The applicant had prepared amended plans to respond to the SFC (the Issue E plans) and these plans, and additional documentation responding to other contentions, were the subject of the expert conferral. As a result of the amended plans, the experts agreed that the overall height and FSR were now compliant and the landscaping, scenic protection and tree removal concerns had been resolved (or could be resolved by conditions of consent). The inadequate information concerns had also been addressed.

11. However, the wall height and eastern side setback remained non-compliant and of concern to Mr Wells in terms of view loss to 10 Sirius Avenue and an adverse outlook for 7 Sirius Avenue. The wall height non-compliance resulted in a study as a third storey in the centre of the proposed development given the slope of the site. The experts disagreed in terms of the likely view loss associated with the amended plans.

12. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (the LEC Act) which was held, following filing of the Expert Report, on 13 March 2020.

13. I presided over the conciliation which commenced with a site view. The Court, the parties and their experts, heard an oral submission from the owner of 8 Sirius Avenue to the north of, being opposite, the site, and viewed the site and potential harbour view loss from the upper level balcony of that property. Based on the Issue E plans, the experts did not consider the amended proposal would result in an unacceptable view impact to that property which was, in essence, the only concern for that objector.

14. Following the site view, and during the conciliation conference, the Court and the Council were taken in more detail through the view loss impact assessment. As a result, the Council accepted that the Issue E plans would in fact result in acceptable impacts for all neighbours and Mr Wells was satisfied that there were no longer planning grounds to refuse the application.

15. However, the Court was advised that the Council’s representatives did not have delegation to enter into a s34 agreement where cl 4.6 requests were required to be upheld, as remained the case in this instance.

16. However, as there were no remaining contentions, the parties agreed that I could determine the matter on the basis of what had occurred during conciliation; s 34AA(2)(b)(ii) of the LEC Act.

17. During the conciliation conference, and prior to termination, the applicant sought leave to amend the application to include subdivision, being a minor boundary adjustment with 7 Sirius Avenue which nevertheless results in the same lot size as currently exists for each lot. Lot X, being the site, has an existing and proposed area of 643.8m². Lot Y, being 7 Sirius Avenue, has an existing and proposed area of 612.7m².

18. The consent of the owner of 7 Sirius Avenue was provided to the amended application and a cl 4.6 request dealing with the minimum lot size was provided to reflect this subdivision, which has also been considered and addressed by the experts in their Expert Report.

19. In this regard, the existing dwelling is one of a pair of semi-detached dwellings, the other being 7 Sirius Avenue. The minor boundary adjustment is proposed to straighten the boundary between the 2 dwellings. The existing common boundary kinks to include the fireplace for each dwelling on an otherwise straight boundary. As both semi-detached dwellings are proposed for demolition, the applicant sought the opportunity to realign the common boundary to transfer the 0.75m² area of each fireplace so that the area is included in the same lot as the dwelling currently containing the fireplace, rather than this area intruding into the adjoining lot.

20. The applicant also sought Leave to rely on the Issue E plans.

21. The parties also noted that, in December 2019, the Court granted consent to the demolition of the adjoining dwelling at 3 Sirius Avenue (No. 3): Rini Pty Ltd ATF Misamtay Trust v Mosman Municipal Council [2019] NSWLEC 1636. This was relevant in considering the cumulative view loss impacts of both the approved plans for No. 3 and the amended plans for the site.

22. The conciliation was briefly adjourned: for the planners to prepare and provide an addendum to their joint Expert Report in which they briefly addressed how each of the contentions had, in their opinion, been resolved; for updated cl 4.6 variation requests and enlarged images of the view impact assessment to be prepared; and for agreed conditions of consent to also be prepared. The conciliation was terminated after my review of these documents and questioning of the parties and their experts on them.

