Camuglia v Mosman Municipal Council

[2022] NSWLEC 1613

Land and Environment Court

New South Wales

Medium Neutral Citation:

Camuglia v Mosman Municipal Council [2022] NSWLEC 1613

Hearing dates:

Conciliation conference 31 October, 1 November 2022

Date of orders:

04 November 2022

Decision date:

04 November 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1)  The appeal is upheld.

(2)  Development consent is granted to Development Application No. 8.2021.455.1, for demolition and the construction of a new dwelling house with swimming pool at 24 Botanic Road, Mosman (Lot 29 in Deposited Plan 16059), subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 55, 97A

Land and Environment Court Act 1979, ss 34, 34AA, 39

Mosman Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.3A, 4.6, 6.1, 6.4, 6.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 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, Ch 2

Category:

Principal judgment

Parties:

Marco Camuglia (Applicant)
Mosman Municipal Council (Respondent)

Representation:

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

Solicitors:
Jaku Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2022/160142

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Mosman Municipal Council (Council) of Development application No. 8.2021.455.1 (DA).

2. The DA, as amended, seeks consent for demolition of the existing dwelling, and the construction of a new dwelling with basement parking, swimming pool, and landscaping works at 24 Botanic Road, Mosman, legally described as Lot 29 in DP 16059 (Site).

3. In regard to amendments, I note that Council, as the relevant consent authority, has agreed (under cl 55(1) of the Environment Planning and Assessment Regulation 2000) to the Applicant amending the DA in accordance with the following amended documents lodged on the NSW Planning Portal on 1 November 2022 and filed with the Court on the same day:

1. The following architectural plans prepared by MCK Architecture:

Drawing No.	Drawing Name	Date
DA 00, Rev 03	Cover Sheet	1 November 2022
DA 01, Rev 01	Site Analysis Plan	18 November 2021
DA 10, Rev 03	Site/Roof Plan	1 November 2022
DA 11, Rev 03	Basement Floor Plan	1 November 2022
DA 12, Rev 03	Lower Ground Floor Plan	1 November 2022
DA 13, Rev 03	Ground Floor Plan	1 November 2022
DA 14, Rev 03	First Floor Plan	1 November 2022
DA 20, Rev 03	North Elevation	1 November 2022
DA 21, Rev 03	East Elevation	1 November 2022
DA 22, Rev 03	South Elevation	1 November 2022
DA 23, Rev 03	West Elevation	1 November 2022
DA 30, Rev 03	Section A	1 November 2022
DA 31, Rev 03	Section B	1 November 2022
DA 32, Rev 03	Section C	1 November 2022
DA 33, Rev 03	Section D	1 November 2022
DA 34, Rev 03	Section E	1 November 2022
DA 35, Rev 03	Section F	1 November 2022
DA 36, Rev 03	Section G	1 November 2022
DA 37, Rev 03	Section H	1 November 2022
DA 38, Rev 03	Section I	1 November 2022
DA 53, Rev 03	View From The Sun 9AM 21ST June	1 November 2022
DA 54, Rev 03	View From The Sun 9.30AM 21ST June	1 November 2022
DA 55, Rev 03	View From The Sun 10AM 21ST June	1 November 2022
DA 56, Rev 03	View From The Sun 10.30AM 21ST June	1 November 2022
DA 57, Rev 03	View From The Sun 11AM 21ST June	1 November 2022
DA 58, Rev 03	View From The Sun 11.30AM 21ST June	1 November 2022
DA 59, Rev 03	View From The Sun 12PM 21ST June	1 November 2022
DA 60, Rev 03	View From The Sun 12.30PM 21ST June	1 November 2022
DA 61, Rev 03	View From The Sun 1PM 21ST June	1 November 2022
DA 62, Rev 03	View From The Sun 1.30PM 21ST June	1 November 2022
DA 63, Rev 03	View From The Sun 2PM 21ST June	1 November 2022
DA 64, Rev 03	View From The Sun 2.30PM 21ST June	1 November 2022
DA 65, Rev 03	View From The Sun 3PM 21ST June	1 November 2022
DA 70, Rev 03	FSR Calculation Plans	1 November 2022
DA 71, Rev 03	Landscape Calculation Plan	1 November 2022
DA 72, Rev 03	8.5M Height Plane Axonometric Diagram	1 November 2022
DA 73, Rev 03	7.2M Wall Height Axonometric Diagram	1 November 2022

2. The following landscape plans prepared by Dangar Barin Smith:

Drawing No.	Drawing Name	Date
LP01-D8621, Issue 01, Revision C	DA Cover Page	19 September 2022
LP02-D8621, Issue 01, Revision C	Basement Landscape	19 September 2022
LP03-D8621, Issue 01, Revision C	Lower Ground Landscape	19 September 2022
LP04-D8621, Issue 01, Revision C	Ground Landscape	19 September 2022

3. The Updated OSD and Overland Flow Report prepared by Capital Consulting Engineers, dated 1 September 2022.

Conciliation and agreement between the parties

4. The Court arranged mandatory conciliation between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 31 October and 1 November 2022. I presided over the conciliation conference.

5. The parties came to 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 amended DA subject to conditions.

6. 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.

Jurisdiction

7. The parties’ decision involves the Court exercising the consent authority function, under s 4.16 of the EPA Act, to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties assisted here with a jurisdictional statement provided to the Court on 1 November 2022. In regard to jurisdiction and having regard to this statement, I find as follows:

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

8. Pursuant to s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I accept the agreed position of the parties that the Site has historically been used for residential purposes, a low risk activity in terms of contamination, and that requirements of SEPP Resilience and Hazards have been satisfied.

