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Land and Environment Court
New South Wales
Medium Neutral Citation: Demlakian v Mosman Council [2013] NSWLEC 1154
Hearing dates: 26-27 June 2013
Decision date: 15 August 2013
Jurisdiction: Class 1
Before: Smithson AC
Decision: 1.The appeal is upheld in part.
2.The deferred commencement conditions under Part A of the consent for Development Application 8.2012.221.1 for a new dwelling house at 60 Moruben Road, Mosman are modified as follows: conditions 1, 2, 3, 6, 8 and 11 are amended; conditions 4, 5 and 7 are retained; and conditions 9 and 10 are deleted, as detailed (including renumbering) in the revised deferred commencement conditions of consent in Annexure A.
3.The exhibits are returned to the parties with the exception of Exhibits A, C, F, 1, 2 and 7.
Catchwords: DEVELOPMENT APPLICATION - new dwelling, height, bulk, setbacks, view sharing and loss, resident objections
Legislation Cited: Environmental Planning and Assessment Act 1979
Mosman Local Environmental Plan 2012
Mosman Residential Development Control Plan
Cases Cited: Tenacity Consulting v Warringah [2004] NSW LEC 140
Padfurn v North Sydney Council [2005] NSW LEC 444
Category: Principal judgment
Parties: Josie Demlakian (Applicant)
Mosman Council (Respondent
Representation: Counsel
Mr P McEwan (Applicant)
Solicitors
Mr S Konstantinidis, Konstan Lawyers (Applicant)
Ms J Walsh, Pike Lawyers (Respondent)
File Number(s): 10253 of 2013
Judgment
1This is an appeal against deferred commencement conditions of consent imposed by Mosman Council (the Council) under s 81(1) of the Environmental Planning and Assessment Act 1979 (the Act) for demolition, erection of a two storey dwelling house with detached garages and landscaping works at 60 Moruben Road, Mosman.
2The conditions which were the subject of appeal were, in essence, that:
a.The dwelling is to have an increased rear setback of 11.2 m, moving it by 3.6 m towards Moruben Road;
b.The dwelling height is to be reduced in height from RL78.5 to RL78.0;
c.Side setbacks of 1.5 m are required to both side boundaries thus necessitating deleting 'pop-outs' for internal features;
d.The roof canopy over the walkway from Moruben Road to the front entry of the dwelling is to be deleted. This could be replaced with a roof above the front entry gate to Moruben Road not more than 2 m deep;
e.The cantilever awning over the front entry is to be lowered by 500 mm;
f.Provision of 1.6 m privacy screens along the full southern extent of the rear ground and first floor balconies;
g.The height of the garages is to be a maximum of RL75.76;
h.The front grate and front fence are to have a maximum height of 1.8 m above the footpath level;
i.The planter in front of the front fence to be increased in width to 600 mm; and
j.The windows on the southern elevation to the ground floor study and lower ground floor bedroom 4 to be translucent glass.
3The Council's assessment concluded that the modifications sought by the deferred commencement conditions were required to ensure the orderly development of the area and to manage the impacts of the development. These impacts were primarily to the views and amenity of adjoining residents with a number of objections to the development lodged.
4In granting consent, the Council considered that the proposed development, with the modifications they required, would meet the objectives for the zone including in terms of height, FSR and the variations to the controls sought. Without the required modifications, the Council argued that the objectives would not be met.
Site Details
5The subject site (the site), Lot 1 DP 5112359 is located on the eastern side of Moruben Road and has an area of 624.6 m2. The site is rectangular in shape and falls 6.82 m to the east from the street. It contains a part single part twostorey dwelling. Surrounding development consists primarily of dwelling houses with some multi dwelling housing.
The Proposal
6The proposal is to demolish the existing dwelling and construct a twostorey dwelling house with an undercroft and two single detached garages. A new front fence and landscaping works are proposed.
7The Council accepted that the dwelling house was of a height and scale comparable to other dwelling houses in the area and reflective of the desired future character of the area subject to a number of design changes. These included that the dwelling house be reduced in height by 500mm and be set back further from the rear of the lot.
Relevant Controls
8The key environmental planning instruments are the Mosman Local Environmental Plan 2012 (MLEP) and the Residential Development Control Plan (DCP).
9Under the MLEP, the site is zoned R2 Low Density Residential and the development is permissible in this zone.
10The development as proposed and as required to be modified by the Council does not comply with the LEP height limit of 8.5m. The application proposed a maximum height of 10.29m.
11Discretion to vary the height is found in Clause 4.6 of the MLEP which allows flexibility to vary certain standards upon written justification from the applicant that compliance with the standard is unreasonable or unnecessary in the circumstances and there are sufficient planning grounds to justify the contravention. In approving the variation, the consent authority must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives for development within the zone in which the site is located.
12The proposed development also did not comply with the FSR provisions of the MLEP or numerous controls in the DCP including: wall height, setbacks, garage width, and front fence height.
13The controls for setbacks are found within the MDCP. For each setback there is both an objective and planning controls.
14There are no numeric rear or front setback controls specified. Both these setbacks are to reflect the established pattern of setbacks in the street if they are uniform or otherwise to be assessed on their merits.
15Numeric side setbacks are specified in the MDCP and increase with the height of the dwelling house.
Resident Objections
16The development proposal received a number of written objections from residents in the vicinity when it was notified. During the view at the commencement of the hearing, three neighbours reiterated their concerns and the site was inspected from vantage points of six adjoining properties. All these properties were in Moruben Road other than the property at the rear of the site, being 33 Stanley Avenue.
17The grounds for objection principally related to loss of or impact on views to Middle Harbour and/or North Head. The pitched form of the roof on the existing dwelling on the site enables views between the existing dwelling and its neighbours from viewed properties on the western side of Moruben Road. Whilst views from these properties would be substantially impacted by the development approved by the Council, the modifications sought by the Council would reduce these impacts.
18The two neighbours immediately to the south of the subject site also raised concerns with overshadowing, visual impact from bulk and scale, privacy in terms of overlooking (of rear yards and pools in particular), and noise. Overlooking and loss of privacy was also a concern for the owner of 33 Stanley Avenue.
19The owners of 58A Moruben Road also considered the approval with required modifications was already a substantial compromise and would result in adverse impacts - the applicant's proposal would exacerbate these.
20In summary, for residents on the eastern side of Moruben Road (the same side as the site), the extent of the rear setback was their main issue, with a desire for the proposed rear setback to be at least in line with the setback of adjacent dwellings to the south. For residents on the western side of Moruben Road, their main concern was the loss of water views, with the degree of impact varying between different locations but with all properties visited having view loss, both with the proposal as supported by the Council and, exacerbated, with the proposal sought by the applicant.
Setbacks
Rear Setback
21The reason given in the MDCP for matching established rear setbacks is to provide sufficient space for substantial planting, provide adequate separation of buildings and have regard to cross views of neighbouring properties.
22The applicant proposed a rear setback of 6.4 m which the Council argued was non-compliant with the established pattern of rear setbacks on the eastern side of Moruben Road. Accordingly, the Council required the rear setback to be increased by 3.6 m. This was on the basis that it would be between the rear setback of 62 and 58A Moruben Road (being the two immediately adjacent lots).
23By increasing the rear setback, a reduction of building height is also achieved given the sloping nature of the site. In this regard it is a relevant consideration that the rear setbacks of the two adjoining properties vary.
24The applicant argued:
a.There was no established pattern of rear setbacks
b.The rear (eastern) boundary of the site was substantially closer to the front (western) boundary than its neighbours due to a previous subdivision of the site to create a separate lot at the rear creating a much shallower lot, so any numeric matching of adjoining rear setbacks would see the dwelling setback substantially more from the rear than its neighbours
c.The development is of a similar bulk and scale to adjoining development
d.The adjoining development maximises height at the rear of the site given the sloping nature of the topography.
