Amelia v Mosman Municipal Council

[2025] NSWLEC 1043

Land and Environment Court

New South Wales

Medium Neutral Citation:

Amelia v Mosman Municipal Council [2025] NSWLEC 1043

Hearing dates:

26 and 27 September 2024

Date of orders:

28 January 2025

Decision date:

28 January 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No 8.2023.107.1 is modified in the terms set out in Annexure A.

(3) Development consent No 8.2023.107.1, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B.

(4) The exhibits are returned except for Exhibit A.

Catchwords:

APPEAL – modification application – construct garage-like structure and enclosed driveway to extend to approved basement car parking of new dwelling – whether substantially the same development - impact on streetscape – existing mature tree preservation

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s 34AA

Mosman Local Environmental Plan 2012

Cases Cited:

North Sydney Council v Michael Handley & Associates (1998) 43 NSWLR 468; [1998] NSWSC 163

Arrage v Inner West Council [2019] NSWLEC 85

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Libby Amelia (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Thomson Geer (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/109394

Publication restriction:

No

JudgmenT

1. COMMISSIONER: This is a class 1 appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 NSW (EPA Act) from the deemed refusal of a Modification Application No 8.2023.107.3 (the MOD) by Mosman Municipal Council (the Council) to modify the development consent No 8.2023.107.1 (2023 Consent) on land at 42 Almora Street, Mosman, NSW 2088, being Lot 2 DP 963781 (the Site).

2. The 2023 Consent states that it approved “alterations and additions to a dwelling house including extension of basement garage” which was granted subject to a condition requiring compliance with an earlier consent No 8.2020.130.1. Therefore the 2023 Consent approves more than just ‘alterations and additions’ and authorises demolition of all existing structures, including the dwelling house and garage.

3. The appeal was subject to conciliation starting on Site, in accordance with s 34AA(2)(a) of the Land and Environment Court 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act and the proceedings moved to a hearing forthwith in Court pursuant to s 34AA(2)(b)(i).

The Modification Application

4. The MOD seeks approval for the construction of a ‘garage’ like structure in the nature of a windowless tunnel constructed on the approved angular driveway from the Almora Street entrance to the approved underground basement car parking thus connecting the garage structure to the dwelling house. For ease of reference I will adopt the short hand “garage structure” to encompass the work sought to be approved by the Court. The location of the work is best understood by comparing the garage basement approved plan Rev B, Ex 2, folio 183, with the garage basement MOD plan Rev E, Ex H (second sheet of the Amended Architectural Plans), reproduced as follows:

5. The approved Rev B plan denotes ‘line of garage door’ at the proposed entry to the basement. The MOD Rev E plan has deleted that denotation because it is assumed the ‘garage structure’ will connect at the same part of the building which will become an opening for the cars to drive straight under the house into the basement parking. I note there were no drawings to demonstrate how this was to be carried out.

6. It appears the Applicant’s desire is to create a dry and private entry for vehicles from the street to the proposed approved parking under the house. It was not clear whether pedestrians would also be using the tunnel to access the house via the basement.

7. The works proposed by the MOD appear deceptively simple which has made the Court’s task more difficult. In common parlance a garage is where vehicles usually end up and are parked whereas in this proposal the vehicles will be passing through the enclosed garage structure driveway to the underground parking. The garage structure was submitted by the Applicant’s barrister as “just putting a cap on top of the approved balustrades to make a box” (T 29, line 8 – 14, T 71, line 31-32). This is an oversimplification of a tunnel-like structure for motor vehicles to be driven in and out of a residential premises.

8. In addition, apart from a reference on the north and south elevation plans in Ex H to “off form concrete finish to garage wall” and “off form concrete frame surround to garage door”, there is little detail in the evidence concerning, for example, dimensions detailed on an enlarged cut out drawing of the garage structure, draft 3D model or photomontage, and final finishes of the tunnel structure, relevant to the assessment I must undertake under s 4.55 of the EPA Act to determine the appeal: see my comments to the parties in the hearing at T 109, line 22 – 29.

9. However, on balance, despite these shortcomings and taking into account the parties’ agreed conditions of consent, I have decided to allow the MOD for the reasons set out below.

Planning Controls and the Site

10. The Site is irregular in shape. It is located on the southern side of Almora Street and has a frontage of 31.515m to Almora Street. The site falls approximately 3m to the east and has an area is 826.6m². The siting of the house is unusual in that the frontage to Almora Street is the northern side of the house and therefore the front of the house is perpendicular to the street. The current house is a part one and two storey dwelling with a detached garage with a front door entrance on a wide veranda that steps up from the street facing east and enjoys ocean and Balmoral Beach views. Almora Street becomes steps on the southern side at this point which descend steeply down to the continuation of Almora Street and Balmoral Beach.

