La Coste & Stevenson v Mosman Municipal Council [2004] NSWLEC 257

Land and Environment Court of New South Wales

CITATION : La Coste & Stevenson v Mosman Municipal Council [2004] NSWLEC 257 APPLICANT PARTIES : La Coste & Stevenson RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10258 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Visual impact of the garage in the streetscape · State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries, (SEPP56)· Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours, (SREP23) LEGISLATION CITED: Mosman Local Environmental Plan 1998, (MLEP) Mosman Residential Development Control Plan, (RDCP)· Notifications Development Control Plan, (NDCP)· Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: Super Studio v Waverley [2004] NSWLEC 91 DATES OF HEARING: 21/05/2004 EX TEMPORE 05/21/2004 JUDGMENT DATE :

APPLICANT Mr P Hallen, SC, instructed by Ms V Evans SOLICITOR Uther Webster & Evans LEGAL REPRESENTATIVES: RESPONDENT Ms J A Walsh, solicitor SOLICITOR Pike Pike and Fenwick

JUDGMENT: Appeal No: 10258 of 2004 10

La Coste & Stevenson v Mosman Municipal Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Mosman Municipal Council (the council) of a development application to alter and add to an existing dwelling at Lot 12, DP 4311, being No 30 Euryalus Street, Mosman. The application included a new double garage in front of the existing double garage. Recently, the council approved the plans with the double garage deleted. The applicant would like to keep the proposed new garage and seeks approval for it. 2 I visited the land in company with the parties on the day of the hearing. 3 I have concluded that the application to include the double garage would fail when considered under 79C of the Environmental Planning and Assessment Act 1979 and it would not be either reasonable or necessary. The land 4 The land is situated on the western side of Euryalus Street. The land is largely rectangular in shape has a frontage of 15.1m and has a southern (side) boundary of 46.90m, a northern (side) boundary of 46.90m, a western (rear) boundary of 14.80m, and an area of some 703.5m2. 5 The land has a maximum fall of about 9.43m from the road down to the west over a length of 46m. 6 The survey plan identifies trees, shrubbery and minor vegetation on the land and one (1) street tree. 7 Erected on the land is a detached elevated part two-storey and part three-storey, rendered dwelling house with double garage and swimming pool. The double garage is setback around 6m from the street frontage at the southern side of the land. 8 Adjacent development comprises a two-storey rendered brick dwelling to the north at No 28 Euryalus Street, with a flat roofed garage built to the front boundary and in ground swimming pool. 9 To the south at No 32 Euryalus Street, is a three-storey brick dwelling. 10 The surrounding development predominately consists of three-storey and two-storey dwellings. Relevant planning controls State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries, (SEPP56) 11 Clause 6 of SEPP56: requires principles under Clause 7 to be taken into consideration in assessing development applications. 12 Clause 7 of SEPP56: provides relevant guiding principles applicable to the development are those listed under subsections (g), (j) and (k) which relate to the visual qualities of the Harbour, the scale and character of the development and the character of the development viewed from the harbour. Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours, (SREP23) 13 Clause 2 of SREP23: provides general aims applicable to the development are those listed under subsections (a), (b), (e) and (h) which relate to the establishment of existing framework to encourage a consistent and co-ordinated approach to planning, development and management of the harbours, establish an efficient and effective development control system, to protect and enhance natural and scenic qualities in future planning and development control and ensuring consistent guidelines are applied to assessment of development. 14 Clause 18 of SREP23: nominates matters for consideration. Of relevance is subclause (a) appearance. Mosman Local Environmental Plan 1998, (MLEP) 15 Under cl 11 of the MLEP the land is zoned Residential 2(a1) and garages/ additions and alterations are permissible with development consent, as they are considered ancillary to a dwelling house use. 16 Clause 2 of the MLEP provides objectives. Of particular relevance are subcll (b) and (f), to maintain and enhance and improve the existing residential amenity and to enhance and protect the scenic amenity of Sydney and Middle Harbours. 17 Clause 5 of the MLEP provides definitions for the plan by reference to Sch 1. The proposed use is ancillary to a "Dwelling house". Definitions for matters referred to under cll 13, 14 and 15 are also relevant. 