25The site is adjoined by lots which have different depths. Whilst there is some consistency in the rear setbacks of properties to the south they are not all uniform. The same is true of lots to the north. The rear boundary of the subject site does not align with the rear boundaries of either lots to the north or to the south but is shallower than both, more so in terms of the adjoining lot to the north. Requiring a numeric setback that is consistent with either adjoining lot would see the rear of the dwelling on the site setback substantially more than the adjoining dwellings.
26The site is unique in its dimensions. Rather than trying to achieve a numerically derived setback that is consistent with deeper adjacent lots, it is reasonable to consider the location of the rear of the proposed dwelling relative to neighbours adjoining and at the rear. This is in order to best determine the impact of the rear setback on the amenity of the proposed dwelling and its neighbours.
27The applicant stated that the rear setback chosen had regard to this and set a midway point between the setbacks of the adjoining dwellings.
28This setback sought by the applicant would result in a rear building alignment similar to 56 Moruben Road and still behind 62 Moruben Road but in front of the rear setbacks of 58 and 58A Moruben Road, both of whom objected to this on the basis of concerns with overlooking, overshadowing, loss or privacy and bulk and scale.
29The Council sought an increase of 3.6m so that the rear of the dwelling would align with the rear of 58A Moruben Road and thus reduce the amenity impacts on this dwelling. The applicant argued that the amenity of residents of the proposed dwelling would be impacted by an increased rear setback in terms of the overlooking, overshadowing, bulk and scale associated with 62 Moruben Road.
30I accept that this is a transitional lot where it could be argued there is no established rear setback that can be automatically applied. To align with the rear of 58A Moruben Road would ignore the location of the rear of 62 Moruben Road. However, the closer to the rear boundary the development occurs the more impact it has on 58 and 58A Moruben Road and 33 Stanley Avenue.
31Having said that, the landscaping at the rear of 33 Stanley Avenue would likely result in minimal overlooking of this property from the development as proposed by the applicant.
32It is also the case that the overlooking of adjacent rear yards is a feature of viewed developments on the eastern side of Moruben Road and the rear setback proposed by the applicant will not materially have any impact on the extensive water views of adjacent properties on the eastern side of Moruben Road.
33It is therefore concluded that requiring an increased rear setback is justified but not to the extent (3.6m) sought by the Council.
34Having regard to the location of existing adjacent development, setting the development back a further 2.0m from the rear boundary, rather than the 3.6m sought by the Council, is considered warranted given that this setback will:
a.Achieve the approximate averaging of the rear building lines of the two adjacent dwellings (58A and 62 Moruben Road) when measured from the point closest to the common boundaries with the subject site;
b.Approximately align the rear wall of the proposed dwelling (excluding the balcony) with the eastern extremity of the eastern most balcony of 58A Moruben Road;
c.Result in a similar minimum rear setback to that which currently exists to the wooden balcony of the existing dwelling on the site;
d.Reduce the impact of the development on adjacent properties to the south, including the extent of overshadowing of the private open space of 58A Moruben Road, and the potential for overlooking of 33 Stanley Avenue;
e.Reduce the extent of view loss for 59, 3/61 and 5/61 Moruben Road;
f.Not materially reduce the harbour views achieved from the proposed development or its neighbours;
g.Reduce the overall wall height on the eastern boundary given the slope of the site; and
h.Enable the upper level window of 62 Moruben Road to retain a south easterly outlook to the harbour.
35Accordingly deferred commencement condition 1 is to be reworded as follows:
The dwelling house is to be brought forward 2.0m towards the Moruben Road boundary to increase the rear setback, resulting in a minimum rear setback of 9.6m from the rear boundary to the eastern corner of the rear balconies and a minimum front setback for the dwelling house to Moruben Road of 12.3m.
Front setbacks
36As previously noted, there is no numeric standard for front setbacks. Where there is an established pattern of development in terms of front setbacks, the DCP requires that new development should be setback a similar distance. Otherwise the front setback is to be considered on its merits.
