Cranitch v Mosman Municipal Council

[2021] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cranitch v Mosman Municipal Council [2021] NSWLEC 1285

Hearing dates:

29 March 2021

Date of orders:

25 May 2021

Decision date:

25 May 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The orders of the Court are:

(1) Leave is granted to the Applicant to amend the development application to rely on the plans referenced at condition 1 of Annexure ‘A’.

(2) The Applicant's written request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking a variation to the development standard for height of building is upheld.

(3) The Applicant's written request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking a variation to the development standard for wall height is upheld.

(4) The appeal is upheld.

(5) Consent is granted to development application DA 8.2020.212.1 to demolish part existing garage, alter existing garage to become double garage, new home office in the undercroft of existing garage slab, demolish roof of existing house, new gable roof and attic to existing house, subject to conditions of consent at Annexure ‘A’.

(6) The exhibits, other than 1, 2, 6, A, B and D are returned.

Catchwords:

DEVELOPMENT APPLICATION – single dwelling – height of building – wall height – views – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979, ss 34AA, 39(6)
State Environmental Planning Policy No 55—Remediation of Land, cl 7.1
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007, s 45
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.6

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Maya Cranitch (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2020/341941

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA 8.2020.212.1 (DA). The original DA sought consent to demolish part of the existing garage, alter the existing garage to create a double garage, construct a new home office in the undercroft of the existing garage slab, demolish the roof of the existing house, and construct a new gable roof and attic to the existing house (the proposal) at 21 The Grove, Mosman (the site) and was refused by Mosman Municipal Council (the Respondent).

2. The Court arranged a conciliation conference and hearing under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 March 2021. I presided over the conciliation conference and subsequent hearing.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter commenced with an onsite viewing, limited in its number of participants, before thereafter being conducted in Court.

4. During the conciliation conference, the parties were unable to reach agreement to terms of a decision that would be acceptable to the parties. Accordingly, the conference was terminated and a hearing held forthwith.

5. Despite being unable to reach final agreement at the conciliation conference, during the course of the hearing, the parties and their experts agreed that a series of further minor amendments made to the proposal - later incorporated within a final set of plans - would cumulatively work to resolve the Respondent’s contentions.

The statutory controls

6. The relevant applicable planning controls are as follows:

1. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

2. State Environmental Planning Policy 55—Remediation of Land

3. State Environmental Planning Policy (Infrastructure) 2007

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

5. Mosman Local Environmental Plan 2012 (MLEP)

6. Mosman Residential Development Control Plan 2012 (MRDCP)

7. The proposal is a use permissible with consent within the R2 – Low Density Residential zone under the MLEP.

8. The parties agree the proposal complies with all principal development standards that apply to development of this nature, with the exception of height of building and wall height as set out in MLEP at cll 4.3(2) and 4.3A(4) respectively.

9. On the height of building development standard, the parties agree there is a proposed exceedance, which is able to be justified by a Clause 4.6 written request to vary the development standard. I return to this written request later in this judgment.

10. On the wall height development standard, the Respondent says the amended proposal is in contravention of the standard, whilst the Applicant says the final amended proposal is exempt from the definition of wall height on the basis that cl 4.3A(4) of the MLEP excludes a wall if it is in the form of a gable end.

11. In either case, a Clause 4.6 written request to vary the wall height development standard has been provided by the Applicant in support of the amended proposal should it be required. I return to this written request later in this judgment.

12. The site is located within the Balmoral Townscape as identified in section 7.4 (1) of the MRDCP.

The site and its context

13. The site is located at 21 The Grove, Mosman.

14. The site is rectangular in shape with a width of approximately 15.85m and depth of approximately 44.9m. The site area is 712.6 square metres.

15. A distinctive characteristic of the site is its significant topography, falling from its frontage on The Grove east towards the rear of the site by approximately 7.5m. This topography has the effect of siting the existing dwelling low relative to the primary street and giving it the general appearance of a single storey dwelling. The upper floor of the existing dwelling is accessed via a level bridge from The Grove.

16. The streetscape comprises dwelling houses of varying heights and styles. The western side of The Grove is characterised by 3-storey dwellings. The eastern side of The Grove is characterised by dwellings with a 2-storey appearance when viewed from the street.

17. A further defining characteristic of the immediate locality is the presence of significant stands of mature vegetation to the rear of the site and neighbouring properties in both directions along The Grove.

The issues

18. The contentions set out by the Respondent can be found at Exhibit 2.

19. During the hearing, the parties and their experts agreed that each of these contentions could be satisfactorily resolved by a series of further minor amendments to the plans forming Exhibit D, and would be either no longer pressed or no longer contested.