18 Clause 11 of the MLEP identifies residential zone objectives. Of particular relevance are subcl (1), ensuring that development is to be of a height and scale, which complements existing buildings and streetscapes. 19 Clause 13 of the MLEP provides objectives and development standards relating to building height, wall height and the number of storeys permitted. The planning officer of the council was satisfied the development standards in this respect were met. 20 Clause 14 of the MLEP provides objectives and a development standard for floorspace ratio. The maximum floorspace ratio is 0.4:1 for sites over 700m2 as in this case. The development satisfies this development standard with a FSR of around 0.35:1 without the new double garage. 21 Clause 15 of the MLEP provides objectives and numerical requirements as opposed to a development standard, for landscaped area. The development would not comply in this regard. However, with the deletion of the garage there would be no change to the extent of landscaped area on the land. 22 Clause 27 of the MLEP indicated that the land is located within the foreshore scenic protection area, (FSPA) and this clause requires an assessment against the objectives of SREP23 and a consideration of the impact of the development on the natural environment, the visual environment and the environmental heritage of Mosman. Mosman Residential Development Control Plan, (RDCP) 23 Section 1.4 of the RDCP provides plan objectives. Of relevance is subs (b), to sensitively manage the desired future character of Mosman. 24 Section 4.2 of the RDCP provides height, setback and building bulk objectives and controls. Of particular relevance is objective (O6), consistency with desired future character of the area. 25 Section 4.4 of the RDCP provides landscaping controls. 26 Section 5.1 of the RDCP provides streetscape and building design objectives and controls relating to the fit of development into the streetscape. Of particular relevance are objectives (O1) and (O3), scale and appearance in keeping with the street and neighbourhood character and compatibility with the desired future character of the townscape areas, and to preserve the presentation of the dwellings to the street. 27 Section 5.2 of the RDCP provides objectives and controls for car parking and access. Of particular relevance and objectives (O1) and (O2), (P1), (P4), (P5), (P6), (P7) and (P9), respecting the character of the streetscape; development in sympathy with the existing residence without becoming dominant; minimum parking requirements of spaces per dwelling; design to be appropriately integrated with the existing residence; where a garage cannot be appropriately provided, a hardstand area is preferred; no garages permitted in front of building alignment; consideration of a carport in front of building alignment and a garage in front of building is acceptable if the land is steep. 28 Section 6.4 of the RDCP contains an analysis of existing character elements for the local townscape as well as desired future characteristics. Of particular relevance is the Middle Harbour/Pearl Bay townscape. Notifications Development Control Plan, (NDCP) 29 The application was notified in accordance with requirements of the NDCP. The proposal and its history 30 Development application No 8.2003.454.1 was lodged with the respondent council on 18 December 2003, to alter and add to the existing dwelling on the land. 31 The proposal is described in plans prepared by La Coste & Stevenson architects involves: · Addition of new retractable fabric awning/ shade with a steel structure. The shade structure has a height of 3.1m to existing ground floor terrace; · Addition of double garage, built to the front boundary (deleted in red on approved plans dated 27 March 2004). The existing double garage is to remain as a garage; · Addition of a balcony adjacent to living room with associated pivoting roof, louvre screen and steel balcony structure; and · Extension of living room into an adjacent roof space, to create a piano room of approximately 6.7m2. 32 The compliance table: Control Standard / Proposed Height Building 8.5m (maximum)7m Wall 7.2m (maximum)N/A Number of storeys 2 maximum2-3 storeys (existing) Gross Floor Area Existing N/A256m2 (34.2m2 as double garage- 32m2 allowable as free floorspace) 288m2 with existing double garage Net additional N/A41.9m2 (Proposal with new double garage) 6.7m2 (Proposal without new double garage) Total 367m2 maximum295.7m2 (Proposal with new double garage) 260.5m2 (Proposal without new double garage) Floorspace ratio 0.5:1 up to 700m20.40:1 (Proposal with (350m2)new double garage) 0.4:1 above 700m20.35:1 (Proposal without (17m2)new double garage) Landscaped area 273.7m2 (minimum)235m2