23. The evidence provided during conciliation included the following documents for my consideration:

1. The Council’s Bundle of documents including copies of the LEP and DCP (Exhibit 1) and the SFC (Exhibit 2);

2. The Issue E amended architectural plans dated 20 February 2020 (Exhibit A) and the proposed subdivision plan (Exhibit B);

3. Amended cl 4.6 written requests for the non-compliant minimum lot size (Exhibit C) and wall height (Exhibit E);

4. Aerial photos showing view impacts to 10 Sirius Avenue from both the Court approved development of 3 Sirius Avenue and the proposed development, as amended in the Issue E plans, at 5 Sirius Avenue (Exhibit 5);

5. The joint Expert Report of the Town Planners (Exhibit 3) and the addendum to that report (Exhibit 4); and

6. Agreed conditions of consent (Exhibit 6).

The Planning controls

24. In addition to the LEP, 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

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

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

25. Satisfaction of the requirements of these instruments was not in contention based on the amended application.

26. The site is zoned R2 Low Density Residential under the LEP where the proposed development is permissible with consent. The objectives for development within the R2 zone contained in the LEP 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.

27. The other relevant provisions of the LEP are set out in the SFC (Exhibit 2).

28. In this regard, the amended application as shown on the Issue E plans exceeds the wall height standard specified at cl 4.3A Height of Buildings (additional provisions), and also results in a partial third storey.

29. The provisions of cl 4.3A are:

4.3A   Height of buildings (additional provisions)

(1)  This clause applies to all land in a residential zone to which a maximum building height of 8.5 metres applies as shown on the Height of Buildings Map.

(2)  The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing).

(3)  However, the consent authority may grant development consent for an additional storey in the foundation space of an existing building on land to which this clause applies if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale.

(4)  A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres.

(5)  In this clause—

dormer window means a window in the roof plane that measures no more than 25% of the width of the roof in that plane.

wall height means the vertical distance between the ground level (existing) and the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest.

30. Whilst there are no specific objectives for cl 4.3A Height of Buildings (additional provisions), there are objectives for development in the R2 zone at cl 4.3 Height of Buildings, being as follows:

(i)  to share public and private views, and

(ii)  to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

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

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

31. The proposed lot size also does not meet the minimum area required in the R2 zone at cl 4.1, with the objectives of that clause as follows:

(a)  to retain the pattern of subdivision in residential zones while allowing infill development of smaller lots in some areas,

(b)  to ensure lots have a minimum size that is sufficient to provide useable area for building and landscaping,

(c)  to require larger lots along the foreshore or where the topography or other natural features of a site limit its subdivision potential,

(d)  to provide small lot subdivision in some zones as an alternative to redevelopment for the purpose of multi dwelling housing and the like to ensure the retention of the existing dwelling stock and the amenity of the area.

32. In order to grant consent to the application, the relevant requirements of cl 4.6 of the LEP must be met for the wall height and minimum lot size non-compliances. These relevant provisions of cl 4.6 are as follows:

4.6   Exceptions to development standards

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

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

(6)  -

33. The applicant’s amended cl 4.6 written requests address the proposed variations to these standards as required by cl 4.6(3).

34. It was agreed between the parties and their experts that the amended development proposed does not contravene any other development standards in the LEP, namely the 8.5 metre maximum building height at cl 4.3, the FSR at cl 4.4, and the landscaped area at cl 6.6.

35. 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 the consent authority is 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 parties and their experts advised that they were satisfied that these measures had been undertaken and there would be no adverse visual impacts of the development to or from Sydney Harbour.

The Evidence

36. As a result of the Issue E plans resolving the issues in contention, the Council did not press any of the contentions, on the basis of the evidence of Mr Wells and the agreed conditions of consent tendered by Council (Exhibit 6).

37. The remaining contentions were effectively inter-related and related to view loss impacts to 10 Sirius Avenue from the non-compliant building wall height and setback. The evidence therefore focused on this albeit the addendum to the joint Expert Report (Exhibit 4) addressed all of the contentions in the SFC.

38. During conciliation, the planning experts (Mr Wells and Mr Karavanas) were specifically asked their opinion as to whether the Issue E amended plan satisfactorily resolved the contentions that related to earlier plans. Both expressed their opinion that the development as amended was satisfactory.

