Land and Environment Court of New South Wales CITATION : Barone v Mosman Municipal Council [2010] NSWLEC 1243 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT David Barone PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10400 of 2010 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Drainage; car parking and access. Land and Environment Court Act 1979 LEGISLATION CITED: Mosman Local Environmental Plan 1998 Mosman Residential Development Control Plan DATES OF HEARING: 23 August 2010 EX TEMPORE JUDGMENT DATE : 24 August 2010 APPLICANT Mr D Barone Litigant in person LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh (solicitor) SOLICITOR Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 24 August 2010 10400 of 2010 Barone v Mosman Municipal Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT Background 1 This appeal was lodged against Council's deemed refusal of a Development Application for the demolition of an existing dwelling and construction of a new part 2/part 3 storey dwelling and associated works at 6 Mulbring Street, Mosman. The development includes a double garage within the front setback area and a partially elevated pool at the rear of the property. The full details of the application and planning controls are contained within the Statement of Facts and Contentions on which I rely. 2 A number of issues were identified for the appeal which are summarised as follows: - Adequacy of information; - Over-development of the site in terms of site area, maximum wall height and number of storeys; - Appropriate siting and scale; - Location of the proposed double garage within the front setback area; - Amenity/impacts on neighbouring property i.e. visual and privacy; - Drainage. 3 Considering the topography of the site where the site falls from the street and from the rear boundary to a depression generally through the middle of the lot, then the drainage issue is the threshold matter. Site 4 The site comprises of Lot 8 in DP24439 known as 6 Mulbring Street. It is located on the western side of Mulbring Street, between Dugald Road and Cedric Lane and is regular in shape with a frontage of 16.65 m to Mulbring Street an area of 608 m sq. 5 The site generally represent a semi circular depression with the highest points at the western and eastern extremities of the southern boundary, and the lowest point occurring midway between these points along the northern boundary. From Mulbring Street, the site falls to the centre and then rises again to the rear. Planning Controls 6 The site is zoned Residential 2(a1) under the Mosman Local Environmental Plan 1998 and is located within the Foreshore Scenic Protection Area. The LEP relevantly contains a number of controls including development standards for: - Minimum lot sizes in this zone of 700 m sq; and - Wall height and number of storeys. 7 There is a draft LEP but the Court was advised that it is not imminent and certain and therefore not determinant in this matter. The other controls include the Mosman Residential Development Control Plan which include a raft of controls including: - Site analysis requirements, landscape, streetscape, car parking access; - Stormwater management control; and - Reference to the control for the Balmoral Townscape. The Evidence 8 Detailed evidence was presented by: - Ms P Makim; Council's Project Engineer - Mr A Falato; Council's Manager, Development Services Drainage 9 Some discussion took place regarding this threshold drainage issue resulting in the applicant's agreement that the details shown on sheet 23 of the DA plans represented the proposed drainage arrangements. 10 This involves the collection of stormwater from the site in a tank under the building with subsequent discharge into an existing stormwater pit and pipe that traverses No 8 -12 Mulbring Street. 11 This pipe passes through the subject property, generally along the line of the depression and there is a pit on the eastern side of the lot to collect piped and overland flows from No 4. 12 Ms Makim referred to the Mosman RDCP wherein cl 5.13 contains provision for stormwater management. It lists the following objectives: - Objective 01 to have the adverse affects of stormwater on the environment minimised; - Objective 02 to have stormwater quality and quantity controlled and eliminate stormwater discharge to adjoining properties; - Objective 03 to have surface water run off minimised; - Objective 04 to have on-site stormwater collection and re-use. 13 The associated planning guidelines include: - P1 - disturbance of the natural drainage pattern should be minimised where possible, development must be consistent with the natural hydrology as much as possible; - P2 - new development must incorporate on-site detention in accordance with Council's on-site stormwater detention policy; - P4 - non porous surfaces should be minimised to reduce water run off.; - P5 - drainage from any site must be in accordance with the guidelines for stormwater drainage systems and Council's policy for on-site stormwater detention; - P6 - sites which do not have fall to the street must obtain an easement over a downstream property or properties, to allow installation of a gravity based stormwater disposal system. This is to be at the expense of the applicant. 14 Ms Makin also referred to the provisions of the Mosman Stormwater Policy, which deals with: - 1.2; Regulation for a preliminary stormwater drainage plan; - 1.3; General Design parameters; - 1.5; Properties that fall away from the street; - 1.8; Other considerations; - 2.0; OSD 15 Accordingly, she does not support the proposal because the applicant has not satisfied the requirements of the DCP and policies and has failed to submit a drainage plan for the site and a flood study, which demonstrates the flood impacts from potential overland flows. 16 Insofar as the applicant apparently has given consideration to the drainage of the site, this has not been translated into any reasonable drainage "concept" plan, as required by the controls. 