Archiworks Architects Pty Ltd v Mosman Municipal Council [2004] NSWLEC 616

Land and Environment Court of New South Wales

CITATION : Archiworks Architects Pty Ltd v Mosman Municipal Council [2004] NSWLEC 616 APPLICANT Archiworks Architects Pty Ltd PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10394 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Height of wall - floor space ratio - landscaped area - potential impact on views due to height of building and height of proposed trees - streetscape character - swim pool roof - privacy Environmental Planning and Assessment Act LEGISLATION CITED: Mosman Local Environmental Plan 1998 State Environmental Planning Policy No. 1. CASES CITED: DATES OF HEARING: 20/09/2004 EX TEMPORE 09/23/2004 JUDGMENT DATE :

APPLICANT Mr P Clay, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

23 September 2004

10394 of 2004 Archiworks Architects Pty Ltd v Mosman Municipal Council

JUDGMENT 1 This was a Class 1 appeal No. 10394 of 2004 between Archiworks Architects Pty Ltd and Mosman Municipal Council in regard to the deemed refusal of consent for a three storey house at No. 39 Central Avenue, Mosman. The appeal was filed on 2 April 2004. Since that time council had resolved on 17 May a deferred commencement consent subject to conditions including: (a) the swimming pool being setback from the side boundary to 1.5 m and a suitable screen planting being incorporated into the setback area, (b) the pool roof being constructed of non-reflective material, (c) the roof height of the house being reduced by 1.5 m and (d) the trees on the south-east portion of the site being maintained to a maximum height of 2 m above ground at maturity to protect the views of the properties at No. 37 and 39A Central Avenue. 2 The house originally had a pitched roof. This had been deleted for a flat roof in the plans before the Court and the amendments had been re-exhibited with that and a number of other amendments. But the pool roof remained glass, but it had no walls and it was like a carport roof. The pool roof extended over the whole swimming pool which meant along most of the eastern boundary from beside the house almost to the back boundary. Also the pool remained at 800 mm setback to the side boundary with screen vegetation proposed in the soil between. 3 The side wall of the pool was extended up above water level as a retaining wall to the 800 mm width of soil. There was screen hedge vegetation proposed. The roof of the house by the end of the hearing in a draft applicant's condition was lowered so that at its highest point would be RL 66.2. In the council report of 17 May, the 1.5 m reduction would have brought it to RL 66.9, so the roof was to be 700 mm lower than the deferred commencement condition. 4 The applicant agreed to change vegetation types to prevent view obstruction to No. 37 Central Avenue owned by the Cornforths and to No. 39A, a battleaxe lot with a house owned by the McKernans behind and a little above the proposal. The subject lot was the result of a battleaxe subdivision creating Nos. 39 and 39A. As a consequence, the subject land was 460.9 m sq in area. The lot and the existing house appeared to date from about the 1950s prior to the current minimum area for subdivision of 700 m sq. 5 The proposal and the amended plans had a floor space ratio of 0.71:1, the statutory maximum allowed was 0.5:1. The applicant put and the respondent did not deny, that the original plan was 0.56:1 and the increase in floor space ratio had come about due to council staff requesting less excavation for the garage on the bottom level. The raising of the house to comply with this, had brought the front part of the garage more than 1.5 m above existing ground level and caused the garage, the pool and air-conditioning plant room and utilities room to be classified as a storey under the statute. 6 Above that level was the living, dining, family and kitchen areas, called the ground floor, because it had level access to a small backyard excavated into the hill slope below the house at No. 39A. The pool was also at this level on the east side of the house. The pool was 14 m long and 3½ m wide. It stretched to within 2 m of the rear fence and had a glass roof as previously described. 7 The front entry consisted of a gatehouse at the street and a suspended flight of steps up to the porch at a terraced level that extended across the full width of the house in front of the living and dining rooms. The terrace would allow district views to the south, towards the Mosman shopping centre and the ridge, along which Ourimbah Street ran. The view ending at the North Sydney highrise buildings. There may also be a small view down to the water in Quakers Hat Bay to the south west. 8 The locality was called the Middle Harbour Pearl Bay townscape area in the Mosman Residential Development Control Plan. People may relate to it better as the Beauty Point area. Central Avenue ran down a ridge from Spit Road at the top, to Bay Street at the bottom, which was a street behind the houses that fronted the water. The locality was predominantly houses from the first half of the 1900's, although there were many with alterations and additions and quite a few new houses. 9 The single storey house on the subject lot was probably built in the period between the 1920s and the 1950s. Beside it on the west, on the corner with Pindari Avenue, was another single storey house of about the same period. It had a later double garage in the front setback, built right on the front boundary. The garage had a deck on the concrete roof. 10 On the east of the subject proposal, No. 37 was two storey with its living room on the south west corner of the house with a balcony at a 45 degree splay to face the view down to the water in Quakers Hat Bay. The view line was across the south eastern corner of the subject lot at the street front. 11 Between Nos. 37 and No. 39 was the driveway of the axe handle up to No. 39A. The drive was just concrete between paling fences with no vegetation. At the top was a carport roof, highly elevated above the fence due to the slope of the land. The house of No. 39A extended across its allotment with living room windows and a new deck facing south over the subject lot. There was a hedge on the boundary just below eye height when standing in its living room and deck. 12 Across the road from the site, the slope was so steep, the houses were well below the street level. 13 The issues were: 1. Inadequacy of information. (This issue was deleted). 2. Whether the impact on views can be adequately assessed in the absence of height poles. Particulars