Campisi v Mosman Municipal Council

[2022] NSWLEC 1503

Land and Environment Court

New South Wales

Medium Neutral Citation:

Campisi v Mosman Municipal Council [2022] NSWLEC 1503

Hearing dates:

07 September 2022

Date of orders:

16 September 2022

Decision date:

16 September 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the Development Application pursuant to s8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $8,500.00 within 28 days of the making of this order.

(2) the Appeal is upheld.

(3) development consent is granted to development application 8.2021.336.1 for the demolition of the existing dwelling and construction of two residential units (dual occupancy) with basement carparking, removal of trees and associated landscaping at 161 Avenue Road, Mosman subject to the conditions in Annexure A to this Agreement.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Land and Environment Court Act 1979, s 34
Mosman Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.4, 6.6

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

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

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

State Environmental Planning Policy (Infrastructure) 2007

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.48

Texts Cited:

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021)

Mosman Development Control Plan 2012

Mosman Municipal Council, Community Participation Plan, 2020

Category:

Principal judgment

Parties:

Anthony John Campisi (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor)(Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
Hones Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/163926

Publication restriction:

No

Judgment

1. COMMISSIONER: Anthony John Campisi (the Applicant) has appealed the refusal by Mosman Municipal Council (the Respondent) of his development application DA 8.2021.336.1, made with owner’s consent, seeking consent for demolition of existing structures, tree removal and construction of a dual occupancy development, containing two residential units and basement car parking for four cars with associated landscaping and other works (the Proposed Development) at 161 Avenue Road, Mosman (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Proposed Development was notified in accordance with the Respondent’s Community Participation Plan 2020 and six submissions were received in response to that notification.

4. On 7 September 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act), and reached an in-principle agreement regarding the granting of consent to the Applicant’s development application, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Land and Environment Court’s COVID-19 Pandemic Arrangements Policy (the Policy). No site inspection was undertaken prior to the conciliation conference being convened, and no objectors sought to make submissions during the conciliation conference. The Respondent provided copies of submissions received in response to its notification of the Proposed Development.

6. At the conciliation conference, undertaken via Microsoft Teams, the Parties reached an agreement 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 consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. on 1 March 2022, the provisions of the former and now repealed State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) were repealed and transferred to Ch 4 of SEPP R&H;

2. section 4.6(1) of SEPP R&H provides that a consent authority must not consent to the carrying out of any development on land unless:

“(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose”

3. the Parties have confirmed, and I am satisfied, that, as stated within the Applicant’s Statement of Environmental Effects prepared by and dated July 2022:

1. based on its history of use as a residential lot, the Subject Site is unlikely to be contaminated and is considered suitable for its intended continuing use for residential purposes having regard to the provisions of the former cl 7(1) of SEPP 55, and cl 4.6 of SEPP R&H;

2. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. on 1 March 2022, a number of state environmental planning policies (SEPPs) were repealed and consolidated, including through the enactment of SEPP(B&C) which replaced a number of SEPPs;

2. chapter 10 of SEPP (B&C) applies to the Subject Site which is located within the Sydney Harbour Catchment;

3. the Subject Site is not identified as land within the Foreshores and Waterways Area as a strategic foreshore site, as a heritage item, or land within the wetlands protection area, and so the specific provisions of SEPP B&C do not apply to development on the Subject Site; and

4. the Parties have submitted, and I am satisfied, that the Proposed Development is consistent with the aims of Ch 10 of SEPP B&C and its other relevant provisions;

3. in relation to the provisions of State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004 (SEPP BASIX), the Applicant has provided a BASIX Certificate no. 1224737M_03 dated 26 August 2022 in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000 in relation to SEPP BASIX;

4. in relation to the provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP (T&I):

1. on 1 March 2022, the SEPP T&I came into force, replacing the State Environmental Planning Policy (Infrastructure) 2007; and

2. chapter 2 of SEPP T&I provides for the facilitation of the effective delivery of infrastructure, and s 2.48 identifies triggers which require the local electricity supply authority to be given written notice of the Applicant’s Proposed Development under certain circumstances; and

3. as the Proposed Development does not include the following ‘triggers’, written notice to the local electricity supply is not required:

1. the Proposed Development does not propose the penetration of ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower;

2. the Proposed Development is not located within or immediately adjacent to any existing easement for electricity purposes, noting that there is an electricity substation on the Subject Site that will not require relocation or works to be undertaken as part of the development;

3. the Proposed Development does not include works with 5m of an exposed overhead electricity power line situated along the Subject Site frontage; and

4. the Proposed Development does not necessitate or propose the placement of power lines underground;

5. in relation to the provisions of Mosman Local Environmental Plan 2012 (MLEP):

1. the Subject Site is situated within Zone R3 Medium Density Residential pursuant to the provisions of cl 2.3 of MLEP, and development for the purposes of a dual occupancy residential use is permissible with consent in Zone R3 zoning of the Subject Site;

2. clause 2.3 concerning zone objectives and land use table, in relation to which:

1. subclause 2.3(2) requires 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 the zone; and

2. the Subject Site is zoned R3 Medium Density Residential, the objectives of which are:

• 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.

