Aplus Architecture Pty Ltd v Mosman Municipal Council

[2023] NSWLEC 1039

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aplus Architecture Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1039

Hearing dates:

Conciliation conference on 20 October, 30 November, 9 December and 16 December 2022

Date of orders:

2 February 2023

Decision date:

02 February 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development Application 8.2022.81.1 (as amended) for the demolition of existing structures and the construction of a mixed-use development comprising 29 residential apartments, 2 ground floor retail tenancies, basement car parking and associated stormwater infrastructure and landscaping works is approved, subject to the conditions of consent at Annexure A.

(3) The Applicant’s amended written request under cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) prepared by Boston Blyth Fleming and dated 25 November 2022, seeking a variation of the development standard for height under clause 4.3 of the MLEP, is upheld.

(4) The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) within 14 days of the date of these orders.

(5) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to section 8.15(3) of the EPA Act, in the agreed amount of $33,000.

Catchwords:

DEVELOPMENT APPEAL – shop top housing development – residential flat building – variation to height of building development standard – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 50

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34,39

Mosman Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.4B, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

State Environmental Planning Policy Amendment (Water Catchments) 2022, cl 6.65

State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings, cll 28, 30

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Texts Cited:

Apartment Design Guide (July 2015)

Planning Circular PS20-002 (May 2020)

Mosman Business Centres Development Control Plan 2012

Category:

Principal judgment

Parties:

Aplus Architecture Pty Ltd (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
H Irish (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
King and Wood Mallesons (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/176410

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA No 8.2022.81.1 (the DA) by Mosman Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 1591 m² parcel of land which is legally described as Lot 1 in DP 551009 and Lot 361 in DP 526291 and known as 64 – 66 Spit Road, Mosman (the Site). The Site is located at Spit Junction, bounded by Ourimbah Road to the north-east, Spit Road to the south-east and Horden Lane to the south-west.

3. The DA as submitted to Council, sought consent for demolition of the existing buildings and the construction of a five storey mixed use development comprising 34 residential apartments, a ground floor commercial tenancy and basement carparking for 80 vehicles with vehicular access from Hordern Lane.

4. The DA was notified by the Respondent for a period of 14 days from 11 May 2022 to 27 May 2022 and fifteen (15) submissions were received.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 October 2022, and at which I presided. During conciliation, amended plans (the Amended Development Application) were prepared by the Applicant to address Council’s contentions. The amended plans and documents were uploaded to the NSW Planning Portal on 21 December 2022.

6. The main changes between the plans as originally submitted to Council and the Proposed Development (as amended), the subject of the s 34 agreement, are:

1. Building Form, Envelope and Character: three storey street wall height along Spit Road, stepping down to two storey along Ourimbah Road and Hordern Lane. New vertical elements with a shopfront module on Spit Road. Greater solidity on the western side of Hordern Lane façade. Planting on balcony edges to provide softening to the built form.

2. Corner of Ourimbah Road and Hordern Lane: previously proposed curved cantilevered balconies to the terraces on Ourimbah Road removed, and setback to align with planters below. Upper levels setback to provide greater delineation between the terraces and the upper levels.

3. Interface with Public Domain: conversion of previously proposed Communal Room at the corner of Spit Road and Ourimbah Road into Retail. New Basement 3 to cater for additional retail parking required. Setback from Ourimbah Road and Hordern Lane to provide 800mm soil depth for planting. Substation setback under the floor above.

4. Ground Floor Terraces: new sections provided through Terraces 1-5 showing floor levels are at/elevated above footpath level. Refer to Drawing 5.04.

5. Amenity: increase in central courtyard/void to 6m in depth. New communal room provided on Level 1. Apartments fronting Spit Road re-designed so that there will be no cross viewing and provide good visual and acoustic amenity. Layout adjustments to Terrace T3, Unit 102. Unit 201 and Unit 301 conversion from 4 bedroom apartments into 3 bedroom apartments with enlarged living. Updated Drawing A6.01 Pre/Post Adaptation Plan. New skylights to Unit 401 and Unit 402.

6. Winter Gardens: level 1 winter gardens in front of bedrooms and balconies in front of living rooms on Spit Road.

7. Servicing and Loading: relocation of MRV loading bay to southern end of Hordern Lane.

8. Number of Apartments and Carparking Provision: reduction in number of apartments from 34 to 29. Total number of car spaces provided is 95.

