Land and Environment Court of New South Wales CITATION : Ting v Mosman Municipal Council [2008] NSWLEC 1534 APPLICANT Dr J and Mrs A Ting PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10847 of 2008 CORAM: Murrell C KEY ISSUES: Section 96 Modification :- extension of balcony; impact on views and from adjoining heritage item reasonableness and necessity for wide balcony serving bedrooms. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Mosman Local Environmental Plan 1998 Mosman Residential Development Control Plan 2004 DATES OF HEARING: 25 September 2009 EX TEMPORE JUDGMENT DATE : 25 September 2008 APPLICANT Mr G Newport (barrister) SOLICITORS Dixon Holmes du Pont LEGAL REPRESENTATIVES: RESPONDENT Ms J Hewitt (solicitor) SOLICITOR HWL Ebsworth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 25 September 2008 10847 of 2008 Dr J and Mrs A Ting v Mosman Municipal Council JUDGMENT 1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 against Mosman Councils' refusal of a modification application. 2 The history of the proposal needs to be considered in the context of two development applications and various modifications, which need to be made to those two development approvals. It is noted there have been a number of changes over the years to the property with alterations and additions to the property at 33 Raglan Street, Mosman. 3 The issue before the Court today has a relatively narrow focus or compass in that it is in respect of a balcony to serve two bedrooms on the upper level on the subject dwelling, when I say upper level the proposed dwelling is a two storey dwelling house with a third attic level. The attic level was approved as part of a previous modification application. 4 The council in granting consent in 2007 to the upper balcony of the bedrooms stipulated a condition such that the balcony was to be 1.6 metres from the northern boundary and a maximum width of 1.5 metres serving the bedrooms. The plans that the applicant submitted for a balcony which extends to the concrete deck on which the balcony is proposed to be constructed is the upper part of the roof of the enclosed sun-room below. 5 The concrete slab as it currently exists off the bedrooms is some 3.5 metres wide. The applicant and the council's condition require a maximum of 1.5 metres in width. As such 2 metres beyond the 1.5m approved balcony must be non-trafficable. The applicant has proposed a further modification today such that it can utilise that concrete slab to a width of 2.5 metres that is from the face of the building of the bedrooms to the balcony itself, which would then leave 1.5 metres of the concrete slab beyond the balcony. The applicant has also accepted the condition that it be 1.6 metres from the northern boundary. 6 It is agreed between the parties that this is a balancing exercise. The court must have regard to the planning controls. The 1998 Mosman LEP has plan objectives including "to enhance and protect the scenic amenity of Sydney and Middle Harbours and to retain views to and from water and foreshore reserves and public areas, streets and residential allotments". 7 The LEP also contains controls in terms of the objectives of the zone. The subject site is zoned 2A1 and the objectives include to encourage residential development, which has regard to local amenity and in particular public and private views Another objectives is to ensure the development is of a height and scale that compliments existing buildings and street scapes. 8 The LEP also contains the standard heritage provisions and the adjoining property at 35a Raglan Street is a building that is in the heritage schedule to Council's LEP. It was designed by Sydney Anchor from the Sydney School of Architecture and it has a heritage listing. There is no dispute that the item is of heritage significance. The relevant clause is that of Clause 37 of the LEP, which is development in the vicinity of heritage items and the Council in determining applications for consent must consider the likely affect of proposed development on the heritage significance, ------ and setting of the item and the impact of the proposed development with any significant views to or from the heritage item. 9 The Court must also have regard to the development control plan. The development control plan is that adopted by the Council and amended as of May 2004 entitled Mosman Residential Development Control Plan. There are a number of objectives of this DCP including: to enhance and protect the scenic amenity of Sydney Middle Harbours and to retain views to and from water and foreshore reserves and public areas, streets and residential allotments, re-iterating the LEP. 10 The section on views is 4.3. Objective two is to have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscape design. Objective three is to have sharing of views whilst not restricting the reasonable development and potential of sites. A number of guidelines are included under this provision on views, in particular P4 measures to be used to maintain views include building set backs, gaps between buildings … splayd corners and the use of open materials for balustrades on balconies and decks. 11 Where there is potential for loss of view, Council may require a maximum building height of less than 8.5 metres. It is noted in Council's assessment there was a table on the height of the wall and in effect that shows an exceedence of the control of 8.5 metres and the wall height is also exceeded, the wall height is 7.2 metres and the existing is 8.9 metres plus a balustrade. 12 The DCP also contains a provision in terms of privacy and security, to have adequate visual and acoustic privacy between properties. Above ground balconies, terraces, decks, verandahs and outdoors spaces must not directly overlook rooms and private landscape areas of adjoining properties unless screening can mitigate overlooking. 13 The Respondent has stated that the proposed development would impact unreasonably on the heritage item and the views from that dwelling. The Court had the opportunity of viewing the proposal from both 35 Raglan Street and 35a Raglan Street. In terms of privacy concerns for 35 Raglan Street I am satisfied that the separation distances, the oblique angles are not an issue in this development modification application. In terms of privacy and overlooking it can be said in areas that enjoy magnificent views such as these properties that there is a certain degree of mutual overlooking, the issue is when that becomes unreasonable. 