Brian and Debbie Curren v Mosman Council [2004] NSWLEC 246

Land and Environment Court of New South Wales

CITATION : Brian and Debbie Curren v Mosman Council [2004] NSWLEC 246 APPLICANT Brian and Debbie Curren PARTIES : RESPONDENT Mosman Council FILE NUMBER(S) : 11496 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Alterations and additions to existing two-storey dwelling - The non-compliance with the FSR - Design of the proposed rear balcony - the setback of the proposed stairs from the southern boundary - the proposed double garage on the street and access to the roof of the garage for recreation purposes. Mosman Local Environmental Plan 1998 LEGISLATION CITED: Mosman Residential Development Control Plan 1999 Environmental Planning and Assessment Act 1979 ss79C and 97 CASES CITED: DATES OF HEARING: 19/04/04, 19/05/04 DATE OF JUDGMENT: 05/19/2004

APPLICANT Mr S Flannigan, barrister, instructed by Ms Z Baker, solicitor SOLICITOR Deacons LEGAL REPRESENTATIVES: RESPONDENT Ms J A Walsh, solicitor SOLICITOR Pike Pike and Fenwick

JUDGMENT: Appeal No: 10496 of 2003 4

Brian and Debbie Curren v Mosman Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the (the council) to refuse a development application to demolish the existing garage, erect double garage with roof deck, and alter and add to the front and rear of an existing two-storey dwelling at Lot 3, DP 11540, being No 10 Cobbittee Street, Mosman. 2 An on-site hearing was held on 19 April 2004 and the land was inspected in company with the parties. 3 I have concluded that the application should succeed after being carefully considered under the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979 . The land 4 The land is situated western side of Cobbittee Street between Dayrell Avenue and Middle Head Road. It is rectangular in shape having frontage to Cobbittee Street of 12.19m and side boundaries of 51.815m and an area of 631.62m2. 5 The land slopes steeply down from Cobbittee Street (east) to the rear boundary (off Pretoria Avenue) with an overall fall of about 13m. The fall to the rear of the existing dwelling is in the order of 5.5m and there is a minor cross-fall from south to north of 1.2m. 6 The land is on the eastern extremity of the Mosman residential precinct adjoining HMAS Penguin and the Sydney Harbour National Park at Middle Head. The surrounding area largely comprises large two-storey detached dwellings on steeply sloping land with views of Middle Harbour. Relevant planning controls Mosman Local Environment Plan 1998, (MLEP) 7 The land is zoned 2(a1) Residential under the provisions of the MLEP and dwelling houses are permissible with consent. 8 Clause 2(b) sets out the relevant objectives of the MLEP: 2. What are the objectives of this plan? (b) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity. 9 Under cl 11 of the MLEP the objectives of the 2(a1) zone are to: · Retain the single dwelling character of the environmentally sensitive residential areas of Mosman. · Maintain the general dominance of landscape over built form, particularly on harbour foreshores. · Maintain the existing subdivision pattern. · Ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. · Ensure that development is of a height and scale, which complements existing buildings and streetscapes. · Allow for some non-residential uses that would not adversely affect the living environment of the area. · Encourage residential development, which has regard to local amenity and, in particular, public and private views. 10 Clause 14 of MLEP sets out the objectives and standards for floor space ratio, (FSR). The objectives of the standard at cl 14(1) are: 14. Floorspace ratios in residential zones: (1) The objectives of this clause are: (a) to control the scale of development so that it is compatible with housing characteristics of the locality, and (b) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off, and (c) to minimise the effects of bulk and scale of new development (Amendment 20 to MLEP gazetted on 5 March 2004). 11 The maximum FSR for a site under 700m2 in the 2(al) Residential zone under the MLEP is 0.5:1 or 315.81m2 of GFA. Mosman Residential Development Control Plan 1999, (RDCP) 12 The RDCP as amended came into force on 3 July 2003, and applies to the land. 13 The relevant objectives of s 4.2-Siting and Scale of the RDCP are: 01. To have buildings, which address the street. 02. To have front and rear setbacks complementing existing setbacks in the street. 03. 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. 04. To have building which are of a height and scale which preserve privacy for neighbouring residents and allow the sharing of public and private views, and provide access to sunlight. 06. To have a scale of development which is not excessive and is consistent with the existing or desired future character of the area. 14 The relevant planning guideline for setbacks is P7, which states: P7. Development must have a minimum side boundary setback of: · For basement excavation for up to two storey developments (or up to 7.2 metre wall height) - 2000mm (unless a greater setback applies); · For basement excavation for three or more storey development (or over 7.2 metre wall height) - the setback must be equal to the side building setback requirement (unless a greater setback applies); · Excavation is not permitted within the minimum setback area except for shallow excavation (less than 1 metre depth) required for the provision of utility services. This will require all footings, drainage works, structural support etc. to be located beyond the minimum setback; · For single storey (or less than 3.6 metre wall height) - 900mm; · For two storey developments (or up to 7.2 metre wall height) - 1500mm; · For three storey developments (or over 7.2 metre wall height) - 3000mm; · For four storeys (or up to 11 metre wall height) - 4000mm. For specific setback requirements for some areas, refer to Section 6 Townscape Areas. 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. Note: Setbacks are measured from the face of external wall, deck, balcony, terrace or verandah. 15 Section 5.2 of the RDCP relates to Car Parking and Access and the relevant objectives are: 01. To have the siting of car parking structures respect the character of the streetscape and retain public views where they exist over the site. 02. To have carports and garages designed to be in sympathy with the residential building without becoming the dominant feature on the site. 03. To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for street planting. 05. To have parking provided by the development that relates to the environmental and built constraints of the site. 16 Relevant planning guidelines are P6, P10 and P16: P6. No garages will be permitted forward of the front building alignment. P10. Garages, carports (excluding Conservation Areas) and driveways must not exceed 40% of the block frontage or up to 6 metres, whichever is the lesser, depending on frontage size. Vehicular crossings should not be more than 3m in width to minimise the loss of on street parking. P16. Structures such as decks and patios etc. are not permitted on the roof of the garage or carport. 17 Section 5.6 of the MRDCP relates to Privacy and Security and a relevant objective is: 01. To have adequate visual and acoustic privacy levels for residents and neighbours. 18 Relevant planning guidelines are P4 and P5: P4. Above ground balconies, terraces, decks, verandahs and outdoor spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate overlooking. P5. Due to their potential to affect privacy and views, roof top terraces are not permitted unless it can be demonstrated that there is no loss of privacy or view impact. 19 Section 5.1 of the RDCP relates to Streetscape and Building Design and the relevant objectives are: 01. To have development of a scale and appearance which is in keeping with the street and neighbourhood character. 02. To have variety within development, where consistent with the neighbourhood character. 03. To have streetscapes which are compatible with and support the desired future character objectives of the townscape areas. 05. To promote open style fencing as a means of reducing the visual impact of solid fencing styles and encouraging safety through passive surveillance of streets and private property.