Land and Environment Court of New South Wales CITATION : Nicholas v Mosman Municipal Council [2010] NSWLEC 1373 PARTIES : Louise Nicholas (Applicant) Mosman Municipal Council (Respondent) FILE NUMBER(S) : 10516 of 2010 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- APPEAL alterations and additions to dwelling: privacy impacts on adjoining properties; and impacts on streetscape of car parking space in front setback area. LEGISLATION CITED: State Environmental Planning Policy No 1 Mosman Local Environmental Plan 1998 CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 1 & 2 November 2010 EX TEMPORE JUDGMENT DATE : 2 November 2010 LEGAL REPRESENTATIVES: Mr J Doyle, Barrister (Applicant) Ms J Walsh, Solicitor (Respondent) JUDGMENT: This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: The applicant in these proceedings is seeking to carry out a number of alterations and additions to a dwelling house at the property known as 102 Raglan Street, Mosman. The proposal includes providing a hard stand car space in the front of the dwelling with a driveway access from Raglan Street. 2 The contentions outlined in council's Statement of Facts and Contentions are summarised as follows: 1 Inadequate information. 2 Adverse impacts on amenity of adjoining properties. 3 Unsatisfactory alterations to the front of the semi. 4 Loss of on-street parking. 5 Issues raised by objectors. 3 A number of the issues that were initially raised by the council are no longer pressed and the plans in exhibit 8 incorporate changes to address various matters. 4 As submitted on behalf of the council the single issue that remains in the proceedings is the car parking space at the front of the dwelling. It is noted that the plans require an alteration to the fabric of the dwelling in that the car space, to accommodate an eighty-fifth percentile Australian standard car, requires taking approximately one metre of the living room to provide for the length of a car space in the front setback area. This is referred by the architect as a reverse bay in the plans and there is also a a need to move the columns that support the upper balcony to provide the necessary width for a car space. 5 The streetscape exhibits a variety of architectural styles and types of dwellings, mainly older dwellings, and the subject site is opposite a conservation area. The site itself is not a heritage item or within a conservation area but the opposite side of the street is the Raglan Street conservation area and there are also heritage items in the street. 6 It can be seen from the aerial photograph and the zoning map that the sites in Raglan Street are generally larger than the subject site. The subject site is one of a two-storey pair of semis that together appear as a two-storey terrace in the streetscape. There are a handful of other semi-detached dwellings within the street, some a result of re-subdivision of larger dwellings to provide for two dwellings. I also note that the streetscape includes the provision of driveways and car parking spaces for the majority of the dwellings including the single dwelling homes. The premises at numbers 106 and 106A Raglan Street are of a semi-detached nature and they have car parking spaces inserted into what would have been traditionally the front garden area of those properties. 7 The Court in its assessment must have regard to the objections that were received and the Court heard evidence on site from the owner of number 106 Raglan Street. Mrs Stockdale expressed concern that her privacy would be infringed by the addition of a balcony at the upper level of the subject premises. She is concerned that this may then be replicated for No. 104 and the architect provided plans to demonstrate the impact of similar alterations to the other semi in this pair, at No. 104. 8 In this regard the Court has the opportunity of viewing from the upstairs area of the subject premises towards number 106 and also has the benefit of going into 106. It is clear that there is some mutual overlooking and this is not dissimilar to other properties within the area and evidenced on the view. For example, the property at number 100 has upstairs balconies that have the opportunity of viewing into the back yards and back of other properties. Mutual overlooking, in particular in a suburban environment, is not unusual and one cannot expect to have the degree of privacy that some people seek as if they were on acres. I am satisfied that with the design amendments to the privacy screen and the louvres that the proposed upper deck balcony with a width of 0.9 m is reasonable and would not provide unreasonable privacy concerns on number 106. I am also satisfied that if this same rear deck of 0.9 m was provided to the adjoining property at 104 that this would cumulatively not have unreasonable impacts. It is important when one is looking at semi-detached dwelling houses to have an understanding of similar alterations or the same alterations to the other one in the pair. 9 In determining the 0.9 m balcony is satisfactory, I have had regard to the use of the balcony with access from a bedroom, that is not classified as a primary living area. Furthermore large numbers of people cannot congregate on a balcony with a width of 0.9 m, however, it will provide increased amenity without creating adverse impacts for surrounding properties. In this regard I agree with the council and the applicant's experts that the proposal is satisfactory and acceptable and will not have unreasonable adverse impacts on adjoining properties. 10 Similarly the other alterations that are proposed for balconies and the internal configuration of an extension to the lower bedroom at the rear provide for impacts that are well contained within the property. 11 A State Environmental Policy No 1 objection was submitted in respect of the floor space ratio exceedence. The LEP provides for a 0.6:1 FSR and the proposal is between 0.6 and 0.7:1. The FSR is contained within cl 14 of the Mosman Local Environmental Plan 1998 and the objectives are: to control the scale of development so that it is compatible with housing characteristics of the locality; and to minimise the effects of bulk and scale of new development; 12 The applicant provided an objection under SEPP 1 in exhibit C to the development standard and the objectives are clearly identified in the standard itself. This is not a contention by the council but in terms of a SEPP 1 it is a threshold question and I am satisfied that the objectives are satisfied and the objection is well-founded. As I stated, the council raises no issue with respect to the floor space ratio exceedence. 13 The other relevant control within the Mosman LEP is landscaped area requirements and for sites less than 500 sq m, as for the subject site in the 2(c) zone, the minimum percentage of site to be landscaped is 50 per cent. It is noted that the building footprint and the hard paved areas do not provide this. The control, however, is not a prohibition and it states that the council may refuse development consent involving the erection of buildings in terms of the minimum area in the table. 