Land and Environment Court of New South Wales CITATION : Monemvasitis and Barbera v Mosman Municipal Council [2006] NSWLEC 408 APPLICANT George Monemvasitis and Danielle Barbera PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10024 of 2006 CORAM: Tuor C Development Application :- Alterations and additions to an existing house, KEY ISSUES: height control, visual impact from park impact on adjoining property, solar access and bulk LEGISLATION CITED: State Environmental Planning Policy No 1 Mosman Local Environmental Plan 1998 DATES OF HEARING: 25/05/2006 EX TEMPORE JUDGMENT DATE : 05/26/2006 APPLICANT Mr N Howie, solicitor SOLICITORS Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT Ms J Hewitt, solicitor SOLICITORS Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 26 May 2006 10024 of 2006 George Monemvasitis and Danielle Barbera v Mosman Municipal Council JUDGMENT 1 This is an appeal against the refusal by Mosman Municipal Council (council) of a development application (8.2005.52.1) for alterations and additions to an existing house at 7 Amaroo Crescent, Mosman (the site). 2 The site, its context, the planning controls and history of the application are in the Statement of Basic Facts. 3 Briefly, the site is steeply sloping towards the west and Balmoral Park. There is an existing two storey house on the upper eastern section of the site. The application involves internal changes to this building, the extension of a balcony on Level C and a new lift. A two storey addition is proposed to the west which provides a new living room and deck over a home theatre room. Due to the slope of the land, the addition is stepped and is at a lower level to the existing house. Overall the proposal remains as two storeys stepping down the slope. 4 There is a small section on Level D (approximately 7.5 sq m) where an existing area is being infilled, which results in the building being three storeys in this location. This exceeds the two storey height control in cl 13 of Mosman Local Environmental Plan 1998 (LEP1998). There is also an area of the western wall on Level D and the sliding sunscreens to the existing balcony on Level B which exceed the 7.2 m wall height control in cl 13 of LEP 1998. The proposal complies with the overall height control of 8.5 m in cl 13 of LEP 1998, with the exception of the lift motor room and the sunscreens. The applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1) that the non-compliance achieves the objectives of the standard in cl 13 of LEP 1998 and that the SEPP 1 objection is well founded. 5 Ms Laidlaw, the Court-appointed planning expert, agreed that the objectives of cl 13 were met and that strict compliance with the standard would be unreasonable and unnecessary, given the topography of the site, and that no significant impacts arise from the non-compliance. I accept this opinion. 6 The Statement of Issues before the Court contain four issues. As a result of changes suggested by Ms Laidlaw and amendments to the plans, council did not press these issues and agreed that the application could be approved subject to conditions. 7 The Court had the advantage of a view and heard evidence from a number of residents. Their main concerns related to the impact of the proposal from Balmoral Park due to its setback, height, removal of vegetation and natural features. 8 With the agreement of the parties, Mr Neil Ingham, town planner, spoke on behalf of Mr Van Holsen of 9 Amaroo Crescent, the adjoining property to the south. Mr Goodyear, the applicant's town planner, Mr Lee the applicant's architect, and Mr Youhanna, council's town planner provided evidence on site. 9 The impact of the proposal from Balmoral Park was initially a key issue in the proceedings but has been addressed to the satisfaction of the experts by the amendments proposed by Ms Laidlaw. These amendments reduce the width of Level F, increase its setback from the rear and southern boundaries and provide a recess under the floor structure to reduce the height, bulk and visual impact of the proposal when viewed from the park. 10 The residents were concerned that Level F is forward of the adjoining properties and that, in combination with Level E, would have an adverse visual impact on the park. The width of Level F, facing the park, is about 5.5 m and it is set back about 12 m. The addition has been positioned on the south west part of the site which is relatively altered in comparison with the north west part of the site, which retains exposed rock outcrops and two large Banksia trees. While Level F extends forward of the two adjoining houses I accept Ms Laidlaw's evidence that "there is not a distinct rear setback pattern but rather an informal arrangement of built forms". 11 The impact of development in this location is dictated by its height, width and set back from the park. Level F is a relatively small single storey structure which, while forward of the two adjoining properties, will not have an adverse impact. The recess of the sub-floor structure has further reduced any impact. Level E is set back further than Level F and is in the general alignment with the adjoining houses, and is relatively narrow. The combined effect of both these levels is acceptable when viewed from the park, particularly given the substantial setback to the north and rear boundaries, which maintain natural features and provide opportunity for landscaping. I note that the proposal provides greater landscaped area than that required under LEP 1998. 12 The conditions proposed by council to address the concerns of Mr Van Holsen include the relocation of the garbage room (condition 4), which was supported by the experts and agreed to by the applicant. The other conditions propose moving the proposal a further 500 mm from its southern boundary (condition 3) and requiring the retention of a clump of large Strelitzias along this boundary (condition 13). The purpose of these condition is to reduce and screen the bulk of the proposal and its impact on solar access. 13 The setback of the current proposal is 1.5 m to the stairs and 3 m on Level E from the boundary, which comply with the requirements of Mosman Residential Development Control Plan (Residential DCP). 14 In relation to solar access the proposal will reduce existing sun to the rear garden of 9 Amaroo Crescent prior to 10 am in mid winter. Otherwise the proposal will not impact on the existing sunlight available to the garden and will comply with the requirements of the Residential DCP. The increased set back would marginally reduce this impact but was not considered necessary by Ms Laidlaw, given the compliance of the setbacks and solar access with the Residential DCP controls. She also considered that the extent of sunlight lost and the amount of sunlight to be retained was acceptable. I accept this opinion. 15 In relation to bulk, the experts agreed that there would be a marginal reduction in the perceived bulk of the building if the setback were increased. However, they disagreed on whether this was reasonable, given the changes to the proposal which would be required. These changes can be summarised as either reducing Levels F and D in size or moving these levels towards the north. Moving the levels to the north would intrude further into the rock shelf and be closer to the Banksia tree, which is to be retained. The experts agreed that the Strelitzia could be retained within the current setback and the proposed construction conditions. The Strelitzia will provide significant benefit in screening the proposal and reducing its perceived bulk. 16 I accept Ms Laidlaw's evidence that a further set back of the proposal would achieve a marginal amenity benefit to 9 Amaroo Crescent but it is not reasonable when balanced against the amendments to the proposal that would be required. The need for the setback is dependent upon whether the impacts of the proposal are consistent with those envisaged under the planning controls. The outlook and solar access to 9 Amaroo Crescent will be changed by the proposal. However the setbacks comply with the controls and the non-compliance with the height would have no material impact on 9 Amaroo Crescent. The location of the addition on the southern part of the site enables the northern section to remain unbuilt upon, which retains natural features of the site and has advantages when the proposal is viewed from the park. 17 Moving the proposal further to the north would intrude into this area and be closer to the Banksia tree. Council's landscape officer has proposed conditions to enable construction within the tree's critical root zone however, further intrusion would increase the risk to the Banksia tree. When the benefits to 9 Amaroo Crescent are balanced against the potential disbenefits to the landscape setting of the proposal and its view from the park, the change is not warranted. It is also not reasonable to require the building to be further compressed, given that the impacts of the proposal are consistent with those envisaged by the planning controls. I have therefore deleted proposed Condition 3 from the consent. Orders 18 For the above reasons the orders of the Court are: 1. The appeal is upheld. 2. Development application 8.2005.52.1 for alterations and additions to an existing house at 7 Amaroo Crescent, Mosman, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits A and B, may be returned. ___________________ Annelise Tuor 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.