11. The land is zoned C4 Environmental Living under the Mosman Local Environment Plan 2012 (MLEP) and is located within the Balmoral Townscape as defined by Part 7.4(1) of the Mosman Residential Development Control Plan 2012 (DCP). Objectives of the C4 zone are relevantly:

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

...

• To ensure that development is of a height and scale that achieves the desired future character of the area.

...

• To minimise the adverse effects of bulk and scale of buildings.

History of the Development

12. The development of the Site has undergone a number of iterations which has complicated the current status. To avoid any further confusion, I set out the following history as stated by the Council in the Statement of Facts and Contentions (SOFAC) at paragraph 5 (underlining emphasis added):

“ACTIONS OF THE RESPONDENT

5.1   The site has had a complicated development history whilst in the ownership of the current owners.

5.2   On 16 June 2021, Development Application 8.2020.130.1 was approved by

Mosman Local Planning Panel following a review application for demolition of the existing dwelling house, construction of a new dwelling house with a new two car garage to Almora Street, swimming pool and landscaping works.

5.3   On 14 April 2022, Modification Application No. 8.2020.130.2 was refused consent by Council. The modification application sought approval for the construction of an excavated basement parking area connected to the approved garage to the Almora Street frontage by a roofed and walled structure over a driveway.

5.4   On 13 October 2023, Development Application No. 8.2023.107.1 was approved by Council for alterations and additions to the approved but not constructed development in Development Consent 8.2020.130.1. Development Consent No. 8.2023.107.1 permits excavation and the construction of a basement garage in lieu of the garage to the Almora Street frontage approved under Development Consent No. 8.2020.130.1. It also permits partial demolition of the front sandstone wall and replacement with a steel palisade fence and sliding gate.

5.5   On 28 November 2023, Modification Application 8.2023.107.3 (PAN-390218) (MA) was lodged with Council.

5.6   The MA was notified from 14 December 2023 and 18 January 2024 in accordance with the public notification process specified by the Mosman Community Participation Plan 2020. There were no submissions received.

5.7   On 22 March 2023, an appeal against the deemed refusal of the MA was filed with the Land and Environment Court.”

13. I note that the development consent the subject of this MOD is No 8.2023.107.1 approved by Council on 13 October 2023. It can be discerned that the MOD refused by council on 14 April 2022 as detailed above at para 5.3, was partially approved by DA No 8.2023.107.1, detailed at para 5.4 above. The current MOD before the Court is now seeking what was refused by Council on 14 April 2022.

14. This history is relevant to some extent but what is now before the Court is whether the modification (MOD) to the approved development consent No DA No 8.2023.107.1 is ‘substantially the same development’ such that the MOD is granted and the appeal upheld. The Applicant’s town planner was incorrect in her analysis of this point in the Joint Report: Ex B, page 3, para 9.

Council Contentions

15. The Council’s contentions in the SOFAC dated 22 April 2024 are summarised as follows:

1. Whether the development which is the subject of the modification application will be substantially the same as the development for which consent was originally granted (Contention 1).

2. Whether the development as proposed to be modified will have an unacceptable bulk and scale (Contention 2).

3. Whether the development as proposed to be modified will have an unacceptable impact on the streetscape (Contention 3).

4. Whether the design and location of the proposed “garage” and roofed and walled driveway is unacceptable (Contention 4).

16. Following production of the Town Planning Joint Expert Report filed 27 June 2024 (Ex B), which included amended plans, the Council’s insufficient contention B3 (Ex 1) was resolved by realigning the basement stairs with the above floorplan.

17. The Applicant’s amended architectural and landscape plans (Ex H) also provided the following additional improvements:

1. North elevation (street) – front fence height reduced from 1.5m-1.8m to a maximum of 1.2m;

2. details of the additional rooftop planting of the driveway cover;

3. removal of the bin area adjacent to the eastern boundary;

4. reduction in the size of the structure to a width of 5 m (compared to the originally approved garage 6.5 m) thus representing only 16% of the site frontage;

5. additional setback of 1.75m to the eastern boundary with additional landscape treatment.

18. Accordingly at the time of the hearing the Council’s remaining contentions for consideration and determination by the Court were narrowed to be:

1. Satisfaction of the jurisdictional test under s 4.55(2) of the EPA Act that the proposed development is substantially the same; and

2. Issues relating to streetscape and bulk and scale impacts from the proposed garage structure relevant to the Court’s consideration of s 4.55(3) of the EPA Act as it applies to proposed changes to the development occasioned by the MOD application.

Evidence – Joint Town Planners Report

19. I note the Town Planning Experts, Ms Danielle Deegan for the Applicant and Mr Isaac Kensell for the Council joint conferenced and produced a Joint Report dated 27 June 2024 (Ex B) well before the s 34AA conciliation and hearing on 26 and 27 September 2024. As discussed above, the Applicant in this period made certain amendments to the proposal to meet Council’s concerns which narrowed the issues. Accordingly, it is not necessary to quote all of the matters discussed, agreed and not agreed, by the experts in the Joint Report which I have considered. I note that at the Court hearing the experts were cross examined in joint session.