14 The issue that is in contention is the one about the car parking space. I have given a great deal of thought and consideration to the provision of a car parking space in the front of the setback area which also requires an alteration to the ground floor front wall of the dwelling. This is an ex tempore judgment and I say at this point, and give my reasons below, as to why I do not consider it appropriate for a car parking space to be inserted in the front setback area. 15 The architect has gone to great lengths to resolve the need to alter the building to take out approximately one metre from the living room area and to provide for a reverse bay, and the detailing has been carefully considered. However, despite this and on balance having regard to an overall assessment of the development under 79C(1)(c) - the suitability of the site for the development, the car parking space is not appropriate in the circumstances of this case and for this reason should not be approved. 16 I say this on a merits assessment and I also have regard to the issue of precedent. But on a merits assessment alone the car parking space inserted into the front of the dwelling in my assessment is not appropriate. Clearly council's Development Control Plan that I must consider and I am guided by the authority of the judgment of Zhang v Canterbury City Council [2001] NSWCA 167 in the Court of Appeal whereby a Development Control Plan must be given central and a fundamental element in my consideration. It is also noted in Zhang that the provisions are discretionary and it is a matter for the decision maker as to the weight to be given in the circumstances. 17 The controls are such that the DCP requires where appropriate and possible for parking to be provided at the rear or from the side. Clearly that is not feasible or practicable in the circumstances of this site. The DCP allows for front car parking spaces however as agreed between the parties this is not an entitlement and in fact one must carry out a merits assessment. The merits assessment is that the car parking space inserted into the front of this site and building is contrived in that it requires a modification to the dwelling itself and it will be a dominant feature within the front setback area. 18 I appreciate that at the current time it is a hard paved area so that there is no loss of deep soil planting in terms of providing a front garden for the property, and I also hear the submissions of the applicant in terms of the alteration to the front fence or the demolition of the 1.8 m high current front fence would be improved by the provision of an open style fence that allows for one to observe from the dwelling and from the street to the property as it proposed to be wrought iron to be in sympathy with the top railing or top balcony of the terrace house. However, the car parking space will be dominant. Not that it is a matter for me to assess but the car parking spaces at number 106 and 106A dominate the streetscape and the proposal would be a further intrusion into the streetscape and replication of hard stand area in the front setback for this streetscape is inappropriate. The car parking space clearly at 106 is dominant in the streetscape and is an example that should not be replicated. 19 I appreciate that the majority of dwelling houses in the street do have off-street parking but this, as agreed between the parties is not an entitlement. I also heard the submission that the owners of this property have a reasonable expectation, as others do, for off-street parking. However, the situation of this particular dwelling is such that while it has a frontage of 6.4 m to the street the setback of the dwelling is limited and a space cannot be accommodated without alteration to the wall of the dwelling. Other bad examples do not justify further deterioration of the streetscape in my assessment. 20 The streetscape is most pleasant. I must have regard to the fact that it is opposite a heritage conservation area. The situation is also that currently between properties 102 and 104 there is room on the street for at least two car parking spaces and possibly three smaller cars. I must consider if a car parking space in the front setback is allowed for 102, then the owners of No. 104 may no doubt seek to invoke the approval and seek a car parking space in the front setback. This would provide for, in my assessment, a negative impact on the streetscape and the pair would not make a positive contribution to the streetscape. Whilst the proposed fence would be an improvement, the car parking space would detract from the streetscape appropriate. 21 As I said earlier on its merits alone I consider the car space is not worthy of approval even without considering the precedential effect, as set out in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. Whilst there are no other sites apart from the one at 104 that may seek to invoke an approval in this street, clearly in the Mosman municipality, with an area-wide DCP and LEP, then this approval may be used as justification for further approvals. 22 In my consideration while the dwelling house exceedence of the floor space ratio is accepted at the same time the landscaping is deficient and while the hard paved area at the current time does not count as landscaped area, nonetheless it provides amenity for use as a courtyard for the dwelling with direct access from the living room. A car parking space in the front setback, even though the architect has gone to great lengths, is not appropriate in the circumstances of this case given the need to move the front wall of the dwelling back because of the reduced setback to the street. The presentation of the building as a pair of semis in the streetscape must also be considered. 23 I should note for the record that the Court has the benefit of hearing expert evidence from Ms Erica Marshall-McClelland on behalf of the applicant, a registered architect and a traffic engineer. And also the Court had the benefit of hearing from Ms Anna Vissarion, an assessment planner with the Mosman Council. 24 In my assessment I have carefully considered the car parking space within the curtilage of the property because understandably this would be valued and desirable from the applicant's point of view. However, I must have regard to the constraints of a site and the DCP clearly takes one to the environmental and built constraints and the circumstances of this case are such that it is not appropriate on a merits assessment. 25 The Court notes that the plans have been amended to provide for a consistent and consolidated set of plans for the other alterations and additions as agreed between the parties and the respondent's condition in exhibit 5 to delete the car space is imposed. 26 Accordingly based on my assessment above the orders of the Court are: (1) The appeal in respect of No.102 Raglan Street, Mosman is upheld in part. (2) The development application submitted to Mosman Council and as amended is approved except for the car parking space and the driveway at the front of the dwelling. (3) The exhibits are returned to the parties except for E, H, 2, 5 and 8. ________________________ J S Murrell Commissioner of the Court 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.