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 Paragraph V clause 2 of the DCP. HEIGHT 3. Whether the application can be considered with respect to compliance with council's height controls in the absence of a State Environmental Planning Policy No. 1 objection. Particulars Mosman Local Environmental Plan 1998 ("the LEP") clause 13 4. Whether the proposed complies with the numerical requirements and/or objectives of the height controls in clause 13 of the LEP. Particulars (a) Non-compliance with the 7.2 m wall height limit and 2 storey height limit. (b) Whether the proposed development protects views from 35, 37 and 39A Central Avenue. (c) Whether the proposed building height and pitch roof form of the development is compatible with existing buildings in terms of height and pitched roof form. (d) Whether the proposal minimises the effects of bulk and scale. FLOOR SPACE RATIO 5. Whether the SEPP 1 objection in relation to Floor Space Ratio ("FSR") can be supported Particulars (a) The LEP clause 14 (1) and (2) (b) The maximum permissible FSR is 0.5:1 Proposed unable to be calculated on the information provided. (This was clarified as mentioned above) (c) Whether the proposed is compatible with housing characteristics of the locality (clause 14 (1) (a)) (d) Whether the proposal appropriately limits excavation of sites and retains ground levels for the purposes of landscaping and containing urban run-off (clause 14 (1) (b)). (e) Whether the proposed minimises the effect of bulk and scale of new development (clause 14 (1) (c)). LANDSCAPED AREA 6. Whether the proposed complies with the objectives of clause 15 of the LEP and whether the numerical requirements of clause 15(2) have been met. Particulars Objectives 15 (1) (a), (b), (c), (d) and (e). IMPACT ON VIEWS 7. Whether the proposed dwelling is excessively high and unnecessarily interrupts existing views, thereby not recognising existing views and achieving appropriate view sharing in respect of views currently enjoyed by residents at 37,35 and 39A Central Avenue. Particulars (a) Clause 4.3 of the DCP. SITING & SCALE 8. (a) Whether the proposed development has front setbacks that compliment the existing setbacks in the street. (b) Whether the ground floor balcony is too far forward of the building alignment in Central Avenue and hence is not compatible with existing setbacks of the street. (c) Whether the development is excessively bulky affecting neighbouring amenities. Particulars (a) Clause 4.2 of the DCP. STREETS CAPE & BUILDING DESIGN & TOWNSCAPE REQUIREMENTS 9. Whether the proposed building is unduly prominent with respect to architectural appearance in relation to the existing streetscape and whether or not it makes a positive contribution to the streetscape. 10. Whether the proposed front ground balcony is in keeping with the street and neighbourhood character with respect to its distance from the front boundary. 11. Whether the proposed front fencing makes a positive contribution to the streetscape. 12. Whether the proposed development is in accordance with the desired future townscape area character and whether it would create an undesirable precedent. Particulars (a) DCP clause 6.12 (b) DCP clause 5.1 SWIMMING POOL 13. Whether the pool should be approved having regard to non-compliance with the 2 m minimum setback required in the DCP. Particulars (a) DCP clause 7.4 objective 1 and 2 and performance criteria 7 and 17. CAR PARKING 14. Whether or not the street vehicular crossing and driveways are sufficient to minimise visual impact. 15. Whether the garage's non-compliance with Council controls regarding widths is acceptable having regard to the streetscape quality of the adjoining and surrounding developments. 16. Whether the garage is unsatisfactory in the streetscape. Particulars (a) DCP clause 5.2 objective 1, 2, 3, performance criteria 3 and 10. PRIVACY & SECURITY 17. Whether the proposed rear balcony will cause unreasonable loss of privacy to the habitable rooms of 39A Central Avenue and the rear yard of 37 Central Avenue. 18. Whether or not the proposal should be setback further from the side boundaries by 2 metres to ensure adequate privacy to 37 Central Avenue. Particulars (a) DCP part 5.6 performance criteria 4 and objective 1. 14 The respondent's evidence was heard on-site from: · Mr and Mrs Cornforth of No. 37 Central Avenue, and · Mr and Mrs McKernan of No. 39A Central Avenue. 15 The applicant's architect, Mr M Hoang was on-site to explain the drawings and to instruct his barrister. 16 There was a Court appointed expert Mr N Kennan, town planner. Height poles were erected on-site at the front and back of the site, as marked on the subject plans in Exhibit A to assist the Court in understanding the evidence. 17 From standing in the Cornforth's living room and observing the position of the proposed house, it was clear that it would not obstruct views at all. But the proposal would be seen in the direction from the Cornforths's living room and balcony along the front yards of Nos. 39 and 41. The new terrace outside the living room of the proposal would be seen full length and anybody on it. The flight of steps and the gatehouse would be seen low in the view. They would only obscure the road pavement below and cars on it from the Cornforth's. 18 The agreement to have vegetation a maximum of 2 m growth height in the view line from the Cornforths to the south west would ensure no loss of view. That being the case, it was easy to observe that in respect of No. 35, there would be no view loss either. The view loss was the main objection of the neighbours, although they were concerned that the terrace projected to within 2 m of the street boundary at one point. The balcony had a curved front edge, and the front boundary was splayed to the street alignment. 