9. Materials and Finishes: alternative brickwork specification: Austral Bricks Burlesque in ‘Karrington Silver’ and ‘Oyster Grey’. New Drawing A7.02 Façade Section provided.

10. Solar Access and Cross Ventilation: 72.4% of apartments receive at least 2 hours solar access to the living room and private open space in mid winter. 65.5% of apartments are cross-ventilated.

11. Mechanical Ventilation: provision for mechanical riser added.

7. The proceedings commenced onsite, with a number of resident objections being heard. Following the onsite view, the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference and adjourned the conference to allow amended plans to be prepared.

8. The conciliation conference was reconvened a number of times before a signed agreement was prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 22 December 2022. This decision involved the Court upholding the appeal and granting conditional development consent to the Proposed Development (as amended).

9. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act.

11. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [12] – [32] below.

Satisfaction of jurisdiction

Mosman Local Environmental Plan 2012

12. The relevant jurisdictional matters in relation to the Mosman Local Environmental Plan 2012 (MLEP) are:

1. The Site is zoned B2 – Local Centre under the MLEP, in which a mixed use development is permitted with consent.

2. Clause 2.3(2) requires that regard must be had to the zone objectives. I am satisfied that the Proposed Development (as amended) is consistent with the zone objectives which are:

• To provide a range of retail, business, entertainment, and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To enhance the viability, vitality, and amenity of the local centres.

• To maintain active uses at street level with a predominance of retail use.

• To maintain the local character and enhance the village atmosphere of Mosman Junction by limiting the height, bulk and scale of buildings.

• To ensure the facades of new buildings in Mosman Junction are in keeping with the proportions of surrounding traditional shop fronts.

• To allow the amalgamation and redevelopment of land in Spit Junction.

• To encourage residential development as part of the mixed use of sites.

3. Clause 2.7 requires development consent for demolition. The Proposed Development (as amended) includes demolition.

4. Clause 4.3 nominates a maximum building height of 15m. The Proposed Development (as amended) has a maximum height of 17m measured from ground level (existing) to the eastern edge of the centrally located lift overrun. This represents a maximum building height variation of 2m or 13.3%. Minor portions of the Level 4 roof form also exceed the 15m height plane to varying degrees, from 440mm or 2.9% to 1.3m or 8.6%. The proposal relies upon the clause 4.6 exceptions to development standards.

5. The objectives of clause 4.3 are:

• To ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form and will produce a cohesive streetscape, and

• To provide opportunities for buildings of a greater height than existing development in suitable locations to achieve the Council’s residential strategy and provide opportunities for economic growth.

6. A written request (the Request) in accordance with clause 4.6 of the MLEP has been prepared by Boston Blyth Fleming, dated 15 December 2022, seeking a variation of the development standard for height under clause 4.3 of the MLEP.

7. The Request says that compliance with the standard is unnecessary or unreasonable in the circumstances of this case as the objectives of the height standard and B2 zone are achieved, notwithstanding the non-compliance with the numerical standard in reasons which can be summarised as follows:

1. The non-compliance associated with the Level 4 roof does not cause the development to be incompatible with the desired character of the area in terms of building height, and a degree of non-compliance is likely to be indiscernible from the public domain. The non-compliance associated with the centrally located lift overrun will not be visible from the public domain and of itself, will not be incompatible with the desired character of the area in terms of building height. The Proposed Development (as amended) will also result in a cohesive streetscape outcome along the Spit Junction Business Centre, and is compatible with the height of adjoining development.

2. The Proposed Development (as amended) provides retail floor space on the ground floor, serving as an extension of the existing retail strip along Spit Road. The Site is located in a highly accessible location, being within immediate proximity of the main bus stops at Spit Junction. The proposed retail floor space will contribute to the existing employment opportunities. The proposed mixed-use development (comprising 29 residential apartments, with associated communal areas and services) encourages residential development as part of the mixed use of sites.

8. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), an applicant need only establish one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way (Initial Action, at [22]).

9. I am satisfied that the relevant standard is not relevant in the circumstances of this case for the grounds set out in the Request.

10. I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the height standard for reasons contained in the written request, that may be summarised as follows:

1. The Proposed Development (as amended) is contextually responsive to building design and will ensure conformity with the scale and character established by recent approvals throughout the locality.

2. Allowing for the height breach in response to the topography of the Site ensures the orderly and economic development of the Site.