37The Council argued that the proposed front setback of 14m to the ground floor did not comply with the established front setbacks for the eastern side of Moruben Road. A condition was imposed requiring the rear setback to be increased by 3.6 m thus reducing the front setback to 10.7 m which the Council considered more closely aligned with the front setback of the dwelling to the south at 58A Moruben Road.
38By modifying both the front and rear setbacks, the Council argued this would reduce the bulk, scale and height of the development when viewed from the three properties which shared common boundaries with the site (i.e. southern, northern and eastern).
39The applicant argued that there were no established front setbacks on the eastern side of Moruben Road, with adjoining dwellings having substantially different front setbacks. The front setback should therefore be considered on its merits. In this regard, the applicant argued the front setback sought was not inappropriate.
40The front setback of the adjacent property to the south is 9.3 m and to the north is 17.0 m, albeit the property is substantially deeper. Aerial photographs provided to the Court indicate that there is no established front setback on the eastern side of Moruben Road and, in many cases, garages are built in front of dwellings adjacent to the front boundary.
41The Court requirement to increase the rear setback by moving the dwelling house closer to Moruben Road will result in a reduced front setback to the ground floor of 12.3m. This is part way between the front setbacks of adjacent dwellings and is considered reasonable.
Side setbacks
42The side setback requirement for two-storey development is 1.5 m under the MDCP where the wall height does not exceed 7.2 m increasing to 3 m where wall height exceeds 7.2 m. The objective for side setbacks is to have adequate side setbacks to provide spatial relief between buildings, encourage view sharing and minimise overshadowing of neighbouring properties.
43The Council required the side setbacks to both boundaries to be 1.5 m to improve the view corridors from properties on the western side of Moruben Road, improve neighbour amenity, and reduce bulk and scale. The applicant agreed to this setback other than for two so called 'pop out' elements on the northern boundary which accommodate translucent windows to a staircase and bathroom respectively.
44It was noted that: there was no objection to the development from the northern neighbour, the side setbacks to the subject site from both adjacent dwellings is less than 1.5 m despite these dwellings being of a similar bulk and scale, and the revised plans achieve a 1.5 m setback from both boundaries other than for the two 'popout' translucent windows on the northern elevation.
45No amenity impacts are considered to arise from the 'popout' elements adjoining the northern boundary. Accordingly the requirement to delete the 'popout' elements is not supported and deferred commencement condition 3 is amended accordingly to require deletion of the southern 'popout' element only.
Height
46The application sought an approved height of 10.29m to RL78.5. The deferred commencement conditions of consent require a 500mm reduction in height to RL78.0 (measured to parapets). Through amended plans filed during the hearing, the applicant agreed to lower the height by 250 mm to RL78.25.
47In approving the variation in height but to a maximum of RL78.0, the Council was satisfied that the proposed development will be in the public interest because it is consistent with the objectives for development within the zone in which the site is located and will primarily only impact the rear of the site.
48In support of the height sought, the applicants claimed:
a.The height of the proposed dwelling was less than the height of the ridge of the existing dwelling on the site;
b.The adjoining sites maximise height at the rear of their sites and exceed the 8.5m height limit in the LEP;
c.The height non compliance would be limited to the rear of the site and was as a consequence of its sloping nature;
d.Compliance with the LEP height limit would result in a dwelling effectively one storey lower than its neighbours despite all lots having the same zoning and planning controls; and
e.A lower building would not be consistent with the scale of dwellings immediately adjacent to the site and therefore compliance with the height limit was unreasonable.
49The Council considered a reduction in height to RL78.0 would be more compatible with the surrounding buildings, reduce the bulk and scale of the development when viewed from the harbour and from neighbours, and miminise impacts on views. Subject to the reduction in height to RL78.0, the Council officer's report on the application indicated that 'the proposed development is not inconsistent with surrounding properties having regard to the slope of the site".