19 The allotments in that location in the street were at a splay of about 30 degrees to the street alignment. And the houses were square to the side boundaries. This meant one side of each house was closer to the street than the other. This applied from about Nos. 29 to No. 41. So the houses had an offset articulated appearance in the streetscape. Some had garages in their front setbacks, but there was in each, an area of about a half a lot width for vegetation. 20 The proposal was setback 6 m on its east side, if one ignores the gatehouse and the suspended flight of steps. It was setback 2 m on its west side. The terrace retained only a 2 m street setback for about half its width, then curved back to about a 4½ m setback. The balcony was 4½ m deep at its maximum and 3 m at its minimum and 9½ m wide across the front of the house. It was contiguous with the landing and porch at the top of the entry steps, so the visual overall width was 13½ m. 21 The first floor balcony was 3½ m setback to the street at its nearest point. It also had a curved front balustrade which carried across the ground floor porch roof. At its furthest point it was 7 m setback from the street and would appear 13½ m wide. No access was intended above the porch as its roof was shown as a non-trafficable area including a drainage gutter. 22 The front wall of the house had a front setback of 7 m at the furthest and 5 m at the closest point to the street. This was about the setback range of the other nearby houses, but although there was some garages in front setbacks, none had these wide cantilever terraces above the front setback. 23 Mr Kennan did not take exception to this, saying that elsewhere in the street and in Pindari Avenue there were many examples of large new houses with terraces on top of garages at zero street front setback, although the houses themselves were further back. A very large house on the west corner of Central Avenue and Pindari Avenue about 50 m from the site was a recent example of a council approval, that adopted those same principles. 24 The point was also made by the respondent that the character of Mosman was sought to be retained, and that was pitched roofs as seen on most houses nearby. And the proposal was very rectilinear with a flat roof. It was not typical and would fail to maintain character. 25 Mr Kennan said, the Residential Development Control Plan cl 6.12, Middle Harbour, Pearl Bay locality in the desired future character section, had lists of what to maintain and what to encourage. Neither list mentioned pitched roofs as desirable, even though in the existing character element of the clause it mentioned "gabled roofs are particularly characteristic." The closest reference was the statement to encourage "facades that are well modulated to relate to the existing streetscape and are not dominant when viewed from the harbour and neighbouring properties." 26 Given the structures in the front yards of nearby houses and the offset lots and buildings to the street, Mr Kennan found it difficult to identify a fixed front setback and he thought the proposal was acceptable in that regard. The facade was articulated due to the cantilevered balconies and other elements such as the gatehouse, the entry steps, the porch roof. The flat roof he knew was different to immediate neighbours, but there was a fairly recent flat roofed house directly across the street from the site, and others nearby. 27 He noted one of the things to maintain under the desired future character in the Development Control Plan in this locality was the architectural diversity. The proposal did that, he said. 28 It was put to him the same provision went on to say, "limit bulky mega-dwelling houses with horizontal emphasis across allotments." It was put to him, this house could fit that description. He said the use of the word, mega, was not defined in the Development Control Plan or the statute and was a colloquialism that to him meant very, very big houses. The floor space of this house excluding the garage level was about 230 m sq which could not be described as very, very big or mega. It was not at all large by comparison with many Mosman houses. In fact it could be termed, average. 29 In addition, the change in the design to make it a flat roof instead of a pitched one, was done to provide view sharing for No. 39A the McKernans. And the final amendment of lowering the roof another 300 mm to RL 66.2 shown in Exhibit A, made the house have smaller visual impact again, and a better notion of stepping down the slope of the street from Nos. 37 to No. 39 to No. 41. 30 The McKernans main objection had been to the height of the roof intruding into their view towards the ridge running from Mosman shopping centre to the North Sydney high rises. They could not see the water, except for glimpses across No. 41 and through trees. But the McKernans said the district view was at the moment a continuous panorama of the ridge with houses and vegetation by day and twinkling lights by night. It was seen as a panorama from their living room windows and the original proposal would block out about half of it. 31 The amended proposal was much better, but the McKernans said they had been told it would be lowered to just below eye level standing in their living room. The survey plan in Exhibit 9 showed their floor at RL 64.71. Eye height being accepted at 1.6 m, although Mrs McKernan was shorter than that, it meant the roof should be no more than 66.31. The amendment during the hearing to lower it to RL 66.2 satisfied that undertaking. 32 The other concern was the glass roof of the pool. It would be higher than the paling fence, along the McKernans driveway and within 800 mm of the boundary. It would be long and bulky and it would be seen from their master bedroom. They hoped it would be cut back so it was only beside the house and not extending all the way to the back fence. 