Land and Environment Court of New South Wales CITATION : McKay v Mosman Municipal Council [2005] NSWLEC 468 APPLICANT McKay PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10319 of 2005 Development Application :- alteration and additions to an existing semi impact of setbacks and form on adjoining semi and conservation area KEY ISSUES: impact on privacy Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Mosman Local Environmental Plan 1998 CASES CITED: Galea v Marrickville Council [2005] NSWLEC 113 DATES OF HEARING: 26/07/2005 DATE OF JUDGMENT: 08/31/2005 APPLICANT Mr G Newport, Barrister SOLICITORS Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 31 August 2005 10319 of 2005 Makay v Mosman Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Mosman Municipal Council (the council) of a development application (8.2003.321.1) for alterations and additions to an existing house at 28 Shadforth Street, Mosman (the site). The site and its context 2 The site is rectangular in shape with a frontage of 6.96m to Shadforth Street, a depth of about 54.73m and an area of 290.6sqm. It also has a rear frontage of 6.0m to Somerset Street. The site has a single storey semi detached house which adjoins a semi to the north at 28A Shadforth Street. A two storey house, 26 Shadforth Street, adjoins the site to the south. 3 The character of the surrounding area is a mixture of one and two storey houses with some residential flat buildings of different architectural styles and periods. The majority are detached houses on larger sites in landscaped settings. Background and the proposal 4 The application was lodged on 12 September 2005. Council notified the application and 8 submissions were received. The application was refused on 19 April 2004 and a request for reconsideration under s82A of the Environmental Planning and Assessment Act 1979 (the Act) was refused on 7 April 2005. The development application was amended prior to the hearing to delete the proposed garage and increase the landscape area. 5 The proposal is described by Mr M Robinson, the Court Appointed Expert, as: The DA seeks approval for demolition of the rear portion of the existing semi on the subject site retaining only the two front bedrooms, the entry corridor and a section of side wall, and construction of a new larger two-storey split-level rear extension. The site narrows slightly towards the rear, and the ground floor of the rear section of the extension is proposed to extend to both side boundaries to better utilise the narrow site. The new upper floor would sit in behind and slightly below the ridgeline of the existing roof, stepping down the slope of the site within the height plane in the RDCP and set in from the side boundaries and the rear of the ground floor. A small light court is proposed on the northern side of the cottage. Planning Framework 6 The site is zoned Residential 2(c) under Mosman Local Environmental Plan 1998 (LEP 1998). The proposed development is permissible with consent. 7 The objectives of the 2 (c) Residential zone include: Provide for housing which is compatible with surrounding development in terms of bulk, height and scale. 8 LEP 1998 includes controls for height (cl13), floor space ratio (cl 14) and landscaped area (cl15). The proposal complies with these numerical controls. 9 The site is within the Shadforth Street Conservation Area. Cl 33(3) provides that: When determining a development application required by this clause, the Council: (a) must take into consideration the extent to which the carrying out of the proposed development would effect the heritage significance of the heritage item or the heritage conservation area, and (b) must not grant consent until it has considered a statement of heritage impact that identifies and assesses the impact of the proposal on the heritage significance of the item and its setting, or on the heritage conservation area, and …… 10 Mosman Residential Development Control Plan (RDCP) describes the Shadforth Street Conservation Area as: The Shadforth Conservation Area is a harmonious collection of buildings, gardens and streetscape elements which are almost entirely residential in character, generally gentle in their human scale and pleasingly diverse in architectural style and quality. The topography, alignments and intersections in the area are visually attractive, while the street plantings are substantial and consistent….. 11 Section 4.2 of the DCP has objectives for the siting and scale of buildings which include: O3 to have adequate side setbacks to provide spatial relief between buildings, maintain public and private views and to minimise disturbance to remaining or remnant natural watercourses and bushland. 12 Planning Guideline P7 specifies a minimum side setback of 900mm for single storey (up to 3.6m wall height) and 1500mm for two storey (up to 7.2m wall height). It states that: In certain circumstances Council may allow a nil setback where there will be minimal adverse affects on adjoining properties and where walls do not contain windows. Such development may include garages and carports. The further, a nil setback may only be considered where the proposal complies with all the following criteria: The maximum wall height is 3.5m unless matching an existing or simultaneously constructed wall The proposal does not result in an adverse visual impact for surrounding properties. The proposal complies with the objectives and planning guidelines of Section 5.8 – Sunlight, Daylight and Overshadowing in this RDCP. Note: Semi detached dwellings are a typical style of development in Mosman. The extension of semis along their common boundaries is appropriate subject to compliance with the listed criteria above. 13 Planning Guideline P8 states that: Where the existing pattern of development displays an established rear setback, development should recognise and respond to site features and cross views of neighbouring properties. 