50In the same report, it is stated that a variation in height from that permitted in the MLEP (to RL78.0) would result in a development that met the LEP objectives for the zone by retaining the single dwelling character of Mosman and the general dominance of landscape over built form and would not result in adverse impacts to amenity or significant loss of public or private views, would not result in a loss of privacy, and overshadowing would be reasonable. In summary, presentation as a 1.5 storey development to Moruben Road and 3 storeys to the harbour was not inconsistent with other dwellings on the eastern side of Moruben Road.
51The rear portion of the proposed development also does not meet the 7.2m wall height limit required by the MLEP largely as a result of the sloping nature of the site. Reduction in the overall height of the dwelling to RL78.0, along with increasing the rear setback of the dwelling, would result in a reduction of the non-complying wall heights and was considered by the Council to result in an acceptable reduction in the extent of wall height non-compliance.
52It is noted that the variation to the FSR was also considered to meet the objectives of the MLEP and the requirements of MLEP cl 4.6 subject however, to the deferred commencement conditions the subject of the appeal.
53The main impact caused by the height of the dwelling is in terms of the views to Middle Harbour and the interface views of the shoreline to North Head from properties opposite the site on the western side of Moruben Road, and to the amenity of the dwelling at 58A Moruben Road, including its outdoor balconies and rear yard.
54Whilst the proposed height to RL78.5 is slightly less than the ridgeline of the existing dwelling on the site, the pitched roof of that dwelling allows significant water and interface views from the properties of objecting owners on the western side of Moruben Road between the existing dwelling on 60 Moruben Road and adjacent dwellings. These views will be substantially reduced as a consequence of the approved building envelope irrespective of the height. However, any reduction in height will improve the situation.
55The same can be said for the height of the dwelling adjacent to the southern boundary in terms of impacts on the amenity of 58A Moruben Road as a consequence of the proposed dwelling's bulk and scale. Having said that it is noted that the proposed revised height agreed to by the applicant of RL78.25 is similar to the height of adjacent dwellings with the maximum height of 62 Moruben Road at RL78.23 and, of 58A Moruben Road, between RL78.23 and RL78.56m.
56Further, the development at 58A Moruben Road is setback only some 1.025m from its boundary with the subject site increasing the potential for impacts of any substantive redevelopment of the subject site.
57The difference in what was agreed as acceptable by the applicant, namely RL78.25, and that required by the Council is only 250mm. Lowering the height to RL78.25 will help minimise impacts on neighbours, particularly in terms of views for properties on the opposite side of Moruben Road, and would put the dwelling at a similar height to the maximum heights at 58A and 62 Moruben Road. This height is therefore considered reasonable particularly having regard to the increased rear setback required by the Court of 2.0 m.
58Deferred commencement condition 2 is therefore modified to require amended plans with the dwelling being reduced in height to RL78.25.
Other Issues
Covered walkway and Cantilever over Entry
59The Council considered that the covered walkway from the Moruben Road gate to the dwelling house results in adverse bulk and is dominating when viewed from the streetscape. A deferred commencement condition requires its removal instead permitting a 2 m deep roof above the gate.
60The covered walkway introduces additional built form elements in the front setback. Along with the two stand alone single garages at the front boundary, there is limited ability for landscaping in the front setback area. Accordingly the Council requirement to remove the walkway allowing instead only a covered roof over the front gate is supported and deferred commencement condition 4 is retained accordingly.
61Given the deletion of the walkway, deferred commencement condition 5 requiring the proposed cantilever to be lowered by 500 mm is also supported.
Height of Garages
62The proposal includes two single garages at the Moruben Road frontage. The Council was not concerned with the siting or location of the garages but sought to reduce their height to RL75.76 to maintain a compatible height with adjacent garages.
63However, the adjacent garages are not of a uniform height with the garage of 62 Moruben Road, which immediately adjoins the northern boundary of the site, having a height to RL76.09 m. The ridgeline of the existing garage on the subject site is at RL77.38 m.