3. The particularly small departure from the actual numerical standard (in relation to the level 4 roof form and lift overrun) and the absence of impacts as a consequence of the departure, constitute environmental planning grounds, as the Proposed Development (as amended) promotes good design and amenity.

4. The Proposed Development (as amended) is considered to be a balanced approach to the somewhat competing provisions of clause 4.3 and clause 4.4B of MLEP. Strict compliance with the 15m height limit would require the deletion of the upper most floor, which would defeat the floor space bonus incentives associated with clause 4.4B of MLEP. This would essentially discourage the development of amalgamated Sites that the Respondent Council is seeking to achieve.

11. I consider the Proposed Development (as amended) to be consistent with the objectives of the relevant standards, and I am satisfied that the objectives of the B2 zone, set out at [12(2)], are also achieved. In forming this opinion of satisfaction, I note the mixed use nature of the development provides ground floor commercial tenancies, and is located immediately adjacent to good public transport services (particularly buses).

12. Accordingly, I am satisfied that the Proposed Development (as amended) is in the public interest pursuant to cl 4.6(4)(a)(ii) of the MLEP and raises no concern in respect of cl 4.6(5) that would preclude the grant of consent by the Court by reason of s 39(6) of the LEC Act.

13. For the reasons stated above, I find the Request to vary the height standard should be upheld.

14. Clause 4.6(4)(b) of the MLEP also requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.

15. In Planning Circular PS20-002 dated 5 May 2020, it was advised that consent authorities can assume the Planning Secretary’s concurrence to vary development standards pursuant to clause 4.6 where a variation does not exceed 10% or relates to a non-numerical standard. The parties accept that concurrence of the Secretary cannot be assumed in these proceedings.

16. Notwithstanding the above, s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought to be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.

17. I am satisfied that the contravention of the height standard in the Proposed Development (as amended) does not raise any matter of significance for state or regional environmental planning, and there is a public benefit served by upholding the Request for the reasons set out above.

18. Clause 4.4 of the MLEP provides in effect, that the Floor Space Ratio (FSR) applying to the Site is 2.5:1. The DA provides a FSR of 3:1. I am satisfied from the evidence that the proposal relies upon the incentive provisions of clause 4.4B(3) which enables a maximum FSR of 3:1.

19. Clause 4.4B(3) provides that despite clause 4.4, consent may be granted to development that results in a floor space ratio that does not exceed 3:1 if—

(a) the Site area is greater than or equal to 1,000 square metres, and

(b) vehicular access to the development is provided other than from Spit Road or Military Road, and

(c) the consent authority is satisfied that the development will be compatible with the desired future character in terms of building bulk and scale, and

(d) the consent authority is satisfied that any consolidation of lots for the purposes of this clause is not likely to result in adjoining lots that cannot be developed in accordance with this Plan.

20. As per section 4.1.3 of the Statement of Environmental Effects prepared by Boston Blyth Fleming and dated March 2022, the Proposed Development (as amended) satisfies the above matters as:

1. The proposal involves the amalgamation of two sites to create a site area of 1,591m² which is greater than 1,000m²;

2. Vehicular access is provided from Hordern Lane;

3. The Proposed Development (as amended) will be compatible with the desired future character of the locality with respect to building bulk and scale; and

4. The consolidation of lots for the purposes of clause 4.4B will not result in adjoining lots that cannot be developed as the adjoining property located at 54-58 Spit Road, Mosman (Strata Plan 68515) currently comprises a two to four storey mixed-use commercial/residential development.

Mosman Business Centres Development Control Plan 2012

13. The Mosman Business Centres Development Control Plan 2012 (DCP) applies to the Site. I am satisfied from the evidence that the DCP controls have been adequately considered in the assessment of the Proposed Development (as amended) and the conditions imposed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

14. State Environmental Planning Policy (Transport and Infrastructure) 2021 came into force on 9 November 2022 and applies to the Site, and I am satisfied from the evidence that the Proposed Development (as amended) is not inconsistent with the provisions of this State Environmental Planning Policy (SEPP).

15. Spit Road is classified as a State Road and Ourimbah Road is classified as a Regional Road, accordingly section 2.119 of this SEPP applies.

16. The Proposed Development (as amended) satisfies section 2.119 as:

1. Vehicular access is provided by Hordern Lane, that is a road other than the classified roads;

2. The safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

• The design of the vehicular access to the land, or

• The emission of smoke or dust from the development, or

• The nature, volume or frequency of vehicles using the classified road to gain access to the land, and

3. The development is appropriately located and designed, and measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent Spit Road and Ourimbah Road.

