JH Consolidated Pty Ltd v Mosman Municipal Council [2011] NSWLEC 1268

Land and Environment Court New South Wales

Medium Neutral Citation: JH Consolidated Pty Ltd v Mosman Municipal Council [2011] NSWLEC 1268 Hearing dates: 8, 9 August 2011 Decision date: 08 September 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed Catchwords: Development application - dwelling house - whether sufficient information to enable assessment of impacts - development standards - wall and building height - number of storeys - whether SEPP 1 objections should be upheld Legislation Cited: Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 1998 State Environmental Planning Policy No 1 - Development Standards Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 Category: Principal judgment Parties: JH Consolidated Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Mr J Hones, Hones La Hood (Applicant) Mr J Cole, HWL Ebsworth (Respondent) File Number(s): 10466 of 2011

Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the respondent Council of consent to Development Application 8.2011.74.1 for the partial demolition of an existing dwelling and construction of a new dwelling at Lot 1 DP 206347,13 Balmoral Avenue Mosman (the site). 2The proposed new dwelling incorporates four levels, with garage, storeroom, rumpus room and vehicle access and turning bay on level 1; kitchen, dining, living and laundry on level 2; study and three bedrooms with ensuites on level 3; and bedroom and ensuite on level 4. The proposed development included landscaping works, including excavation for a swimming pool and construction of retaining walls. 3The site is a battleaxe allotment incorporating an access handle approximately 3.67m wide from Balmoral Avenue. The site has a significant west to east slope of approximately 18m with an average gradient of 49 percent. The site presently contains a two storey detached masonry dwelling with parking for two cars. There are a number of significant trees on the site. 4The allotment immediately to the south is 15 Balmoral Avenue, on which there is a two storey dwelling. A development application for demolition of the existing dwelling on that site and construction of a new two storey dwelling, lodged with the respondent on 4 April 2011, was withdrawn. The allotments to the west of the site are 43 and 41 Redan Street. The allotments lower down the slope and to the east are 4 and 6 Ryan Avenue. The allotment to the north is 40 Upper Almora Avenue, which is occupied by a four storey residential flat building. On 2 September 2008 the Council approved under existing use rights provisions a development application for demolition of that flat building and construction of a new four storey residential flat building incorporating basement car parking on that site. 5The development application was received by the respondent on 6 April 2011 and was publicly notified from 18 April to 3 May 2011. The Class 1 appeal was filed with the Court on 2 June 2011. On 28 July 2011 leave was granted to the applicant to rely on amended plans to provide additional information in response to the respondent's Statement of Facts and Contentions. 6The issues between the parties are whether the applicant has provided sufficient information to enable a proper assessment of impacts of the proposed development including impacts of construction on the significant trees on the site, and stormwater; and whether the non-compliance with the wall and building height, number of storeys, floor space ratio, and landscaping controls can be justified.

Planning controls 7The site is zoned 2(a1) Residential under the Mosman Local Environmental Plan 1998 (the LEP). Clause 2 provides the objectives of the LEP, which include (b) providing housing opportunities appropriate to environmental constraints while maintaining residential amenity, and (f) enhancing and protecting the scenic amenity and visual quality of Sydney and Middle Harbours. 8The zone objectives are: · Retain the single dwelling character of the environmentally sensitive residential areas of Mosman · Maintain the general dominance of landscape over built form, particularly on harbour foreshores · Maintain the existing subdivision pattern · Ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features · Ensure that development is of a height and scale which complements existing buildings and streetscapes · Allow for some non-residential uses that would not adversely affect the living environment of the area · Encourage residential development which has regard to local amenity and, in particular, public and private views 9Clause 13 provides objectives and development standards in relation to building height, wall height and the number of storeys permitted in Residential zones. Clause 13(2) provides for maximum building height of 8.5m, wall height of 7.2m, and cl 13(3) provides a maximum number of two storeys. 10Clause 14 provides objectives and a development standard for floor space ratio (FSR). Under cl14(2), the maximum FSR for the site is 0.47:1. 11Clause 15 provides objectives and a numeric requirement for landscaped area. The applicable requirement for the site under cl15(2) is 586 sqm. 12The proposed development has a building height of 12.44m and wall height of 10.45m; FSR of 0.48:1; and landscaped area of less than that required in cl 15. The respondent contends that the proposed development is four storeys. The applicant submitted with the development application objections to compliance with the development standards in clauses 13 and 14 of the LEP under State Environmental Planning Policy No 1 - Development Standards (SEPP 1). The applicant did not provide a SEPP 1 objection to cl15, on the basis that the Council does not interpret this provision to be a development standard. 13The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site. 14The Mosman Municipal Council Residential Development Control Plan 1999 (the DCP) applies to the site. The DCP adopts a performance approach, which it states (at p6) is designed to focus principally on planning outcomes rather than prescriptive or numeric standards.

