Land and Environment Court of New South Wales Taylor v Mosman Council [2005] NSWLEC 233 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. Applicant: Charles Taylor PARTIES : Respondent: Mosman Municipal Council FILE NUMBER(S) : 10048 of 2005 CORAM: Roseth SC Development Application :- on-site hearing KEY ISSUES: preservation of public views DATES OF HEARING: 09/05/2005 EX TEMPORE JUDGMENT DATE : 05/09/2005 Applicant: Mr J Bingham, solicitor of Deacons LEGAL REPRESENTATIVES: Respondent Ms J Walsh, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 9 May 2005 10048 of 2005 Charles Taylor v Mosman Municipal Council JUDGMENT The consequence of the Court's decision in this appeal will be the grant of development consent subject to detailed conditions. The orders will be made when the applicant prepares an amended set of drawings incorporating the changes required by the Court's decision. The conditions will then be available for inspection at the Council. A copy the Court's Orders and conditions will be obtainable from the Court's registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Senior Commissioner: This is an appeal against the deemed refusal by Mosman Municipal Council (the council) of an application to alter and extend the existing house on lot 12 DP 2395, known as 26 Iluka Road, Clifton Gardens. The parties are in dispute only on two matters, namely: · Whether the parking structure should be a garage or a carport; and · Whether the height of the ridge should be lowered by 500mm. Garage or carport? 2 The proposed garage does not comply with the requirements of the Mosman Residential Development Control Plan (the DCP) in a number of aspects; however, the council objects only on the grounds that it is not a see-through garage and therefore obstructs the view of the Harbour from the street. The council proposes to impose a condition requiring the garage to be changed into a carport, with open type gates that are only 1.2m high. The applicant objects on the grounds of security. The garage is now over 7m wide because it includes a staircase on the side. 3 This is a finely balanced dispute as each of the parties has reasonable grounds for its position. On balance, however, I accept the applicant's argument that a see-through carport provides a very low level of security. I note that Iluka Road contains numerous garages and no carports. To insist on this single property providing a carport would not make much difference to the views available from the street. While I am aware that a decision to allow the garage is against the DCP's provisions relating to car parking, I do not think that there would be great benefit in applying these provisions to Iluka Road. However, the garage should be as narrow as possible. The applicant has agreed to reduce the garage to an internal width of 6m. The height of the ridge 4 The height of the tallest ridge is 10.2m above natural ground. The Mosman Local Environmental Plan 1998 sets the maximum ridge height at 8.5m above natural ground, so the ridge is 1.7m above what is permissible. The council has accepted a certain level of non-compliance and proposes a draft condition reducing the ridge height by 500mm, so that at the worst point the extent of non-compliance is 1.2m. The applicant has erected a height template on the site. The template indicates that the lowering of the ridge would decrease the view impact for pedestrians walking on the footpath. The difference would be that the roof as proposed obstructs the view of the water as well as the shoreline opposite, whereas with the 500mm reduction the view of the shoreline is retained. The applicant can achieve the lowering of the ridge in two ways: · by lowering the ceiling height on the upper storey and lowering the 35-degree roof pitch by about 2 degrees; or · by lowering the 35-degree roof pitch to 30 degrees. 5 The applicant has argued that the other houses in the street have 35-degree pitched roofs and a 35-degree pitch provides a nicer looking house. I have inspected the street and found that the first claim does not stand up to scrutiny. It is the minority of houses that have a 35-degree pitch. In addition, I do not accept that a 35-degree pitch is necessary for the appearance of the house, which is not in a style that might require a steep pitch. In my opinion, the council's request that the ridge height be lowered by 500mm is reasonable. It preserves an important segment of public view without imposing a burden on the applicant. 6 The content of the above decision could be expressed in the form of conditions. However, it would be clearer if the approved drawings were amended to show the 6m-wide garage and the lowered ridgeline. The applicant's architect, Ms C Pidcock, expressed a preference for this course of action. 7 I note that in the course of managing this case, McClellan J had directed that there should be no written evidence. The only evidence I had was the height template erected on the property. Mr B McDonald, an architect retained by the council, and Ms Pidcock were available for comment at the site hearing. The council had prepared an informative Statement of Basic Facts, and the council's reports were available to me. I found this arrangement satisfactory and would not have benefited from written reports. 8 Given that the amended drawings were not available on the day of the hearing, the parties have agreed that I should publish this decision and make orders after the amended drawings are tendered on or before 3 June 2005. __________________ John Roseth Senior Commissioner 11/05/2005 - typo - Paragraph(s) cover 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.