Land and Environment Court of New South Wales CITATION : Chambers v Mosman MC [2005] NSWLEC 612 APPLICANT Joanne and Peter Chambers PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10560 of 2005 CORAM: Hoffman C KEY ISSUES: Development Application :- Height of a fence - Streetscape - Public Views - Landscaping - Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Mosman Residential Control Plan 1998 Mosman Environmental Plan 1998 DATES OF HEARING: 27/10/2005 EX TEMPORE JUDGMENT DATE : 10/27/2005 APPLICANT Ms S. Hill, solicitor of Susan Hill Solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms J. Walsh, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 27 October 2005 10560 of 2005 Joanne and Peter Chambers v Mosman Council JUDGMENT 1 This is a Class 1 appeal No. 10560 of 2005 between Joanne and Peter Chambers and Mosman Council in regard to conditions 2 and 3 of consent No. 8.2004.186.1 in regard to the design of street boundary fences at No. 15 Cyprian Street, Mosman. 2 It is a corner lot with a 35.24 m frontage to Parriwi Road and 14.12 m to Cyprian Street with a splay at the corner itself. 3 The house onsite is quite old but had been renovated under consent No. 8.1999.135.1. In that consent the Cyprian Street front setback was shown as street front lawn and garden. As seen at the time of this appeal, a raised concrete and masonry terrace had been constructed in the front garden with an outdoor table setting on it. 4 There existed on the street boundaries a low stone retaining wall with a wooden fence to the Parriwi Road frontage about 1.8 m to the top. On the Cyprian Street frontage there existed a lower wooden fence on top of the stone work boundary retaining wall which was about 1.2 m to the top of the wooden fence. 5 What was proposed on Parriwi is a stepped masonry wall with height bearing from 1.5 m to 1.8 m with stone piers 2.1 m high about every 3 m on centres. The masonry between the stone piers is to be rendered and painted. At the corner the wall was dog legged to form a planter box on the Parriwi Road side next to the new entry gates. The gateway would be formed by a set of double stone piers 2.5 m high each side of a 2.5 m wide opening over which there was a roof as shown on the plans in Exhibit 'A'. The gate shown on the plans is to be a single centre gate with a side panel each side all in open wrought iron grill work generally matching the balustrades to be installed in the house renovations. 6 At the hearing the applicant deleted the roof over the gate and agreed to lower the piers to match the other fence piers except the downhill gate pier needed to be about 2.3 m high so that it's top would be level with the top of the uphill gate pier. 7 It was noted the gate piers were already built not in stone as shown in the drawings but in rendered brick work. They were not a set of double piers each side of the gate as shown on the plans. They had been built as a short wall each side of the gate entry. The applicant wanted to keep them that way except to put a stone facing of them to match the other piers. The respondent wanted both short walls to be reduced to the size of the single pier at the street front to increase pedestrians view to the harbour at the corner. 8 On the Cyprian street frontage the applicant wanted to rebuild the existing stone retaining wall with horizontal beds to the blocks instead of beds that slope with the land as existing. The respondent agreed this was acceptable and it would enable the wall to be rebuilt within the site boundary as the old wall had developed a lean over the footpath. The treatment on the Cyprian street frontage was to have the rebuilt base course stone retaining wall revealed. There would be stone piers 2.1 m high about every 3 m on centre and between the piers once again a rendered and painted masonry infill bearing from 1.5 m to 1.8 m high. On both frontages was to be a stone capping along the top of the masonry infill and on top of the piers. 9 The respondent wanted the masonry retaining walls between piers on the Cyprian frontage to be no more than 1 m high and due to the slope in the land that would mean a variation between about 400 mm and 1 m. The infill between the piers the respondent wanted as open pike stave grilles. 10 On Parriwi street frontage the respondent wanted the existing stone boundary wall to remain as is, but it could be extended in masonry up to 1.2 m above the footpath level on the street side and then above that have a pike stave fence up to the 1.5 m to 1.8 m maximum height. The respondent wanted the pike stave fencing between the stone piers, to appear generally as illustrated in its development control plan to suit the period of the house. 11 The issues were: Streetscape 1. Whether the fence is an appropriate design in terms of streetscape. Planning Controls + Section 5.1 Mosman Residential Control Plan 1998 ("the DCP"). Objectives 03 and 05. Planning Guidelines P14, P15 and P17. + Section 6.8 and the DCP – 3rd, 13th and 14th bullet points of the desired future character objectives. + Section 1.4(b). + Clause 11 zone objectives 2 and 5 Mosman Environmental Plan 1998 ("the LEP"). Public Views 2. Whether the proposed fence interferes with public views. Planning Controls + Clause 2(g) of the LEP + Clause 11 zone objective 7 of the LEP + Section 5.1 P18 of the DCP. + Section 6.8 of the DCP – 6th, 7th and 13th bullet points of the desired future character objectives. 