Land and Environment Court of New South Wales CITATION : McAssey v Mosman Council [2007] NSWLEC 226 Applicant: Brendan McAssey PARTIES : Respondent: Mosman Municipal Council FILE NUMBER(S) : 11173 of 2006 CORAM: Roseth SC KEY ISSUES: Development Application :- compliance with planning controls DATES OF HEARING: 23/04/2007 DATE OF JUDGMENT: 27 April 2007 Applicant: LEGAL REPRESENTATIVES: Mr M Baird, barrister Respondent: Ms J Hewitt, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 27 April 2007 11173 of 2006 Brendan McAssey v Mosman Municipal Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Mosman Municipal Council (the council) of a development application to demolish the existing house and construct a new house on lot 5 DP 12851, known as 9A Ryan Avenue, Mosman. The site 2 The site is 633m2 in area. It is in an area of detached houses and in a Foreshore Protection Zone. As usual for prestigious areas, the older houses are modest, while the new ones squeeze as much development on the site as permissible. The proposal and its history 3 The application was changed significantly during the hearing, by setting back the top floor from the street, thus reducing the floor space and the number of storeys. The amended application is a two-storey building of modern design, with a roof shape that is partly flat and partly a 'stack' or 'funnel' acting to ventilate and capture sunlight to the building. 4 The applicant lodged the application in September 2006. It lodged the appeal against deemed refusal in December 2006. Relevant planning instruments and policies 5 The Mosman Local Environmental Plan 1998 zones the site 2(a1). The minimum allotment size is 700m2, a requirement that the subject site does not satisfy. It was common ground that the Objection under State Environmental Planning Policy 1 (SEPP 1) to the minimum allotment size should be supported. The Floor Space Ratio (FSR) for this zone is 0.5:1. The maximum wall height is 7.2m and the maximum roof height is 8.5m. The site is in the Foreshore Protection Zone; however, there was no issue about the proposal's appearance from the Harbour. 6 The Residential Development Control Plan (the DCP) deals with detailed requirements for residential buildings. Section 4.2 deals with siting and scale. Objective 02 requires development to provide front and rear setbacks complementing existing setbacks in the street. Planning Guideline P8 requires that, where an established rear setback is displayed, development should recognise and respond to site features and cross views of neighbouring properties. The issues 7 The council submitted its Statement of Issues containing eleven issues, of which it pressed eight. The council's planner, Ms M Lau stated the main issues that concerned her were: · Excessive bulk and scale as shown by non-complying wall height, roof height and FSR; · Inconsistency with the established rear building line resulting in the overshadowing of and visual bulk to the southern neighbour No 9 Ryan Avenue; · View loss from No 6 Ryan Avenue. 8 The applicant's planner, Mr A Darroch, agreed that the view loss to No 6 due to non-complying parts of the building was unacceptable. The applicant amended the proposal by setting back the top storey further from the street. The applicant provided two options for the setback. One option (Sketch 01) was a setback of 5.7m, which would fully meet both the maximum roof height and the maximum wall height. The second option (Sketch 02) was a setback of 4m, which would meet the maximum roof height without fully meeting the maximum wall height requirement. Ms Lau agreed that the second option would meet the first and third of her concerns, leaving only the issue of inconsistency with the established rear building line and the consequential impact on No 9. The objectors' concerns 9 The Court heard the evidence of the following objectors: · Ms G Taylor of 11 Ryan Avenue; · Ms M Hedge of 30 Lower Almora Road; · Ms R tinker of 22 Esther Road; · Mr L Portale of 4 Ryan Avenue; · Ms B Williamson of 2 Ryan Avenue; · Ms J Taylor of 6 Ryan Avenue; · Mr K and Mrs L Seale of 9 Ryan Avenue; and · Ms J Cooper of 7 Ryan Avenue. 10 All the objectors were concerned with the fact that the proposal breached the maximum wall and roof height, the number of storeys and the FSR controls. Since the applicant amended the proposal, the first option (ie the one involving setting back the top storey by 5.7m from its existing alignment) brings the proposal into conformity with all the above controls. It also significantly reduces the view obstruction to No 6. It was common ground between the experts that the amendments reduce the impact on the properties of the objectors to an acceptable level, except the impact on No 9, which Ms Lau still considered unacceptable because of the proposal's breach of the DCP's qualitative requirement that, where an established rear setback is displayed, new development should recognise and respond to site features and cross views of neighbouring properties. 