Tomlinson v Mosman Council

[2015] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tomlinson v Mosman Council [2015] NSWLEC 1147
Hearing dates:	20 April 2015
Date of orders:	13 May 2015
Decision date:	05 May 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	MODIFICATION APPLICATION: Bulk and scale; overlooking and privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012
Cases Cited:	Super Studio v Waverley [2004] NSWLEC 91
Category:	Principal judgment
Parties:	Melanie Tomlinson (Applicant) Mosman Council (Respondent
Representation:	Counsel: Applicant: Mr M Arch (Solicitor) Respondent: Ms J Walsh (Solicitor) Solicitors: Applicant: Concordia Pacific Respondent: Pikes & Verekers Lawyers
File Number(s):	10104 of 2015

Judgment

1. COMMISSIONER:   In February 2014, Mosman Council granted conditional consent to development application DA No. 8.2013.209.1 for alterations and additions to a dwelling house at 7 Simpson Street, Mosman (the site).

2. The 2014 consent approved the demolition of a rear deck, additions to the ground and first floors, and a new rear covered balcony with a glass awning.

3. In November 2014, the council refused consent to modification application No. 8.2013.2. This is the development application the subject of this Class 1 appeal made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The matter commenced on site as a mandatory conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated and the matter proceeded to a hearing in accordance with s 34AA(2)(b) of the Court Act.

The site and its locality

5. The site is on the northern side of Simpson Street and has an area of 418m2. On the site is a two storey detached dwelling, with a detached double car port at the street frontage. The rendered masonry dwelling is of a more contemporary design compared to those in the general vicinity which are principally in the Federation style.

6. To the east of the site is the Bradleys Head Heritage Conservation Area (BHHCA) which includes dwellings on either side of Prince Albert Street, the nearest cross-street to the east. 1 Simpson Street is incorporated into the BHHCA as is the adjoining property at the rear or north of the site, 8 Prince Albert Street.

7. Adjoining the site to the east at 5 Simpson Street is a two storey detached Federation style dwelling house; to the west at 9 Simpson Street is a two storey dwelling house.

8. The subdivision layout shown on the zoning map included in the Statement of Facts and Contentions shows 1-7 Simpson Street having similar lot lengths, shorter than other lots on the northern side of Simpson Street, with 1 Simpson Street being wider than 3, 5, and 7 Simpson Street. 9 Simpson Street is of a similar width to 7 but is significantly longer.

9. The site falls approximately 700mm to the north; Simpson Street falls to the west. The dwellings on the western side of Prince Albert Street are elevated above the site and their rear gardens slope down to the west.

Relevant background and the proposal

10. The original approval permitted the following alterations and additions:

• Rear ground floor addition including a new outdoor raised patio located immediately from the open plan living, kitchen and dining room and a glazed pergola over the outdoor patio;

• Internal reconfiguration of the ground floor and first floor layouts;

• Consolidation and enlargement of two existing rear balconies accessed from bedrooms 1 and 2 at first floor level, incorporating a pergola above;

• New window openings along the eastern elevation at ground floor level and southern elevation at first floor level; and

• Replacement of the awning above the front entrance.

11. The approved works have yet to be commenced.

12. The proposal the subject of this appeal comprises:

• The construction of a bedroom and a study at the rear of the first floor level by enclosing the approved first floor rear balcony; and

• Construction of one eastern window to existing bedroom 2, removal of two windows in existing bedroom 3 and construction of one new western window in bedroom 3.

The issues

13. The council contends that the modification application should be refused for the following reasons:

1. The proposed development is of excessive bulk and scale. In particular: the proposal is poorly articulated and results in excessive visual bulk when viewed from the rear; it results in a floor space ratio that is closer to that permitted in an R3 Medium Density Residential Zone than the R2 Low Density Residential Zone in which the site is located; and as such does not comply with the applicable planning controls.

2. The proposal does not provide for additional landscaping.

3. The proposed development will result in privacy loss. Council contends that the proposal will result in the overlooking of the rear private open spaces/ living rooms of adjoining properties, particularly as the balcony will become habitable space.

The planning controls

14. Whilst the modification application made under s 96 of the EPA Act was lodged with the council prior to the commencement of Mosman Local Environmental Plan 2012 (MLEP) on 12 December 2014, the matter has been considered as if the LEP were imminent and certain. This is the position taken by the parties’ planning experts and not pressed by the applicant.

