Wolfe v Mosman Municipal Council

[2021] NSWLEC 1374

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wolfe v Mosman Municipal Council [2021] NSWLEC 1374

Hearing dates:

17-18 June 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the application and rely upon the amended plans and other documents at condition 1 of Annexure A.

(2)   The appeal is upheld.

(3)   Development consent is granted to Development Application 8.2019.185.1 for alterations and additions to a dwelling house, the removal of a swimming pool and landscaping works at 61A Rangers Avenue, Mosman, subject to the conditions of consent at Annexure A.

(4)   All exhibits are returned except for Exhibit A and 4.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – exceedance of floor space ratio – clause 4.6 written request – visual impact

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979, ss 34, 34AA

Mosman Residential Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.4, 6.6

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

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

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Andrew Wolfe (First Applicant)
Alexis Wolfe (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Apex Law (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/344492

Publication restriction:

No

Judgment

1. COMMISSIONER: Mr and Ms Wolfe are the owners of No 61A Rangers Avenue, Mosman who bring this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) following the refusal by the Mosman Local Planning Panel on behalf of Mosman Municipal Council (the Respondent) of Development Application 8.2019.185.1 seeking alterations and additions to a dwelling house, the removal of a swimming pool and landscaping works.

2. In broad terms, the alterations and additions comprise an extension to the rear of the ground floor of around 900mm, and new stairs to access a first floor addition comprising two bedrooms and a bathroom.

3. The appeal was listed for mandatory conciliation on 17 June 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

4. The matter commenced with an onsite view. In the company of the parties and the experts, the Court was taken to No 63 Rangers Avenue and to No 82 Holt Avenue to hear submissions from the owners in respect of the proposed development.

5. The conciliation continued onsite, and thereafter at Council chambers, during which a number of amendments were agreed. I granted an adjournment for the Applicant to prepare amended plans, and reconvened the following day at which time the Applicant advised that all amendments agreed to had been achieved and amended plans had been finalised.

6. The parties agree that the amendments resolve the issues in dispute, but as the proposed development exceeds the maximum permitted floor space ratio (FSR) for the site, the parties seek a determination from the Court on whether the contravention of the FSR standard is justified in accordance with cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP).

7. It is on this basis that I terminated the conciliation on the second day of proceedings, and moved forthwith to hearing.

8. I record here that the parties consent to discussions and documents prepared in the course of conciliation being admitted in the course of the proceedings in accordance with s 34(12) of the LEC Act.

9. To this end, the Applicant sought leave, unopposed by the Respondent, to amend the application and rely upon amended plans (marked Exhibit A) and the updated clause 4.6 written request (Exhibit C).

The site and its context

10. The site is legally described as Lot A in DP 396237, having a frontage of approximately 6m in width to Rangers Avenue, a rear address to Bloxsome Lane, and a total site area of 221.3m².

11. The site is currently occupied by a detached single storey dwelling, a detached carport addressing Bloxsome Lane, and small swimming pool in the rear yard.

12. Development in the immediate vicinity is predominantly one and two-storey dwelling houses and semi-detached dwellings.

13. The adjoining property to the east, No 61 Ranger Avenue, is a two-storey semi-detached dwelling that is joined to No 59 Rangers Avenue.

14. The adjoining property to the west, No 63 Rangers Avenue, is a single storey dwelling.

15. To the north of the site, across Bloxsome Lane, are single storey, detached dwellings at No 82 and 84 Holt Avenue.

16. The locality is known as the Belmont Townscape, identified by the Mosman Residential Development Control Plan 2012 (MRDCP).

17. The site is within the R3 Medium Density Residential zone, according to the MLEP, in which dwelling house development is permitted with consent, and wherein the objectives for development in the zone are as follows:

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

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale.

•  To encourage residential development that has regard to local amenity and, in particular, public and private views.

The issues

18. As the issues in this case are limited to town planning matters, the Court was assisted by experts in that discipline. Mr Brett Brown, for the Applicant, and Mr Payarm Eskandari for the Respondent conferred on the contentions set out in the Statement of Facts and Contentions (Exhibit 2), and prepared a joint expert report marked Exhibit 3.

19. Following the conciliation conference, the experts also conferred in the preparation of a supplementary joint report marked Exhibit 4, in which the experts agreed that the matters in dispute are resolved by the amended plans.

20. In particular, the experts agree that the contravention of the FSR standard is justified for the reasons set out in the written request prepared in accordance with cl 4.6 of the MLEP.

21. The written request, authored by Mr Brown, was updated to reflect the amendments agreed between the parties during the conciliation conference.

22. The exceedance is described in the written request as amounting to an area of 8.29m², that is otherwise expressed as an FSR of 0.587:1. A maximum FSR of 0.5:1 is permitted on the site pursuant to cl 4.4 of the MLEP.

23. The objectives of cl 4.4 of the MLEP are in the following terms:

(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 adverse effects of bulk and scale of buildings,

(iv)  to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,

24. The written request considers the objectives of the FSR Standard to be achieved, notwithstanding the non-compliance with the numerical standard for the reasons that follows:

1. Firstly, when assessed against the objectives and controls of Sections 4.2 and 7.4 of the MRDCP, the proposed development is consistent with the desired future character of the Belmont Townscape.

2. Secondly, when considered against the existing context illustrated in Figures 1-4 on pages 7-8 of the written request, the proposed development is also compatible.

3. Thirdly, the balance between landscaping and built form is evident in the exceedance of the minimum landscape area requirement at cl 6.6 of the MLEP.