11 The objectors were aware of a covenant on the site that restricts the height of any building to the gutter line of the house on No 9. It is unclear whether that gutter line refers to the house before or after it was extended and there is no drawing accompanying the covenant. In the event, the covenant is no more than a circumstance of the case, which I would normally take into account. However, because the height restriction is unclear, I cannot take it into account in any meaningful way. Should the setback be 4m or 5.7m? 12 Not surprisingly, the applicant wishes to proceed with Sketch 02 (a setback of 4m from the present alignment of the top floor). This solution exceeds the maximum wall height of 7.2m. It therefore does not meet the objectors' concern that the proposal should fully comply with the council's planning controls, though there would be near-compliance. The exceedence of the wall height is not numerically large; however, an Objection under SEPP 1 (which the applicant has submitted) would be necessary. 13 Sketch 01 (a setback of 5.7m from the present alignment of the top floor) would resolve the issue of compliance with all numerical controls. In my opinion, the Court should impose Sketch 01, not for the reason that it resolves a numerically minor non-compliance with the wall height, but because it reduces the obstruction to the views of No 6. While the obstruction that would be removed by the additional 1.7m setback is a view mainly of trees, some of those trees are deciduous and would allow filtered views of the water behind the trees, at least for part of the year. The additional view that would be unobstructed is of precious value to No 6. It would be unfair to obstruct it by a non-complying element of the proposal, even if the non-compliance is small. The rear alignment of the proposal 14 Following the changes to the proposal in compliance with Sketch 01, the only remaining issue between Ms Lau and Mr Darroch was whether the proposal should be further set back from the rear in order to be located within the established rear building line. The experts did not, however, agree on the established rear building line, or even on whether one existed. Each drew his or her line on the plans, though Mr Darroch did so reluctantly since he did not agree that there was an established line. I agree that there is no clearly established line in the area, though it is also clear to me that the proposal extends somewhat further into the rear of the site than most of its neighbours. Two circumstances, however, suggest that, in this case, the encroachment towards the rear is justified. The first is that the proposal has maintained a large setback towards the north, thus allowing good solar access to the house and avoiding getting to near to the northern neighbours. If the Court required that the rear setback be increased, that side setback would probably be diminished resulting in a house with a worse environmental performance. The second circumstance is that the impact on No 9, while material, is reasonable. No 9 obtains its northern light from the side boundary, a circumstance where good solar access usually relies on the underdevelopment of the northern adjoining site. The proposal will remove some of the sunlight No 9 now receives; however the sunroom will not be affected and the property receives sunlight from the east and west. 15 Given that the proposal now complies will all numerical controls, in my opinion, the existing rear alignment is acceptable. Conclusion 16 While the proposal in its original form was not acceptable, the applicant now accepts that a smaller top storey is essential. The applicant amended the proposal in a way that achieved full compliance with council's numerical planning controls. (The exception to this was the minimum allotment size, which the parties agreed could be varied under SEPP 1.) The sole remaining issue between the applicant's expert, on the one hand, and the council's expert and the objectors, on the other, was that the rear of the building extended deeper into the site than most of its neighbours. In view of the fact that proposal now has a roof height and FSR well below the council's control and in view of its large setback from the northern side boundary, in my opinion, this departure from the qualitative requirements of the DCP is acceptable. 17 Given that during the hearing the applicant had only about one hour to prepare the amendments to the proposal, this could be done only by rough sketches. The parties agreed that the translation of these sketches into drawings suitable for a development application could be achieved by the imposition of a deferred commencement condition. 18 Subject to the above deferred commencement condition, the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing house and construct a new house on lot 5 DP 12851, known as 9A Ryan Avenue, Mosman is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned, except Exhibits 7, A and F. _________________ Dr John Roseth Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.