Barry v Mosman Municipal Council

[2023] NSWLEC 1557

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barry v Mosman Municipal Council [2023] NSWLEC 1557

Hearing dates:

Conciliation Conference 25 and 26 July 2023

Date of orders:

22 September 2023

Decision date:

22 September 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for Development Application number 8.2022.189.1, as amended, for alterations and additions to the existing dwelling and carport on land identified as Lot 12, Section E, in Deposited Plan 2638 and known as 14 Lower Boyle Street, Mosman, subject to the conditions included at Annexure A.

Catchwords:

APPEAL – Development application – alterations and additions – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.10, 8.14

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, ss 17, 34, 34AA

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.6, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10, Div 2, Pt 10.3, s 6.65

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

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

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Michael Langdon Barry (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/47760

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the Respondent’s refusal of the Applicant’s Development Application (8.2022.189.1) (Development Application) for alterations and additions to a dwelling house and carport located on land identified as Lot 12, Section E, in Deposited Plan 2638, known as 14 Lower Boyle Street, Mosman (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application as lodged with the Respondent on 11 August 2022 sought consent for alterations and additions to an existing dwelling and double carport, including the change of the existing roof for attic additions.

4. On 9 December 2022, the Respondent advised the applicant that the Development Application was not supported and insufficient information was submitted for assessment.

5. On 21 December 2022, the Applicant uploaded additional information to the NSW Planning Portal.

6. On 3 February 2023, the Development Application was refused under delegated authority.

7. On 13 February 2023, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

8. On 2 March 2023, the Respondent filed its Statement of Facts and Contentions.

9. On 13 June 2023, the Applicant filed its Statement of Facts and Contentions in Reply.

10. Following Orders of the Court, on 28 June 2023, the Respondent filed its Amended Statement of Facts and Contentions.

11. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 25 and 26 July 2023. I presided over the conciliation conference.

12. Amended plans were filed with the Court on 26 July 2023 (Amended Development Application) cited at [46]. The amendments can be summarised as follows:

1. deletion of the proposed east and west roof/attic projections;

2. identification of the “plant room” as uninhabitable space; and

3. updated GFA calculations.

13. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

14. 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.

Jurisdictional considerations

15. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

16. The applicant is the registered proprietor of the Site and provided consent to the Development Application when it was lodged with the respondent.

Mosman Local Environmental Plan 2012 – General

17. The Site is zoned R3 Medium Density Residential under the Mosman Local Environmental Plan 2012 (MLEP). Accordingly, dwelling houses are permitted with consent in the R3 zone. I have had regard to the zone objectives which are extracted below:

To provide for the housing needs of the community within a medium density residential environment.

To provide a variety of housing types within a medium density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale.

To encourage residential development that has regard to local amenity and, in particular, public and private views.

18. I note that the parties believe the Amended Development Application is consistent with these objectives.

19. The Development Application was notified between 31 August and 14 September 2022. Two written submissions objecting to the proposed development were received in response to the notification of the proposal, with a further two written submissions by way of objection received during the appeal process. Two of the objectors addressed the Court at the on-site view associated with the conciliation conference, with the Court visiting these properties in addition to two others.

20. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

21. Pursuant to cl 4.4(2) of the MLEP, a maximum floor space ratio (FSR) development standard of 0.55:1 applies to the Site. The parties agree that the Amended Development Application complies with this standard.

22. Pursuant to cl 6.4(2) and the Scenic Protection Map of the MLEP, the Site is located within a “scenic protection area”. The Respondent is satisfied that, pursuant to cl 6.4(3) of the MLEP, as the Amended Development Application minimises visual impacts to and from Sydney Harbour and maintains natural landscape and landform, consent can be granted. In determining the Amended Development Application, I have regard to, and am satisfied of the matters set out in cl 6.4(3) of the MLEP.

Mosman Local Environmental Plan 2012 – Height of building standard

23. The height of building standard applicable to the Site is 8.5m according to cl 4.3(2) of the MLEP (Height Standard). The parties agree that the Amended Development Application seeks consent for works above the Height Standard, which at their highest point, measures 16.2m above the ground level (existing).

