Batchelor v Mosman Municipal Council

[2022] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:

Batchelor v Mosman Municipal Council [2022] NSWLEC 1582

Hearing dates:

Conciliation conference held on 5, 6 and 11 October 2022

Date of orders:

25 October 2022

Decision date:

25 October 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders:

(1) The revised cl 4.6 written request prepared by Andrew Minto of Minto Planning Services dated 7 October 2022 for a variation to the maximum wall height development standard in cl 4.3A of the Mosman Local Environmental Plan 2012 is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 8.2021.480.1 for alterations and additions to the existing dwelling house on the land described as Lot 4 DP 313358 and known as 19 Thompson St Mosman subject to the conditions set out in Annexure ‘A’.

Catchwords:

APPEAL – development application – alterations and additions to existing dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10

Environmental Planning and Assessment Regulation 2000, cll 49, 50, 55, Sch 1 cl 2A

Environmental Planning and Assessment Regulation 2021, Sch 6 Pt 1 cl 3

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

Mosman Local Environmental Plan 2012, cll 2.3, 4.3, 4.3A, 4.4, 4.6, 5.10

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

Cases Cited:

Initial Action Pty Limited v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Planning Circular PS 20-002 dated 5 May 2020

Category:

Principal judgment

Parties:

Magdalena Batchelor (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
T To (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/132833

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) by Magdalena Batchelor (Applicant) for alterations and additions to an existing dwelling house (Proposed Development) situated on land described as Lot 4 DP 313358 and known as 19 Thompson St, Mosman (Site).

2. The Site is located on the corner of Thompson St and Ruby St, Mosman. It has an area of 557.7 m² and is rectangular in shape. The Site has a frontage of 17.075 m to Thompson St and 32.73 m to Ruby St. It falls approximately 3.08 m to the northwest.

3. The Proposed Development involves the reconfiguration of the existing dwelling house and the addition of a new upper level which will contain the main living area. It also includes associated landscaping works, a swimming pool and new fencing.

4. The DA was made to the Council on 14 January 2022 (Council reference 8.2021.480.1). It was publicly notified in accordance with the Council’s Community Participation Plan and the Council received 6 submissions. The main issues raised by the submissions concerned view loss, the impact of the Proposed Development on the streetscape, bulk and scale, and lack of compliance with height and floor space ratio development standards in the Mosman Local Environmental Plan 2012 (LEP). A number of the objectors also gave evidence, and elaborated on their submissions, at the onsite hearing on 5 October 2022.

5. The DA was refused by the Council on 25 May 2022. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

6. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

7. The Court arranged a conciliation conference under ss 34 and 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held at the Site on 5 October 2022 and then by Microsoft Teams on 6 and 11 October 2022. I presided over the conciliation conference.

8. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application in an amended form subject to conditions. The amendments included a significant reduction in the height of the Proposed Development and alterations to the roof form at the Thompson St frontage which reduced the view loss associated with the Proposed Development.

9. The final signed agreement was lodged with the Court on 12 October 2022 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow.

The statutory conditions on the grant of development consent

The conditions in the EPA Act and Regulation

11. The appeal was brought pursuant to s 8.7 of the EPA Act, and was made within the time required by s 8.10 of the EPA Act.

12. Section 4.15(1)(d) of the EPA Act requires the consent authority to take into consideration any submissions made in accordance with the Act or the regulations. In addition to the written submissions referred to at paragraph 4 above, oral evidence was given to the Court by four of the submitters on 5 October 2022. The oral evidence raised concerns about view loss, streetscape, and bulk and scale. The owners of the adjoining property at 21 Thompson St, who were overseas, also provided a further submission in which they raised privacy concerns associated with a change in the location of the proposed swimming pool. The parties’ agreed position, which I accept, is that these concerns have been addressed through the amended plans and proposed conditions of consent.

13. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation) was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 cl 3. The DA was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the DA.

14. Clause 49 of the EPA Regulation provides that a development application may be made by the owner of the land to which the development application relates or by any other person, with the consent of the owner of that land. The DA was made by the Applicant who is the owner of the Site.

15. Clause 50 and cl 2A(1) of Sch 1 to the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate for the development. The proposed development is BASIX affected development as defined in cl 3(1) of the EPA Regulation. A BASIX Certificate (Certificate No. A441052_02) prepared by Certified Energy dated 6 October 2022 accompanies the DA.

The conditions in the LEP

Zoning

16. The Land is within Zone R2 – Low Density Residential under the LEP. The Proposed Development is permitted with development consent on land within that zone.

Zone objectives

17. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone R2 – Low Density Residential are:

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

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

To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

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

To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

To ensure that development is of a height and scale that seeks to achieve the desired future character.

To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

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

18. In determining the DA, I have had regard to those objectives.

Building height and floor space ratio

19. The proposed development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (FSR) (cl 4.4). The maximum height of the Proposed Development is approximately 8.08 m which is less than the applicable maximum building height of 8.5 m prescribed by cl 4.3 of the LEP. The FSR of the proposed development is 0.498:1 which is less than the maximum permitted FSR of 0.5:1.

20. In addition to the building height development standard contained in cl 4.3, the LEP also prescribes a maximum wall height of 8.5m: cl 4.3A. The maximum wall height prescribed by cl 4.3A(4) is 7.2 m. The Proposed Development exceeds this and has a maximum wall height of 7.77.

The cl 4.6 written request

21. To justify the departure from the development standard in cl 4.3A(4) of the LEP the Applicant has submitted a written request pursuant to cl 4.6 of the LEP. The written request was prepared by Andrew Minto of Minto Planning Services Pty Ltd and is dated 7 October 2022.

22. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard: Initial Action Pty Limited v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action).

23. The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii):

1. First, that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3):

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); and

2. that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

2. Secondly, that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development for the zone in which the development is proposed to be carried out.

24. The second precondition that must be satisfied before the consent authority can exercise the power to grant development consent for development that contravenes the development standard is that the concurrence of the Planning Secretary has been obtained (cl 4.6(4)(b)). In this case, the exceedance of the development standard is by less than 10% and the concurrence of the Planning Secretary can be assumed: Planning Circular PS 20-002 dated 5 May 2020.

25. The written request seeks to establish that compliance with the development standard is unreasonable or unnecessary by demonstrating that the objectives of the development standard are achieved notwithstanding the departure. This is one of the accepted ways of showing that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]. The written request states, and I accept, that the Proposed Development will comply with the building height development standard and that the contravention of the wall height development standard occurs centrally on the Site, is set back a significant distance from all boundaries and will not be discernible from the street or any adjoining property. In addition, the contravention will not result in any unreasonable overshadowing of the adjoining property, nor will it result in any loss of privacy or loss of views from the adjoining properties.

26. The written request also contains an explanation of the environmental planning grounds the Applicant relies on to justify the contravention of the development standard. The written request explains that:

• The Site is a sloping site having a fall on average of some 3.3 m across the width of the building platform.

• The contravention of the wall height development standard occurs within the middle of the Site at the point where the proposed building steps down in keeping with the fall of the Site.

• The Site has previously been subject to localised excavation associated with the existing construction and which in this instance exacerbates the non-compliance.

• The considered nature of the design whereby the proposal provides for a flat roof over the non-complying wall height and which sits well below the ridge height of the main element of the addition. All parts of the building comply with the maximum building height development standard.

• The fact that the non-compliance is centrally located on site and behind the elevation fronting Ruby Street.

• The proposal does provide for a development outcome which as outlined within this submission does satisfy the objectives of both the zone and the particular standard.

• The proposed non-compliance will not unreasonably impact upon views from the surrounding properties, particularly No. 9 Ruby Street.

• The proposed non-compliance will not result in any unreasonable overshadowing of the adjoining properties.

27. I am satisfied that the written request has adequately addressed both that compliance with the development standard contained in cl 4.3A of the LEP is unreasonable or unnecessary and also that there are sufficient environmental planning grounds to justify contravening the development standard. The parties agree and, as required by cl 4.6(4)(a)(i), I am satisfied that the written request has therefore adequately addressed the matters contained in cl 4.6(3)(a) and (b).

28. In accordance with cl 4.6(4)(a)(ii) of the LEP, I must also be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development for the zone in which the development is proposed to be carried out. The objectives of Zone R2 – Low Density Residential are set out at [15] above.

29. The objectives of the wall height development standard are:

(a)  to provide for view sharing,

(b)  to minimise the adverse effects of the bulk and scale of buildings,

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

30. The written request analyses the Proposed Development against both the objectives of the zone and the objectives of the development standard, and concludes that the Proposed Development is consistent with those objectives. I accept that conclusion.

31. I am therefore satisfied that the Proposed Development will be consistent with the objectives both of the R2 Low Density Residential zone and also with the objectives of the wall height development standard, as set out in cl 4.3A(1) of the LEP.

32. The written request also concludes, and I accept, that the contravention of the development standard does not raise any matter of significance for State or regional planning and that there is no public benefit in maintaining the development standard in this case given the high quality of the Proposed Development and the absence of unreasonable detrimental impacts. These are matters that are required to be considered by the Planning Secretary in deciding whether to give concurrence to the grant of development consent: LEP, cl 4.6(4)(b) and (5).

33. As I have concluded both that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the Proposed Development will be in the public interest in the manner required by cl 4.6(4), I have decided that development consent may be granted for the Proposed Development even though it will contravene the wall height development standard in cl 4.3A of the LEP.

Heritage conservation

34. The Site is contained within the Bradleys Head Road Heritage Conservation Area (HCA). Clause 5.10 of the LEP requires a consent authority to take into account the effect of the Proposed Development on the heritage significance of the HCA. A Heritage Impact Statement has been prepared by Weir Phillips Heritage and Planning dated November 2021 which concludes that the Proposed Development will have an acceptable impact on the HCA and will have no impact on the fabric of the heritage items in Ruby St and at 19 Prince Albert St.

The conditions in State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP)

35. The Hazards SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated. Section 4.6(2) of the Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4).

36. The Proposed Development does not involve a change of use and has been used for residential purposes for many years. I am satisfied that a preliminary site investigation is therefore not required and that the Site is suitable for its proposed continued use for residential purposes.

Conclusion

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

38. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

39. The Court notes that:

1. The Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application no. 8.2021.480.1 filed with the Court on 9 May 2022.

2. The applicant uploaded the amended plans, cl 4.6 written request and updated BASIX certificate onto the NSW Planning Portal on 11 October 2022.

3. The applicant filed the amended application with the Court on 12 October 2022.

40. The Court orders that:

1. The revised cl 4.6 written request prepared by Andrew Minto of Minto Planning Services dated 7 October 2022 for a variation to the maximum wall height development standard in cl 4.3A of the Mosman Local Environmental Plan 2012 is upheld.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 8.2021.480.1 for alterations and additions to the existing dwelling house on the land described as Lot 4 DP 313358 and known as 19 Thompson St Mosman subject to the conditions set out in Annexure ‘A’.

.………………………

A Bradbury

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 25 October 2022