Taylor v Mosman MC

[2006] NSWLEC 126

Land and Environment Court

of New South Wales

CITATION:

Taylor v Mosman MC [2006] NSWLEC 126

PARTIES:

APPLICANT
Kate Taylor

RESPONDENT
Mosman Municipal Council

FILE NUMBER(S):

11316 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Consent orders, amended plans, height, floor space ratio, streetscape, driveway gradient, stormwater control, landscaping including road reservation, privacy

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 1998
Mosman Residential Development Control Plan
Sydney Regional Environmental Plan No. 23 Sydney and Middle Harbours
Mosman s 94 contributions plan
The Mosman Transport Development Control Plan
Notifications Development Control Plan

DATES OF HEARING:

15/03/2006

EX TEMPORE JUDGMENT DATE:

03/15/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks Solicitors

RESPONDENT
Mr S. Griffiths, solicitor
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

15 March 2006

11316 of 2005 Kate Taylor v Mosman Municipal Council

JUDGMENT

1 This is a Class 1 Appeal No. 11316 of 2005 between Kate Taylor and Mosman Municipal Council in regard to the refusal of consent for alterations and additions to No. 18 Pretoria Avenue, Mosman.

2 The locality is on a fairly steep hill side in a heavily treed area of Mosman off Middle Head Road on the slopes of Balmoral. The parties came to the Court with consent orders.

3 At the on-site hearing there were in attendance for the Respondent:

• Mr Griffiths, solicitor and
• Ms D. Dunford, town planner for the council.
  

4 Appearing for the applicant was:

• Mr Kondilios, solicitor
• Ms Adraskalis, solicitor
• Mr & Mrs Taylor, the applicants
• Mr F. Miniter, building designer
• Mr Crane, consultant town planner
  

5 The objectors had been advised of the on-site hearing and of the consent orders intended however, none appeared to give evidence. Their letters of objection are in Exhibit 3. The parties sought to tender documents and make submissions on-site with the Court to deal with the judgment in chambers. I was concerned that objectors may have gone to 225 Macquarie Street. I decided to proceed on-site but not determine the matter until I returned to Macquarie Street and found if any objectors had presented themselves in which case I would re-convene the hearing.

6 The issues prior to consent order were:

This Statement of Issues is based on the following plans lodged with the Class 1 Application:
• Pratt Minter Consulting Job No. A014-0
WD1D dated 9 February 2004 amended 6 June 2005
WD2D dated 9 February 2004 amended 6 June 2005
WD3D dated 9 February 2005 amended 6 June 2005
• Landmark Landscape Consultants Landscape Proposal/Draft LA 2/9/04 dated September 2004
  
  Height, Bulk and Scale
  1. The development exceeds the building height limit pursuant to cl 13(2) of Mosman Local Environmental Plan 1998 (“the LEP”). The maximum building height prescribed is 8.5 m. The building height proposed is 9.3 m.
  2. The development exceeds the wall height limit pursuant to cl 13(2) of the LEP. The maximum wall height prescribed is 7.2 m. The wall height proposed is 8.1 m.
  3. The development exceeds the maximum of 2 storeys pursuant to cl 13(3) of the LEP. The number of storeys proposed is 3 storeys.
  4. Non-compliance with Part 2, cl 14(2) of the LEP. The proposed development does not comply with the maximum floor space ratio of 0.5:1. the proposed floor space ratio is 0.53:1.
  5. Non-compliance with cl 4.52 (06) and cl 501 (01 of the Mosman Residential Development Control Plan (“the DCP”). The bulk and scale of the development is excessive and is inconsistent with the existing and desired future character for the area.
  Siting
  6. Non-compliance with cl 4.2(P7) of the DCP. The proposed development does not satisfy the required side boundary setbacks (to Gooseberry Lane).
  Streetscape and Building
  7. Non-compliance with cl 5.1 (01), (03), and (P6) of the DCP. The proposed additions would result in a development that would dominate the streetscape.
  8. Whether the proposal meets the desired future character objectives of the Balmoral Townscape Area in s 6.3 of the DCP, namely to encourage a variety of roofscapes that complement the streetscape.
  Objectives of the 2(a1) Residential Zone
  9. Non-compliance with the objectives of the 2(a1) Residential zone as listed in Part 2, cl 11(2)(v) of the LEP. The design and scale of the proposal does not complement existing buildings and streetscapes.
  Carport
  10. Whether the scale of the proposed carport is satisfactory and in accordance with the Council planning controls and environmental constraints of the site.
  Particulars:
  a) Whether the proposed design of the carport is in sympathy with the character of the main dwelling without becoming the dominant feature, as required by objective 02 of s 5.2 of the DCP.
  b) Non-compliance with objective 03 and Planning Guideline P10, s 5.2 of the DCP. Maximum width 6 m. Proposed width 8 m.
  c) Whether the proposed design of the carport respects the character of the streetscape, as required by objective 01 of s 5.2 of the DCP.
  d) Whether the “carport” will present as a garage.
  e) Whether the driveway grading will allow adequate vehicular access to the new section of the carport.
  Stormwater Drainage
  11. Whether the proposal adequately addresses stormwater management as required by s 5.13 of the DCP.
  Landscaping
  12. Whether the landscaping proposed is adequate and whether the information submitted with the application is adequate to enable an assessment to be made in that regard.
  13. Issues Raised by Objectors
  • Overdevelopment
  • Excessive height and scale
  • Loss of trees/inadequate landscaping proposed
  • Loss of privacy
  • Too many parking spaces

7 The amended plans are in Exhibit A, B and C being Landscape Plan Project 05:12:3 No L1 by Wallman Partners; House Plans and Shadows Job No. A014-0 Nos WD1E, WD2E, WD3E by Pratt Miniter; and Stormwater Disposal Plans Job No. 040936 Drawings D01 and D02 by Northern Beaches Engineers.