14 Section 5.1 has objectives and planning guidelines for streetscape and building design which require development to be compatible with the exiting and future character of the area. The specific objectives and controls for semi detached dwellings are in Section 5.4 which include: O5 to have the development of a semi-detached dwelling that is in scale with the allotment size. O6 to have alterations and additions which do not materially detract from the amenity or character of adjoining residences in terms of overshadowing, privacy, loss of views or visual dominance. O7 to have potential for complimentary development of an adjoining semi detached dwelling when considering an application. 15 Planning Guideline P1 requires the consideration of semi detached dwellings as a whole. It provides that: Any alteration to an individual semi should recognise it as being one of a pair or group of similar, identical or complimentary buildings. In this regard, any extension should be carefully integrated with the building to which it is attached, both in its present form and on the assumption that the adjoining owner may wish to undertake extensions in the future. 16 Planning Guideline P4 includes requirements for roof forms of semi detached dwellings. It relevantly states: The style and pitch of the roof should match, complement and extend the existing roof form.……..Flat roofed areas should only be contemplated where they are not seen from the street or other important viewing positions in the vicinity of the building….. Contemporary roof form additions to the rear of traditional semis may be acceptable if the visual impact to the street is minimised The issues 17 The key issue in this appeal is whether the proposal is an appropriate addition to a semi-detached dwelling within a conservation area. The particular concerns were the side and rear setbacks, the form of the addition and its impact on the privacy of adjoining properties. 18 Mr Mark Robinson provided planning and urban design advice on Issues 1 to 6. I granted leave for Mr Kim Jones, architect, to provide evidence for the applicant on these issues. I did not allow expert evidence on Issue 8 relating to heritage other than the information presented to council and a further Statement of Heritage Impact, prepared by Mr S Davies on behalf of the applicant, to satisfy the requirements of cl33(3)(b). 19 The Court visited the properties of the adjoining residents: Mrs P Crouch, 28A Shadforth Street Mr M Thomas, 26 Shadforth Street. 20 The main concern of these residents was the side and rear setback of the addition and the resultant impact on bulk and privacy. Setbacks 21 The ground floor of the proposal has a setback which extends about 8m along both its common boundaries. The upper floor is setback a minimum of 1m from the north boundary and 1.2m from the south boundary. Both Mr Thomas and Mrs Crouch considered this to be unacceptable. 22 Mr Robinson recognised that the site was constrained by its narrow width and that the DCP permitted nil setbacks in certain situations. However, he stated that this was for minor structures such as garages and only if they met certain criteria. He did not think that because the proposal was one of a pair of semis that it justified a nil setback at ground level and a reduced setback at first floor to both property boundaries. In his opinion the proposal did not meet the criteria for a nil setback relating to adverse visual impact for surrounding properties. He said that The cumulative effect of the nil setback proposed for the ground floor and the reduced setbacks proposed for the upper floor would result in visual 'crowding' of the adjoining properties and adverse visual impacts on both. 23 Mr Robinson considered that the proposal did not meet the objective of the control to "provide spatial relief between buildings". He also assessed the nil setback against the principles formulated by Roseth SC in Galea v Marrickville Council [2005] NSWLEC 113 and concluded that the setback did not meet these tests. 24 Mr Jones did not agree with Mr Robinson's conclusions. He considered that the nil setback to the south boundary was reasonable "as it allows the living area to maximise its relationship to the rear yard in a situation where the narrowness of the site has been further reduced by the existing realigned north east boundary". He concluded that: Because the subject proposal is a semi detached dwelling, which implicitly has a zero setback to one boundary, and because the upper storey of the proposal has maximised the potential with the constraints of the site, it is my opinion that, proportional to the size of the proposed extension and relative to the immediate context, adequate spatial relief is provided and therefore the development is satisfactory. 25 The experts also disagreed on the rear setback. Mr Robinson held the opinion that it should relate to the existing setback of the adjoining semi and that the proposed extension of nearly 8m beyond the rear of No 28A "would impact excessively on the adjoining semi and that this would be exacerbated by the zero side setbacks proposed". 26 The experts agreed that the existing rear setback of the semis are a-typical of the area and that the proposed setback would be consistent with the setback of other houses in the vicinity. 27 Mr Jones considered the proposed rear setback appropriate because: It is in conformity with most other rear setbacks in the block and so recognises the established rear setback pattern in accordance with the RDCP. It also sets a precedent which enables the adjoining semi to extend to that established setback in the future, promoting consistency of rear setback pattern. 