12 Appearing for the respondent were: + Ms J Walsh, solicitor of Pike Pike and Fenwick + Mr C McFadzean, Manager of Development Services and + Ms M Lau, town planner at the council 13 Appearing for the applicant were: + Ms S. Hill, solicitor of Susan Hill Solicitors + Mr P. Chambers, applicant + Mr A. Betros, consultant town planner 14 At the hearing redrafted conditions were tendered in Exhibit 1 to give effect to the respondent's wishes. It was discovered that the plans in Exhibit A no longer reflected what had been built, nor what the applicant now wanted or what the respondent wanted. So, amended plans would be needed and would best dealt with by deferred commencement consent pending amended plans whether the applicant or the respondent is successful. 15 The parties had agreed to delete condition 31A in Exhibit 1. The applicant tendered a further condition in Exhibit F being condition 16B to deal with the connection of the Cyprian Street rebuilt masonry wall with that of the neighbour on No. 13 Cyprian Street. The respondent tendered a deferred commencement condition in Exhibit 4. 16 The applicable statues were: The Sydney Regional Environmental Plan No. 23 Sydney and Middle Harbours and both agreed the proposal complied with its requirements. 17 In regard to the Mosman Local Environmental Plan 1998 and the Mosman Residential Development Control Plan 1998 that they had the major work to do in this appeal. 18 In summary the council's case is that an urban design study had formulated controls in the current control plan based on the following quotes in Mr McFadzean's report. At page 37 the study noted that the range of traditional lower fences formed one of the most attractive features at Mosman. At page 38 the study notes "a strong desire for security and privacy has been manifested in the rapidly increasing number of higher front walls. This type of boundary wall is also beginning to appear in the older parts of Mosman with a very discordant effect on the quality of streetscape. Higher front boundary walls also block public views between buildings from the street and the screen front gardens which contribute to the streetscape". 19 The draft development control plan, which accompanied the study emphasised the importance a structure such as high fencing were having on the character of the area. At s 1 the draft development control plan stated: "In particular council is concerned to keep the existing balance between built space and a garden space that contains trees, shrubs and lawn. Current fashion for high security walls and gates together with a desire for even larger houses is having a cumulative and detrimental affect on the traditional townscape and character of Mosman. The very character, which attracts people to Mosman in the first place." 20 Design guidelines at s 4.13 made the following statements: "Mosman residential areas are noted for the contribution private gardens made to their open attractive streetscape. The recent fashion for high blank walls in brick, block work, rendered brick or stone is destroying the residential character and amenity of Mosman. The townscape quality and amenity is affected by the barren visual appearance of large areas of high wall on property boundaries denying views of front gardens." 21 The proposal in Mr McFadzean's view would "wall in" the house and be contrary to the desired future character of the Rosherville Wyagin precinct in which the site is located in the development control plan. Further the development control plan acknowledges that total privacy is not possible given the urban design objectives. The applicant could achieve almost complete privacy in it's rear backyard; and, given hedges to be grown inside the street fences as approved in DA 1999.135.1 there could be reasonable privacy in the Parriwi side courtyard and in the Cyprian side front garden. 22 The applicant's case in summary is that the development control plan allowed for each site to be assessed on it's merits and that the proposal could be seen to achieve the performance objectives. 23 Mr Betros noted the site is on the main pedestrian and vehicle access to Chinaman's Beach. In summer many, many people came down the footpath either from the bus stop near by in Parriwi Road, or from cars parked up hill or from houses up and over the hill. 24 The applicant did not achieve reasonable privacy in the Parriwi Road side courtyard or the Cyprian front garden. The southern private backyard did not have the outlook or the accessibility of the other two. It was one full storey below the living room levels of the house. Both of the other two courtyards had windows into the kitchen and family room areas. 25 In particular people on the Parriwi Road footpath look down at a steep angle into the courtyard and the house. On the Cyprian side people on the footpath look up at lower angle to the outdoor terrace and family and kitchen windows. 