Statutory Context – s 4.55 EPA Act

20. The modification application 8.2023.107.3 seeking to amend the approved development consent was made to Council under s 4.55(2) of the EPA Act.

21. Section 4.55(2) and s 4.55(3) EPA Act are as follows:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

22. The modification provisions of the EPA Act and the test of “substantially the same development” have been considered in a significant body of caselaw and recently by the Chief Judge in Arrage v Inner West Council [2019] NSWLEC 85 (‘Arrage’). In dismissing this s 56A appeal, his Honour set out an analysis of the interpretation of s 4.55(2) at [24]-[26]:

“[24] First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16].

[25] Second, the essential elements are not to be identified “from the circumstances of the grant of the development consent”; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development.

[26] The choice of language in the judicial decisions of “material and essential features” or a “material and essential physical element” of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be “substantially the same” development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word “substantially” in the former s 102(1)(a) of the EPA Act to mean “essentially or materially or having the same essence”. That interpretation of the word “substantially” was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55].”

23. The Court’s task involves an exercise of discretion and ‘the Court can withhold its approval for unsuitable applications even if the threshold of subsection 4.55(2)(a) is passed’: North Sydney Council v Michael Standley & Assoc (1998) 43 NSWLR 468, at 475 (Mason P), Shepherd AJA at 483; [1998] NSWSC 163 (‘Michael Standley’).

24. Section 4.55(3) requires the Court to take into consideration s 4.15(1) grounds that are relevant to the application. Section 4.15(1) considerations only arise “in determining an application for the modification of a consent” which “cannot occur unless and until the preconditions in s 4.55(2) have been satisfied”: Arrage at [42] (Preston CJ). His Honour further stated that relevant s 4.15(1) EPA Act matters and the reasons given by the consent authority for the grant of the consent sought to be modified, the second sentence in s 4.55(3), are discretionary, not mandatory considerations in the s 4.55(2)(a) determination: Arrage at [43].

25. The Applicant bears the onus of satisfying the Court that the proposed development as modified will be substantially the same: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8.

26. I was assisted in this matter by written submissions from Dr Smith, counsel for the Applicant, and from Ms McCulloch, solicitor for the Respondent.

Consideration – ‘substantially the same development’

27. The changes to the ‘development’ that the Court is required to consider in this case turns on a comparison of proposed built elements in the amended MOD, not on a change to the use of the approved development compared to the proposed modified development the subject of this appeal.

28. The garage structure is proposed to be built on the approved driveway that is bound by a solid balustrade on both sides. There is no apparent increase in the buildable area of the Site. It is difficult to argue that the proposed garage style at the street frontage is a material change because there is at present a garage at that location. Although the comparison to be made by the Court is against the approved development which does not include the existing garage, that comparison is not a simple numerical exercise as the cases have stated. Any impact of a garage at that location is existing (see Figure 3 below) and the applicant could simply just keep it should the MOD be refused.

29. In my opinion, the decisive assessment of difference is what new element will be visible from the street which is the proposed garage/driveway structure where it turns right and is not totally obscured by the garage door at the street; see plan section Drawing No 3.03 Rev C Ex B Figure 2 and below Existing Streetscape View 42 Almora Street, Ex B Figure 3.

30. Leaving to one side any proposed upgraded landscaping, I am not persuaded that the extent of material change created by the garage structure and in particular the additional wing of the garage structure that extends to the approved basement garage entry of the house, is such that the development is not substantially the same as the development approved by the consent No 8.2023.107.1, sought to be modified.

31. I accept and largely agree with the following submissions of the Applicant on the threshold issue: (Applicants Submissions, 27 September 2024, page 10):

“[14] The only difference between the 2023 Consent and the development as proposed to be modified is the roofed access to the approved basement car parking. In this regard, it is important to remember that the proposed modification does not seek additional carparking, the driveway remains in the approved location and that driveway already has a 1.2 m high “solid balustrade wall’’ running the entire length of the driveway to the basement (see Exhibit 2 Tab 17, folio 183 and 186).

[15] Accordingly, the Applicant submits that, quantitatively, the proposed modifications do not alter a critical element of the approved development. The proposed development, as modified, would result in a development which is essentially and materially a development of the same essence and not a radical transformation, the evidence of Ms Deegan in the Exhibit B Joint Report and Exhibit A Tab 5 page 10-11 of the SEE).”

