Bellato L and Anor v Mosman Council [2007] NSWLEC 524

Land and Environment Court of New South Wales

CITATION : Bellato L and Anor v Mosman Council [2007] NSWLEC 524

APPLICANT: PARTIES : Luigi Antonio Bellato and Teresa Anne Bellato RESPONDENT: Mosman Council

FILE NUMBER(S) : 10337 of 2007

CORAM: Watts C at 1

Development Application :- View loss KEY ISSUES: Privacy Overshadowing

LEGISLATION CITED: Mosman Local Environmental Plan 1998, (MLEP) Environmental Planning and Assessment Act 1979, ss79C and 97

CASES CITED: Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 16/08/2007

DATE OF JUDGMENT: 21 August 2007

APPLICANT: Mr J E Hones, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Hones La Hood RESPONDENT: Ms J Hewitt, solicitor SOLICITORS: Home Wilkinson Lowry

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

21 August 2007

10337 of 2007 - Luigi Antonio Bellato and Teresa Anne Bellato v Mosman Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Mosman Council (the council) to impose certain conditions on a planning consent to alter and add to a dwelling at Lot 41, Section A, DP 2365, being No 23 Boyle Street, Mosman. 2 The original appeal was in relation to a curved roof proposal that the council had approved subject to conditions and the appeal now before the Court is for a low-pitched roof proposal that the council considers should be refused. The appeal in relation to the first proposal was in respect of conditions and was to be considered afresh by the Court. 3 I visited the land in company with the parties on the morning of the hearing and heard from local residents. The main concerns of these residents were the loss of views, privacy and overshadowing. 4 I have concluded that the application should fail, as there would be a significant view loss over Mosman Bay and Sydney Harbour obliquely over side boundaries from living areas of neighbouring dwellings. The land 5 The land is situated on the northern side of Boyle Street, between Spofforth Street and Orlando Avenue about 45m east of Spofforth Street. The land is rectangular in shape with a frontage to Boyle Street of 12.19m and a depth of 36.575m giving an area of some 445.84m2. The land falls about 6m from the rear down to the front or south, at an average gradient of around 16%. 6 Erected on the land is a single-storey dwelling with a single garage and understorey storage area. 7 Nearby development comprises single-storey and two-storey detached dwelling houses. Two-storey detached dwellings fronting Spofforth Street with rear yards elevated over Boyle Street. Views are afforded over the subject land from these properties to Mosman Bay and Sydney Harbour from elevated gardens, living areas and bedrooms. Relevant planning controls Mosman Local Environmental Plan 1998, (MLEP) 8 Under the provisions of the MLEP the land is zoned residential 2(c) and the proposal is permissible with consent. Clause 13(2) of the MLEP sets a maximum building height in the 2(c) zone of 8.5m and a maximum wall height of 7.2m. Clause 14 of the MLEP sets a floor space ratio of 0.6:1 for dwellings in the 2(c) zone. 9 At No 27 Spofforth Street on the corner of Spofforth and Boyle Streets around 35m from the land is a listed heritage item 'Montylene' House, [Note: Exhibit 1, Schedule 2, p 51]. 10 Other planning policies and controls of relevance are: · State Environmental Planning Policy No 1 - Development Standards, (SEPP1). · Draft State Environmental Planning Policy (Application of Development Standards) 2004, (DSEPP). · Mosman Residential Development Control Plan, (MRDCP). · Notifications Development Control Plan, (NDCP). · Mosman Transport Development Control Plan, (TDCP). · Mosman Section 94 Contributions Plan - Open Space, (s 94 Plan).