The clause 4.6 for minimum lot size

39. The amended application includes undertaking a minor boundary realignment of the existing common boundary between 5 and 7 Sirius Avenue. This comprises subdivision. The current lot size of these 2 properties is 612.7m² and 643.8m² respectively whereas a minimum lot size of 930m² is required for subdivision in the R2 zone.

39. As indicated, a cl 4.6 request (the request) had been submitted for the non-compliance with the minimum lot size standard. The following is an overview of the justification provided in the request in order for the Court to be satisfied that the requirements of cl 4.6(3) are met, namely that the request demonstrates that:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. that there are sufficient environmental planning grounds to justify contravening the development standard.

41. In this regard, the dwellings on each property are attached and the common boundary ‘steps in’ to accommodate the existing fireplace in each dwelling. As these dwellings will be demolished with redevelopment, there is the opportunity to rationalise and straighten the boundary to remove the fireplace ‘indents’. The area of these indents, the subject of the realignment, is only some 0.75m².

42. That is the sole extent of, and reason for, the proposed subdivision.

43. The proposed lot size of each lot following the boundary realignment (subdivision) will be the same as the current size of each lot. Therefore, the lot sizes will not alter as a result of the subdivision.

44. In summary, the request argues that the existing lots already do not comply with the minimum lot size and have an irregular common boundary. The proposed subdivision will maintain the same lot size but will result in a regular common lot boundary. As both lots remain the same size as they currently are, they are therefore appropriate for low density residential development, which is the development form they currently accommodate and that they are proposed to accommodate.

45. Non-compliance is a function of the size of the existing lot and will result in a better outcome for and from the development. It will enable a consistent and coherent side setback for the redevelopment of each lot which remains the same size but is more regular in terms of facilitating redevelopment. Strict compliance with the minimum lot size standard is therefore both unreasonable and unnecessary.

46. Applying the first test at cl 4.6 established by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), the request argues that the objectives of the standard are achieved notwithstanding the non-compliance with the standard.

47. The request deals with each of the objectives of the standard which are all argued to be met.

48. In this regard, the proposal retains the pattern of subdivision in the zone but allows for infill redevelopment on a smaller lot than the minimum required by the LEP. The lots will continue to be of a size sufficient to provide a useable area for building and landscaping, and in fact the usability of the lots for this purpose is enhanced by their more regular dimensions.

49. The lots do not adjoin the foreshore but have a topography which limits subdivision potential. However, the lots are already under the minimum lot size required and no change to that size is proposed. The development plans for both lots demonstrate that they can be developed notwithstanding their topography and other natural features of the site.

50. Finally, the proposal is not to provide small lot subdivision as an alternative to redevelopment.

51. In terms of the other tests suggested in Wehbe, the request argues that strict compliance with the minimum lot size standard would prevent the redevelopment of the site in accordance with the development and subdivision pattern of the area that already exists. This includes detached dwelling houses with straight side boundaries. In this regard, a number of houses in the street, including 4, 6, 7 and 8 Sirius Avenue, are also less than 930m². Therefore, the majority of properties in the direct vicinity do not comply with the standard, with the proposed lot size for the site similar to those properties. Compliance with the standard would also be unreasonable and unnecessary in this instance for these reasons.

52. In terms of sufficient environmental planning grounds, the request argues that the shortfall in the minimum lot size will not result in adverse impacts to the occupants of the site or in the vicinity. The lot area of Lot X will remain the same as existing allowing the proposed development to sit comfortably on the site. The proposed lot size is able to accommodate a low density built form with appropriate setbacks, private open space and building height whilst protecting the amenity of neighbours. The development will therefore be consistent with the existing and desired planning objectives for the locality. Compliance with the standard would require the consolidation of the 2 lots and the conversion of the existing and proposed 2 dwellings into a single dwelling. This would not be orderly or economic.