3. the Parties have confirmed, and I am satisfied, that the Proposed Development is consistent with the objectives of the R3 zone;

3. the Proposed Development complies with the applicable height of buildings development standard under the provisions of cl 4.3 of MLEP;

4. the Proposed Development complies with the applicable floor space ratio development standard under the provisions of cl 4.4 of MLEP;

5. with respect to the provisions of cl 5.10 of MLEP in relation to heritage conservation, a heritage impact statement (and addendum) has been prepared by Ms Jennifer Castaldi of Extent People-Centred Heritage, who is an appropriately qualified heritage expert, and a joint expert report has been prepared by Ms Castaldi with Mr Michael Edwards, and these confirm that:

1. the Subject Site does not contain a heritage item, and is not located within a Heritage Conservation Area;

2. the Subject Site adjoins two heritage items identified within MLEP, as follows:

• ‘Flats’ (Item I16) at 163 Avenue Road; and

• ‘Pinegrove Flats’ (Item I15) at 157-169 Avenue Road.

3. the Subject Site is also located within the vicinity of the Keston Avenue Heritage Conservation Area (C4), Military Road Heritage Conservation Area (C7) and the Shadforth Street Heritage Conservation Area (C10);

4. the Proposed Development will not adversely affect the identified heritage significant of the adjacent heritage items the Applicant’s revised architectural composition to the front elevation, together with the overall height, scale, form, language, detailing and materiality of the building will have a sympathetic and acceptable relationship to the two adjoining heritage items;

6. as concerns the provisions of cl 6.1 of MLEP, the Subject Site is not identified as an Acid Sulfate Soil Area or Buffer Area on the Acid Sulfate Soils Map within MELP;

7. as concerns the provisions of cl 6.2 of MLEP, the Subject Site is not located in proximity to a natural watercourse;

8. as concerns the provisions of cl 6.3 of MLEP, the Subject Site is not located on a foreshore and this clause does not apply;

9. as concerns the provisions of cl 6.4 of MLEP, the Subject Site is not located within the scenic protection area;

10. as concerns the provisions of cl 6.6 in relation to landscaped areas, which applies to development on the Subject Site, the clause provides that a consent authority may refuse to grant consent if the landscaped area is below 40%; and

1. the Subject Site has an area of 404m² and the Proposed Development provides 113.5m² (or 27.8% of site area) as landscaped area, which is below 40% of the Subject Site area; but

2. the Proposed Development also provides 29.30m² of additional planter area in the form of landscaping above the basement, resulting in a total landscaping area equivalent to 35.5% of the Subject Site area; and

3. the terms of cl 6.6 of MLEP do not provide a development standard, but rather provide a discretionary control allowing flexibility to the consent authority in the provision of landscaped areas within a proposed development; and

4. the Parties submit (relying on the advice of their experts), and I am satisfied, that the Proposed Development achieves the objectives of the landscaped area provisions in cl 6.6 of MLEP, notwithstanding the numerical deficient in landscaped area; and is acceptable in the circumstances of the case due to the constrained nature of the Subject Site, which is an isolated lot, and its location close to public transport;

6. in relation to the provisions of Mosman Development Control Plan 2012 (MDCP), the Parties have advised, and I am satisfied, that the Applicant has had regard to the provisions of MDCP in the design of the Proposed Development and the provisions of MDCP have been taken into consideration as required under the provisions of s 4.15(a)(iii) of the EP&A Act;

7. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submissions of the objectors which is a relevant consideration under section 4.15(1)(d) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

3. approval of the Proposed Development is in the public interest.

10. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

13. The Court notes that:

1. Mosman Municipal Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application 8.2021.336.1 with the plans and documents listed in Condition 1 within Annexure A to this judgment;

2. the Applicant has confirmed that it has uploaded the documents set out in paragraph 13(1) above onto the NSW Planning Portal on 30 August 2022.

Orders

14. The Court orders that:

1. the Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the Development Application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $8,500.00 within 28 days of the making of this order;

2. the Appeal is upheld;

3. development consent is granted to development application DA 8.2021.336.1 for the demolition of the existing dwelling and construction of two residential units (dual occupancy) with basement carparking, removal of trees and associated landscaping at 161 Avenue Road, Mosman, subject to the conditions in Annexure A to this judgment.

…………………………..

M Chilcott

Commissioner of the Court

**********

Annexure A 

Decision last updated: 16 September 2022