26 Mr Betros said for the public to have views to the harbour, it is not possible on the Parriwi Road frontage until one reaches the corner, and that the applicant had made suitable provision for public views to the harbour via the open grill work gates proposed at the yard entry. He did not see the necessity to reduce the walls at the entry to be single piers due to the width of the entry opening. He did concede that perhaps the uphill gate wall could be reduced to the size of a pier. 27 The applicant was concerned that the entry gateway required the existing short walls as built in order to enable the gate to be mounted centrally between them especially with the removal of the roof. Mounting it in the middle of the small walls would enable insertion of an intercom point and letter box within the short walls. Structural stability is also a concern due the weight of the gate and side grillepanels. 28 The point was also made that there a considerable number of large masonry retaining walls supporting the upper level of Parriwi Road in this location and on front boundaries of other houses in the area. The masonry walls proposed would not be out of character with those. 29 The applicant asked that the gate be permitted either as a single gate with side panels, or as two gates because the final design decision had not yet been made. The respondent agreed to that. 30 In considering the various evidences, and after inspecting the property from both the street side and from internally, it seems to me this is a case involving competing interests of the community versus private owners. Both want to achieve the best outcome for their interests. Given the objectives in the controls, and the flexibility allowed therein, I believe there is an appropriate outcome. 31 On the Parriwi courtyard side there is already approved and built a large tiled courtyard, fitted with a barbeque, alcoves, a fountain and other features yet to be installed and obviously intended for private entertainment. 32 If an open fence is required as sought by the council, the growth of any hedge to give reasonable privacy would need to reach 3 or 4 m high due to the height of the retaining wall on the inside of the property and the elevation of the public footpath on the outside. 33 As in the Sun Studio case the time for the vegetation to grow is excessive and due to the elevated overlooking from the street the hedge could not be relied upon to give privacy. The Parriwi Road courtyard is a side frontage and the development control plan allows a high fence on such a boundary. The design as proposed by the applicant is not antipathetic in the existing streetscape of high masonry retaining walls supporting Parriwi Road in its descent down to Cyprian Street. 34 On the Cyprian Street frontage the applicant's own proposal as modified includes see through front gates 2.5 m wide and they are intended to enable the public to look through the front yard and out to the harbour and the headlands. As a result the front garden has a reduced level of privacy as most front gardens do. Along the Cyprian Street frontage, the provision of the council requirement of a stone base course retaining wall with stone piers as shown on the plans up to a 2.1 m, but with an infill panel between piers of metal pike staves open grill work, up to 1.5 m to 1.8 m above the footpath is appropriate to the front garden. The front garden was approved as such in DA 1999.135.1, and there should be continuity between that consent and this. 35 A row of camellia hedge trees behind the grill work approved in DA 1999.135.1 would ensure reasonable privacy to the front garden. The camellias can be obtained as advanced species if necessary, but they would only need to be about 1 m high on the elevated land above the retaining wall to give immediate privacy. 36 I make no comment on the constructed terrace and table setting in the front garden being not shown in the approved plans and DA 1999.135.1. It was not raised by the respondent and is not part of this application. 37 A combination of fence and landscaping will enable the streetscape character to be enhanced in accordance with the development control plan objectives, and the main street frontage of the house to be recognisable because of the front garden setting, which will be visible from the street. I do not consider the Sun Studio case to have a role on the Cyprian Street frontage. One must bear in mind that the front garden is not a private area and that the vegetation already approved will achieve acceptable outcomes for both parties. 38 Therefore the Orders of the Court are: 1. The appeal is upheld in part. 2. Deferred commencement consent is granted for street front fencing to No. 15 Cyprian Street, Balmoral subject to the plans in Exhibit A filed on 21 October 2005 with annotations therein, being amended to comply with the conditions in Annexure 'A' hereto that amend the conditions in consent No. DA 8.2004.186.1 issued by Mosman Council. 3. The exhibits are returned to the parties except Exhibits 1, 2, 4, A, E and F. 4. No orders as to costs. ___________________ K G Hoffman Commissioner of the Court ljr 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.