28 The width of the site does place a constraint on its development however, not to the extent that nil setbacks to both common boundaries are required. I accept that as one of a pair of semi detached dwellings it is reasonable for the addition to be built to this common boundary, particularly as this boundary indents further into the subject site. Planning Guideline P7 in Section 4.2 of RDCP recognises that the extension of semis along their common boundaries is appropriate subject to certain criteria. I find that the proposal meets these criteria. 29 The wall extends further than the adjoining semi but it is not unreasonable for a single storey wall without windows to line this common boundary and its impact is consistent with that envisaged by the RDCP for semi detached houses. The visual impact of this wall on No 28A is acceptable. I note Mrs Crouch's comments that she has no intention to develop her semi but it is not unlikely that this may occur at some future time. I consider that a blank wall along this boundary would not restrict development of her site, on the contrary, it would provide an opportunity for any extension to also be built to the common boundary and thereby provide the opportunity to set back from the northern boundary of No 28A to maximise solar access. 30 The same rationale does not apply to the nil setback to No 26 which is a detached house. This nil setback appears to be justified on the basis that the narrow site places constraints on the width of development that can occur and that a single storey wall does not impact on the amenity of the adjoining property. I do not accept these arguments. The proposed width of the addition with nil setbacks to both boundaries is 5950mm. With a nil setback to only one boundary and a complying setback to the other this would be reduced but would still provide a usable width for a living area. 31 No 26 is setback about 900mm from the common boundary and has windows along its north façade. Where the proposal has a nil setback from No 26 it will overlap two windows, which are not to living areas. The planning controls anticipate a separation between the two properties of a minimum of 1.8m. This is reduced to half for part of the proposal and while it will not have a significant impact on No 26 it is beyond that contemplated by the planning controls. The nil setback of the proposal to both boundaries does not provide spatial separation between it and the properties, which is an objective of the side setback control. 32 On the south elevation the side setback of the upper level is 1.2m for a length of about 17m. This follows the setback established by the existing ground level and given the width of the site there would be little to be achieved by setting the upper level back a further 300mm. It would be reasonable for the ground and first floor to be in the same alignment and setback 1.2m from the boundary. The variation to the side setback control to the upper level would be mitigated by the greater setback at the ground level. 33 Most of the side setback on the northern boundary is set back 1.7m. Where the boundary indents this reduces to 1m for a length of 3m with a balcony and privacy screen extending a further 1.8m. This coincides with where the proposal extends further than No 28A and will be clearly visible from this property. Combined with the nil setback at ground level this will impact on the amenity of No 28A as its bulk is beyond that anticipated by the planning controls. 34 If the northern side setback of the upper level were to comply with the 1.5m control the possible width of development at this point would be about 3m which places constraints on providing an upper level in this part of the site. Nonetheless alternate options for planning of the upper level should be examined such as greater use of the existing roof space, extending closer to the northern boundary where it adjoins the existing building at No 28A or further single storey extension to the rear before the constraints imposed by the site justify the impact of the reduced upper level setback to No 28A. 35 The rear setback of the semis is atypical of the area and the proposed setback is consistent with the setback of other buildings in the vicinity, notably both No 30 and No 26. The proposal therefore recognises and responds to the established rear setbacks in the area. As stated before I do not consider that a single storey building projecting beyond the rear setback of No 28A will have an unacceptable impact on this property. Privacy impacts 36 The residents raised concerns about the privacy impacts of the windows on the north and south façade, the upper level balconies off bedrooms 2 and 3 and the lower level deck. The experts agreed that with the proposed measures, including obscure glazing, directional opening and raised sill heights, the privacy impacts from the windows would be acceptable. The experts also agreed that the privacy impacts from the balconies and decks were acceptable. 37 I accept that the upstairs balcony off bedroom 2 will not result in unreasonable privacy impact as it has a privacy screen to its side and its view corridor is limited to the space between the semis. However, the balcony off bedroom 3 has the potential to overlook the rear garden and swimming pool area of No 26. While this will be restricted by the privacy screens to the side and the ground floor roof there will still be overlooking. The experts did not address this issue in their reports but gave evidence on site that the impact was likely to be acceptable. I do not agree with this conclusion while the balcony is off a bedroom its size and outlook suggest that it would be used to a greater extent than a bedroom and is more akin to a living area. The area which it overlooks is the main outdoor living area of No 26 and overlooking of this area should be minimised. 