Evidence 15The hearing of this matter commenced on site as a conciliation conference under s34AA of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement and in accordance with s34AA(2) of the Court Act the conciliation was terminated and the matter proceeded to a hearing. 16Evidence was given on site by the owners of 4 and 6 Ryan Avenue. The owner of 4 Ryan Avenue expressed concern about overlooking into his living area, deck, kitchen and rear courtyard area; that the proposed development is too close to his boundary; and concern about drainage of water through his property. The owner of 6 Ryan Avenue expressed concern that there had been a landslip some 29 years ago into her backyard and that the lower part of the site is a dumping ground for vegetation; she is pleased that the site is to be cleared. She stated that she is concerned about privacy in her rear yard and that the proposed development will present as a four storey building looking down on her property; and concern about the visitor parking bay and the need for barriers. 17The site view included an opportunity to see the site from the properties at 4 and 6 Ryan Avenue, and a view of the locality, including a view of the site from the foreshore area on The Esplanade. 18Expert planning evidence was given on behalf of the applicant by Mr James Lovell and on behalf of the respondent by Ms Claire Muir. Expert arboricultural evidence was given on behalf of the applicant by Mr Kyle Hill and on behalf of the respondent by Mr George Palmer. Evidence of the arborists 19In relation to the two Angophoras located on the eastern side of the site (identified on the plans as T4 and T5), the arborists agreed that sensitive construction measures could be implemented to limit impacts on the root zone. They disagreed as to how practical such measures would be, and whether there would need to be any work done on the existing service line that might impact on the trees. They disagreed on the possible indirect hydrological impacts of the construction process. Mr Hill was of the opinion that these trees access water and nutrients from the lower level. Mr Palmer was of the opinion that the excavation and works above would affect the water flow. They agreed that use of a porous material for the proposed decks would minimise the impact. 20The arborists disagreed as to the significance of a three stemmed, Brown Stringybark at the northern boundary (T1), and whether removal is required. Mr Hill was of the opinion that this could be replaced with a tree of similar canopy size elsewhere on the site. 21The arborists agreed that the Angophora costata located on the north western part of the site (T3) is the most significant tree on the site. They agreed that it is in good condition, has a good canopy cover, is highly visible, is remnant, and is approximately 80 years old. They agreed that because of its age, it would be harder for this tree to adapt to impacts of the construction process. Disagreement centred on the impact of reconstruction of a sandstone retaining wall, the construction of drainage, excavation adjacent to the southern edge of the tree's structural root zone, excavation for the proposed swimming pool on the western boundary of the site, and the degree of canopy removal that would be required for the proposed second floor. Mr Palmer was of the opinion that the proposed construction works would be on three sides of the structural root zone of this tree. In his opinion, in the longer term the tree would decline; if the swimming pool were not constructed, there would still be some issues with the excavation at the side and below the proposed dwelling. In Mr Hill's opinion the root system for T3 is atypical, and it is already a contained tree; in his opinion it is possible that the roots run under the house. Both agreed that construction of the proposed top floor would require removal of the lower limb of the canopy of T3 extending over the dwelling, or about 10-12 percent; and that if removal of the next limb is required that would be removal of up to 20 percent. Evidence of the planners 22The respondent's contentions included contentions that there was insufficient information to assess the areas of existing walls to be retained, the degree of excavation proposed, detail of the north and south elevations and rear retaining wall; and that a photomontage, and detailed arborist report, were required. At the hearing the expert planners agreed that the amended plans adequately identified the parts of the existing building to be retained and the degree of excavation, that the plans now identified proposed retaining walls and fences on the north and south elevations and included details of the proposed retaining wall along the rear boundary, and that photomontages and an updated arborist report had been provided. 23The planners disagreed as to consistency of the proposed development with the LEP and the zone objectives, and whether the SEPP 1 objections should be upheld. Ms Muir's opinion was that the proposed dwelling is four storeys; Mr Lovell's opinion was that it is part two and part three storeys. The disagreement focussed on the vertical overlap between a portion of the lift foyer with a width of 1.5m at the garage level and the area to the east of the lift shaft at the upper level, when considered against the definition of "storey" in Schedule 1 to the LEP. In relation to the wall height and building height controls in cl 13 of the LEP, it was common ground that the proposed development has a maximum building and wall height of 12.44m on the southern elevation and 10.45m on the northern elevation. Mr Lovell's evidence was that the building height of 12.44m is limited to the vertical distance between the awning to the east of the master bedroom and the existing ground level below that point, and the wall height of 10.45m is limited to the stone clad element on the southern faade; and that the building otherwise has a maximum building height of approximately 10.3m and a maximum wall height of approximately 9.4m, and that the non compliances relate primarily to the topography of the site. 24Ms Muir's evidence was that the proposed building appears as a four storey building when viewed from the public domain; and is an overly dominant form which is out of scale to surrounding development, and which will dominate the neighbouring building at 15 Balmoral Avenue and the view of the Balmoral amphitheatre as viewed from the public domain and the Balmoral foreshore. Mr Lovell's evidence was that the proposed development will have no impact on any significant public or private views, has very limited visibility to the public domain from proximate locations, and from more distant locations will form a relatively discrete element within the established visual environment. 25The planners disagreed as to the relevance of the approval granted by the respondent for the demolition of the existing building and construction of a new four storey residential flat building at 40 Almora Street. Mr Lovell's evidence was that the existing building appears as a three to four storey element with a vertical alignment to the main eastern faade and that the approved new building substantially increases the height and bulk of the existing building. Ms Muir's evidence was that the comparison is not relevant since 40 Almora Avenue relies on existing use rights and the development application for that property was assessed in that context. 26The planners disagreed as to whether the departure from the FSR control in cl 14 of the LEP is justified. In Mr Lovell's opinion, the non-compliance is minor, and the building has been designed to minimise the effects of bulk in terms of the amenity of surrounding properties and the visual appearance of the building from the public domain. In Ms Muir's opinion the effective FSR and resultant bulk is greater than that reflected in the FSR calculation as the garage level plan includes an additional 120 sqm of partially enclosed floor space. 27The planners disagreed as to the appropriateness of the proposed landscaping, in particular the plantings proposed along the eastern side of the site, and whether it could contribute to provision of canopy cover and the potential for it to impact on views. It was common ground that the landscaped area required by cl 15 of the LEP is 586 sqm. Ms Muir's evidence was that the proposed development provides 304 sqm when planter boxes and lawn over slab are excluded; Mr Lovell's evidence was that the lawn areas should be included as they are proposed for suspended slabs with a soil depth of 800mm, and that the proposed development provides a landscaped area of approximately 404.07 sqm. In Mr Lovell's opinion the proposed development meets the objectives of the control, by maintaining a general dominance of landscape over buildings, maintaining significant trees on the site, and limiting excavation. In his opinion the proposed new canopy trees and landscaping make a significant contribution to the landscaped setting of the site when viewed from the public domain including the Balmoral foreshore areas. Ms Muir agreed that a variation of the pathway to what is presently proposed as the swimming pool area and the north western corner of the site would alter the landscaping calculation.