8 I was advised by the parties that since the original plans there had been a number of substantial changes to the plans. Initially the FSR had been 0.7:1 when the maximum permissible consent is 0.5:1 under the Mosman Local Environmental Plan 1998.

9 Another relevant statute is the Sydney Regional Environmental Plan No. 23, Sydney and Middle Harbours although both parties agreed that the proposal would not be seen from the harbour front and that instrument had no work to do.

10 There is also the Mosman Residential Development Control Plan and the Mosman s 94 contributions plan, The Mosman Transport Development Control Plan and the Notifications Develop Control Plan.

11 The changes to the plans had been in response to objections. There were balconies originally proposed to the Family room on the northern side of the dwelling. They have been deleted although there are still French doors with a Juliet balcony railing directly outside the doors. Off bedroom 1 had been a large balcony which would afford views into the trees and to the ridge top of Balmoral; this had been greatly reduced in size in order to prevent persons getting close enough to the edge of the roof to overlook neighbouring properties. Also the car accommodation had been changed to two garages and one carport. One of the basement rooms has been converted to a plant room for air-conditioning units and re-cycling water tanks which were incorporated into the proposal. More water detention tanks are in the sub floor area. These will reduce overland flows onto adjoining properties.

12 The alterations and extensions consisted mainly of a new Living room on the southern side of the existing house on the main floor level with a deck on the western side giving an outdoor area which connected into the existing Dining room.

13 The alterations to the Family room I’ve already mentioned and to the garages.

14 The proposal had been lowered so that it does not exceed the height limit permissible on the site. The floor space is now reduced such that it complies with the statutory maximum and therefore the SEPP 1 Objection in the original application had no work to do and was not a consideration in the decision.

15 Conditions in regard to the recycling of water and a s 94 contribution and the requirement for a positive convent for maintenance of the stormwater recycling facilities on the site had now been agreed by the applicant and were no longer in contention.

16 There is to be a new roof structure in steeply pitched hipped and tiled form with three bedrooms and two en-suites in the roof space. Light and ventilation is achieved by dormer windows.

17 There is also a proposal to completely landscape the site retaining existing angophora trees and jacarandas and other significant vegetation. The proposal includes landscaping, the public road reserve outside the site and this had been agreed to by the council in a letter dated 10 January 2005. That letter nominated the drawings in Exhibit D which indicated a scope of works both on the site and in the public road reserve. The applicant had produced a more thorough set of plans in Exhibit A which the respondent accepted as being an update of the plans approved by council for works in its road reservation. These and other works required in the public road reserve are covered by appropriate conditions in the consent orders which are in Exhibit 4.

18 I was told by the respondent that the amended plans had taken care of the council issues and the objectors concerns to an acceptable degree and the objectors letters were contained in the bundle in Exhibit 3 and having read them I agree with the respondents submission. The changes to the northern balconies address the Harrison’s concerns on privacy. The conditions require a construction traffic management plan to be approved by council. Landscaping has been addressed. The Rural Fire Service has approved the plans and the conditions requested have been imposed. The Punturiero’s have not lodged an objection to the amended plans and their earlier objections appear to be addressed.

19 On return to Macquarie Street, the Registry informed me that no one had presented for the hearing or made telephone inquiry. I did receive a hand written annotation on a Pike Pike & Fenwick letterhead 23 February 2006 to Mr & Mrs Gilmore who are objectors. The letter advised of the consent orders, the hearing date and invited them to attend. The annotation signed by a Rowan Gilmore said their main concerns remained:

1. Adherence to council regulations
2. Drainage and runoff from the site onto their property
3. Lack of privacy with out look onto their property

20 I have formed the opinion 1. and 2. have been reviewed to a reasonable and acceptable level. Item 3. has been reduced by changes to the balconies although there would be overlooking from the new Living room deck. One must acknowledge there’s over looking of the Gilmore property already from the site and other neighbours due to the steep terrain. There is considerable distance of separation of 10 – 12 m between the two houses. 12 m is an acceptable distance for privacy in medium density development. In a single house single lot area high expectations are usual. In this case the distance to the Gilmore’s backyard is much greater than 12 m. There pool is on the opposite side of the lot to the proposal. A thick hedge Lilly Pilly is to be planted along the boundary as well as some trees that appear to be located between existing trees. This will give additional privacy once they grow.

21 The proposal is reasonable, given normal suburban amenity of houses and yards next to each other.

22 Having read the issues it seemed to me that all the matters which had been in contention had now been resolved satisfactorily and there is no reason sufficient to refuse the consent orders now sought by the parties.

23 Therefore the orders of Court are:

1. The appeal is upheld.
2. Development Application No. 8.2004.247.1 for the alterations and additions to a dwelling house including a first floor addition at 18 Pretoria Avenue, Mosman is approved subject to the conditions in annexure A.
3. Each party is to pay their own costs.
4. The exhibits are returned to the parties except for Exhibits 1, 2, 4, and A, B, C and D.

___________________

K G Hoffman
Commissioner of the Court
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