33 Mr Kennan said it was an open structure like the McKernans carport. The carport had almost no setback to the boundary and had no screen vegetation and no space for any to be planted (it was all concrete). The pool roof of the proposal would be lower than the carport roof and would be able to grow screen vegetation in the 800 mm setback to the east boundary and the 2 m setback to the north boundary. He doubted the McKernans would see it once the vegetation grew. Their own carport roof would be the biggest object visually in their outlook. 34 Mr Kennan had consulted with the council's landscape architect who was satisfied the space was sufficient to grow screen vegetation. Mr Kennan concluded that although reducing the size of the pool roof could be seen as beneficial to the McKernans, he did not think it was worthy of a condition requiring such reduction unless the applicant chose to offer it. The applicant did not choose to change that part of the design. 35 A large tree was proposed in the north west corner of the proposal at the boundary with the McKernans. It had a growth height of 10 m. The McKernans said it would certainly block their view when it grew. The council made no submissions or evidence when the applicant offered to delete the tree and replace it with something of a maximum growth height of 4 m. 36 Turning to the bulk and height issues, the maximum building height permitted was 8.5 m. The house after lowering would be 1.8 m below that. However there was another height statute that required a maximum wall height of 7.2 m. The proposal in Exhibit A had a maximum of 7.7 m on the east elevation and 7.9 m on the west elevation. Since the whole roof was to be lowered by 300 mm in the amended condition, it would be 7.4 m and 7.6 m wall height. 37 Mr Kennan said it was so close to the allowed height, given the uncertainty of the definition of height, that is, it is measured from existing ground level at 22 January 1982, and because he could see no impact, it could be taken as complied with. He supported the State Environmental Planning Policy No. 1 objection in Exhibit D. 38 On bulk, there was also a State Environmental Planning Policy No. 1 objection to non-compliance with the floor space ratio maximum 0.5:1. The proposal as mentioned previously was 0.56:1 on the living room and bedroom floors but because of council seeking to raise the garage level, part of it had a wall height now more than 1.5 m above existing ground level. As a result, the floor space ratio became 0.71:1. Even then however, 75% of the basement was underground and did not add to the bulk, Mr Kennan said. In fact, the section of the garage that had a wall height more than 1.5 m was at the front section under the terrace off the living room. This part of the house was only one storey and was otherwise permissible as a terrace. The garage only filled in beneath it. Mr Kennan agreed with the council officer's report of 17 May 2004 and supported the State Environmental Planning Policy No. 1 objection as a requirement to comply was unnecessary as the objective of the standard was achieved, because the extra floor space did not add to the bulk or height of the proposal. 39 The raising of the living room floor of the house was sought by council to minimise excavation in the backyard. 40 The Court notes also, the council officer's report of 17 May 2004 in regard to the Sydney Regional Environmental Plan No. 23, Sydney Harbour Foreshores and Tributaries. The house would hardly be discernible from the water nor any other point of distant observation set in amongst the other substantial houses above, below and either side of it on the hill slope. It would be consistent with the objectives of the regional plan. 41 On the landscaped area issue, Mr Kennan believed it was more than complied with in the original design, 154 m sq being required, and 190 m sq provided. The change to the floor space ratio calculation brought the landscaped area requirement to 198 m sq. He felt with the landscaping proposed, the non-compliance was de minimus and the issue was satisfied. 42 On the car parking issue, the council pressed no evidence on that matter and Mr Kennan again agreed with the council officer's report of 17 May 2004 which said the garage was well integrated into the design and was acceptable. 43 The Court noted draft Condition 51 that required 2 potentially large trees to be planted in the footpath reserve outside the house. The Court called the parties back to a Mention and was told the condition should be deleted due to its potential to block the Cornforth's views. The council's street tree policy allowed flexibility in that regard. 44 Overall the Court has only the evidence of the Court appointed expert on the statutory and control plan requirements, and in view of his assessment and conclusion, there appears to be no reasons sufficient for refusal of the proposal and the State Environment Planning Policy No. 1 objections should be upheld. The final amendments to the design during the hearing appear to have satisfied the neighbours concerns on view sharing. 45 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Consent is granted to the demolition of an existing house and the erection of a new house on No. 39 Central Avenue, Mosman, as shown on the plans in Exhibits A, E and 8 as listed in Annexure A hereto with the whole roof being lowered 300 mm at all points, its maximum height being RL 66.20. All drawings to be as further amended by, and the development to be in accordance with, the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except for Exhibits A, B, E, 4, 6, 7 and 8. ___________________ K G Hoffman Commissioner of the Court rjs 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.