Whether the SEPP 1 Objections should be upheld 28Upholding the SEPP 1 objections made to compliance with the controls relating to wall and building height, and number of storeys, in cl13, and the FSR control in cl 14 of the LEP, is a precondition which must be satisfied before the proposed development can be approved on consideration of the merits: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; Wehbe v Pittwater Council [2007] NSWLEC 827. 29In Wehbe , Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of the SEPP1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl8(a) and (b) of SEPP 1 justifies the upholding of the objection. 30Considering first the SEPP 1 objection to compliance with the wall and building height and storey controls in cl 13 of the LEP. It was common ground that the proposed building does not comply with the building and wall height limits, and that even on the basis of Mr Lovell's interpretation of the definition of "storey" in the LEP, part of the proposed building exceeds the two storey limit. The SEPP 1 objection submitted with the development application addresses the objectives expressed in cl13 of the LEP, and states that compliance with cl 13 is unreasonable and unnecessary in the particular circumstances because: + the non-compliances primarily arise as a consequence of the steeply sloping topography of the site; + the site has very limited visibility to the public domain; o the retention of the significant canopy trees on the site maintain the landscaped setting of the site and the dominance of natural vegetation over built form; o requiring strict compliance would have no material benefit in terms of the amenity of the adjoining properties and would compromise the design quality of the building, and diminish the internal amenity; o the proposed development has been designed to reflect the sloping topography of the site with the building footprint stepping down the site towards the east; o the palette of external finishes encompass recessive natural materials; o there are numerous examples of similar (and larger) sized buildings in the vicinity of the site which contribute to the character of the locality; o the non-compliance does not generate any significant or adverse impacts on the amenity of surrounding land in terms of overshadowing, loss of privacy or views; and o the objectives of the building height controls are generally satisfied despite the partial non-compliance. 31The applicant relies on the evidence from the respondent's register of SEPP 1 variations from April 2008-June 2011 which discloses that SEPP 1 objections to the building height controls have been upheld on approximately 243 occasions in 137 separate development applications for residential buildings in the 2(a1) zone; on 85 occasions (50 development applications) in the Balmoral precinct; and that height controls have been varied at 40 Almora Avenue, 8, 9A, 10 and 12 Ryan Avenue, 37, 54-56 Redan Street and 1-1A and 12 Arbutus Street. 32The applicant's case relies in part on the argument that the objectives of the development standards represented by the wall and building height and number of storey controls are achieved notwithstanding non-compliance with the standards, and on the argument that based on the consents granted by the respondent in the locality the development standards have not been applied consistently. As discussed by Preston CJ in Wehbe at [42]-[48], those are two of the ways in which an applicant can, on the authorities cited by Preston CJ, establish that compliance with a development standard is unreasonable or unnecessary. 33I am not persuaded that the objectives of cl 13 are met by the proposed development. Those objectives include minimising the visual impact of buildings when viewed from the foreshore, and minimising the effects of bulk and scale of buildings arising from new development in existing residential areas. Based on the photomontages provided, which it was agreed are an accurate representation of the proposed development, and on the evidence from the view, the proposed development will appear from the Balmoral foreshore as a four storey building similar in scale and bulk to the existing residential flat building at 40 Almora Avenue, which is out of character to surrounding single dwellings. The residential flat building at 40 Almora Avenue enjoys the benefit of existing use rights, and I am not persuaded that the assessment of the development application in relation to that site by reference to the design principles appropriate to a residential flat building rather than a single dwelling is an appropriate basis for assessment of this application. I accept the evidence of Ms Muir, which was confirmed on the view, that T3 contributes to the landscape setting of the Balmoral amphitheatre and to the site. The pruning of the canopy of the Angophora (T3) above the top of the building, even to the minimum extent agreed between the arborists, will exacerbate the dominance of the proposed building when viewed from the foreshore area. Given the agreement of the arborists as to the health of the tree and its significance, I am not satisfied that even that minimal level of pruning is justified. 34I am not persuaded that the record of SEPP 1 variations can be relied upon to the extent submitted by the applicant. In my view, the particular circumstances of the location and topography of the site, and its visibility from the Balmoral foreshore, mean that it would be unsafe to rely on decisions made in relation to development in other parts of the locality, in particular in relation to sites higher or lower in the Balmoral amphitheatre. A development that complied with the wall and building height, and number of storey, controls would enable the retention of greater canopy cover of T3, and greater visibility of the ridge line above the site, which would be consistent with the objectives of the control. A complying development would also be consistent with the objectives of the 2(a1) zone, which include maintaining the general dominance of landscape over built form and ensuring that development is of a height and scale which complements existing buildings and streetscapes.