Bulk and Scale, Streetscape and “Garage” design

32. I accept the submission of the Council that:

“[14] It is indisputable that the consent as originally granted would have a lesser bulk and scale than the consent as proposed to be modified. The absence of any “garage” structure and the roofed and walled driveway opens the site up for vistas and landscaping which would not be possible if the structures proposed in the modification application were permitted.”

33. Council further submitted that:

“[16] The proposed modification would be inconsistent with objectives (i), (ii) and (iii) of the floor space ratio development standard and although the standard is not required to be varied pursuant to clause 4.6 of the LEP as this is a modification application, not a development application, the standard still applies and is a matter for consideration under s4.15(1) of the Act.

[17] The objectives of the C4 Environmental Living zone include objectives similar to those for the floor space ratio objectives:

To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

To ensure that development is of a height and scale that achieves the desired future character of the area.

To minimise the adverse effects of bulk and scale of buildings.

[18] The proposed modification fails to achieve those objectives by seeking to add unnecessary bulk and scale at the street frontage and beyond, thereby removing the opportunity for the landscape to dominate the built form and detracting from the streetscape.”

34. I do not agree with the Council’s submission in paragraph [18] above. Taking into consideration the relevant s 4.15(1) controls, in my opinion, the proposed modification does not conflict with the objectives of the relevant C4 zone and floor space ratio clauses of the MLEP to any significant degree. In addition, the garage is already present and could be retained by the Applicant at any time. Council’s concern as quoted above of “removing the opportunity for the landscape to dominate the built form and detracting from the streetscape” would not be achieved under that scenario.

35. With the proposed upgraded landscaping in place: see north elevation (street) Rev E, Ex H, agreed new condition 33B Ex K, amended landscape plans Ex J and photo montage Ex C I am satisfied that the additional garage structure will not result in any significant impact on the streetscape such as to lead me to refuse the MOD, despite my satisfaction of the jurisdictional test under s 4.45(2) of the EPA Act. As regards Council’s concerns of increased bulk and scale, in my opinion, any impact is likely to be confined to the Applicant’s new dwelling house at the eastern frontage, the front garden and pool area.

Jurisdiction -summary

36. Other requirements of s 4.55 of the EPA Act in order to exercise the power to modify a development consent are as follows:

1. The modification application has been notified in accordance with Council’s requirements and there were no submissions received from adjoining residents objecting to the proposed modification rather the application is supported by the local residents some of whom attended on site at the hearing and addressed the Court.

2. The Court as consent authority has taken into consideration:

3. such matters in s 4.15(1) as are of relevance to the development as discussed above, and

4. the reasons given for the grant of the original consent No 8.2023.107.1 which are gleaned from the development assessment report in evidence before the Court (Ex 2, folio 144).

5. The question of “substantially the same development” has been addressed above in this judgment.

Findings and Conclusion

37. At the outset I had significant concerns about the construction of the ‘garage structure’ in the shape and nature of a driveway tunnel, the real need for the use of such a structure in a residential dwelling house front yard to access basement parking metres away, the appearance of the final built form and hence the impact on the dwelling house, the locality and the streetscape. I do not accept the Applicant’s submission that the proposed structure is only putting a cap on top of the existing balustrades on either side of the driveway, as I stated above. I note that condition 22 – Driveway - meets my concerns to some degree.

38. However, as a consequence of the comparative analysis undertaken above, I find that the modified development is “essentially or materially or having the same essence” as the originally approved development because the changes to the proposal do not materially alter the approved overall built form of a dwelling house with pool, on site underground parking and landscaped areas, and there is no change in use of the proposed development.

39. Whilst the proposal does present as a different built element at the north-eastern side of the Site, I am not persuaded that it is so different a change to the development to not be substantially the same development as that originally granted. The approved underground carparking was designed to be accessed from the location which has not changed in the MOD (compare stamped approved Garage Basement Plan Rev B for Development Consent 8.2023.107.1 dated 13 October 2023, Ex 2, Folio 183; to proposed Garage Basement Plan Rev E, Ex H). Any adverse impact of the garage structure is likely to be on the Applicant’s own property.

40. I understand the submission of Ms McCulloch that “there is no need for the proposed structure and its disbenefits far outweigh any perceived benefit to the applicant” (Respondents submissions, 27 September 2024, para 19) but that is not the test I have to apply.

41. I note that the power to grant a modification pursuant to s 4.55(2) EPA Act is beneficial and facultative: Michael Standley at [440].

42. For the reasons set out above and evidence before me I find that the Court has the power under s 4.55(2) of the EPA Act to make the modification application No 8.2023.07.3, the subject of this appeal. It follows that the appeal should be upheld, and the orders made as follows.

Orders

43. The Court orders that:

1. The appeal is upheld;

2. Development consent No 8.2023.107.1 is modified in the terms set out in Annexure A;

3. Development consent No 8.2023.107.1, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B.

4. The exhibits are returned except for Exhibit A.

L Byrne

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 28 January 2025