Land and Environment Court of New South Wales CITATION : Klaric v Mosman Municipal Council [2007] NSWLEC 237 Applicant: Robert and Leonie Klaric PARTIES : Respondent: Mosman Municiapl Council FILE NUMBER(S) : 11090 of 2006 CORAM: Roseth SC KEY ISSUES: Development Application :- view from Sydney Harbour DATES OF HEARING: 02/04/2007 DATE OF JUDGMENT: 2 May 2007 Applicant: LEGAL REPRESENTATIVES: Mr C McEwen SC instructed by Mr M Staunton of Staunton Beattie solicitors Respondent: Ms J Hewitt, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 2 May 2007 11090 of 2006 Robert and Leonie Klaric 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 erect a dwelling house, a garage and an inclinator on lot B DP 115733, known as 69 Parriwi Road, Mosman. The site 2 The site is a battle-axe lot on the eastern side of Parriwi Road, with a 3.73m wide access handle and a 30m frontage to Shell Cove. Its northern boundary adjoins a council reserve; its eastern boundary adjoins 71 Parriwi Road, while its southern boundary adjoins 67 Parriwi Road. 3 There is now a disused swimming pool on the site. The site is flat, apart from the foreshore. Existing vegetation includes three significant trees near the foreshore and dense, vegetation along the foreshore. The area around contains the type of massive, visually dominant buildings, which are gradually replacing older, more modest buildings along all the foreshores of Sydney Harbour. The house at No 71, for example, has the appearance of a four-storey building. Most other buildings around, including recently approved ones, appear three-storeys. 4 The area does not exhibit the character that one would expect from the numerous expressions in the council's planning instruments and policies that landscaping should dominate buildings. The proposal and its history 5 The applicant proposes to fill in the existing swimming pool and to construct a house on the main portion of the site, a garage near Parriwi Road and an inclinator in between. The house is mainly two-storeys, with a small three-storey section, to which the plans refer as the Conservatory. 6 The applicant lodged the development application in January 2006. Following notification the council received four objections from neighbours. In July 2006 the council considered a report by its planning staff recommending approval. The council rejected the recommendation and requested amended plans. The applicant provided these in August 2006. Following re-notification the council received three objections, including ones from 67 and 71 Parriwi Road, the eastern and northern neighbours. In October 2007 the council resolved to give its General Manager delegated authority to approve the plans, provided the applicant accepted a number of further amendments. The applicant declined. The council refused the application in November 2006. The applicant lodged the appeal in November 2006. Relevant planning instruments and policies 7 Sydney Regional Environmental Plan – Sydney Harbour Catchment 2005 (SREPSHC) applies. Clause 25 requires that the appearance of development visible from the water be taken into account in assessing development applications. Clause 26 requires that views be maintained, enhanced and protected. 8 Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (SHFWA SCP) applies. Section 5.3 deals with the siting of buildings and structures. Section 5.4 deals with built form. 9 Mosman Local Environmental Plan 1998 (the LEP) zones the site Residential 2(a2). Clause 2 provides objectives generally aimed at enhancing scenic quality and the dominance of vegetation over buildings. Clause 11 contains objectives for, among others, the 2(a2) zone. It emphasises the need for compatibility with surrounding development. Clause 12 provides that an allotment, on which a dwelling may be built, must be at least 930m2. Since the subject allotment exists, the council accepts that a dwelling on it is appropriate. Clause 13 provides for a maximum roof height of 8.5m. Clause 14 limits the FSR of a house on the subject site to 0.5:1. Clause 27 establishes the Foreshore Scenic Protection Area, in which the site is located. Clause 28 establishes a Foreshore Building Line on the site. 10 Mosman Residential Development Control Plan (the Residential DCP) applies. Section 4.2 deals with siting and scale, limiting development to two storeys, though it allows an additional storey in certain circumstances. It repeats the numerical height restrictions of the LEP. Section 4.4 deals with landscaping and repeats the numerical standards in the LEP. Section 5.1 deals with streetscape design. Section 5.2 deals with car parking and access. Section 5.6 deals with privacy and security. Section 5.14 deals with site management and excavation. Section 6.8 deals with the Rosherville/Wyargine Townscape Area, in which the site is situated. The most relevant objective for this area is to "limit bulky mega houses with horizontal emphasis across allotments" (p83). 11 State Environmental Planning Policy 1 – Development Standards (SEPP 1) applies. The applicant has lodged Objections under this Policy to certain development standards. Only the objections to the wall and roof height are in contention. The number of storeys is also in contention; however, this is a control in the DCP. The issues 12 The council submitted a Statement of Issues containing eleven issues, of which it pressed eight, though some of the remaining issues overlapped. During the hearing the following emerged as the principal issues: · Whether the proposal's bulk is excessive in the context of its surroundings, in particular when viewed from the Harbour (which is the only viewpoint from which it can be seen). · Whether the upper level terrace and conservatory will generate noise and overlooking of neighbours. · Whether there is sufficient information concerning geotechnical stability. · Whether the objectors' concerns are valid. A major concern of the objector from No 71 is the method of construction. The objectors' concerns 13 Before I describe the objectors' evidence in detail, I mention that all objectors shared one criticism, namely the raising of the proposal by 700mm over the existing ground level. The applicant agreed to lower the proposal by 700mm. This criticism has therefore been met. 14 The Court heard the evidence of Mr R and Mrs C Clarke, who live at 67 Parriwi Road, to the north of the subject site. Mr Clarke raised the following concerns: · The proposal should be fully compliant. · The overall bulk height and scale was excessive. The observatory and roof terrace will generate noise. · There are geotechnical problems. · The inclinator and parking structure are too obtrusive. 