15. The site is located within the R2 Low Density Residential Zone under MLEP The relevant zone objectives pursuant to MLEP as amended by Mosman Local Environmental Plan 2012 (Amendment No 5):

• To provide for the housing needs of the community within a low density residential environment.

• 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

16. Clause 4.4 MLEP provides the objectives and applicable ratios for the floor space ratio (FSR) development standard. The objectives in cl. 4.4(1) are:

(a)   for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential:

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

(ii)   to provide a suitable balance between landscaping and built form, and

(iii)   to minimise the effects of bulk and scale of buildings.

17. The maximum FSR for the site is 0.5:1. The approved FSR is 0.51:1 and was the subject of a cl. 4.6 variation request accepted by council. As this is a modification application, and although the proposed FSR of 0.59:1 exceeds the maximum FSR development standard, a written cl. 4.6 variation request is not required however, council presses the matters to be considered in that clause.

18. Mosman Residential Development Control Plan (MRDCP) came into force on 29 March 2012. The relevant clauses, objectives (O) and planning controls (P) are:

4.2   Siting and scale

Objectives

O1.   To have the effects of bulk and scale of buildings arising from new development minimised.

O2.   To have a scale of development which is not excessive and is consistent with the existing or desired future townscape area character.

O8.   To have rear setbacks which complement existing setbacks and which provide sufficient space for substantial planting, provide adequate separation of buildings, and have regard to cross views of neighbouring properties.

P19.   Where the existing pattern of development displays an established rear setback, development should retain the setback to provide sufficient space for substantial planting, provide adequate separation of buildings, and have regard to cross views of neighbouring properties.

5.7   Privacy and security

O1.   To have adequate visual privacy levels for residents and neighbours.

P1.   For new dwellings and additions, habitable room windows with a direct sightline to the habitable room windows or private open space in an adjacent dwelling within 9m should be either:

(a)   offset from the edge of one window to the edge of the other by a distance equivalent to the width of the existing window; or

(b)   have sill heights of 1.6m above floor level; or

(c)   have permanently fixed translucent glazing in any part of the window below 1.6m above floor level.

P2.   Above ground balconies, terraces, decks, verandahs, and outdoor spaces must not directly overlook rooms and private open space of adjoining properties unless screening can mitigate overlooking. When overlooking would be likely, permanent screening will be required to mitigate overlooking.

The hearing and evidence

19. As stated earlier, the hearing commenced on site. There were no objectors present however the council’s bundle of evidence includes a submission from the owners of 5 Simpson Street. The parties’ planning experts, Mr Eugene Sarich, Consultant Town Planner for the applicant and Mr Angelo Falato, Manager Development Services for the council, assisted the Court.

20. The extent of the approved additions was noted and the views from the two balconies at the rear of the first floor were observed. Particular attention was paid to the extent of the views into the private open space of the adjoining properties as well as the potential for overlooking into the ground floor living room of 5 Simpson Street. The views to the rear of the dwellings along Prince Albert Street were considered in the context of what may be seen of the site from those properties. The extent and nature of the rear building lines of nearby dwellings were also noted.

21. The parties’ planners prepared a joint report (Exhibit 2). The experts agreed that contention 2 in regards to landscaping does not apply as the landscaped area complies with MRDCP requirements. There was no agreement on the remaining two contentions.

22. In regards to bulk and scale, Mr Sarich is of the opinion that while the proposed FSR does not comply numerically with the FSR development standard, it nonetheless satisfies the objectives for FSR. In the joint report he takes a qualitative approach and considers that the proposed enclosure of the first floor rear balcony achieves a satisfactory and acceptable built form that does not have excessive visual bulk and scale because:

• The rear balcony portion is subservient and smaller in scale to the main part of the dwelling;

• The enclosure of the balcony remains within the balcony footprint;

• The balcony and lower terrace have compliant side setbacks that are greater than the principal dwelling, as well as a compliant rear setback thus ensuring compatibility with 5 and 9 Simpson Street;

• The height of the building is 5.72m and below the 7.2m control;

• The design is intentionally minimalistic with greater emphasis on screening and glazing rather than solid walls and thus softens the façade of the rear of the dwelling;

• The materials and finishes are subordinate to the main dwelling; and

• The rear of the dwelling is generally consistent with the rear building line established by adjoining properties and therefore can’t be said to dominate the neighbouring properties.