53. Whilst not a requirement of cl 4.6, the request also argues that the proposal is in the public interest as it satisfies both tests at cl 4.6(a)(ii), those tests being as summarised the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), namely that the development is consistent with the objectives of the minimum lot size development standard and with the R2 zone in which the site is situated.

54. In terms of the applicable objectives of the R2 zone, the proposed development has a contemporary design, with enhanced landscaping, and which minimises view loss. What is proposed is a single residence in the form of new housing appropriate for the site and surrounding development which maintains existing residential amenity through a generally compliant building design. It will maintain equitable view sharing within an established low density area. Sufficient landscaped area and appropriate plantings are proposed, with new native gardens in the front setback and a selection of indigenous plantings so that the general dominance of landscape over built form is addressed. In terms of bulk, height, scale and context, the development is appropriate for the area, minimises impacts, retains the area’s amenity, and reflects the desired future character of the area. The site will be of sufficient size to provide for the buildings proposed as well as for vehicular and pedestrian access, whilst retaining the site’s topographical features.

55. Both experts agreed that the development reflected in the Issue E amended plans met the objective of the minimum lot size standard and of the R2 zone, and that the cl 4.6 request demonstrated this.

The clause 4.6 for building wall height

56. Both experts agreed that the Issue E amended plans result in a breach of the 7.2m maximum wall height standard at cl 4.3A of the LEP and that consent is also required to exceed the 2 storey limit for residential development in the R2 zone. The breach of the wall height resulting in the partial third storey is in the middle portion of the proposed dwelling where the study is proposed. This component also results in a partial third storey. The wall heights are otherwise compliant at the front and rear of the site as is the overall height at a maximum of 8.14m relative to a maximum permissible height of 8.5m.

57. The non-compliance is due to the sloping nature of the site and the desire to have consistent floor levels across the dwelling.

58. In considering the impacts of this non-compliance, the experts focused primarily on view impacts and in particular the impact of the additional built form arising from the breach of the wall height. As previously indicated, other potential impacts such as overshadowing or privacy were resolved or not in contention.

59. As indicated, a cl 4.6 request (the request) had been submitted for the non-compliance with the standard. The following is an overview of the justification provided in that request in order for the Court to be satisfied that the requirements of cl 4.6(3) are met, namely that the request demonstrates that:

1. (a)  compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and

2. (b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

60. In this regard, the request argues that the wall height encroachments are in the middle of the site, stepped back, and a function of a steeply sloping topography. The wall heights comply at the front and the rear of the site with the majority of the development at 2 storeys and only a small section in the middle of the dwelling extending to 3 storeys. This is required to provide consistent internal floor levels on a sloping site. The dwelling will however, present as 2 storeys to the streetscape consistent with the desired character of the area.

61. Further, the wall height exceedence is minor in scope and will not have any significant impacts on surrounding neighbours, and the revised proposal complies with the FSR for the site.

62. Flexibility in this circumstance will allow for a better planning outcome as the development will make a positive contribution to the character of the area by replacing an existing aged dwelling with a high-quality contemporary development. What is proposed is of a similar style and character to other recent dwellings in the Sirius Slopes Townscape area, being the area in which the site is located in the DCP. It will therefore be consistent with the character of the locality, and represents an appropriate bulk and scale given the topography and context of the site. The dwelling was also lowered to fully comply with the 8.5m height standard and to maintain the amenity of neighbouring properties.

63. The Council has also previously approved a number of applications with a non-compliant building and/or wall height in the locality. In this regard, the locality contains a number of large freestanding dwellings which appear to exceed the 7.2m wall height control and some also present as 3 storeys to the street. The proposed dwelling presents as 2 storeys with the extent of built form over 7.2m limited in scope and in response to the topography of the site. The proposal is therefore consistent with the existing and desired future pattern of development in the area.

64. In a locality such as Mosman, where steep slopes are common, it is likely that the Council will need to continue to apply the control flexibly and there was evidence that this has been the case, with a number of Mosman properties listed in the request which exceed the wall height control.