17 It appears that the roof water will be collected and directed towards the tank, which then discharges into the existing pit inside the north boundary, which then discharges into the pipeline on the adjoining property. No details are provided on: - the legal status of this drainage system; - the size of pipes and their condition to enable calculation of their capacity to accommodate the design flows; - the extent of any overland flows; - the OSD. 18 It is apparent from the view that there is a potential overland flow problem on the upstream side of this depression where stormwater from No 4 discharges partially via an existing pipe through the retaining wall, which then is dispersed via another retaining wall. 19 It seems to me that the applicant has not given adequate regard to Contention 8 on the stormwater, which is particularised and requires this preliminary drainage concept plan. In this regard, I have considered the comments submitted within the Reply to the Statement of Facts and Contentions but do not consider they obviate the need for some site specific drainage investigation, calculations and inclusion on a "concept plan". 20 In any case the proposed drainage system discharges into the existing pipe system down stream, which does not appear to be covered by any easement, which secures the maintenance of this system. 21 Ms Makim says: "Drainage plan, Drawing 23 relies on stormwater from the roof and some proportion of the hard surfaces draining to an inter-allotment pipe. The pipe is not a Council asset and does not lie in an easement. Section 1.4.3 of the Stormwater Policy requires that an easement be created prior to development approval. The Stormwater Policy requires that analysis of the existing pipes may be required. This is to ensure that the system has sufficient capacity to cope with the stormwater and will not have a nuisance affect on down stream properties. The contention with this inter-allotment pipe is that as it does not lie in an easement and is not a council asset no person or organisation is responsible for its maintenance and function. Drawing 23 relies on water draining to 8-12 Mulbring Street. No. 6 Mulbring Street does not have an easement over 8-12 Mulbring Street. Council's Stormwater Policy section 1.5.6, requires that easements are created before development approval is granted and are accompanied by full details of the proposed stormwater disposal system. It is also manifest in the wording of section 1.5.6 "in the event that the above options are unsuitable…" that easements are a last resort due to the impact they have on neighbouring properties." 22 Furthermore she says at: "2.3.6 - The property lies in an area which has an overland flow path. No hydraulic assessment was presented with the development application that indicates that the proposed drainage plan will cope with the additional burden of an overland flow path and furthermore that the proposal will not interfere with the overland flow path in a way that negatively affects other properties. Overland flow paths should remain unobstructed to avoid flooding upstream. Section 1.8 of the Stormwater Policy requires that the properties in low points shall provide overland flow paths designed to cope with 1 in 100 ARI storm events. Therefore an assessment of the overland flow path may require changes to the plans to ensure this overland flow path is unobstructed. Section 1.8 of the Stormwater Policy states to prevent flooding there must be a minimum 300 mm freeboard to the adjacent habitable floor levels to overland flow paths. The stormwater analysis of the overland flow path in the case of 2 Mulbring Street and 4 Mulbring Street determined the minimum height of the floor levels. A positive covenant was created on the title of these properties to ensure the minimum floor level is maintained. In the absence of these details Ms Makim considered that the application should be refused. 23 Having considered the evidence presented to the Court on this issue, I am satisfied to rely on Ms Makim's assessment of the merits of the proposal based on the DCP and Drainage Policy provisions and her conclusion that the application is unsatisfactory in this case and it should be refused. 24 Accordingly, I am satisfied that this approach is reasonable in the circumstances and in the absence of any expert challenge to this expert evidence, I consider this application should fail because it does not adequately respond to the DCP requirements. Other Planning Issues 25 Apart from the drainage issues, other issues concerning the overall layout and scale of the building were discussed. In effect these issues go to s 79C considerations of whether the site is suitable for this design. 26 Council's fundamental submission is that on steeply constrained sites such as this, the drainage issues and particularly overland flow provisions should be resolved initially so that this constraint can be incorporated into a "site sensitive design", which incorporates adequate security from flooding. 27 According to Mr Falato, the overall building design could be lowered to achieve a better compatibility with the neighbouring property and minimise loss of privacy and amenity 28 There are then a number of development standards that apply, including: i. Minimum lot size of 700 sq m; where by the subject lot is deficient because of it's total area of 608.6 sq m. The applicant has lodged a SEPP 1 Objection, which is supported by Mr Falato, but he does raise some concerns about the ratio of the building and the adequacy of the landscaped area. ii. Maximum wall height and maximum number of storeys; in this regard it appears that the proposal marginally exceeds the wall height of 7.2 m but the main concern is with the under floor area which according to Mr Falato results in the dwelling being classified as partially 3 storey. 