Land and Environment Court of New South Wales CITATION : John Griffin Construction & Development v Mosman Council [2008] NSWLEC 1270 APPLICANT John Griffin Construction & Development PARTIES : RESPONDENT Mosman Council FILE NUMBER(S) : 10782 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- Demolition of residential flat building and construction of new dwelling, landscaping, front setback, roof form, privacy and overlooking, open space, impacts on adjoining heritage walkway and impacts on neighbouring properties in terms of noise and viewing. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley [2004] NSWLEC 91 DATES OF HEARING: 17/12/2007 and 14/03/2008 EX TEMPORE JUDGMENT DATE : 14 March 2008 APPLICANT Mr J. Hones, solicitor of Hones La Hood LEGAL REPRESENTATIVES: RESPONDENT Ms J. Hewitt, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 14 March 2008 10782 of 2007 John Griffin Construction & Development v Mosman Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 The matter before the Court this morning is a continuation of earlier proceedings in this Court for the subject site known as No. 17 Iluka Road, Clifton Gardens. The proceedings were adjourned to allow the applicant to submit amended plans in response to a number of concerns. At this time the applicant agreed to pay the respondent's costs arising from the amended plans. 2 There have been significant changes proposed by the applicant in the amended plans. Including: the relative levels; the landscaped area; and the setback of the garage structure from the street, that was previously on the boundary with the street. There has also been a significant design change with a pitched roof. The council's guidelines promote the provision of hipped or gable roofs and the original proposal was for a flat roof structure. 3 The Court had the opportunity on the site inspection of viewing the subject site from the adjoining property at No. 15 where the owners had concerns raised about privacy and overlooking, the design of the dwelling itself and the access and the lack of open space along the common boundary. 4 The Court also had the opportunity of viewing the surrounding area from the adjoining walkway which is a heritage item under the Mosman Local Environmental Plan 1998. The walkway is known as Mary Margaret Lane Steps which connects Kardinia Road to Iluka Road. The Court also viewed the subject site from the property at the rear known as No. 18 Kardinia Road, Clifton Gardens. 5 The council is now satisfied with the amended plans that the contentions initially raised in the Statement of Contentions have been resolved by the amended plans with the exception of the concern for the walkway connecting the upper level sunroom/bedroom area of the dwelling to the pool deck in the rear yard. The council contends that the amenity impacts of the proposed walkway will be unreasonable in terms of privacy impacts on the adjoining property to the rear at No. 18 Kardinia Road. 6 The experts in these proceedings, Mr Lovell on behalf of the applicant and Mr Lusher on behalf of the council, gave evidence again this morning and they prepared a joint report on the amended plans and similarly the only issue where they disagree is with respect to the uncovered walkway linking the swimming pool in the rear yard with what is referred to on the plan as the courtyard, although more aptly described as a sunroom adjoining the main bedroom at the upper level. 7 By way of background, the subject site has a significant slope from the front to the rear that is characteristic of the area generally. The area can be described as steeply sloping and many of the properties enjoy magnificent views that can be shared because of the steepness of the topography. 8 The subject development application is to replace an existing residential flat building on the subject site with a dwelling house. As such the applicant submits that existing use rights are applicable. At the same time the Court must have regard to an assessment under s 79C of the Environmental Planning Act in terms of the merits of the development application. 9 The Court must also be satisfied in terms of cl 37 of the LEP that states: "for development in the vicinity of heritage items" ( the Court, standing in the shoes of the council ), must consider the likely effect of the proposed development on the heritage significance, curtilage and setting of the item and the impact of the proposed development on any significant views to and from the heritage item. The council may decline to grant an application until it has considered a statement of heritage impact to assist it to assess the impact of the proposed development on the heritage item." 10 I am satisfied that with the amended plans now the proposed dwelling will not impact on the heritage significance of the adjoining heritage item of the steps in the public domain. The amended plans now provide an increased setback and a reduced footprint of the proposed dwelling and the pitched roof design all assist in the proposed dwelling house now being in character with the area and one that could be contemplated in terms of council's controls in my assessment. 11 The Court also heard evidence from the owner at No. 18 Kardinia Road on the only issue now in contention for the Court to determine. That is whether the linked walkway should be approved on its merits. 12 The Court has been assisted by sight lines that have been drawn, Exhibit H in the proceedings, wherein it can be seen that there is some twenty metres separation with the adjoining dwelling at the rear. It is also noted that there is an eleven metre difference in vertical height between the two properties; that is the property at No. 18 is significantly elevated and looks over the top of the subject site to the water and these views are maintained. 13 The property to the rear at No 18 has a pool which is proximate to its downstairs living area and on the upper floor living there is a balcony. I understand that people do not necessarily embrace change and indeed Mr Richardson expressed the view that he was not opposed to development of the subject site, however, he objected to the walkway/link because in his opinion it will impact on his property in terms of noise and viewing. 14 The issue that I must turn my mind to is whether the bridge/link is unreasonable in terms of its impacts. The parties have referred the Court to two judgments of the Senior Commissioner that establish planning principles. Mr Hones referred me to Pafburn v North Sydney Council [2005] NSWLEC 444 in regard to privacy impacts. In his submission the separation distances means the impacts are insignificant. Furthermore, he submits that if one wants to access the pool from the main bedroom area one would need to go up and down eighteen and fifteen stairs and he submits given this use such a walkway connecting the upper level sunroom to the swimming pool and terrace area would also not lead to unreasonable impacts on the property to the rear. In this regard he relies on the expert views of Mr Lovell who states that there would be no adverse privacy impacts and that the walkway is reasonable having regard to the vertical and horizontal separation distances. 