15 Ms Clarke raised additional concerns about non-observance of the Foreshore Building Line, the need for a construction management plan and the proposal's effect on two angophoras. 16 Mr I and Mrs T Oatley, who live at 63 and 65 Parriwi Road, said that they supported Mr and Mrs Clarke. Their main concern was whether the existing trees would survive the impact of construction. 17 Mr K Paul, the Chairman of the Chinaman's Beach Resident Action Group, said that he was concerned with the retention of public view from the street and the appearance of the handle from the water. 18 Mr R and Mrs J Clemesha, who live at 71 Parriwi Road, adjoining the site to the east, had the following criticisms: · The proposal breaches council's controls. · The proposal will blend with the house on No 71, thus creating the impression of a six-storey building. · Noise from the rooftop area will disturb them. · The method of construction could endanger their house. This last one was their most serious objection. Geotechnical and construction concerns 19 The Court heard the concurrent evidence of Mr A Colenbrander, a geotechnical engineer for the applicant, Mr J Braybrooke, a geotechnical engineer for the council, and Mr M Blaszczkiewicz, a construction engineer retained by the applicant. The experts agreed that rock bolting would be required to the rocks on the access handle and No 67. The reason is to protect the proposal from the house on No 67 falling on it, rather than to protect No 67. 20 Mr Blaszczkiewicz explained that the house would be constructed with a crane located on the access handle, that will unavoidably swing over adjacent properties. The cranes will not be operated in strong wind. As a consequence of Mr Clemesha's fears, the Court asked Mr Blaszczkiewicz whether he has considered other methods of getting materials to the site, eg a barge. Mr Blaszczkiewicz said that he has considered it; however it would be impossible to bring a crane or excavator on the site from a barge without damaging the foreshore vegetation. The other experts agreed with this assessment. I have no option but to accept it. Damage to the foreshore vegetation would render this proposal unacceptable. 21 The conditions of approval include the requirement for the applicant to prepare a construction management plan before obtaining the Construction Certificate. Bulk 22 The Court heard the concurrent evidence of Mr G Goodyer, town planner for the applicant, and Mr P Grech, town planner for the council. The experts agreed that the setbacks and landscape area of the proposal were appropriate, though they did not comply fully with the controls. The two aspects that were at issue were height (and hence the number of storeys), and scale. Scale presumably means the proposal's appearance in the landscape. 23 As mentioned above, the applicant has lowered the ground floor by 700mm, so it is now level with the natural ground. In my opinion, this has removed the major element of the bulk/scale/height issue. There is a remaining part of the building that offends Mr Grech, namely the Conservatory and the adjoining roof terrace with its pergola. This is the part that breaches the wall and roof height, as well as the number of storeys, since it is (and appears) as three storeys. The applicant submitted Objections under SEPP 1 to the height standards, on the grounds that in the visual context of the bulky buildings around it (including the apparently four-storey building on No 71), the small three-storey element of the Conservatory is hardly noticeable. Exhibit D, a photomontage dated 30 March 2007, confirms that this is so. I have viewed the site from the water, and, in my opinion, the impression given by the photomontage is correct. 24 While in the ordinary coarse of events there is a great deal in favour of complying with planning controls, in this case the relatively small three-storey element, seen against the backdrop of such large visually dominating buildings, is justified. The opportunity to achieve the kind of environment favoured by the council's planning instruments and policies has been lost. I do not think that the visual experience from the water would be even slightly improved if the Conservatory were removed. In my opinion, the SEPP 1 Objections are soundly argued and should be upheld. Domination of landscape 25 One line of argument in Mr Grech's evidence was that the Conservatory should be deleted in order to provide a better opportunity for visually separating the proposal from the backdrop of the apparently four-storey building at No 71, when viewed from the water. In my opinion, there is no opportunity any more for achieving visual separation. The proposal and the building behind it will be seen as one. The decision to allow a building that appears four-storeys on No 71, combined with the decision to allow the creation of the site as a separate allotment, has determined the above outcome. It would be neither fair nor effective to penalise the applicant for these past decisions. Impact on neighbours 26 The objectors' main concern was with the impact of the Conservatory, the roof terrace and pergola. These are almost directly under No 71, so only people leaning out from the house at No 71 would see it. The danger of noise disturbance is no greater than is generally accepted in normal suburban situations. The position of the roof terrace is sufficiently removed from the house at No 67 to avoid creating a nuisance. Conclusions 27 This is undoubtedly a difficult site on which to construct a house. However, the decision that a house is appropriate in this location was made when the council approved the creation of lot B DP 115733 and zoned it 2(a2). The council, as well as the Court, has to live with that decision. I accept that a crane swinging above the neighbouring properties is frightening for the owners and residents of those properties; however, I was assured that there is no feasible and environmentally acceptable alternative method of construction. 28 With the exception of the raised ground floor, the criticisms of the proposal do not appear to me to be valid. It has minor impact on its neighbours and, when viewed from the water against the backdrop of much larger and visually dominant buildings, it will recede in the landscape. The applicant accepted the residents' and the council's criticism against the building being raised 700mm above natural ground line and amended the proposal accordingly. 29 For the above reasons the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to erect a dwelling house, a garage and an inclinator on lot B DP 115733, known as 69 Parriwi Road, Mosman is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 11 and B. __________________ Dr John Roseth Senior Commissioner 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.