Land and Environment Court of New South Wales CITATION : Boustred v Mosman Municipal Council [2008] NSWLEC 1365 APPLICANT William and Fiona Boustred PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10306 of 2008 CORAM: Brown C KEY ISSUES: Development Application :- demolition of an existing dwelling and the construction of a new dwelling - view loss Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Mosman Local Environmental Plan 1998 State Environmental Planning Policy No. 1 CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 28/07/08 DATE OF JUDGMENT: 29 July 2008 APPLICANT Mr M Baird, barrister LEGAL REPRESENTATIVES: RESPONDENT Ms J Hewitt, solicitor SOLICITORS HWL Ebsworth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 29 July 2008 10306 of 2008 William and Fiona Boustred v Mosman Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by Mosman Council (the council) of Development Application No. 8.2000.161 for the demolition of an existing dwelling and the construction of a new dwelling at 31 Fairfax Road, Mosman (the site). Relevant planning controls 2 The site is within the Residential 2(a2) Zone under Mosman Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible with the consent of council. Clause 13 provides requirements for maximum building height, maximum wall height and number of storeys. Clause 14 provides requirements for floor space ratio (FSR) and cl 15 provides requirements for landscaped area. 3 The proposal satisfies the requirements for FSR and landscaped area and maximum height but not the maximum wall height and number of storeys. An objection under State Environmental Planning Policy No. 1 -Development Standards (SEPP 1) was provided to show why strict compliance with these development standards was unreasonable and unnecessary in this instance. 4 Mosman Municipal Council Residential Development Control Plan (the Residential DCP) applies. Clause 1.6 states, in part that: The RDCP uses a performance approach to guide development. The performance approach seeks to ensure that development reflects the desired character of Mosman while allowing flexibility, renovation and expression in design. The performance approach focuses principally on planning outcomes rather than prescriptive or numeric standards. It permits designs to respond to the individual opportunities and constraints of each site, recognising that no two sites are exactly alike. 5 Relevantly cl 4.3 addresses views, cl 5.1 addresses streetscape and building design and cl 6.8 addresses the Rosherville/Wyargine Townscape area. The evidence 6 A joint town planning report was prepared by Mr David Sheehan for the council and Mr Andrew Darroch for the applicant. Local residents Mr David Ferguson of 12 Fairfax Road, Mr Geoff McCllelan of 14 Fairfax Road, Mr Robert King of 10 Fairfax Road and Mr Graham Wood of 8 Fairfax Road provided evidence on the site view. 7 The properties at 8, 10 and 12 Fairfax Road were inspected and an estimation of the proposed building was made through the room form of the existing dwelling. View loss 8 The significant issue in the proceedings was the loss of views from the properties on the opposite side of Fairfax Road. 9 View loss is addressed in some detail in the Residential DCP. Clause 4.2, in addresses Siting and Scale. Objective 04 states: To have buildings which are of a height and scale which preserve privacy from neighbouring residents and allow the sharing of public views and provide access to sunlight. 10 Clause 4.3 addresses views, and states that new development should be designed to minimise view lost to adjoining and adjacent properties while still providing opportunities for views from the development itself. This is defined as view sharing. 11 The objectives are: 01.To have opportunities for public vistas and public views from streets and public places protected and enhanced. 02. To have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscape design. 03. To have sharing of views whilst not restricting the reasonable development potential of the site. 12 The planning guidelines in cl 4.3 requires that development must not significantly obstruct views from neighbouring properties (P2) and, where there is a potential loss of views, council may require a maximum building height of less than 8.5 m (P5). 13 The planning principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 are also relevant. 14 Of the dwellings inspected on the site view, I am satisfied that the dwellings at 8 and 10 Fairfax Road do not suffer an unacceptable view loss. While the proposed dwelling will impact on existing views, the impact is not excessive and does not remove significant features from the northerly views over Middle Harbour and to Clontarf and The Spit. The views that are lost are some lower areas of water but the majority of views are maintained. I have taken into consideration that even though the proposed development does not satisfy the requirements for maximum wall height and number of storeys in LEP 1998, the areas of the breaches are relatively small and do not contribute in any meaningful way to the loss of views from these properties. 15 With the benefit of the site view, I do not accept that the same conclusion can be reached for the property at 12 Fairfax Road. The proposed building will maintain the north-westerly view towards The Spit but the important land/water interface of Clontarf and further to the east will be lost although the land component will be retained. 16 At the conclusion of the site view, the parties were advised that the impact on views from 12 Fairfax Road could not reasonably seen to represent view sharing as set out in the Residential DCP, even though the majority of the proposed roof satisfies the maximum height in cl 13 of LEP 1998. Consequently the applicant proposed that the overall height could be reduced by 400 mm by reducing the floor to ceiling height of one level by 300 mm and reducing the overall height of the building by 100 mm. This has the effect of the new roof having a similar height to the pitch of the existing roof and allowing the water/land interface views around Clontarf to be maintained from 12 Fairfax Road. Some areas of water to the west would still be lost but the majority of the Middle Harbour views will be retained. In terms of the DCP requirements, I accept that reduction in height of 400 mm satisfies Objective 04 in cl 4.2 and the Objectives 01, 02, 03 in cl 4.3. 17 In terms of the principles in Tenacity Consulting, the views that would be lost with the original proposal are not iconic but are very valuable. Even though a large proportion of the view loss results from a complying height requirement, the fourth step in Tenacity Consulting talks about providing the same development potential but reducing the impact on the views from nearby properties through a more skilful design. While the amended design is not necessarily more skilful, the changes provide a significant benefit in terms of view retention for 12 Fairfax Road but at the same time creating minimal impact on the views and minimal impact on the internal amenity of the proposed development. As I understand, the council did not oppose the proposed development with the reduced height. 18 I have reviewed the SEPP 1 objection to the maximum wall height and storey controls in LEP 1998 and while the objection was prepared prior to the amendment, the conclusions are equally valid, although the non-compliances have been reduced. I accept the conclusions reached in the SEPP 1 objection and find that strict compliance is unnecessary and unreasonable in the circumstances and that the SEPP 1 objection is well founded. 19 The only outstanding issue between the parties is whether the amendments should be a deferred commencement condition or a standard condition requiring the preparation of plans reflecting the reduced height at the time of the issue of the construction certificate. I am satisfied that the amendments can be a condition of consent rather than a deferred commencement condition. The proposed condition dealing with the reduced roof level is very specific and refers to specific relative levels for each of the proposed floor levels in the dwelling and when combined with condition 61 that requires a registered surveyor to certify the floor levels prior to the pouring of any concrete or fixing of roof cladding sufficient certainty is provided. 20 The Orders of the Court are: 1) The appeal is upheld. 2) Development Application 8.2008.16.1 for the demolition of an existing dwelling and the erection of a new dwelling at 31 Fairfax Road Mosman is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 1, 5 and B. ___________________ G T Brown 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.