15 On the other hand, Mr Lusher from the council is of the view that the proposed walkway is unreasonable in terms of the impacts on the adjoining property at No. 18 Kardinia Road in terms of noise and visual impacts. The Court was taken by Ms Hewitt to the judgment of the Senior Commissioner and the planning principle articulated therein of Super Studio v Waverley [2004] NSWLEC 91 and the question of the reasonableness of impact in that case. Super Studio involves a roof terrace which was not the norm in the area and the Senior Commissioner said that there must be heightened sensitivity in assessing the element of the roof terrace and whether the impact is minor or negligible or whether, in fact, it is something that is a necessity. 16 In my assessment of this application now before me on the issue of necessity it may be said that, yes, one can walk up and down many stairs to access the swimming pool from the main bedroom area but on the issue of necessity one also needs to balance this with whether the impacts are minor or whether the impacts are unreasonable such that the element should not be allowed. Where impacts are significant as for the roof terrace as in the case of the Senior Commissioner and the element is not necessary then on balance it should not be approved. 17 For impact I have assessed the walkway on the basis of separation distances and relative levels and the use of the upper level bedroom and adjoining sunroom. In assessing the link element, I consider that it is not unreasonable in that the difference in height and the topography is such that there would be limited viewing opportunities up to the rear property; being some 11 metres below that habitable or outdoor terrace area and the separation distances are significant. Separation distances are of approximately 20 metres. It is also an accepted planning principle that overlooking, that is looking down on properties, is more intrusive than upward looking and the angles involved in this case are such that the looking up to a level which is much higher could not be regarded as an invasion of privacy. 18 There will be occasions when viewing from No. 18 people will be visible traversing the walkway/link and deck, however, in my assessment this is not an unreasonable impact. As in all suburban situations there is often a degree of mutual overlooking and, in particular, where there is steep topography with views to be gained, this is not an unusual occurrence in a suburban context. In terms of noise the distances in the circumstances of this case would mitigate same and general residential noise emanating from a property would not warrant refusal of an application. 19 The walkway is 1.04 metres wide and it connects from the bedroom/sunroom area to the deck of the swimming pool. If this connection imposed a level of impact that was significant, inappropriate or unreasonable, balanced against the convenience of the occupants of the subject dwelling, then it would be refused. However, in this case given the change in levels of topography and the separation distances I do not consider that the walkway creates an unreasonable impact. I am satisfied that the separation distances are well in excess of the acceptable minimums for suburban situations and I accept Mr Lovell's evidence. 20 The applicant does not oppose the imposition of conditions to ensure that the upper bedroom level and sunroom does not become the major entertaining function for the dwelling house; that is that there be no kitchen, bar, barbecue facilities on the upper level. The living areas of the dwelling are on the lower level. 21 In my determination of this application it is a requirement by condition that the applicant must surrender the existing use rights for the residential flat building at the commencement of construction. This is to ensure that there is no change to the single occupancy of the single dwelling approved on the subject site. 22 The single dwelling as shown in the application before me is also the basis of my assessment in allowing the walkway link connection that only serves the bedroom/sunroom upper level of a single dwelling. I would not allow the link if the building was to be used other than as a single residence. For example the noise that one experiences from a single residential property does not warrant removal of the walkway, however, it would be assessed differently if the building has more than one occupancy. 23 An appropriate condition with respect to lighting is to be imposed, although I also note that the difference in the relative levels between the properties should not create a problem but in fact a condition can be imposed to ensure that light spillage is not unreasonable. 24 The council has a requirement that the landscape plan be amended and that will become a deferred commencement condition and the landscaping of the rear of the property should include some species that provide for a more vegetated setting with trees, commensurate with the surrounding area. Such plantings along the rear boundary can be accommodated not to obscure the views from the property at the rear. The sight distances between the two dwellings are such that vegetation is not necessary but vegetation will assist in the overall setting for the subject dwelling in terms of council's controls / guidelines of the DCP. 25 The Court was taken to the provisions in the Development Control Plan for privacy and security and it is noted that it is important to allow neighbourhood interaction and casual surveillance to promote neighbourhood identity and community interaction whilst maintaining privacy to residents. I also note in the DCP that aboveground balconies, terraces and outdoor spaces must not directly overlook rooms and private landscaped areas of adjoining properties The proposed dwelling will not overlook the property to the rear. There may be the occasional opportunity for viewing up at some distance at an acute angle but it is not unreasonable in a suburban situation. 26 Indeed, if I can just state by way of comment, that the erection of walls in terms of greenery such as Leighton Greens and the like and a desire for people to make properties such that there is absolutely no viewing from one suburban property to another is not in the interests of suburban community lifestyle. Individual lots in the suburban situation should provide some casual surveillance between properties as desired by the DCP which would not intrude on privacy and similarly in this situation there will be the opportunity to look down from the property at the rear and the ability look up but the distances are such that this is not considered unreasonable and in fact is considered acceptable. 27 Therefore, in my overall assessment I see no reason for the appeal not to be upheld on the basis of the amended plans. As noted above, the amended plans are significantly different from the set against which the appeal was originally lodged that would not have warranted approval. 28 The parties are to forward to the Court within five working days a set of conditions to reflect my findings, including the need for a deferred commencement for a landscape plan. 29 On receipt of the above the formal orders of the Court will then be issued as follows: 1. The appeal in respect of the property known as No. 17 Iluka Road, Clifton Gardens will be upheld. 2. The development application submitted to Mosman Council and as amended 26 February 2008 will be approved subject to the conditions in Annexure A. 3. The exhibits except Exhibits 7 had G are returned to the parties. 4. The Court notes the applicant's undertaking to pay for the respondent's costs arising from the amended plans. ___________________ J S Murrell Commissioner of the Court ljr 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.