29 Whilst there is a SEPP 1 Objection to this development standard, Mr Falato does not support the SEPP 1 Objection because in terms of the invocation of SEPP 1, it has not been demonstrated that variation to the standards is consistent with the objectives of s 5(a)(i) and (ii) of the Act, nor has it been satisfactorily demonstrated that flexibility in the application of the standards would be consistent with the proper management and development of the land. He concludes that it is neither unreasonable nor unnecessary for compliance with the development standard to be achieved. Having considered the evidence, I am inclined to accept this opinion. Garage Locations 30 The double garage is proposed to be located forward of the building line which is not consistent with the objectives and council guidelines. It is a double garage, which is marginally oversized with a width of 6.5m, which Mr Falato considers will dominate the site and adversely impact on the way the new building is perceived within the Mulbring streetscape. According to Mr Falato there is an alternative design, which would incorporate a standard garage within the floor space of the dwelling and that would be less dominant and would assist in minimising adverse impacts on the street. 31 With respect to the subject application, he says that the double garage fails to satisfy Objective O2 in s 5.2 of the MRDCP (Car-Parking and Access) requiring carports and garages to be in sympathy with the residential building without becoming the dominant feature on the site. 32 Also, he says the double garage fails to comply with the planning guidelines P10 in s 5.2 stating that garages, carports and driveways must not exceed 40% of the block frontage or up to 6 m, whichever is the lesser and vehicular crossings should not be more than 3 m. 33 In his opinion, the proposed garage fails to satisfy Balmoral Townscape desired future character objectives in s 6.3 of the MRDCP with regard to encouraging parking behind the front of the building and avoiding garages in the front. Consequently Mr Falato concludes that a better integrated design could be achieved for this building. In particular, he says the new double garage fails to comply with the planning guideline P6 in s 5.2 of the MRDCP stating that no garages will be permitted forward of the building alignment. 34 I accept that there is discretion available within the DCP, however in the circumstances of no expert challenge to this evidence, I accept Mr Falato is an experienced planner in this particular area, and therefore I rely on his opinions. Swimming Pool Location 35 The other issue concerns the location of the swimming pool and potential amenity impacts arising from it. This new swimming pool and concourse is proposed within the rear yard and is a substantial pool which is to be elevated between 1 m to 2.5 m above the adjacent ground level to the north and is to be sited 2 m from the northern boundary and nil setback surround from the eastern boundary. Because of this elevation it is likely according to Mr Falato, to create adverse impacts on the neighbouring property. 36 His evidence is that if the pool were to be re-orientated so that its length ran north south, even if its current coping level of RL 50.15 were maintained, its height out of ground on the northern side would be reduced to being from between 1 m to 1.5 m for a reduced length of 5.3 m. He considers that there is considerable opportunity for redesign of the pool to reduce its height and length out of ground so that impacts from its presence and use on the adjoining properties to the north could be minimised. 37 He says the proposed swimming pool fails to comply with planning guideline P7 in s 7.4 of the MRDCP requiring the pool to be setback from a property boundary by a minimum of 2 m to the edge of the pool surrounds and the elevation fails to comply with planning guideline P9 in s 7.4 of the MRDCP stating that elevated pool/spa structures above the natural ground level are expressly discouraged and P10 that the pool should be located to minimise disturbance to the occupants of adjoining land. Conclusion 38 Having carefully considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. From the evidence, I don't consider the applicant has demonstrated that the proposed building design is suitable for the topography of this constrained site. In this regard I give little weight to the fact that the application was advertised and no objections were lodged. 39 Firstly, I do not consider the applicant has adequately responded to the identified drainage issue and provided a reasonable concept plan which confirms that the stormwater drainage for the site and overland flows have been properly assessed and can be accommodated within acceptable environmental and amenity standards, so as to protect the proposed development and neighbouring properties. 40 I consider it appropriate for the applicant to have due regard to the DCP controls and as this has not been done, therefore, I rely on the unchallenged evidence of Ms Makim that the application fails on this ground. I also note that if the stormwater is to be discharged down stream via the existing pipe system, that should be investigated and arrangements made for the security of tenure of the system and it's maintenance to be obtained by way of easements initially, rather than deferred until a later date. 41 I have referred to the other planning issues and in the absence of any contrary planning evidence, I rely on Mr Falato's opinion that the design represents an overdevelopment of the site and in particular, I do not consider that there was compelling evidence that would warrant the approval of the garage forward of the building line. 42 Also, I accept his opinion that a more appropriate design of the pool is obtainable which respects the natural ground levels and provides the required building setbacks to enable effective screen planting. 43 Accordingly, the Court orders are: 1. The appeal is dismissed. 2. Development consent for the demolition of the existing dwelling and construction of a new dwelling and ancillary structures at 6 Mulbring Street, Mosman is refused. 3. The exhibits may be returned except 1, 2, 6, A and E. ___________________ R Hussey Commissioner of the Court djj/ajl 15/09/2010 - Incorrect judgment date - Paragraph(s) Judgment date on coversheet and judgment 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.