Conclusion 35I am not persuaded that compliance with the development standards in cl 13 of the LEP would, in the circumstances of this case, be unreasonable or unnecessary, or that the objection is well founded. The SEPP 1 objection should not be upheld, and accordingly the development cannot be approved. 36This conclusion makes it unnecessary to address further the other issues in contention, in particular the non-compliance with the FSR control, and impact on the trees, including T3, of the excavation and other works required, and whether this could be addressed by a condition requiring that there be no works and no change of level around T3. 37The applicant indicated during the course of the hearing that it was prepared to amend the application to delete the proposed swimming pool, and to consider relocating the top storey if its location raised concerns about the pruning of T3 above it. After the conclusion of the hearing, the applicant indicated that it would wish to have the opportunity to consider deleting the top floor of the proposed development if the Court were otherwise inclined to approve the application. The respondent has not had the opportunity to indicate its position on such a course. However, on the basis of the plans provided by the applicant (Exhibit A), the proposed building would still exceed the 8.5m maximum building height on the northern elevation even if the top level was deleted, which would require consideration of both amended plans and an amended SEPP 1 objection. The opportunity to discuss amendments to the plans was available in the conciliation phase of s34AA of the Court Act. The appropriate course is to dismiss the appeal. 38The orders of the Court are: 1. The appeal is dismissed. 2. Development application 8.2011.74.1 for the partial demolition of an existing dwelling and construction of a new dwelling at Lot 1 DP 206347,13 Balmoral Avenue Mosman, is refused. 3. The exhibits are returned. Linda Pearson 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: 14 September 2011