Muller v Mosman Municipal Council [2005] NSWLEC 482

Land and Environment Court of New South Wales

CITATION : Muller v Mosman Municipal Council [2005] NSWLEC 482

APPLICANT Dr S & Mr D Muller

PARTIES : RESPONDENT

Mosman Municipal Council

FILE NUMBER(S) : 11502 of 2004

CORAM: Bly C

KEY ISSUES: Development Application :- Installation of an inclinator and associated facilities - demolition of an existing garage - construction of a new double garage - noise reduction walls - landscaping - visual impacts - privacy .

State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries Sydney Regional Environmental Plan No. 23 LEGISLATION CITED: Mosman Local Environmental Plan 1998 Mosman Residential Development Control Plan

CASES CITED: Super Studio v Waverley Council [2004] NSWLEC 91

DATES OF HEARING: 01/08/2005

DATE OF JUDGMENT: 09/07/2005

APPLICANT Mr J Cole, solicitor SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

7 September 2005

11502 of 2004 Dr S & Mrs D Muller v Mosman Municipal Council

JUDGMENT

The appeal 1 This appeal relates to Mosman Municipal Council's refusal of Development Application No. 8.2003.36.1, which is for the installation of an inclinator rail and associated facilities, the demolition of an existing garage and the construction of a new double garage with integrated inclinator station together with associated pathway reconfiguration, noise reduction walls and landscaping. The matter was dealt with as an on-site hearing. The site and locality 2 The site is known as 30A Kardinia Road, Clifton Gardens (" No 30A"). It comprises an allotment with two relatively narrow access corridors that provide pedestrian access only to the house located within main area of the site. The southern corridor is 5.4 m wide and very steep linking it to the northern side of Iluka Road and the northern corridor is 1.8 m wide linking it to the southern side of Kardinia Street. The new garage and inclinator rail are to be constructed within the southern corridor to provide secure carparking and access to the house. 3 Adjoining the southern corridor where the development is to take place are two properties developed with detached dwelling houses known as 25 and 27 Iluka Road. The owners of these properties strongly object to the proposal. 4 Number 30A including the southern corridor overlooks the harbour and in turn can be seen from various vantage points on the harbour. Statutory controls 5 The site is subject to the provisions of State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries ("SEPP 56") and Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours ("SREP 23"). Relevantly these instruments require the consideration of likely impacts that development might have on the visual qualities of the harbour and its foreshores. Noise impacts on nearby land are also to be taken into consideration in the determination of a development application. 6 The site is also subject to the provisions of Mosman Local Environmental Plan 1998 ("the LEP") wherein it is zoned Residential 2(a1). In this zone the proposal is permissible with development consent being ancillary to a dwelling house. Relevant objectives of the zone in effect require the protection of local amenity and the surrounding living environment. It is also included in a Foreshore Scenic Protection Area. 7 The Mosman Residential Development Control Plan ("the DCP") is also relevant, containing objectives dealing with character and townscape including the enhancement and protection of scenic amenity and the amenity of adjoining properties. In s 7.5 there are particular objectives and guidelines for the development of inclinators. The relevant objectives are: O1. To have the landscape setting of the site when viewed from the harbour and public spaces protected and enhanced. O2. To have the visual impact of inclinators when viewed from the harbour, public places and adjoining properties minimised. O3. To have the effects of the operation of inclinators on the amenity of adjoining residents minimised. 8 The relevant planning guidelines in the DCP are as follows: