Lipscombe Wall v Mosman Municipal Council [2004] NSWLEC 342

Land and Environment Court of New South Wales

CITATION : Lipscombe Wall v Mosman Municipal Council [2004] NSWLEC 342 APPLICANT Emma Diana Lipscombe Wall PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 11354 of 2003 CORAM: Hussey C KEY ISSUES: Development Application :- bulk and scale - amenity impact of the visual bulk - loss of privacy LEGISLATION CITED: Mosman Local Environmental Plan 1993 Mosman Residential Development Control Plan CASES CITED: DATES OF HEARING: 27/06/2004 EX TEMPORE 06/27/2004 JUDGMENT DATE :

APPLICANT Mr G Young,solicitor

LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

24 June 2004

11354 of 2003 Emma Diana Lipscombe Wall v Mosman Municipal Council

JUDGMENT 1 This is appeal No. 11354 of 2003, which is an appeal against the council's refusal of a development application for alterations to an existing residence at 80 Holt Avenue, Mosman. The proposal involves construction of a first floor level containing a new bedroom, en suite and balcony. At the ground floor, it proposes a living room, lowering and alterations to part of the rear deck, and provision of some perimeter landscaping. 2 The property is zoned Residential 2(a3) under Mosman Local Environmental Plan 1993 and the development is permissible with consent. The site is in the Holt Estate Conservation Area, within the Belmont Townscape area defined by the RDCP, so that it is also subject to Mosman Residential Development Control Plan. Clause 14(2) of the LEP contains the development standards and allows a maximum FSR of 0.5:1. This proposal has proposed FSR of 0.63:1 and the applicant has dealt with the variation by way of a SEPP 1 objection. 3 The detailed evidence in the case was presented by Mr Michael Neustein, project architect/planner and Ms H Ketelbey, council's planner assessment officer. I have also considered the objections and submissions from the neighbours. 4 The planning hurdle in this matter concerns the bulk and scale of the extensions and the resultant amenity impacts of the visual bulk and loss of privacy to the neighbours. These matters are complicated in this case because of the existing rear deck, which is elevated and constrains the opportunity to provide at ground landscaping as preferred by the Development Control Plan. Its elevated height also limits privacy to the adjoining properties. 5 In terms of the primary hurdle in the SEPP 1 objection, this was addressed by Mr Neustein and there are the three following objectives stated for this development standard: (a) compatibility with the housing characteristics of the locality, (b) limit excavation and retain natural levels to contain runoff and, (c) minimise effects of bulk and scale. 6 Council accepts that (a) and (b) are not in issue. The main one being (c), which is to minimise effects of bulk and scale. There has been discussion of the possibility on reducing the upper level and what affect that would have. However, in my consideration the bulk and scale is noticeable, observable from a number of points. Firstly, from the front elevation there is impact on the heritage streetscape and conservation area, but this has been considered by Mr Staas - heritage architect, who states that the impact on the street front of the property is acceptable. I rely on his opinion that this impact is satisfactory. 7 On the eastern side of the site, there is the common wall part the way along the property and given the position of the back of the proposed extension, I think there is very little impact on the adjoining property to the east, in terms of the bulk and scale of this proposed building, considering its proposed setback. 8 With respect to the western neighbour, the upstairs section has been setback to some extent from the side boundary and from my observations from this neighbouring property, I consider that the extent of building bulk will have marginal or relatively insignificant visual impact. I also understand this position was reasonably well accepted by the neighbour. His concern was overlooking opportunities from the proposed balcony and also the opportunity for screening the upstairs section. The proposal now involves cutting back the existing deck to provide cladding, which can screen to a reasonable extent that upper level of the bedroom. 9 It seems that in terms of the discussion about reducing the bedroom area relative to the retreat area, the visibility of that section of bulk is not discernable to any major extent. Although I note that in the SEPP 1 objection, Mr Neustein says that for this heritage, older style house to maintain its heritage context, it requires some upgrading in order to allow reasonable modern liveability. That seems reasonable in this particular case, because there are limited external impacts of the extension in my opinion and the zone critical objective is reasonably satisfactory. Under these circumstances then, I consider sepp 1 objection has been reasonably made out and is well founded in this case. 10 In terms of the other issue, which deals with landscaping, there is the opportunity of reducing the impact of this existing elevated balcony. 11 However, the applicant chooses not do this, as it is an existing structure and if no development occurs, this level of amenity will remain. It appears that on balance there is the opportunity, that if it remains as part of the extensions, of making improvements to the screening effects by augmenting and landscaping it as proposed. Also cutting back part of the lower deck and erecting high screening adjacent to the western property, so that the privacy impact will also be improved and this can be achieved by the proposed timber screening, which the specification has to be finalised. 12 I also consider that in terms of the bulk and scale impacts, it is consistent with the neighbourhood, particularly the property to the east. It has a two-storey presentation and even though I am told it has a small, numeric FSR, I think that its visual appearance and its presentation is similar to the proposal. But considering that the proposal is setback further and it is concealed to some extent by the existing elevated deck, I consider the exceedance in FSR is reasonable in this case. Therefore I rely on Mr Neustein's conclusions in the circumstances of this case, that in this particular location the upstairs alteration and reconfiguration is satisfactory and complies reasonably with the relevant controls. 13 Accordingly the Court orders that: 1. The appeal is upheld. 2. The SEPP 1 objection to the F.S.R. development standard contained in cl 14(2) of the Mosman LEP is allowed. 3. Development consent is granted to Development Application 8.2003.312.1 for alterations to an existing dwelling at 80 Holt Avenue, Mosman, in accordance with the conditions in Annexure 'A'. ___________________________ R R Hussey Commissioner of the Court Mp/rjs