Land and Environment Court New South Wales Medium Neutral Citation: Wright & Anor v Mosman Council [2013] NSWLEC 1082 Hearing dates: 13 May 2013 Decision date: 14 May 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Modification application, bulk and scale Legislation Cited: Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012 Texts Cited: Building Code of Australia; Mosman Residential Development Control Plan Category: Principal judgment Parties: William Wright Elizabeth Wright (Applicants) Mosman Council (Respondent) Representation: Mr P Clay SC (Applicants) Mr M Squire Boulton, Julian, Squire (Applicants) Ms R McCulloch Pikes & Verekers Lawyers (Respondent) File Number(s): 10132 of 2013 Judgment 1The Wrights obtained development consent from Mosman Council for demolition of a swimming pool, alterations and additions to an existing dwelling and construction of a detached garage at 58 Shadforth Street, Mosman under Development consent 8.2012.147.1 (consent). An application to modify the consent to increase the height of the garage walls and roof and construct a dwelling within the roof space was subsequently lodged and refused by the council. The Wrights are appealing that decision. 2The matter commenced as a conciliation conference under s34AA of the Land and Environment Court Act 1979 however no agreement was reached, the conference was terminated and a hearing held forthwith, on site, in accordance with the provisions of s 34AA(2)(b)(i). The site and locality 3The site is located on the north western side of Shadforth Street between Crux and Canrobert Streets and is dual fronted with its primary frontage to Shadforth Street and rear boundary to Somerset Street. The site falls from front to rear. 4A single storey dwelling house currently being renovated in accordance with the consent is located at Shadforth Street end of the site. The garage approved under the consent would be located in the northern corner of the site and was approved on a 250mm setback to Somerset Street and 350mm from the north eastern property boundary. The area to the south-west of the building, the previous location of the pool, is to be developed as a lawn area and includes steps that lead from Somerset Street and the garage to the rear yard and dwelling house. 5Development in the vicinity of the site varies from detached single storey dwellings to residential flat buildings. Other than these residential flat buildings, development on the south eastern side of Somerset Street comprises rear fences or a combination of fences and garaging for the dwelling houses that front Shadforth Street. On the opposite side of that street are primarily detached dwelling houses. Background and the proposal 6The Wrights obtained development consent for the following works: alterations and additions to a dwelling house comprising internal reconfiguration, new windows, extension to rear living area and garage, demolition of swimming pool and landscaping works. That work is currently being conducted on site. On 24 October 2012, an application to modify the consent was lodged with the council. The description of the proposed modification as stated on the application form is as follows: Raising the roof of the garage by 1.57m and addition of 3 new windows and an internal stair access, creating a studio/granny flat within the roof space. No change to the existing footprint. 7The council refused the modification application on 3 December 2012 on five grounds which are summarised as follows: * Failure to comply with the objectives (ii) and (iv) in clause 4.3(1)(a) of the LEP as the development does not minimise effects of bulk and scale and is not compatible with the desired streetscape character; * The modifications do not comply with the floor space ratio objectives of the LEP; * The second storey addition to the garage does not comply with the objectives and planning controls contained in the DCP; 8The applicants are appealing that decision and have been granted leave by the Court to rely on amended plans. The changes made to the plans that had been refused by the council are: * An increase in the setback from Somerset Street from 250mm to 1000mm. * An overall height reduction of 350mm. * A change in roof form created by converting the gable end fronting Somerset Street to a hip. * A reduction in the overall length of 500mm. * The deletion of the windows to Somerset Street and replacement with "Dummy windows". These windows are cosmetic and not seen from within the proposed flat. * 2 new skylights, a new window to the south east elevation and a repositioned window to the south west elevation. 9The plans before the Court provide for a garage setback 1m from Somerset Street, 350mm from the north eastern property boundary and, by deduction, 5.84m from the south western boundary. Dimensions of the building are 7.5m in length and 6m in width, representing 49.2% of the frontage to Somerset Street. The floor level of the garage slopes from its rear to the street from RL 54.45 to RL 54.35 and the proposed ridge height is RL 60.4 resulting in a structure of approximately 6m in height. 10The wall height in proximity to the north eastern boundary and its presentation to Somerset Street, whilst not dimensioned on the plans, scales at approximately 4m. 11The ground floor of the garage would provide parking for two cars and incorporate a stair in the southern corner that gives access from the yard area to the proposed new floor. That floor is nominated on the plans as a granny flat and contains a bathroom, storeroom, kitchen and living area. The issues 12At the completion of the conciliation conference, the issues pressed by the council are that the proposal will have an unacceptable streetscape impact; it is contrary to the planning controls and the controls applying to the heritage conservation area and inadequate information has been provided to show the height of the garage area complies with the requirements of AS 2890.1:2004 and the floor to ceiling height of the flat complies with the requirements of the Building Code of Australia (BCA). Clause 5.3.1 of the Standard requires the height between the floor and an overhead obstruction within a car parking structure to be a minimum of 2200mm. The council agreed conditions of consent could be imposed to address the latter contention provided the building height did not increase above that proposed if approval of the application was granted. The planning controls 13The site is within Zone R3 Medium Density Residential under Mosman Local Environmental Plan 2012 (LEP). The proposed development would be permitted with consent. In accordance with clause 2.2, a consent authority must have regard to the zone objectives when determining a development application. The objectives of the R3 zone are: · To provide for the housing needs of the community within a medium density residential environment. · To provide a variety of housing types within a medium density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale. · To encourage residential development that has regard to local amenity and, in particular, public and private views. 14The site is within the Shadforth Street Conservation Area Townscape. Clause 5.10 of the LEP relates to heritage conservation and includes an objective to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. Subclause (4) requires a consent authority must, before granting consent in respect of development within a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area concerned. 15Mosman Residential Development Control Plan (DCP) applies to the site and includes in clause 1.5 its aims. Those relevant to the application are: (a) protect and conserve the natural and built heritage of Mosman; (b) identify and sensitively manage the desired future character of Mosman and the individual townscape areas of Mosman; (e) minimise view loss to and from water and foreshore reserves, public areas, streets and residential allotments; (f) limit potential of large bulky dwelling houses and encourage sensitive siting of buildings an leafy garden character; (m) provide guidelines for ancillary uses in residential areas which do not significantly affect the amenity of adjoining properties; 16Part 4.2 of the DCP applies to Siting and Scale and, of relevance to the application contains objectives and planning controls for building setbacks. Objective 6 is relevant to the application and states: To have adequate side setbacks to provide spatial relief between buildings, encourage view sharing, and minimise overshadowing of neighbouring properties. For two storey buildings, a minimum side boundary setback of 1.5m is required (P8). Planning control P15 contemplates the construction of garages and carports to a side boundary subject to compliance with criteria listed in P14. That criteria includes: (a) there would be minimal adverse effects on adjoining properties; and (c) the maximum wall height at the boundary is 3.5m (unless matching an existing or simultaneously constructed wall on the adjoining property); and (d) the proposal does not result in an adverse visual impact for surrounding properties; 17Part 5 relates to Site Planning and Design with particular objectives to have development of a scale and appearance which is in keeping with the street and desired future townscape area character (O1) and To have ancillary structures sited and designed to integrate with the built form and not be dominating. (O6). Particular planning controls for garages and carports require them to be designed so as to minimise bulk. Roofs generally should be flat or low pitched. The use of large gables and ornamentation to replicate the main dwelling should be avoided. 18Particular provisions apply to carport and garage design (Part 5.2) with particular objectives O1, To have carports and garages designed to be in sympathy with the residential building without becoming the dominant feature of the site. O3, To have the siting of carparking structures respect the character of the streetscape and retain public views where they exist over the site. O5, To have carports in conservation areas designed to respect and maintain the significance of such areas. 19The planning controls prefer the garage to be located to the rear of the site with access off a lane and behind the building line. Control P7 requires that garages and carports should be complementary in style and finish to the dwelling but generally be simple in detail; be no greater than one storey in height; not exceed 40% of the block frontage or up to 6m whichever is the lesser; and, where located on a rear lane, be designed having regard to the same issues of streetscape identified in the DCP as if located on the main street frontage. In regard to the one storey height control, P7(b) includes an exception as follows: Accommodation may be permitted under garages or carports where the topography allows the additional floor level to be screened from the street or where it will not have an adverse visual affect on the street, and where such space is not occupied as a separate domicile. 20The planning controls for the Shadforth Street Conservation Area Townscape are contained in Part 7.22.3 of the DCP. Of relevance to the application, the building form and design is to maintain the low scale/low rise detached dwelling form, encourage alterations and additions to the rear of the dwelling house and maintain the general dominance of landscape over buildings. The evidence 21The hearing was held on site and evidence was heard from neighbours who object to the proposal. The Court, in the company of the parties and their experts, undertook a view of the immediate locality and the block bounded by Shadforth, Crux, Somerset and Canrobert Streets in order to gain an understanding of the streetscape. The view included observation of the site from two of the objectors' properties. The issues raised by those persons is summarised as follows: * Proposal does not comply with the DCP which does not permit accommodation above garages; * Additional height, bulk and scale of the garage with the granny flat above would detract from the character of the Somerset Streetscape; * A vista toward the city and of greenery currently enjoyed would be interrupted by the proposal; * Concerned the precedent that would be established if approval was granted that would badly effect the Somerset streetscape which currently contains a number of garages, particularly on its south-eastern side but also on the north-western side; * Proposal is out of character with the streetscape; * Additional height and bulk would be visible from within adjoining dwelling, provide a high wall in close proximity to the boundary, reduce light to living and kitchen area and loss of amenity currently enjoyed from living spaces; * Windows would overlook adjoining property; * Garaging should be designed in sympathy with the residential building without becoming a dominant feature of the site and this proposal dominates the streetscape; * Inadequate setbacks; * Should be one storey maximum in accordance with DCP controls; * Exceeds 40% frontage control; 22Expert town planning reports were prepared by Mr G Goodyear for the applicant and Ms A Plumb for the council. They agree that the visual catchment for the proposed development is Somerset Street from Canrobert Street to Crux Street, that the development complies with the numerical requirements of the LEP and DCP with the exception of side boundary setback, landscaped area and garage width and that the BCA requires a ceiling height of not less that 2.2m for two thirds of the floor area within the habitable room. They also agree that other than the issue of height, the plans now before the Court provide sufficient information to allow assessment against the planning controls. 23Mr Goodyear says the proposed structure is consistent with the existing streetscape in Somerset Street and has been designed to mitigate potential impacts. He says the streetscape, particularly on the south-eastern side of Somerset Street, is characterised by structures/hedges of considerable height built/planted on a nil setback and separating the public from the private domain and includes structures of similar scale and nature to that proposed. He says the streetscape is not consistent and contains apartments and multi-unit housing of quite different character and those buildings have a greater scale than that proposed. The hipped roof form and 1m setback assists in reducing the visual impact of the development when viewed from the street as the built form recedes from the viewer and the street trees filter and obscure views of the structure. 24Ms Plumb says that the additional storey results in a development which has the effect of adverse bulk and scale and a visual dominance of built from within the streetscape given the structure's height and proximity to the street. In acknowledging the design changes made go to reducing impact, she still says the structure will be visually dominant in regards to the site, dwelling house and streetscape as a whole. The streetscape is mixed with the south eastern side of Somerset Street characterised by the rear of properties which front Shadforth Street with a predominance of high rear fencing, garages, parking structures with residential flat buildings located towards Canrobert Street. The north western side of Somerset Street is characterised by lower front fences and the front facades of dwelling presenting to the streetscape. The trees along the street are an important visual element. 25In Ms Plumb's opinion, the development does not reflect the requirements contained within the DCP that require careful consideration of the effect of garages on the overall appearance of the building and streetscape and says the controls go to minimising the visual impact and dominance of these structures to the streetscape and the proposal does not satisfy that requirement. She also says that the garage should be one storey only and that it is only where accommodation is provided under the garage and only where topography allows the additional floor level to be screened from the street without adverse visual impact and not occupied as a separate domicile that an additional storey is contemplated for garages. Conclusion and findings 26Having regard to the provisions of the LEP, the planning controls contained in the DCP and the evidence provided, I consider that the proposal is inconsistent with the aims and objectives of the R3 zone in that it that is not compatible with the desired future character of the area in terms of bulk, height and scale nor does it have regard to local amenity. 27Whilst the siting of the garage to the rear of the site is consistent with the DCP, I agree with Ms Plumb that the building would visually dominate the streetscape and consider the height of the wall within 350mm of the adjoining property boundary is excessive as is the height and visual impact of the structure when viewed from Somerset Street. It is not consistent with the desired future character as contemplated under the council's planning controls. 28I also agree with Ms Plumb's interpretation of the controls for Garages and Carports contained within Part 5.2 of the DCP do not contemplate accommodation being provided within an upper storey of a garage and if I am wrong, I do not consider the additional floor level follows the topography so as to allow the additional floor level to be screened from the street. It has an adverse visual affect on the street. There is no dispute that the proposal is to provide a separate domicile. Accordingly, the development as proposed is contrary to the controls envisaged in the DCP. 29The Orders of the Court are: (1)The appeal is dismissed. (2)The application to modify Development Consent 8.2012.147.1 is refused. (3)The exhibits, other than exhibits A and 2 may be returned. Sue Morris 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. Decision last updated: 15 May 2013