23. In oral evidence, Mr Sarich considered the aerial photographs of the vicinity; in his opinion the locality is characterised by large two storey bulky structures and he considers 7 Simpson Street to be one of the smaller dwellings. Under cross-examination he agreed in principle that if a development standard is exceeded there should be a higher level of design and that the existing character of nearby dwellings is of pitched roofs, articulation and open balconies. He also agreed that the maximum FSR for the R2 zone of 0.5:1 is seeking to achieve an open character, and in general, a compliant development usually, but not always, achieves the desired objectives. However, Mr Sarich maintained his opinion that what is proposed is acceptable.

24. In the joint report, Mr Falato takes the view that the proposed FSR is much closer to the 0.6:1 FSR for the R3 Medium Density Residential Zone than the 0.5:1 for the R2 zone. He disagrees with Mr Sarich’s comment that the proposal achieves the FSR objectives. Mr Falato is of the opinion that the proposal results in a building that is incompatible with the desired future character of the area and nor does it satisfy the relevant zone objectives (see [15] in this judgment). Mr Falato considers that the bulk and scale is unacceptable because:

• It is in breach of the rear first floor building line established by surrounding properties;

• Its form is incongruous and incompatible with surrounding properties and the host building;

• By being at the rear of the first floor it will be very visible from surrounding properties; and

• The adverse impacts have not been minimised because it orientates its outlook over private open space of adjoining properties and thus intrudes on privacy.

25. In response to Mr Sarich’s comments about the site containing one of the smaller dwellings, Mr Falato considers that the size of the lot is extremely relevant and that the size of the dwelling must be proportional. When cross-examined, Mr Falato agreed that: some building works further to the east and west extend beyond the rear building line established by the adjoining properties; the proposed development will have no impact on the streetscape; and vegetation in the vicinity will help to some extent in screening the proposed development from Lennox Street and from the rear gardens of 8 and 10 Prince Albert Street. In regards to the extent to which the controls such as external wall height and setbacks determine the desired future character, Mr Falato agreed the controls anticipate a two storey form and that the proposal complies with those specific controls.

26. With respect to the contention that the proposed development will result in privacy loss, the planners take opposing positions. Mr Sarich considers that the view to the west is principally of blank walls of No 9 with only a narrow view to part of the rear private open space. While he considers the view of the private open space of No 5 to be limited, he is of the opinion that measures such as fixed louvres and obscure glazing can be incorporated into the design, thus limiting the opportunities for overlooking. Mr Sarich maintains that the proposal will have a lesser overlooking impact than the existing balcony.

27. In cross-examination it was put to Mr Sarich he is relying too much on the screening provided by landscaping in the vicinity in order to limit views from, and to, the first floor addition and that the Planning Principle in Super Studio v Waverley [2004] NSWLEC 91 at [8] should apply. That is, relying on landscaping as the main safeguard against overlooking should be given minor weight as the effectiveness of it depends on maintenance, favourable growing conditions and ‘good luck’. In response, Mr Sarich stated that the circumstances in this matter are quite different to those in Super Studio and in this instance it is a reasonable consideration. He restated his opinion that changing the use from an open balcony to enclosed rooms to be used as a bedroom/ parents’ retreat (as opposed to a living room) will result in a better outcome in terms of the privacy of adjoining neighbours.

28. Mr Falato is of the opinion that the contention cannot be resolved through conditions as it arises from a significant breach of the FSR controls and results in an unacceptable opportunity for overlooking into adjoining properties.

29. In oral evidence, while Mr Falato agreed that measures could be implemented to limit overlooking, he maintained his opinion that the proposal is unacceptable. He also agreed that the objection from the owners of No 5 went to the proposed new window to bedroom 2. Mr Falato considers that changing the use to habitable rooms that can be used in all weathers [such as the extremely wet weather experienced during the site inspection] invites the opportunity for overlooking as opposed to an open balcony off bedrooms.

30. Notwithstanding Mr Falato’s objections to the proposal, he stated that should the modifications be approved, the fixed vertical louvres on the sides of the two new rooms should be horizontal and upwardly angled to minimise the potential for overlooking.

Submissions

31. Mr Arch, for the applicant, prepared written submissions. In regards to bulk and scale, he contends that the council’s position rests on the numerical non-compliance with the FSR development standard and that when a more nuanced examination is undertaken it can be demonstrated that the proposal is not excessive in its bulk and scale and is consistent with the FSR objectives. Mr Arch maintains that the proposal does not extend the approved footprint, is below the wall height limit, is consistent with the two storey character implied by the controls, does not result in greater overshadowing, complies with side and rear setbacks, is within the established rear building line at first floor level, results in a potentially better outcome for the amenity and privacy of neighbouring properties, and will have no impact of the appearance of the streetscape of Simpson Street. In addition, he argues that the experts agreed that measures can be taken to further mitigate the potential for overlooking.