24. The Applicant has prepared a written request, pursuant to cl 4.6 of the MLEP which seeks to justify the variation to the Height Standard (Height Request). The parties agree that the Height Request demonstrates that:

1. compliance with the Height Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the MLEP);

2. there are sufficient environmental planning grounds to justify contravening the Height Standard (pursuant to cl 4.6(3)(b) of the MLEP);

3. the Applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (pursuant to cl 4.6(4)(a)(i) of the MLEP); and

4. the proposed development will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives of the R3 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the MLEP).

25. The objectives of the R3 zone that are said to be achieved are extracted above at [17].

26. The objectives of cl 4.3(1)(a) of the MLEP that are said to be achieved are extracted below:

(i) to share public and private views, and

(ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

(iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and

(iv) to minimise the adverse effects of bulk and scale of buildings.

27. The Height Request (relevantly extracted below) asserts that the strict application of the Height Standard is unnecessary and unreasonable on the basis that:

1. The Amended Development Application meets the stated objectives of cl 4.3, specifically:

1. to provide a form and scale which would conserve existing views available to and from Mosman Bay and the nearby Lower Boyle Conservation Area;

2. to comprise a form, pitch, proportion and design to match the existing character of the dwelling, streetscape and Mosman Bay Townscape; and

3. to not result in any loss of amenity for neighbouring dwellings, in particular, would not create additional overshadowing, loss of visual or acoustic amenity or any loss of existing views.

2. The Amended Development Application meets the zone objectives of the R3 Medium Density zone, specifically;

1. to conserve the housing needs of the community;

2. to conserve the existing dwelling use and provide for the variety of housing types within the zone;

3. to provide alterations and additions which comprise a form, scale and design compatible with the existing and desired future character of the Mosman Bay Townscape; and

4. to provide alterations and additions which would not result in any loss of amenity for neighbouring dwellings and would conserve significant views to and from Mosman Bay and the nearby Lower Boyle Heritage Conservation Area.

3. There are sufficient environmental planning grounds to justify contravening the development standard, specifically that it would:

1. allow the use of the existing attic space as envisaged by Mosman Residential Development Control Plan 2012 (p 38);

2. allow additions to the dwelling consistent with the dwelling’s existing roof form and architectural character;

3. provide a built form, and roof additions comprising a style, pitch and proportions consistent with the height and character of surrounding dwellings and the nearby conservation area;

4. allow additions which would be compatible with the character of roof level additions to surrounding dwellings;

5. allow additions which would not result in any adverse amenity for surrounding dwellings;

6. allow additions which would conserve significant view corridors; and

7. allow the refurbishment of the existing roof including its retiling.

28. The Respondent is satisfied that the Height Request addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives for development in the R3 zone. The Respondent does not contend that the contravention of the Height Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard pursuant to cl 4.6(5) of the MLEP.

29. I am satisfied under cl 4.6(4) that the Height Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the Height Standard set out in cl 4.3(1)(a) and the objectives for development in the R3 zone set out in the Land Use Table in the MLEP, for the reasons given in the Height Request.

30. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP. I find no grounds on which the Court should not uphold the Height Request.

MLEP – wall height standard

31. The wall height standard applicable to the Site is 7.2m according to cl 4.3A(4) of the MLEP (Wall Height Standard). The parties agree that the Amended Development Application seeks consent for works above the Wall Height Standard in relation to the northern roof addition, which provides a maximum wall height of 9.6m.

32. The Applicant has prepared a written request, pursuant to cl 4.6 of the MLEP which seeks to justify the variation to the Wall Height Standard (Wall Height Request). The parties agree that the Wall Height Request demonstrates that:

1. compliance with the Wall Height Standard is unreasonable or unnecessary in the circumstances if the case (pursuant to cl 4.6(3)(a) of the MLEP);

2. there are sufficient environmental planning grounds to justify contravening the Wall Height Standard (pursuant to cl 4.6(3)(b) of the MLEP);

3. the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (pursuant to cl 4.6(4)(a)(i) of the MLEP); and

4. the proposed development will be in the public interest because it is consistent with the objectives of the Wall Height Standard and the objectives of the R3 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the MLEP).

33. The objectives of the R3 zone that are said to be achieved are extracted above at [17].

34. The objectives of cl 4.3A(1A) of the MLEP that are said to be achieved are extracted below:

to provide for view sharing,

to minimise the adverse effects of the bulk and scale of buildings,

to encourage 2-storey buildings consistent with the desired future character of the area.