65. There are no stated objectives for the standard at cl 4.3A of the LEP. However, the underlying objective of the overall height control at cl 4.3 is to limit the appearance of buildings with a maximum height of 8.5m to 2 storeys. The proposal has a compliant overall height and presents as 2 storeys to the street thus achieving the underlying objective of compatibility with the surrounding built form.

66. The view loss analysis indicated that the wall height non-compliance results in negligible view loss and maintains the iconic elements of the harbour views from 10 Sirius Avenue, the most affected property in terms of view impacts. This is particularly the case as a portion of the view lost to that property is occurring as a result of the recent Court approved development at 3 Sirius Avenue. The reminder of the view loss is occurring as a result of a compliant bedroom which is below the 8.5m height standard. A skilful design has been employed to shift the study further to the north to minimise view impacts. 

67. Further, the DCP contemplates non-compliance with the wall height control for steep sites such as the subject site. The proposal will not be readily visible from the harbour foreshore or surrounding foreshores with the non-compliance occurring in the middle of the site, and therefore it also will not be readily visible from the public domain.

68. The proposed scale and design is consistent with the existing and desired future character of the Sirius Street Townscape by responding to the controls for the townscape in the DCP, including in terms of the roof design and landscaping. Accordingly, the dwelling height is consistent with the surrounding scale of development in the area.

69. There would be no discernible benefits to the streetscape with strict compliance nor to the occupants of surrounding dwellings. The portion of the dwelling above the wall height limit will not readily impact on the amenity of adjoining dwellings in terms of overshadowing, view loss or privacy. A compliant wall height building with a pitched roof would have a greater impact than that proposed. For all of these reasons, compliance with the standard is unnecessary in the circumstances.

70. In terms of the environmental planning grounds in the request which seek to justify contravening the standard, they can be summarised as follows:

1. The proposal responds positively to the steep topography of the site and the DCP contemplates applying flexibility on steep sites;

2. The development, including the non-compliant wall height, is unlikely to result in adverse amenity impacts for neighbours in terms of privacy or view loss. The plans were revised so that the non-compliant third storey is stepped in from the side boundaries to reduce potential privacy impacts, and complies with the western side setback of the DCP. Solar access provision for adjoining properties also complies with the DCP;

3. The wall height and number of storeys breach does not add to the visual bulk of the dwelling when viewed from the street. This is because the third storey and area of non-compliance are located in the middle of the dwelling and will not be visible from the public domain;

4. The side elevations are also highly articulated to break up built form and reduce bulk and scale;

5. The Court has recently approved a dwelling immediately to the west at 3 Sirius Avenue with a greater level of non-compliance with the wall height and a greater view loss than is proposed. The cl 4.6 request for the breach of the same standard for that development was based on similar circumstances in terms of the topography of the site and compliance with the overall height and FSR standards;

6. The wall height minimises the need for stepping of internal floor levels through the dwelling and reduces the requirement for significant excavation.

71. In terms of the objectives of the zone, the request contains the same justification as is provided for the breach of the minimum lot size standard, as previously summarised.

The remaining contentions

72. Based on the amended (Issue E) plans, the planning experts and the Council were satisfied that the Council’s original contentions had been resolved.

73. The concerns with wall height have already been addressed. Further the 0.5m non-compliance with the eastern side setback required under the DCP was considered to be acceptable given there were no resultant adverse impacts to neighbours and the width of the lot was less than 10.5m. The 3m required side setback had been achieved to the western side boundary, which was considered to be the more sensitive boundary.

74. The landscaping had been increased, and additional trees retained, with the landscaping area compliant with the LEP controls. All other contentions had either been addressed by the amendments to the application or were addressed by the agreed conditions of consent.

Findings

75. Based on the site view, the evidence of the experts in Exhibit 4 and the view impact analysis in Exhibit 5, I am satisfied that the development as amended satisfies the contentions raised by the Council and ought to be approved.

76. Firstly, however, I am required to be satisfied that the requirements of cl 4.6 of the LEP are met for the breaches to the two development standards sought.

