Land and Environment Court of New South Wales CITATION : Conomos v Mosman Municipal Council [2004] NSWLEC 586 APPLICANT George Conomos PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10854 of 2004 CORAM: Tuor C. Development Consent :- construct a dwelling house KEY ISSUES: conditions of approval view loss Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 Mosman Local Environmental Plan 1998 CASES CITED: DATES OF HEARING: 19/10/2004 EX TEMPORE 10/20/2004 JUDGMENT DATE : APPLICANT Mr C McEwen, SC Solicitors Verekers LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan, Barrister Solicitors Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 20 October 2004 10854 of 2004 Conomos v Mosman Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against conditions 2, 3 and 6 of the development consent to demolish an existing house and construct a two storey house and swimming pool at 33 Stanley Avenue, Balmoral. The consent was granted by Mosman Municipal Council (the council) on 23 July 2004. 2 The conditions state: 2. In order to protect views from overlooking properties the building roof height must be lowered by 500 mm to not higher than RL 70.2. Amended plans are to be provided with the construction certificate. 3. In order to prevent future landscaping from obscuring existing views from overlooking properties selected tree species are to be used that would not grow to heights greater than RL 70.0. Amended landscaping plans are to be provided with the construction certificate detailing the revised planting regime. 3 At the hearing the applicant agreed not to dispute the imposition of condition 6, which related to the submission of a long section of the driveway. I will therefore not discuss this condition any further. The council agreed to amend Condition 2 to reduce the height by 250mm instead of the 500mm required by the condition. However, the applicant did not agree that the height of the proposal should be reduced. The parties agreed that condition 1 needed to be amended to reflect the drawing numbers to be approved. The site and its context 4 The site is located at the northern end of the Stanley Avenue cul-de-sac. It is regular in shape with an area 525 square metres. The land slopes from west to east about 5.4 metres. Surrounding development consists of single detached houses and a public reserve to the north. The site, and land in the vicinity of the site, falls to the east towards Middle Harbour. 5 An earlier application was refused by Commissioner Murrell on 14 November 2000 (Appeal No 10971 of 2003). While I had the benefit of the judgement I was not provided with the details of this application but note that it involved State Environmental Planning Policy 1 objections to height, whereas this application does not. Planning Framework 6 The site is zoned 2 (a1) Residential under Mosman Local Environmental Plan 1998 (LEP 1998). The proposed development is permissible with consent. Mosman Residential Development Control Plan (DCP) applies to the site. 7 These documents establish the planning framework in which view loss, which is the key issue in this case, must be assessed. 8 The objectives of the LEP include cl 2(g): To retain views to and from water and foreshore reserves from and to public areas and streets and residential allotments; 9 The objectives of the 2 (a1) Residential zone include: Encourage residential development which has regard to local amenity and, in particular, public and private views. 10 Further the objectives of the height control in cl13 include: (a) to protect public and private views. 11 Clause 13 specifies a maximum height of 8.5m, a maximum wall height of 7.2m and a maximum number of two storeys. The proposal complies with these controls having a maximum height of 8m, a wall height of 6.8m and being two storeys. 12 The LEP provisions are supported by the controls on the DCP, particularly cl 4.3, which relates to views. This includes the following objectives of relevance to the proposal: O2 to have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscape design. O3 to have sharing of views whilst not restricting the reasonable development potential of a site 13 The site is the subject of a private covenant that was placed on the title by Mr Fletcher, the owner of 60 Moruben Road prior to the sale of the property. This restricts the height of the proposal to 8m and requires the roof to be pitched with an east-west alignment and constructed of either tiles or slate material. The proposal meets these requirements. The issues 14 The key issue in this appeal is whether the proposed development meets the requirements of LEP 1998 and the DCP to protect and retain views. 15 The following experts gave evidence: · For the council Mr S Harding, town planner Mr B Newbold, architect and town planner · For the applicant Mr P Tonkin, the architect for the proposal Dr R Lamb, visual impact consultant 16 The hearing was conducted on site and the Court visited the properties and heard evidence from the following residents: Mr A Gates, 58A Moruben Road Mr G Fletcher, 60 Moruben Road Mr B Davidson, 62 Moruben Road 17 The main concern of these residents was the impact of the proposal on their views and privacy. 18 Mr D Liddy, an architect, gave expert evidence on behalf of Mr Fletcher and Mr Davidson. 19 By way of comment, I consider that the number of experts that provided evidence in relation to this matter was unnecessary. View Loss 20 The experts agreed that the main impact on views resulting from the proposal was from the ground floor terrace of 62 Moruben Road. This terrace is large and is off the kitchen, dining, living area. It is also used for outdoor eating and entertaining. In summary the main loss of views would be to Hunters Bay and the HMAS Penguin Navel base, particularly the land water interface. From a seated position this view would be lost although it would generally be retained from a standing position. 21 The experts for Council recognised that some of this view would be lost but considered that if the building were reduced in height by 250mm the land water interface could be retained from certain seated viewing points, although it would still be lost towards the north of the terrace. In their opinion the reduction in height could easily be achieved by either lowering the floor of the building, lowering the pitch of the roof of the building or a combination of the two. They considered this would be an acceptable balance between view loss and reasonable development potential. 22 Mr Liddy indicated that Mr Fletcher would amend the covenant to permit a roof with a 11 degree pitch of copper material which would achieve the 250mm reduction in height. Mr Fletcher would not support a flat or skillion roof. Mr Newbold estimated the additional cost of a copper roof to be in the order of $40,000 but noted that a curved copper roof was proposed in the previous proposal that was refused by the Court. 