14 The seminal issue in these proceedings is view loss. It has been submitted on behalf of the applicant that the proposal complies with Council's controls in that it is a transparent glass balcony that is proposed and that the view loss is one that on the Applicant's submission that would not warrant refusal of the application. 15 The Court has the opportunity of understanding the relationship of the heritage item to the subject site, the Court also has the opportunity of understanding the views obtained from both properties. It is clear from this mornings' inspection that the subject property enjoys extensive and expansive views and does not rely on the balcony from the upstairs bedrooms to gain those views. On the hand it could be seen that the heritage item, has a rather restricted balcony width of some 1.2 - 1.5 metres and there is clearly no opportunity to extend this balcony given the proximity of the boundary with the adjoining property. 16 It has been submitted on behalf of the Applicant that the use of the balcony being directly related to only the bedrooms would mean that it would not generate the same activity as balconies off living rooms. Clearly balconies off living rooms these days are designed to be much wider in width than previously to accommodate furniture for dining etcetera and general enjoyment. This can been seen by the generous balconies of this property compared to the Anchor designed house. 17 In my assessment I have had regard to the principles articulated in the judgement of the Senior Commissioner, on the principles of view sharing wherein he articulated the importance of views and whether they are iconic. While the view across the side boundary can not always be guaranteed at the same time an integral part of the design of number 35a Raglan Street was clearly views to the Harbour as evidenced by the positioning of windows and the loss of the land water interface, or the obscuring of the land water interface, and Clark Island to the extent is the subject proposal would create is not necessary to be impeded. As such in terms of the reasonableness of this proposal, I'm not satisfied that a balcony of the dimensions proposed by the Applicant in the modification application is warranted. 18 On the one hand while the use of the proposed deck would be less than if it was off a living area, on the other hand one can also say that the need for a width of 2.5 metres is unnecessary and in terms of the impact on the adjoining heritage item it is unreasonable and unnecessary. I have determined this especially having regard to the views obtained from subject site compared to 35a Raglan Street. The views to the Harbour are clearly the more significant views from both these properties and it is consistent with view sharing that the balcony be only 1.5 metres in width and 1.6 metres set back from the northern boundary. This restriction in size is considered fair and reasonable having regard to this serving a bedroom area and the need for activities that are normally associated with wider balconies which would then be restricted to the lower deck which is off the sun room, living room and kitchen area of the subject dwelling house. 19 The Court is also conscious of the fact that modification applications are facultative in that there is the opportunity for amendments to be done to development applications once approved. However the court cannot condone development by creep, that is modifications that seek to provide for development that ultimately has either grown cumulatively or has unreasonable impacts on adjoining properties. 20 The purpose of development consents is to provide for certainty in the planning process and development must be in accordance with plans and while modification applications can be submitted they must be considered on there individual merits. It does not suffice to say just because there is now a concrete slab it should be utilised to it's near maximum. 21 Originally, the balcony proposed on the plans was some 600mm from the outside edge. Submitted with the application there was a justification or reason seeking the modification. Those justifications were that there would be no view loss from 35a Raglan Street. It is true that a transparent balcony or glazing would not incur view loss however by safety regulation it would require a top railing in terms of the BCA and clearly the use of the space with furniture is one that could impede and obstruct views from 35a Raglan Street in an unreasonable manner. Whilst the current owners may restrict the amount of furniture placed on such a balcony the consent runs with the land and that is an unreasonable proposition to condition because it would require enforcement and that is an unreasonable imposition on the Council. 22 The reason for the extended balcony raised by the applicant concerning child safety is not well-founded. Clearly a balcony that is accessed off bedrooms is one that is used by residents and visitors to the property from time to time, and if there is a concern for children then the doors to bedrooms clearly would be locked or alternatively a higher railing can also be installed on a balcony of reduced width. Originally a railing of 1.6 metres was proposed, the Applicant is now seeking one of a minium height that is a matter for the Applicant as to the height of the railing of the clear glazing. 23 The other reason the applicant put forward for a wider balcony was because of water-proofing. This is a matter that needs to be resolved by the building engineer and it is not justification for the wider balcony and this would not warrant approval of this Section 96 modification. 24 I note that the issuing of the construction certificate should not have occurred before a plan amendment as stipulated in Council's condition for the length and width of the balcony. Unfortunately the construction certificate was not available but none-the-less unauthorized cumulative changes to developments the Court does not condone. Furthermore on an overall merits assessment of proposed modification it does not warrant approval as the impacts on 35a Raglan Street are unreasonable and unnecessary when one looks at the cumulative impacts of the development as such. 25 Therefore the formal orders of the Court are 1. The appeal in respect to the property know as 33 Raglan Street Mosman is dismissed 2. The development modification application submitted to Mosman Council and as modified is determined by the refusal of consent 3. The exhibits are returned to the parties ___________________ J S Murrell 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.