77. In this regard, in relation to cll 4.1 and 4.3A(4), and as required by cl 4.6(3), I have considered the applicant’s clause 4.6 written requests to vary the minimum lot size and wall height development standard and am satisfied that both requests address the requirements of cl 4.6, are well founded, and should be upheld. The breaches of these two standards therefore do not prohibit consent from being grated.

78. In coming to that finding, I accept the reasons contained in the applicants’ cl 4.6 written requests as demonstrating that achievement of the objectives of the standards, as applicable, are met notwithstanding the breaches, 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 existing and 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.

79. In accordance with the requirements of cl 4.6(3)(b), I am satisfied that the applicants’ clause 4.6 written requests also demonstrate that there are sufficient environmental planning grounds to justify contravening both development standards. I have reached this conclusion for the same reasons as set out in the requests, which I have earlier summarised, 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 standards.

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

81. In summary, the development as amended: responds to the steep sloping topography of the site; the wall height and number of storeys do not result in adverse amenity impacts; the proposed dwelling presents as 2 storeys to the street; the third level and area of non-compliance are stepped back; and there are no unreasonable view impacts as a result of the non-compliances, and those impacts are less than would be likely with a compliant built form.

82. In this regard, following clarification of the methodology in which the view montage and analysis was created, both planning experts were satisfied that the impact on the harbour water views from surrounding properties arising from the numerically non-compliant wall height is negligible and satisfies view sharing principles.

83. Further, the appearance of the study is acceptable having regard to the view montage which demonstrates an acceptable organisation of bulk over the site. In terms of the bedroom roof that is below the overall 8.5m height standard, a roof reaching such a height would have a greater impact on views than the development proposed.

84. In summary, and considering the remaining contentions in the proceedings, the experts also agreed that the appearance of the study from 7 Sirius Avenue and view impacts from 10 Sirius Avenue are both acceptable. This is notwithstanding the minor side setback non-compliance of the study.

85. 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, as exist and as are of relevance, of the standards for the reasons set out in the requests that I have summarised, and

2. as the development is consistent with the objectives for development within the zone in which the development is proposed to be carried out as also summarised in the summary of each request.

86. 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 the non-compliant wall height will not be visible from the foreshore;

4. the proposed lot size will be the same as the existing lot size, but be more regular in dimensions. The amended plans demonstrate that the site will therefore remain of sufficient size to provide for the building, suitable vehicular and pedestrian access and landscaping proposed whilst retaining the natural topographic features of a sloping site;

1. the building complies with the FSR and height of buildings controls in the LEP, and presents as a 2 storey dwelling house to the street in a landscaped setting consistent with the existing and desired future character of the Sirius Slopes Townscape, as described in the DCP and applicant’s cl 4.6 written requests. The development therefore is of a height and scale that achieves the desired future character; and

2. 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 cl 4.6 requests.

87. The experts and parties agreed that there were no other remaining contended grounds for refusal, and that all required pre-conditions to the granting of consent had been considered and resolved in the amended Issue E plans. I accept that this is the case.

88. In particular, the amended plans address the view loss issue, that being the only substantive issue raised by the objector and the Council.

89. The appeal is upheld accordingly, and the agreed conditions of consent imposed.

Orders

90. The Court orders:

1. Leave is granted to amend the application to include subdivision (boundary realignment) with 7 Sirius Avenue, Mosman and to rely on the Issue E plans and subdivision plan as described in condition 1 in Annexure “A”.

2. The written requests under clause 4.6 of the Mosman Local Environmental Plan 2012 are upheld.

3. The appeal is upheld.

4. Development Consent is granted to DA 8.2017.259.1 at 5 Sirius Avenue, Mosman for demolition of existing semi-detached dwelling and construction of a new dwelling, garage, fence and fence, and boundary adjustment (subdivision), with associated works subject to the agreed conditions in Annexure “A”.

5. The exhibits are retained except for Exhibits 1 and F.

………………………….

Jenny Smithson

Commissioner of the Court

Annexure A (114 KB)

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Decision last updated: 25 March 2020