Carayanides v Mosman Municipal Council

[2023] NSWLEC 1652

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carayanides v Mosman Municipal Council [2023] NSWLEC 1652

Hearing dates:

Conciliation conference on 10 October 2023

Date of orders:

3 November 2023

Decision date:

03 November 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the amended Development Application filed with the Court on 6 October 2023.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 8.2022.243.1, for the demolition of existing structures, Torrens title subdivision into two allotments and the construction of a two-storey semi-detached dwelling, car parking, landscaping and ancillary works on each allotment at 35 Harbour Street, Mosman (Lot 1 of Section 2 in DP 1150), subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition, subdivision and construction of semi-detached dwellings – conciliation conference – amended plans and documents – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Mosman Local Environmental Plan 2012, cll 2.7, 4.1A, 4.3, 4.3A, 4.4A, 6.6, 6.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 10, ss 2.3, 2.6, 2.10, 6.65, 10.1

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

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

Category:

Principal judgment

Parties:

Christina Carayanides (Applicant)
Mosman Municipal Council (Respondent)

Representation:

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

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

File Number(s):

2023/146750

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant Christina Carayanides. The Applicant appeals the deemed refusal of their development application No. 8.2022.243.1. The development application, as amended, seeks consent for the demolition of existing structures, Torrens title subdivision into two allotments and the construction of a two-storey semi-detached dwelling, car parking, landscaping and ancillary works on each allotment. The development is proposed at 35 Harbour Street, Mosman (Lot 1 of Section 2 in DP 1150).

2. A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 10 October 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.

3. The amendments to the development application can be broadly summarised as follows:

1. Relocation of proposed dwelling 1 to the west to have a front setback of 6.05m from Harbour Street and increase the rear setback of the proposed building.

2. An increase to the front setback of the garage of Dwelling 2 to sit behind the first floor level balcony. A reduction to the size of the garage and reduction in the size of the dwelling.

3. Reduction to the first floor balcony setback of Dwelling 2.

4. Deletion of the timber batten screen on the northern edge of the ground level rear terrace for Dwelling 1.

5. Additional building articulation for proposed Dwelling 1 and amendment to skylight location and provision of additional skylights.

6. Amendments to proposed materials and finishes.

7. Amendments to the proposed driveway and fencing to minimise impacts on the existing street tree, water gum (Tristaniopsis laurina).

4. 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 on the basis that:

1. The development application was lodged by the owner of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified between 21 September and 7 October 2022. Twenty-three submissions were received. I am satisfied that the submissions have been considered in the determination of the development application and, where appropriate, have resulted in amendmentsyo the application or the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies. As required by s 4.6 of SEPP Resilience and Hazards, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects confirms that site is not identified as contaminated, or likely to be contaminated land. The parties confirm that a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

4. The development application is accompanied by the BASIX certificate in compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. Pursuant to s 6.65 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), the former provisions, prior to 21 November 2022, continue to apply to the development application. Chapter 2 of SEPP BC applies to local government area of Mosman: s 2.3(1) of SEPP BC. Section 2.6 of the SEPP BC requires that a person must not clear vegetation in a non-rural area without the authority conferred by a permit granted by Council. The development application as amended seeks consent for the removal of some nine trees as nominated in the architectural plans. Section 2.10(3) of the SEPP BC provides that a permit under this part cannot be granted unless the Council is satisfied of certain matters. Having regard to those matters specified in s 2.10, I am satisfied that the proposed development, as amended, does not seek to remove trees that form part of a heritage item or Aboriginal object, exceed the biodiversity offsets scheme threshold, or adversely impact the protection of biodiversity values of trees. Further I am satisfied that the development, by including landscape works will preserve the amenity of the area through the preservation of trees and planting of vegetation.

6. Chapter 10 of SEPP BC applies as the site is located within the Sydney Harbour Catchment. However, the site is not identified as being located within:

1. The Foreshores or Waterways area

2. A strategic foreshore site

3. As a heritage item, or

4. Within the wetlands protection area.

7. Accordingly, only Pt 1 of Ch 10 applies. I accept the agreed position of the parties that the amended development application is consistent with the aims of Ch 10, detailed at s 10.1 of SEPP BC.

8. Mosman Local Environmental Plan 2012 (LEP 2012) applies to the site which is zoned R2 Low Density Residential. The proposed development, semi-detached dwelling houses, is permitted with consent in the zone. In determining the development application, I have had regard to the objectives of the zone which 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.

9. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2012.

10. The development application is compliant with the provisions of cl 4.1A ‘Exceptions to minimum lot sizes for certain residential development’ as the site is located in Area 1 and the proposed lots have an area of at least 230m².