35. The Wall Height Request asserts that the strict application of the Wall Height Standard is unnecessary and unreasonable on the basis that:

1. the development meets the stated objectives of cl 4.3A(1A);

2. the development meets the zone objectives of the Medium Density Residential zone, for generally the same reasons outlined above at [27(2)]; and

3. there are sufficient environmental planning grounds to justify contravening the development standard, for generally the same reasons outlined above at [27(3)].

36. The Respondent is satisfied that the Wall Height Request addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the Wall Height Standard and the objectives for development in the R3 zone. The Respondent does not contend that the contravention of the Wall Height Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard pursuant to cl 4.6(5) of the MLEP.

37. I am satisfied under cl 4.6(4) that the Wall Height Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the Wall Height Standard set out in cl 4.3A(1A) and the objectives for development in the R3 zone set out in the Land Use Table in the MLEP, for the reasons given in the Wall Height Request.

38. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP. I find no grounds on which the Court should not uphold the Wall Height Request.

State Environmental Planning Policy (Resilience and Hazards) 2021

39. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) have been considered and the Site is suitable to accommodate the development the subject of the Amended Development Application. In determining the Amended Development Application, I have considered the matters set out in s 4.6(1) of the RH SEPP, and have had regard to the fact that the Site has had a longstanding history of residential use with no known history of potentially contaminating uses or events.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

40. Chapter 10 (now repealed) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the development application the subject of this appeal by virtue of the savings and transitional provisions set out in s 6.65 of that SEPP.

41. The parties agree that the Site is not zoned under Chapter 10 of the Biodiversity and Conservation SEPP and that the development the subject of the Amended Development Application is appropriate having regard to the matters for consideration in Division 2 of Part 10.3 of the Biodiversity and Conservation SEPP. In determining the Amended Development Application, I have considered the matters set out in Division 2 of Part 10.3 of the Biodiversity and Conservation SEPP as are of relevance to the proposal.

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

42. The Amended Development Application is accompanied by a BASIX certificate (Cert No. A460182_03, dated 25 July 2023) prepared by Renovation Solutions Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021.

Mosman Residential Development Control Plan 2012

43. For completeness, I note that the parties have considered the Mosman Residential Development Control Plan 2012 in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions.

Conclusion

44. 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.

45. 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.

46. The Court notes that:

1. The Respondent, as the relevant consent authority, has agreed under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending its development application so as to rely on the following amended materials:

Document Description	Prepared By	Date
Drawing No. DA100D – Site Plan + Shadow Study, Street Elevation	Bennett Architects and Associates	July 2023
Drawing No. DA101D – Garage / Attic Plan, First Floor Plan	Bennett Architects and Associates	July 2022
Drawing No. DA102D – Ground Floor Plan, Lower Floor Plan	Bennett Architects and Associates	July 2023
Drawing No. CC103D – Sections	Bennett Architects and Associates	July 2023
Drawing No. CC104E – Elevations	Bennett Architects and Associates	July 2023
Drawing No. CC105D – Roof Plan / Site Analysis	Bennett Architects and Associates	July 2023
Drawing No. DA106D – Stormwater Plan	Bennett Architects and Associates	July 2023
Drawing No. DA107D – FSR Area Polygons	Bennett Architects and Associates	July 2023
BASIX Certificate number A460182_03	Renovation Solutions Pty Ltd	25 July 2023
Request to contravene Development Standard – clause 4.3 Height of Buildings	Weir Phillips Heritage and Planning	26 July 2023
Request to contravene Development Standard – clause 4.3A Height of Buildings (additional provisions)	Weir Phillips Heritage and Planning	26 July 2023

2. The Applicant filed the amended plans outlined above with the Court on 26 July 2023.

Orders

47. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted for Development Application number 8.2022.189.1, as amended, for alterations and additions to the existing dwelling and carport on land identified as Lot 12, Section E, in Deposited Plan 2638 and known as 14 Lower Boyle Street, Mosman, subject to the conditions included at Annexure A.

N Targett

Acting Commissioner of the Court

47760.23 Annexure A

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Decision last updated: 22 September 2023