Brovedani v Mosman Municipal Council

[2021] NSWLEC 1505

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brovedani v Mosman Municipal Council [2021] NSWLEC 1505

Hearing dates:

Conciliation conference on 24-25 August 2021

Date of orders:

22 September 2021

Decision date:

22 September 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application Number 8.2020.83.1 lodged with the Respondent on 4 June 2020 for alterations and additions to the existing dwelling comprising lower ground floor extension at Lot 2 in Deposited Plan 316406, known as 7 Coronation Avenue, Mosman, subject to the conditions in the annexure marked “A”.

Catchwords:

DEVELOPMENT APPLICATION – alterations to an existing dwelling – amended plans – town planning experts agree amended plans warrant approval – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.16

Environmental Planning and Assessment Regulation 2000, cl 49

Land and Environment Court Act 1979, s 34AA

Mosman Local Environmental Plan 2012

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Contaminated Land Planning Guidelines

Category:

Principal judgment

Parties:

Mirella Brovedani (First Applicant)
Iain MacLean (Second Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicants)
S Patterson (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Lawyers (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/71339

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant’s 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 Respondent’s refusal of their development application 8.2020.83.1. The development application seeks approval for alterations and additions to an existing dwelling on Lot 2 in DP 316406 known as 7 Coronation Avenue, Mosman NSW 2088.

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

3. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979(the LEC Act) between the parties, which was held on 24 August 2021. At the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, and the development application as amended be approved, subject to the conditions of consent annexed to this judgment.

4. Following the conciliation, the Respondent has confirmed that the amended development application is uploaded to the NSW Planning Portal, meeting the requirements of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

5. 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 have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the EP&A Regulation consent for the development application has been provided by the owners of the land.

2. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I accept that the likelihood of contamination is low and that it is reasonable to conclude that the site has not been utilised for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines.

3. The site is subject to the provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. However, the site is not identified as either within any of the specified areas subject to specific provisions and only Part 1 of the instrument is applicable. In determining the development application, I have given consideration to the aims of the instrument detailed in Part 1 and I am satisfied that the development is consistent with these aims.

4. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. The site is zoned R2 Low Density Residential Development pursuant to Mosman Local Environmental Plan 2012 (LEP 2012). Development for the purpose of dwelling house is a permissible use with consent in the zone. In determining the development application, I have had regard to the objectives of the zone.

6. The development application seeks a variation of the maximum height control applicable pursuant to cl 4.3 of LEP 2012. The maximum height standard applicable to the site is 8.5m. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by Planning Urban Earth dated 24 August 2021. This request accords with the amended plans and seeks a variation to the height development standard. I have reviewed the request and, in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2012).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

7. The development application seeks a variation of the maximum wall height control applicable pursuant to cl 4.3A of LEP 2012. Pursuant to cl 4.3A the maximum wall height is two storeys. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by Planning Urban Earth dated 24 August 2021. This request accords with the amended plans and seeks a variation to the wall height development standard. I have reviewed the request and, in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. The written request demonstrates that compliance with the wall height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the wall height standard (cl 4.6(3)(b) of LEP 2012).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the wall height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the wall height control.

8. The development application seeks a variation of the maximum floor space ratio (FSR) control applicable pursuant to cl 4.4 of LEP 2012. The maximum FSR standard applicable to the site is 0.5:1. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by Planning Urban Earth dated 24 August 2021. This request accords with the amended plans and seeks a variation to the FSR development standard. I have reviewed the request and, in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of LEP 2012).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the FSR development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control.

9. The subject site is mapped as Bushfire Prone Land. The Applicant’s prepared a Bushfire Assessment Report which was referred to the NSW Rural Fire Service (RFS) in accordance with s 4.14(1A) of the EPA Act. The RFS raise no objection subject to conditions which are incorporated in the annexed consent conditions.

10. The application was notified in accordance with the relevant development control plan. The Court was also addressed by residents at the commencement of proceedings. I have considered these submissions in determining the development application.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

8. The Court notes:

1. That Mosman Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending their development application.

2. That the amended development application has been uploaded to the NSW Planning Portal.

3. That the Applicant has subsequently filed the amended development application with the Court.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development consent is granted to Development Application Number 8.2020.83.1 lodged with the Respondent on 4 June 2020 for alterations and additions to the existing dwelling comprising lower ground floor extension at Lot 2 in Deposited Plan 316406, known as 7 Coronation Avenue, Mosman, subject to the conditions in the annexure marked “A”.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (300090, pdf)

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Decision last updated: 22 September 2021