Fish v Mosman Council [2008] NSWLEC 30

Land and Environment Court of New South Wales

CITATION : Fish v Mosman Council [2008] NSWLEC 30

Applicant: Mr Sharna Fish PARTIES : Respondent: Mosman Municipal Council

FILE NUMBER(S) : 11062 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application :- swimming pool

DATES OF HEARING: 22/01/2008

EX TEMPORE JUDGMENT DATE : 22 January 2008

Applicant: LEGAL REPRESENTATIVES: Mr A Whealy, solicitor of Gadens Lawyers Respondent: Ms J Walsh, solicitor of Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

22 January 2008

11062 of 2007 Sharna Fish v Mosman Municipal Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Mosman Municipal Council (the council) of a development application to construct a swimming pool and landscaping on lot 12 DP 6648, known as 10 Waitovu Street, Mosman. 2 The site of 570m2 is on the western side of Waitovu Street. It contains a house, which is now being renovated following a development consent issued in 2005. The renovated dwelling has a FSR of 0.58:1 and a landscaped area of 230m2. Clause 15(2) of Local Environmental Plan 1998 (LEP 1998) states that The council may refuse development consent to development involving the erection of a building in a residential zone unless at least the minimum landscaped area as specified in the Table to this subclause is provided. 3 The landscaped area required by the Table referred to above is related to both the size of the dwelling and the area of the site. For this proposal, in which the dwelling has a floor area of 332m2, the landscaped area required is 236m2. If the floor area of the dwelling were less, the landscaped area required would also be less. The area of the proposed swimming pool and surrounds is 59m2. If the pool were built, the landscaped area would be 171m2. This is because LEP 1998 defines landscaped area so as to exclude areas which cannot be planted, such as tennis courts and swimming pools. 4 The council's case, as put by Ms J Walsh, the council's solicitor, is that the landscaped area on the site, as approved by the 2005 consent, is already deficient by 6m2. Taking a further 59m2 off the landscaped area would further increase this deficiency. The council also contends that the proposal does not meet the objectives of the landscape area control which are in cl 15(a). The council's expert was Ms S Winnacott, a planner with the council. 5 The applicant's case, put by its expert, Mr R Player, a consultant planner, and its solicitor, Mr A. Whealy, is that · the swimming pool has no adverse impact; · there are no objectors; · the proposal provides additional landscaping; · meeting the numerical requirement is less important than meeting the objectives; · the pool provides recreational area that is more useful than the alternative of lawn; and · the proposal meets the objectives of the landscaped area in cl 15(a). 6 In my opinion,, the council's case has a great deal more force than the applicants, for several reasons. First, I do not accept that meeting numerical requirements is quite as unimportant as Mr Whealy suggests. Certainly, numerical requirements should be read together with the objectives that they are intended to achieve; however, to understand the extent to which those objectives are intended to be achieved, one needs to take into account also the numerical requirements. Applying numerical requirements is not, as Mr Whealy puts it, all about numbers. Numerical requirements provide a measure to ensure that applicants are treated equally and they inform applicants what the council considers reasonable. I note that this application for a swimming pool comes two years after the 2005 consent and before the renovation of the house is complete. It would have been open to the applicant to integrate the swimming pool into the 2005 application by proposing less floor area, in which case the requirement for landscaped area would have been less. 7 Second, the fact that the applicant is offering more planting on the site is of little relevance. The 2005 consent does not include a requirement for a landscape plan. This appears to be an omission of the council. The swimming pool proposal includes planting that the applicant would not have to provide if this application is refused. Thus the construction of the swimming pool, while it would alienate 60m2 of land that is capable of carrying vegetation, would also result in more plantings on the site in the few places where planting remains possible. In my opinion, this is a "trade-off" heavily weighted against the environment. 8 Third, I do not accept that the proposal meets any of the objectives in cl 15(1). Clause 15(1)(a) aims to maintain and enhance the landscape and townscape character of Mosman's residential areas by requiring landscaping of sites in conjunction with other development. 9 The swimming pool does not enhance the landscape and townscape character of Mosman's residential areas. While there are other sites in the vicinity with swimming pools, there are very few where the swimming pool occupies most of the rear yard, as proposed here. 10 Clause 15(1)(b) aims to maintain a general dominance of landscape over building particularly on harbour foreshores and in the 2(a1) and 2(a2) residential zones. 11 Constructing a swimming pool in a small yard on a site containing a large house does nothing to maintain the dominance of landscaping. I note Mr Whealy's argument that no such dominance exists now in the area. The point is that the construction of the swimming pool would reduce whatever dominance exists. 12 Clause 15(1)(c) aims to maintain and enhance significant vegetation especially mature trees. 13 While the proposal does not remove any significant vegetation, it will prevent vegetation being planted in the rear yard probably for the life of the development. Swimming pools are rarely removed. 14 Clause 15(1)(d) is not relevant. Clause 15(1)(e) aims to ensure there is adequate and useable ground level open space for recreation, landscaping and containing urban runoff. 15 While a swimming pool may be considered to serve recreational needs, given that the LEP expressly excludes swimming pools from landscaped areas, I do not think that the reference to recreation includes swimming. The proposal does not meet the other objective for adequate areas for landscaping and containing urban runoff. 16 Fourthly and finally, for the Court to uphold an appeal that results in the breach of an important planning control, it would require a strong reason or justification. There is no such reason or justification here. The site's location about two minutes' walk to Balmoral Beach certainly does not provide it. 17 For the above reasons the appeal is dismissed.