64Given that the proposed garages have a flat roof and are on a nil setback to the street, as are the garages on adjacent properties, some uniformity of height is not unreasonable. The Council did not provide a substantive rationale for choosing the lower height of 58A Moruben Road rather than the height of the garage of 62 Moruben Road. Requiring the same height as the garage of 62 Moruben Road is considered reasonable and deferred commencement condition 8 is amended accordingly.
Privacy
65To increase privacy to 58A Moruben Road and reduce overlooking of back yards to the south, the Council imposed a condition requiring the ground and first floor rear balconies to have 1.6 m high privacy screens extending the full length of the southern wall of these balconies. The parties agreed that the required balcony privacy screens should be replaced with 1.6 m high angled louvres to be fixed at an angle of 45 degrees.
66The applicant agreed to provide the fixed louvres but only for half the width of the balcony arguing that this was sufficient to provide privacy for dwellings to the south.
67It is a feature of dwellings on the eastern side of Moruben Road in the general vicinity that they have balconies oriented to the east to maximise water views and cross views. As a result such balconies have cross views across adjoining sites and overlook adjoining rear yards.
68The privacy consideration is the degree to which overlooking of pools and rear gardens can be prevented along with the overlooking of habitable areas and the balconies of adjacent dwellings.
69Extending the privacy screens the full southern length of both proposed upper level balconies will increase the bulk and scale (and therefore impact) of the southern façade and reduce cross views across the site from adjacent dwellings. However, without them it would be possible to look directly south from the proposed balconies over the eastern most balconies and yard of 58A Moruben Road particularly if the landscaping along the northern boundary of 58A Moruben Road was removed.
70Accordingly, the requirement that the louvres be extended the full depth of these balconies is supported although the louvres should be able to intrude into the 1.5 m side setback as required so they can be affixed to the side of the balconies. Deferred commencement condition 6 has been slightly reworded accordingly (now deferred commencement condition 7).
71To minimise privacy impacts on rooms within 58A Moruben Road, deferred commencement condition 11 required the windows on the southern elevation to the ground floor study and bedroom 4 on the lower ground level to be translucent glass. The parties subsequently agreed that only the window to the ground floor study should have treatments for privacy and that this could be either by translucent glass or fixed angled louvres. If louvres, these should be permitted to extend into the 1.5 m side setback. Deferred commencement condition 11 is amended accordingly.
Front gate and fence
72Deferred commencement conditions 9 and 10 require the front gate and fence to have a maximum height of 1.8 m. The DCP requires 1.2 m and the application seeks 2.0 m.
73The height of fences of adjacent properties do not comply with the DCP provisions and generally range from 1.8 to 2.15 m. The rationale for either the DCP provision or the 1.8m limit required was not persuasive given the height of adjoining fences and other fences in Moruben Road. Accordingly, there is considered no basis to require a reduction in the height of the fence from 2.0 m to 1.8 m.
74Similarly the applicant objected to increasing the depth of the planter box at the front fence by 100 mm claiming 500 mm was adequate to support the landscaping approved by Council. No persuasive technical reason for the 100 mm increase sought was provided by the Council and not all front fences in Moruben Road have planter boxes.
75Accordingly deferred commencement conditions 9 and 10 are deleted.
Orders
76The orders of the Court are that:
1.The appeal is upheld in part.
2.The deferred commencement conditions under Part A of the consent for Development Application 8.2012.221.1 for a new dwelling house at 60 Moruben Road, Mosman are modified as follows: conditions 1, 2, 3, 6, 8 and 11 are amended; conditions 4, 5 and 7 are retained; and conditions 9 and 10 are deleted, as detailed (including renumbering) in the revised deferred commencement conditions of consent in Annexure A.
3.The exhibits are returned to the parties with the exception of Exhibits A, C, F, 1, 2 and 7.
J L Smithson
Acting Commissioner of the Court
ANNEXURE A
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 August 2013