23 Mr Tonkin accepted that while it would be feasible to lower the building this would have implications for construction, cost and amenity. In his opinion, of the options, lowering the pitch of the roof was more feasible. He had concerns that a lower pitch roof of copper would add to the cost of the construction. If this were to be curved he estimated that the cost would be an additional $70,000 as it would require curved structure and curved windows to maintain the architectural integrity of the proposal. 24 Mr Tonkin stated that the proposed pitch of the roof was only 15 degrees and that a lower pitch would reduce the amenity of the proposal by reducing the ceiling height and would also impact on the view of the house from the street where it would read as a flat roof in an area which is characterised by pitched roofs. 25 Mr Tonkin considered the lowering of the roof to be unreasonable particularly as the proposal was below the height limit in LEP 1998 of 8.5m and complied with the height requirements of the covenant of 8m. 26 The planning framework in which the impact of the view loss must be assessed is that established by LEP 1998 and the DCP. Ms Duggan, for the council, submitted that the key question is whether the views are being retained, protected and enhanced and not whether view sharing is being achieved. She based this submission on the preamble to cl 4.3 which states: It is Important to protect, maintain and, if possible, enhance views through building design and the location of building bulk. New development should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities of views from the development itself. This approach is called view sharing. 27 Ms Duggan stated that as there is no evidence that views from the development would be achieved and that the proposed reduction in height would not impact on any views that the development may achieve, this did not meet the above description of view sharing. 28 Mr McEwen, for the applicant, held the contrary opinion that it is not necessary for the obstructing building to have views at the expense of another building for it to be view sharing. 29 While I do not accept Ms Duggan's submission regarding view sharing, I have answered the question of whether views are being retained, protected and if possible enhanced. While the criteria is protection and retention of a view, this does not mean that the view cannot change or that there cannot be intrusions into the view. The issue is whether these intrusions are diminutive or of such a nature that the view as whole or the important characteristics of that view are retained. In this case I accept that the impact on the view of the proposal retains and protects the view from 62 Moruben Road and that it is not reasonably possible to enhance the view. 30 In reaching this conclusion, I note that the experts agreed that views from a property are not static and change in different positions. In this case the views from the terrace in a standing position will be largely retained. The views from a seated position will be affected, particularly the land water interface, which the council experts considered to be the significant aspect of this view. The proposal to reduce the height by 250mm will retain this view from certain viewing points but it will still be lost from other viewing points. There are other views of land water interface that will be retained and water views as a whole will be retained by the current proposal without the reduction in the height. While I recognise that any loss of view would impact on the enjoyment of the Davidsons, I do not accept that the removal of this part of a view from specific viewing points will not protect or retain the view that is enjoyed from this property. I therefore accept that the requirement to lower the building in condition 2 may be deleted and the condition is amended as otherwise agreed between the parties. 31 I consider that the requirement to lower the building and the resultant constraints on the development in relation to cost, amenity and streetscape impact are unreasonable on the basis that views are being retained and protected and the development has been designed to minimise its impact on views. Privacy 32 In relation to privacy, Mr Gates was concerned that the landscaping was not of sufficient height to protect his privacy. Whereas Mr Fletcher was concerned that the landscaping should be limited in height to RL70m, as required in condition 3, as this would prevent view loss and enclosure of his property by landscaping. He recognised that this would enable a degree of overlooking of the terrace and living area of the proposal from the first floor terrace of his property. However, he valued the retention of the openness of his outdoor area higher than this loss of privacy. He also stated that the applicant had agreed to the limitation on the height of the landscaping in the condition prior to the determination of the application. 33 Mr Tonkin raised concerns that the limitation on the height of landscaping would enable overlooking and that the landscaping should relate to the ridge height of the building as this would not impact on views and afford greater privacy. If the building were to be lowered as required by Condition 2 the height in condition 3 would be acceptable, but if the height remains as proposed then the landscaping height should be adjusted accordingly. 34 While I acknowledge that Mr Fletcher and the applicant agreed to the height of landscaping specified in the condition, the role of the Court is to assess the planning impacts of a proposal. The stated purpose of the condition is to prevent view loss. I accept that the condition should not be deleted, as requested by the applicant, and that it is appropriate to limit the height of landscaping. However, there is no evidence as to rationale for the height of RL70, although it seems to be based on a relativity with the ridge height in condition 2 of RL70.2. This is consistent with the evidence of Mr Tonkin that the height of the landscaping should relate to the ridge height of the proposal without there being further loss of views. 35 As I have already found that the ridge height as proposed is acceptable it then follows that the landscaping height can also increase. This would provide greater privacy and I do not consider that landscaping along the boundary, which is restricted in height to relate to the ridge, would result in an unreasonable level of enclosure or overwhelming bulk to the 60 Moruben Road. I have therefore amended the condition to restrict the height of the landscaping to RL70.44. This maintains the relativity between the landscaping and the ridge that was in conditions 1 and 2 as originally imposed. Orders 1. The appeal is upheld. 2. The development application to demolish the existing building and to construct a two storey house at 33 Stanley Street, Balmoral, is determined by approval subject to the conditions in "Annexure A". 3. The exhibits, except exhibits 1 and E, may be returned. __________________ Annelise Tuor Commissioner of Court 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.