MacCormick P & Peterson C v Mosman Municipal Council [2003] NSWLEC 283

> Land and Environment Court of New South Wales

CITATION : MacCormick P & Peterson C v Mosman Municipal Council [2003] NSWLEC 283 PARTIES : Mosman Municipal Council FILE NUMBER(S) : 10687 of 2003 CORAM: Tuor C. KEY ISSUES: Development Consent :- s96 application to delete conditions impact on views and privacy LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 1998 CASES CITED: DATES OF HEARING: 23 and 24 October 2003 DATE OF JUDGMENT: 11/13/2003

APPLICANT Mr J Robson, Barrister SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, Solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10687 of 2003

Tuor C

13 November 2003 MACCORMICK P & PETERSON C Applicant v MOSMAN MUNICIPAL COUNCIL Respondent Judgment

Introduction 1 This is an appeal against the refusal by Mosman Municipal Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (DA 8.2002.221.1) for the construction of a two to three storey house at 7 Fairfax Road, Mosman. The s96 application proposes to delete three conditions of consent. The site and its context 2 The site (being lot 24 DP6910) is located on the eastern side of Fairfax Road, about 50m from its intersection with Kirkoswald Avenue. It has an area of 733.9m2 with a frontage of 16.9m to Fairfax Road and a slope of about three metres from north to south across this frontage. The site has a depth of 51.8m along its northern boundary and 44.5m along its southern boundary with a fall of about 10m between Fairfax Road and the rear of the site. 3 Surrounding development is characterised by two and three storey houses of a variety of heights and styles. The properties to the north (No 9 Fairfax Road) and opposite the site (No 7 Kirkoswald Avenue) enjoy views over the site towards Middle Harbour. The site overlooks the rear garden of the adjoining property to the south (No 5 Fairfax Road) and also enjoys views of the harbour. Background and the proposal 4 A development application (DA8.2002.221.1) for the site was approved 14 April 2003. The application was for "demolition of the existing dwelling, and erection of new two storey dwelling house, pool and garage, including work on council land". The application was approved subject to conditions including the following: 1.10 In order to have the value of existing views from private dwellings recognised in accordance with Mosman RDCP 1998, the overall height of the proposed development must be reduced by 0.5 metres such that the maximum of the third level ridge is to be RL 59.30 and the maximum of the second level ridge is to be RL 56.20. Details must be submitted with the Construction Certificate. 1.13 In order not to impact on views, the fixed awnings and pergolas must be deleted from level 2 and level 3 eastern balconies and replaced with retractable awnings. Details must be submitted with the Construction Certificate. 1.17 The proposed swimming pool is to remain at natural ground level. Details must be submitted with the Construction Certificate. 5 The applicant lodged a s96 application to delete the above conditions on 29 April 2003. The application was advertised and council received four submissions. The main issues of concern related to: loss of views; loss of privacy from the pool and overdevelopment of the site. Council staff recommended approval of the s96 application. Council refused the application on 26 August 2003.