32. In support of his contentions Mr Arch cites statements by the council officer who assessed and reported on the original approval. For example in regards to the exceedence of the FSR development standard and the cl. 4.6 variation request

The proposed additions do not materially alter the current building footprint and envelope of the dwelling house. Further, the additions are sited to the rear of the dwelling house, thereby not affecting the bulk and scale of the dwelling house to Simpson Street.

33. Mr Arch rejects Mr Falato’s opinion that the form is incongruous. He submits that the form of the proposal is consistent with the contemporary form of the main dwelling and it would incongruous to copy elements from nearby heritage buildings. He also takes issue with Mr Falato’s referencing of the proposed FSR to that permitted in the R3 zone. In this regard, Mr Arch contends that the proposed modifications will result in a final built form on the site of a single family dwelling house of modest size and will have none of the characteristics of the forms of residential accommodation usually found in an R3 Medium Density Residential Zone.

34. With respect to views of the proposal from other properties, Mr Arch contends that there are large and extensive areas of private open space with established trees and tall hedges between the rear of the site and the rear of the surrounding dwellings in Lennox and Prince Albert Streets. However, notwithstanding that fact, he maintains that the proposal is modest and quite unobtrusive. Again Mr Arch refers to the report of the planner who assessed the initial DA and his findings in regards to cl 5.7 Privacy and security in WRDCP:

The two separate existing balconies located from bedrooms are proposed to be consolidated and enlarged. The current balconies partially overlook private open space (i.e. rear yards) of adjoining properties to the west, north and east of the site. Existing hedging along the shared boundaries between the site and the adjoining properties assist to limit overlooking of the adjoining rear yards from the two existing balconies.

The increase in depth of the proposed consolidated balcony will slightly increase sightlines into the rear yard of adjoining properties, however, not to the extent that the balcony would adverse[ly] affect the current level of visual privacy enjoyed by these adjoining properties. The eastern and western sides of the balcony will comprise 2.2m high louvered screens, which will assist in reducing direct overlooking into the sides of adjoining properties to the east and west of the site. While the balcony is capable of accommodating tables and chairs, the use of the balcony is not expected to be intense as a balcony or roof terrace directly accessed from a living or entertainment room. Given the expected frequency of the use of the balcony by virtue that it will be accessed from bedrooms, opportunities for sustained overlooking from the balcony are expected to be limited. Therefore, the proposed consolidated and enlarged balcony is assessed as acceptable.

35. In conclusion, Mr Arch submits that the proposal is acceptable and warrants consent.

36. Ms Walsh for the council considers that while the applicant contends the proposal complies with a number of other controls, she maintains that the primary determinant of bulk and scale is the FSR development standard.

37. Ms Walsh contends that while a cl. 4.6 variation request is not technically required, that clause sets the parameters for any assessment of a variation to a development standard. She maintains that a fundamental objective is that the proposed development achieves a better outcome compared to that which has been approved. Ms Walsh argues that the applicant has not demonstrated that compliance with the FSR standard is unreasonable or unnecessary in the circumstances or that there are sufficient planning grounds to justify its contravention. Indeed, she presses the first element of Mr Sarich’s comment in paragraph [3] of the joint report in which he states: Compliance with the numerical value of the floor space ratio control is deemed to satisfy the objectives of the standards. Compliance with the numerical value is merely one way of satisfying the objectives.

38. In further consideration of the proposed FSR, Ms Walsh submits that the site is relatively small for the Mosman local government area, with the usual lot size for R2 residential development being 700m2. Therefore, to maintain the scale, she contends that a smaller block supports a smaller dwelling and what is approved achieves that balance.

39. With respect to privacy and overlooking Ms Walsh presses Mr Falato’s evidence in that the change in the use from an open and exposed balcony to habitable rooms is likely to increase the potential for overlooking.

40. The parties propose alternative conditions in regards to the orientation and angling of the louvres on the sides of the proposed new rooms. The applicant favours the vertically aligned louvres and the council presses horizontally and upwardly angled louvres.

Findings

41. With the benefit of the site inspection, I am satisfied that the modification application, as shown in the plans identified as ‘Option 2’ and tendered as Exhibit A should be approved for the following reasons.