17. I am satisfied that the above is confirmed in the Traffic and Parking Assessment Report prepared by Varga Traffic Planning dated 24 February 2022; the letter from Varga Traffic Planning dated 11 October 2022; and the Development Application Acoustic Assessment prepared by Acoustic Logic dated 24 January 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) came into force on 3 October 2022 and applies to the Site.

19. The DA relies upon a Preliminary Site Investigation prepared by Douglas Partners dated 3 March 2022 (PSI) which confirms that the Site can be made suitable for the Proposed Development (as amended) subject to the recommendations made in the PSI.

20. The PSI recommends that a detailed site investigation (DSI) be conducted and provides recommendations for the scope of the DSI, and that additional post-demolition soil sampling may also be necessary for waste classification purposes. A remediation action plan (RAP) must be prepared based on the findings of the DSI, documenting the necessary procedures required to remediate the Site to a standard suitable for the Proposed Development (as amended).

21. On the basis of the recommendations in paragraph 36 of the PSI, and appropriate conditions of development consent that have been imposed (conditions 27-29 and incorporation of the PSI into condition 1), I am satisfied that the Site will be suitable (after remediation) for the purpose for which development is proposed to be carried out in accordance with s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

22. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) came into force on 1 March 2018 and applies to the Site.

23. BASIX certificate no. 1277938M_02 dated 12 December 2022 has been prepared by Credwell Energy in accordance with the BASIX SEPP and the Environmental Planning and Assessment Regulation 2021 and I am satisfied that the requirements of the BASIX SEPP are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. State Environmental Planning Policy (Biodiversity and Conservation) 2021 came into force on 21 November 2022 and applies to the Site.

25. The parties agree that the Proposed Development (as amended) does not seek consent for the removal of any existing trees or vegetation and is consistent with the requirements and objectives of this SEPP.

26. Chapter 10 of this SEPP as at 20 November 2022 (prior to its repeal on 21 November 2022) also applies to the land as:

1. The land is within the Sydney Harbour Catchment; and

2. The former provisions continue to apply to an application for development consent lodged, but not finally determined, before the commencement of the State Environmental Planning Policy Amendment (Water Catchments) 2022 (s 6.65 of this SEPP).

27. I am satisfied from the evidence that the Proposed Development (as amended) is not inconsistent with the provisions or objectives of Chapter 10 of this SEPP.

State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings

28. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) came into force on 12 August 2022 and applies to the Site.

29. Clause 30(2) provides that development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to—

(a) the design quality principles, and

(b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

30. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation 2000 as a person registered as an architect in accordance with the Architects Act2003.

31. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation 2000, which includes evidence in relation to cl 28(2)(b) and (c) of SEPP 65.

32. I am satisfied that the Design Verification Statement provided by Mr Tony Leung (Arch Reg No.7133) dated 20 December 2022 is in a complying form and adequately demonstrates that the development is consistent with the design quality principles, objectives and design criteria of the Apartment Design Guide, July 2015.

Conclusion

33. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

34. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Notes

35. The Court notes that:

1. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

2. The Respondent has approved the Applicant amending the development application under section 38 of the Environmental Planning and Assessment Regulation 2021 subject to an order that the applicant pay the respondent’s costs thrown away by the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $33,000 within 14 days of the date of this order.

3. The parties confirm that the Amended Development Application has been uploaded to the NSW Planning Portal on 21 December 2022.

Orders

36. The Court orders that:

1. The appeal is upheld.

2. Development Application 8.2022.81.1 (as amended) for the demolition of existing structures and the construction of a mixed-use development comprising 29 residential apartments, 2 ground floor retail tenancies, basement car parking and associated stormwater infrastructure and landscaping works is approved, subject to the conditions of consent at Annexure A.

3. The Applicant’s amended written request under clause 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) prepared by Boston Blyth Fleming and dated 25 November 2022, seeking a variation of the development standard for height under cl 4.3 of the MLEP, is upheld.

4. The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) within 14 days of the date of these orders.

5. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to section 8.15(3) of the EPA Act, in the agreed amount of $33,000.

……………………….
L Sheridan

Acting Commissioner of the Court

Annexure A (368348, pdf)

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Decision last updated: 02 February 2023