4. Fourthly, the adverse effects of bulk and scale are minimised by the avoidance of a pitched roof that is otherwise permitted by the height control, and by boundary setbacks that assist in reducing the visual impact on neighbouring properties, and by the variation in materials and finishes.

5. Fifthly, the proposal relies on the view analysis (Exhibit B) to demonstrate regard has been had to local amenity and private views from Nos 80 and 82 Holt Avenue.

6. Finally, the proposal includes minimal excavation.

25. The written request also identifies certain environmental planning grounds that it considers to be sufficient for the purposes of satisfying cl 4.6(3)(b) of the MLEP, that may be summarised as follows:

1. The proposal has been designed to minimise the impact on surrounding properties in respect of view loss and overshadowing.

2. The site is constrained by the size and width of the lot, and is distinct from similar sized lots in the immediate vicinity as it is a detached dwelling, and not a semi-detached dwelling.

3. The extent of the breach sought to be justified allows a wider addition at the first floor that achieves consistency with the dominant bulk and scale of similar first floor additions evident in the area.

4. The impact is less than, or equal to, the impact that would result from an envelope that is numerically compliant with the FSR standard.

26. Next, the written request asserts that the proposed development is in the public interest because it is consistent with the objectives of the FSR standard, and the objectives of the zone as provides for housing in a medium density area, in a manner that is compatible to the existing and desired future character, is below the maximum height permitted on the site, and where the impact on private views are reasonable in the circumstances of the case.

27. I note here that I accept firstly that the written request has adequately addressed those matters required of it by cl 4.6(3) of the MLEP, and secondly, that I accept the proposed development is consistent with the objectives of the FSR standard and of the R3 zone.

28. In respect of those matters at cl 4.6(3) of the MLEP, I note the assessment of development in the area is assisted by careful analysis of the existing character and by detailed commentary on the provisions of the MRDCP in respect of the objectives and controls relevant to the desired future character.

29. I also consider the third objective of the FSR Standard, which is to minimise the adverse effects of bulk and scale of buildings, and the fifth objective of the R3 zone, which is to have regard to local amenity and private views, to be somewhat related insofar as any adversity arising from the bulk and scale also impacts on the amenity enjoyed by private views.

30. In this regard, the written request relies upon the views prepared in the view analysis at Exhibit B.

31. In accepting that the proposed development is consistent with the fifth objective of the R3 zone, I have considered the submissions by the owner of No 82 Holt Avenue, Mosman who is principally concerned with the loss of view currently enjoyed from a rear living area, rear deck, and rear kitchen window.

32. On the basis of the onsite view, and drawing nos PM07-PM12 of the view analysis (Exhibit C), I note that the viewing locations of principal concern to Mr Di Cosmo will retain views to the CBD skyline, and to certain building and landscape features on Cremorne Point.

33. In my view, drawing PM09, re-produced in part below, depicts the greatest view loss from a standing position at the kitchen window. While I accept that Mr Di Cosmo will lose some of the view from this position, I consider the view from the principal living areas, including the rear deck that has direct access to the living room, to be reasonable when the degree of view share is considered and the amenity of the private view from No 82 Holt Avenue as a whole is given regard.

34. I have also considered those concerns set out by the owner of No 63 Rangers Avenue that may be regarded as relating to amenity. I note that the amendments to the plans in Exhibit A include a change to the roof form over the rear extension that will substantially retain the height of the existing wall on the boundary, and so moderate the extent of overshadowing that would be otherwise caused by the proposal.

35. Finally, I give weight to the agreement of the planning experts set out in Exhibit 4 that the proposal, following amendment, results in a negligible impact on the local amenity, reduces the visual impact from the street and surrounding properties, and is in the public interest.

36. For the reasons summarised above, I am satisfied that the written request adequately addresses those matters at cl 4.6(4)(a)(i) and (ii) of the MLEP. I am also satisfied that the extent of the contravention raises no matter of significance in respect of environmental planning, or public interest pursuant to cl 4.6(5) of the MLEP, and so the written request should be upheld.

37. The experts also agree that the site is located at such a distance from the harbour, and is separated by layers of existing development, that it will not be visually prominent when viewed from the harbour. As the proposed development is within the height standard at cl 4.3 of the MLEP, and is considered consistent with the bulk and scale of surrounding development, I am satisfied that the provisions of cl 6.4(3) of the MLEP are achieved.

38. On the basis of the conclusions reached in the Respondent’s assessment report (Exhibit 1, folio 55) I am satisfied that the site is not contaminated within the meaning of cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land.

39. A BASIX Certificate (Certificate No. A414907_02) accompanies the application, prepared by Leigh Sym dated 19 May 2021 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

Conclusion

40. For the reasons set out in this judgment, I consider the development the subject of the development application deserving of the grant of consent, subject to the conditions of consent filed with the Court on 18 June 2021.

Orders

41. The Court orders that:

1. The Applicant is granted leave to amend the application and rely upon the amended plans and other documents at condition 1 of Annexure A.

2. The appeal is upheld.

3. Development consent is granted to Development Application 8.2019.185.1 for alterations and additions to a dwelling house, the removal of a swimming pool and landscaping works at 61A Rangers Avenue, Mosman, subject to the conditions of consent at Annexure A.

4. All exhibits are returned except for Exhibit A and 4.

…………………..

T Horton

Commissioner of the Court

Annexure A (270196, pdf)

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Decision last updated: 25 June 2021