11. The development application complies with the maximum height standard of 8.5m at cl 4.3 ‘Height of Buildings’ in LEP 2012.

12. Under cl 4.3A of LEP 2012, a consent authority may refuse development consent for the erection of a building on land where the clause applies if the building has more than two storeys above ground level (existing). Further, a maximum wall height of 7.2m is permitted on the site: cl 4.3A of LEP 2012. The amended development application complies with both standards.

13. The site is located in Area 1 for the purposes of cl 4.4A ‘Floor space ratio’ in LEP 2012. The applicable development standard is 0.5:1. The proposed development will comply with this standard as a single lot and post subdivision.

14. Clause 6.6 ‘Landscape areas’ applies to the site as it is zoned R2 Low Density Residential. The amended development application satisfies cl 6.6(3)(a)(i) of LEP 2012 by incorporating landscaped area greater that the required 25% of site area.

15. Pursuant to cl 6.7 ‘Earthworks’ in LEP 2012, I have considered the matters articulated at subcl (3). I am satisfied that the proposed development does not incorporate significant excavation works and that the natural landform will largely remain. Further, a concept stormwater and drainage design as well as soil erosion and sediment control plans have been submitted with the amended development application.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. 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. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

1. Mosman Municipal Council, as the relevant consent authority has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. 8.2022.243.1 to rely upon the following (Amended Development Application):

1. Architectural plans prepared by 3 – D Projects:

Drawing No.	Drawing Name	Date
A0.000, Rev G	Drawing List, General Specification, Location Plan	06/09/23
A0.00, Rev G	Site Analysis Plan	06/09/23
A0.01, Rev G	Subdivision Plan	06/09/23
A0.02, Rev G	Site Calculations	06/09/23
A1.01, Rev G	Ground Floor Plan	06/09/23
A1.02, Rev G	First Floor Plan	06/09/23
A1.03, Rev G	Site / Roof Plan	06/09/23
A2.01, Rev G	Elevations	06/09/23
A2.03, Rev G	Street Elevations	06/09/23
A3.01, Rev G	Sections	06/09/23
A4.01, Rev G	Materials & Finishes	06/09/23
A4.02, Rev G	Window & Door Schedule – Lot 1 / Dwelling 1 / 35a Harbour St	06/09/23
A4.03, Rev G	Window & Door Schedule – Lot 1 / Dwelling 1 / 35a Harbour St	06/09/23
A4.04, Rev G	Window & Door Schedule – Lot 2 / Dwelling 2 / 35 Harbour St	06/09/23
A4.05, Rev G	Window & Door Schedule – Lot 2 / Dwelling 2 / 35 Harbour St	06/09/23
A4.06, Rev G	Concept Stormwater Drainage Plan	06/09/23
A4.07, Rev G	Soil Erosion & Sediment Control Plan	06/09/23
A4.08, Rev G	Site Waste Minimisation Plan	06/09/23
A7.01, Rev G	9am June 21st Shadow Diagram	06/09/23
A7.02, Rev G	12pm June 21st Shadow Diagram	06/09/23
A7.03, Rev G	3pm June 21st Shadow Diagram	06/09/23
A8.01, Rev G	Existing Plans & Elevations	06/09/23

2. Landscape plans prepared by Mariko Fraser:

Drawing No.	Drawing Name	Date
LP 01, Rev E	Front Landscape Plan	13.9.23
LP 02, Rev E	Back Landscape Plan	13.9.23

3. Updated BASIX Certificate number 1318425S_04 prepared by BASIX Certificate Centre dated 22 September 2023, for Lot 1 / 35A Harbour Street, Mosman.

4. BASIX Certificate number 1318433S_04 prepared by BASIX Certificate Centre dated 22 September 2023, for Lot 2 / 35 Harbour Street, Mosman.

5. Nationwide House Energy Rating Scheme Certificate No. 0008937377 prepared by BASIX Certificate Centre dated 22 September 2023, for Lot 1 / 35A Harbour Street, Mosman.

6. Nationwide House Energy Rating Scheme Certificate No. 0008937369 prepared by BASIX Certificate Centre dated 22 September 2023, for Lot 2 / 35 Harbour Street, Mosman.

2. The Applicant is not required to lodge the Amended Development Application on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

8. The Court orders that:

1. The Applicant is granted leave to rely on the amended Development Application filed with the Court on 6 October 2023.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 8.2022.243.1, for the demolition of existing structures, Torrens title subdivision into two allotments and the construction of a two-storey semi-detached dwelling, car parking, landscaping and ancillary works on each allotment at 35 Harbour Street, Mosman (Lot 1 of Section 2 in DP 1150), subject to the conditions in Annexure A.

……………………….

D Dickson

Commissioner of the Court

Annexure A (309685, pdf)

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Decision last updated: 03 November 2023