Lovrovich & Anor v Mosman Council [2013] NSWLEC 1217

Land and Environment Court New South Wales

Medium Neutral Citation: Lovrovich & Anor v Mosman Council [2013] NSWLEC 1217 Hearing dates: 12-13 November 2013 Decision date: 15 November 2013 Jurisdiction: Class 1 Before: Morris C Decision: See paragraph 43 Catchwords: Development application; compliance with planning controls, impact on streetscape Legislation Cited: Land and Environment Court Act 1979 Cases Cited: McNally v Mosman Municipal Council [2013] NSWLEC 1074; State Environmental Planning Policy (Infrastructure) 2007; Texts Cited: Mosman Residential Development Control Plan; Mosman Urban Design Study Residential Areas Study Report Category: Principal judgment Parties: Susan Lovrovich Chris Valacos (Applicants)

Mosman Council (Respondent) Representation: Ms F Berglund (Applicant) Ms J Walsh Pikes & Verekers Lawyers (Respondent) File Number(s): 10703 of 2013 10706 of 2013

Judgment 1These are two appeals relating to building works associated with a dwelling house at No. 31 Clanapline Street, Mosman. Matter No. 10703 of 2013 is an appeal against conditions of consent imposed by Mosman Council when it modified Development Consent No. 8.2009.100.3 (original consent) on 22 March 2013. 2Matter No. 10706 of 2013 is an appeal against the council's deemed refusal of Development Application No. 8.2013.111.1. 3The parties agreed that the matters be heard concurrently.

Background and the proposals 4The original consent was granted by the council on 11 June 2009 and authorised alterations and additions to the existing dwelling house at 31 Clanalpine Street, Mosman (site). The works approved included construction of new internal stairs, internal layout changes, new entry and verandahs, changes to carport roof, construction of a masonry front boundary fence, maximum height of 1.2m and change of use from dual occupancy to single occupancy. 5On 17 August, 2012 the original consent was modified so as to retrospectively approve the construction of a retaining wall towards the rear, lower section of the site. 6A further application to modify the consent was lodged with the council on 27 December 2012 and sought to amend conditions of consent that required the construction of privacy screens to the side elevations of the verandah extensions. The council determined the application however did not accept all of the changes sought by the applicant. The council amended condition 5 and approved, through condition 1, alternate plans, which indicated the extent of the screens to be constructed. 7Matter No. 10703 of 2013 is an appeal against those conditions and seeks to: * Amend condition 1 to include reference to amended plans submitted with the modification application which detail the erected privacy screens of 1.8m height above the finished deck level along the north-eastern side of the lower ground floor and ground floor rear balconies. * Delete condition 5 which states: To maintain adequate visual privacy for 29 Clanalpine Street and 3 Kallaroo Street the installed balustrading on south-western side of the lower and upper decks shall be removed and/or shall be augmented by the erection of a privacy screen 1.8m in height, measured from the finished floor level of the deck, along the south western side of both the upper and lower decks. The privacy screens shall have vertical slats oriented at 45 degrees in a north-south orientation in order to direct outlook away from these neighbouring properties. 8In addition to the application to further modify the original consent, a new development application, DA 8.2013.111.1 (new DA), was lodged with the council on 6 August 2013 and sought consent to: * convert the double carport into a double garage by enclosing the garage with masonry walls and fitting a garage door, * install 18 solar panels on the roof of the garage, * demolish the existing chimney, * construct an awning over the rear door, * construct a 2m high pedestrian entry structure, * construct a 1.8m high front boundary fence with entry canopy * construct a new brick wall to the underside of the lower ground floor rear verandah along the north-east side of the dwelling * construct a swimming pool to the rear of the dwelling * increase the height of the approved retaining wall and carry out earthworks to bench the site to provide a trafficable lawn area * landscaping works * removal of two existing tree ferns 9The application has not been determined and Matter No. 10706 of 2013 is an appeal against the deemed refusal of that development application. 10The matters commenced as a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979 and as a result of that process, the parties agreed to an alternate treatment to the rear yard and retaining walls so that the area would be terraced rather than the height of the existing retaining wall increased. The council is satisfied that the terracing arrangement and the provision of screen planting would address its concerns provided additional planting was implemented along the north-eastern boundary and the planting is maintained to nominated heights. The council has also agreed to changes proposed to the treatment of the front fence and gate. The applicant has provided amended plans to reflect those changes, which involve the addition of open metal fencing with a minimum 75mm gap and maximum 25mm bars above the approved 1.2m fence with similar treatment to the gate, to a maximum height of 1.8m. Those plans were tendered as Exhibit G and the council has provided consent conditions to ensure the implementation of those changes. The enclosure of the area below the verandah on the north-eastern side of the dwelling, the demolition of the chimney and the construction of the awning over the rear door of the dwelling are all acceptable to the council. 11No agreement was reached in relation to that part of the new DA that proposes to convert the approved carport into a garage through the installation of a garage door and enclosure of the side and rear walls. The installation of the solar panels on the roof remains in contention however the council concedes that, subject to the method of installation, the panels would be exempt development pursuant to the provision of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). As sufficient detail was not available to ensure the provisions of the policy were met, the council has prepared consent conditions to address the issue. The council continues to oppose the construction of the entrance canopy adjacent to the Calalpine Street boundary. 12As final agreement on the remaining contentions could not be reached, the conciliation conference was terminated and a hearing held forthwith in accordance with the requirements of s 34AA(2)(b)(i) of the Land and Environment Court Act 1979. 13The matter that remains in the s96 application is whether there is a need to install privacy screens on the upper level verandah extension as the council no longer presses the need for the screen on the lower level. 14The matters that remain before the Court in the DA appeal are whether the carport should be converted to a garage, whether the pedestrian entry structure should be approved and whether the privacy screen is required on the south-western side of the upper level verandah extension.