38 The ground level deck scales off the plans at a minimum of 1.5m below the height of the side fences. This would also result in some loss of privacy to the adjoining properties. Impact on the adjoining semi and conservation area 39 The experts agreed that the proposal had no impact on the appearance of the semis from Shadforth Street. They held different opinions on the compatibility of the proposal with the adjoining semi and the character of the surrounding area when viewed from the rear. 40 Mr Jones acknowledged that the ideal way to add to a semi detached dwelling is to extend the pair concurrently but that where this is not feasible it is important that the: design should complement the form of the overall building and not prevent the adjoining owner from undertaking a similar extension in the future 41 Mr Jones considered that the area was characterised by "diversity" and that there was no need for the addition to be the "same" as the adjoining semi or surrounding development. He considered that the pair of semis was already different from other buildings in the area and that the form of the addition, its contemporary design, narrowness and flat roofs were appropriate in this context. 42 Mr Jones stated that: When taken with a future complimentary extension to No28A, the DA proposals would result in a combined bulk and scale similar to the prevailing development in the locality. This bulk and scale would not overwhelm the neighbouring buildings or cause unacceptable impact on their amenity…… …from an urban design standpoint a narrow building form is not incompatible with either the adjoining semi or the general context 43 Mr Robinson considered the proposal to be incompatible with the adjoining semi and its context. He said that the combination of a number of factors resulted in: A large extension with a tall narrow building form quite different in proportion and character to surrounding development. While a logical response to the site constraints in its own terms, this form would be quite different in scale, form, proportion and character to No 28A and to the other neighbouring houses. The proposed new extension has been designed as a series of low pitched and stepped flat roofs. This building form is quite uncharacteristic of the townscape area and the Shadforth Street Conservation Area. With the exception of a few flat roofed residential flat buildings, both these areas are characterised by houses with hipped and gabled roofs of traditional form with relatively steep pitches clad generally with slate or terracotta tiles. 44 As the semi is being developed independently of its neighbour the key criteria are stated in Planning Guideline P1 which provides that: Any alteration to an individual semi should recognise it as being one of a pair or group of similar, identical or complimentary buildings. In this regard, any extension should be carefully integrated with the building to which it is attached, both in its present form and on the assumption that the adjoining owner may wish to undertake extensions in the future. 45 Both the experts agreed with the sentiments of this control and that when viewed from Shadforth Street it had been achieved. They held different opinions about the additions when viewed from the rear. 46 I find that the proposal does not achieve Planning Guideline P1. There is no reason why a contemporary addition could not satisfy this guideline. However, as described by Mr Robinson, the combination of the narrowness of the proposal, its asymmetrical, stepped and flat roof forms, lack of side setback and complex fenestration pattern result in a highly individualistic building. This does not respond to the simple form of the adjoining semi to provide an integrated building. Nor is it likely to achieve an integrated form if the adjoining semi were to be developed unless this were done in a generally identical manner. This places unacceptable constraints on the form of any future development of the adjoining semi. 47 While such an individual approach may be appropriate on a detached house with sufficient separation from its neighbours it is not appropriate where it is part of a larger building and is in close proximity to adjoining buildings. The proposal is to the rear of the building but it faces Somerset Street and will be visible from this street. The setback of the proposal from Somerset Street and the landscaping will reduce its impact but I find that is an incompatible addition to the semis. 48 There is a diversity of built forms in the Conservation Area and the semis are already different to other houses in the area. However, the use of similar elements such as pitched roof forms provides a compatibly of character between these different buildings. This is recognised by Planning Guidelines P9 in Section 5.1 and P4 in Section 5.4, which clearly indicate the requirement to maintain the existing domestic character of the area of pitched roof forms and the compatibility of roof forms for semi detached houses. The complex series of stepped flat roof forms are not justified in this planning context. 49 The Heritage Impact Statement and the Mosman Heritage Review by Godden MacKay recognise that the semis are severely modified and not individually significant but that they contribute to the character of the area. As I have found that the proposal is an inappropriate addition to the semis it therefore follows that it would have an adverse impact on the Conservation Area. Orders For the above reasons the Orders of the Court are: 1. The appeal is dismissed. 2. The development application for alterations and additions at 28 Shadforth Street, Mosman, is refused. 3. The exhibits may be returned. 4. No order as to costs __________________ Annelise Tuor Commissioner of Court 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.