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

9. The BASIX SEPP applies. I accept the advice of the parties that the DA was accompanied by a BASIX certificate and the Amended DA does not materially change the description of the proposed development for the purposes of the BASIX SEPP. Further, the fulfilment of the commitments listed in the BASIX certificate is a prescribed condition under cl 97A of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations 2000). I am satisfied that the applicable provisions of the BASIX SEPP have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

10. Chapter 2 applies to the Amended DA because the proposal includes works at the front of the Site, which are within 5m of a utility power pole. Accordingly, the DA was referred to Ausgrid as the electricity supply authority. Ausgrid raised no objection to the proposed development. I accept that the applicable provisions of the Transport and Infrastructure SEPP have been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

11. In regard to Ch 2, the proposal will not result in the clearing of native vegetation that exceeds the biodiversity offsets scheme threshold pursuant to the Biodiversity Conservation Act 2016. Further, the proposal does not involve the clearing of vegetation that is or forms part of a heritage item, that is within a heritage conservation area, that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance.

12. I note that, pursuant to Ch 10, all of Mosman is identified on the Sydney Harbour Catchment Map. However, the Site is not identified:

1. within the Foreshores and Waterways Area;

2. as a strategic foreshore site;

3. as a heritage item; or

4. within the wetlands protection area.

13. Accordingly, only Pt 10.1 is applicable. Part 10.1 of the Biodiversity and Conservation SEPP identifies aims of the plan. The aims set out in Pt 10.1 of the Biodiversity and Conservation SEPP have been considered and I accept the advice of the parties that the Amended DA is consistent with these aims, and further, that all applicable provisions of the Biodiversity and Conservation SEPP have been satisfied.

Mosman Local Environmental Plan 2012 (MLEP)

14. The Site is located within the C4 Environmental Living zone under MLEP, within which dwelling house development is permitted with consent. I have had regard to the zone objectives as required under cl 2.3(2). I also note that demolition is permissible with consent under cl 2.7.

15. I accept the advice of the parties that the proposal would not breach any of the development standards contained within MLEP, and note the advice that:

• Under clause 4.3(2), a maximum building height of 8.5m is permitted on the Site. The Amended DA complies with this development standard, with a maximum building height of 8.31m.

• Under clause 4.3A(4), a maximum wall heigh of 7.2m is permitted on the Site. The Amended DA complies with this development standard, with a maximum wall height of 7.125m.

• Under clause 4.4(2) of the MLEP, a maximum floor space ratio of 0.5:1 is permitted on the Site. The Amended DA complies with this development standard, with a maximum gross floor area of 221.49m² and a floor space ratio of 0.48:1.

16. The Site is located in an acid sulfate soil buffer area under cl 6.1(2). Accordingly, under cl 6.1(3), there is a general requirement that development consent not be granted for the carrying out of works described in the table to cl 6.1(2) unless an acid sulfate soils management plan has been prepared. The DA was accompanied by a Geotechnical Investigation and Acid Sulfate Soils Assessment prepared by Green Geotechnics dated 31 August 2021. I accept the advice of the parties that in accordance with the findings of this report (Class 1 Application filed on 2 June 2022 Tab 12 p 11), an acid sulfate soils management plan is not required for the proposed works. Further, in deciding whether to grant development consent for earthworks, the consent authority must consider certain matters set out in cl 6.7(3). I have considered the matters listed, and am mindful of the findings in the Green Geotechnics work in that respect.

17. Under cl 6.4(3), concerned with scenic protection, development consent must not be granted to any development on the Site unless the consent authority is satisfied that:

• Measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and

• The development will maintain the existing natural landscape and landform.

18. I accept the agreed advice of the parties on this point and I am satisfied that the Amended DA achieves the matters contained in cl 6.4(3)(a) and (b) of the MLEP.

19. Under cl 6.6(3)(a)(ii), the consent authority may refuse to grant development consent to development involving the erection of a building on a site unless a minimum landscaped area of 30% of that site (as a percentage of site area) is provided for the development. The Amended DA satisfies this control, incorporating more than 30% of the Site as landscaped area.

Other provisions of s 4.15(1) of the EPA Act

20. Mosman Residential Development Control Plan 2012 (MRDCP) applies. I note that the Class 1 application works through MRDCP provisions (Tab 7), jurisdictionally, nothing turns on this policy instrument. The requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.

21. The parties advise the proposal was notified in accordance with requirements and fourteen objecting submissions were received in regard to the proposal. The submissions have been provided to the Court (included behind Tab 3 of Council’s Bundle of Documents filed on 12 October 2022), and a summary of the concerns raised was included within Council’s Amended Statement of Facts and Contentions filed on 25 July 2022. I also heard objections from a neighbouring property during a site inspection. I have taken into consideration objecting submission in accordance with the requirement of s 4.15(1)(d) of the EPA Act.

22. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

23. Based on the above details, 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. It follows that I am required to dispose of the proceedings in accordance with the parties’ decision.

24. 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.

25. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

26. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 8.2021.455.1, for demolition and the construction of a new dwelling house with swimming pool at 24 Botanic Road, Mosman (Lot 29 in Deposited Plan 16059), subject to the conditions of consent in Annexure A.

……………………

P Walsh

Commissioner of the Court

Annexure A (331986, pdf)

Decision last updated: 04 November 2022