42. The proposal effectively encloses an approved, already substantially enclosed, balcony (in essence, a ‘box’) at the rear of the first floor. The approved plans (Exhibit D) show a steel framed pergola with a roof comprising painted aluminium adjustable louvres covering the entirety of the balcony and with adjustable louvres on the sides which cover about 75% of each side. The framing comprises solid structural elements. The sides and the northern façade are enclosed by a frameless glass balustrade. The open/unscreened portion of the balcony is the area within 1m of the northern facade glass balustrade. The form of the approved rear upper terrace is consistent with the more contemporary design of the principal part of the dwelling.

43. The proposal replaces the louvered roof with a ‘kliplok’ roof, and the adjustable louvres on the sides are replaced with fixed timber louvres. The side windows are behind the louvres and the previously open element on each side is to be replaced with a solid wall. The northern elevation will retain a centrally located floor to ceiling sliding window to each room with the remainder to be replaced with a solid wall. The northern wall is set behind a glass balustrade. The proposed enclosure does not increase the height at the rear, nor does it extend beyond the approved ‘footprint’ of the upper terrace. Similarly, by the nature of the approved steel frame, it retains the same rear setback and building line at the first floor.

44. In my view, the ‘bulk’ has already been approved but the change of use of the space and its further enclosure add to the gross floor area and thus provide the additional FSR. I consider that the scale will not be altered and the more enclosed ‘box’ remains subservient to the main dwelling. The view of it from the rear of the properties in Prince Albert Street will probably appear much the same, although less open, than the approved structure.

45. While it is common ground that the proposed enclosure of the rear balcony on the first floor in order to create a bedroom and study leads to non-compliance with FSR development standard of 0.5:1, I accept the qualitative approach taken by Mr Sarich and summarised in [22] of this judgment. Overall, I am satisfied for the reasons given above, that the proposal achieves the FSR objectives in cl. 4.4(1) MLEP, the relevant zone objectives in [15] of this judgment and achieves the relevant objectives in cl. 4.2 – Siting and scale in MRDCP (see [18]). I note that there are no detailed controls in MRDCP that specify the rear setback must be determined by the immediately adjoining properties, and in any event, the setback has not been extended beyond that which was approved in the original consent.

46. In regards to the privacy and overlooking issues, I agree with the applicant that the substantial enclosure of the upper terrace, in particular the enclosure of each northern corner of each room, and the addition of the louvres, must reduce the opportunities for overlooking into the adjoining properties. Notwithstanding those measures, the view into the private open space of No 9 is limited because of the narrow angle of view and the structures at the rear of that property which extend along the common boundary. The enclosure of the north-eastern corner will restrict views into the private open space of No. 5 Simpson Street. I note the submission by the owners of No 5 and they do not raise concerns about any overlooking into their garden; as stated previously, their concerns go to the new window on bedroom 2 and the plans address that by specifying that the new window is to be fixed and have frosted glazing up to a height of 1600mm. This complies with the planning control P1 in cl. 5.7 MRDCP. I also think the reasoning of the council officer who reported on the original proposal, as pressed by Mr Arch, is applicable to this matter.

47. I agree with Mr Sarich that the described circumstances in the case of Super Studio are not especially relevant in this matter, as the landscaping on the applicant’s property and in the general vicinity is very well-established.

48. In regards to the alignment and angling of the side louvres, I consider that the field of view is sufficiently restricted by the proposed modifications and that the council’s preferred horizontally aligned and upwardly angled louvres are unnecessary and the vertical louvres indicated on the plans should remain. Overall I am satisfied that the proposal complies with the relevant provisions of cl. 5.7 – Privacy and security, MRDCP.

Conclusions and orders

49. Having considered the relevant matters under s 79C of the EPA Act, and with the benefit of the site view and the expert evidence, I am satisfied that Modification Application No. 8.2013.2 can be approved in accordance with the plans described as Option 2 and tendered as Exhibit A. Final orders will be made in chambers and the exhibits returned following compliance with the following directions.

50. Directions were made on 5 May 2015 for the provision of consolidated conditions of consent. The applicant’s version of Condition 2A is included in the conditions attached to this judgment as Annexure A.

51. The orders of the Court are:

1. The appeal is upheld.

2. Modification Application No. 8.2013.2 for changing the upper level rear balcony to a bedroom and study and changes to openings at premises located at 7 Simpson Street, Mosman is determined by consent in accordance with the conditions in Annexure 1 to this judgment.

3. All exhibits except 1 and A are returned.

_____________________________

Judy Fakes

Commissioner of the Court

10104 of 2015 (C) (72.5 KB, pdf)

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Decision last updated: 14 May 2015