20. The final amended proposal seeks to lower the ridge height of the upper level addition by approximately 1 metre to mitigate against view loss. Additionally, the parties agreed to the removal of three existing non-significant palm trees, which will enhance harbour views available to neighbours. Appropriate replacement planting will form an agreed condition of consent.

The evidence

21. The Court was assisted by experts in town planning, Mr Peter Wells for the Respondent and Ms Katherine Sheppard for the Applicant, who conferred to prepare a town planning joint expert report and supplementary report. These joint expert reports form Exhibits 4 and 5 respectively.

22. The town planning experts provided oral evidence on two particular topics - view loss and wall height.

23. On the topic of view loss, the Respondent’s expert, Mr Wells, was satisfied that the final amended proposal, lowering the ridge height by approximately 1 metre, “improves view loss to the point of being satisfactory”.

24. Additionally, Mr Wells was of the view that the removal of three palm trees would enhance the views available from 28 and 32 The Grove, representing a “good planning outcome”.

25. On the topic of wall height, Mr Wells adopted the position that regardless of whether the western elevation of the upper level addition is classified as wall or a gable end, the final amended proposal demonstrated “satisfactory merit”.

26. However, Mr Wells maintained the view that given the particular configuration of the upper level addition, its western elevation is - by definition, given a step in the plan form - a wall and not a gable end.

27. In opposition, the Applicant’s planning expert, Ms Sheppard, adopted the view that the upper level addition is able to be classified as a gable end and therefore complies with the wall height development standard.

28. Despite this extent of disagreement, the parties’ experts each accept that should the upper level addition be classified as a wall, creating a numeric exceedance of the wall height development standard, then the Applicant’s cl  4.6 written request is well founded and adequately justifies the contravention of the development standard in the circumstances of this matter.

Findings

29. I have decided to approve the proposed development, subject to conditions of consent, and will make the orders accordingly.

30. At the conclusion of the hearing, the Applicant was directed by the Court to further amend the proposal to reflect the lowered ridge line and agreed removal of three palm trees.

31. Hence, the orders of the Court will include the necessary granting of further leave to rely upon these final amended plans.

32. The Applicant was also directed by the Court to further amend its two cl 4.6 written requests to reflect these same final amendments to the proposal.

33. Similarly, the Respondent was directed by the Court to amend the draft conditions of consent so far as to correctly reference the final amended plans and associated conditions of consent relating to replacement tree planting to offset those proposed to be removed.

34. As a precautionary measure - given the experts’ remaining disagreement - I have decided to treat the western elevation of the upper level addition as a wall, creating a non-compliance with the wall height development standard, and then to uphold the Applicant’s cl 4.6 written request to vary the wall height standard.

35. In this matter, the Court is exercising the functions of the consent authority under s 4.16 of the EPA Act to grant consent to the development application.

36. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

37. In that regard, evidence of owner’s consent has been provided with the development application.

38. The original proposal was publicly notified by the Respondent from 29 October 2020 and two submissions were received. These submissions and the concerns raised have been considered in my decision to grant consent. I am satisfied that the key issue of view loss has been appropriately addressed in the final amended proposal.

39. I am satisfied the proposal is permissible with consent within the R2 – Low Density Residential zone and is consistent with each of the relevant principal development standards set out in the MLEP, with the exception of cl 4.3(2) which specifies a maximum height of building of 8.5m, and cl 4.3A(4) which specifies a maximum wall height of 7.2m.

40. These two non-compliances with development standards are dealt with in turn below.

41. In both cases, cl 4.6(3) of the MLEP requires consideration of a written request from the Applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

42. Clause 4.6(4) of the MLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

43. Additionally, cl 4.6(4)(b) of the MLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

44. On the question of the height of building development standard, the parties agree the final amended proposal exceeds the development standard of 8.5 metres. The final amended proposal has a height of approximately 10 metres when measured from various extrapolated points used to determine the existing ground level adjacent to the point of maximum exceedance.

45. The parties and their planning experts are agreed that the Applicant’s cl 4.6 written request is well founded because the most recent amendment, reducing the ridge height by 1 metre, satisfactorily resolves issues of view loss raised in public submissions.

46. On the question of the wall height development standard, the parties and their town planning experts agree that - if classified as a wall - the proposal will exceed the maximum wall height standard of 7.2m. The final amended proposal has a height of approximately 10 metres when measured from various extrapolated points used to determine the existing ground level adjacent to the point of maximum exceedance.

47. I am satisfied the two separate cl 4.6 written requests, prepared by Leathwaite Planning Group and dated 1 April 2021, demonstrate the objectives set out in cl 4.3(1)(a) of the MLEP have been met despite the numeric non-compliance. While these objectives relate to the maximum height of building standard, I accept they apply equally to the wall height standard at cl 4.3A(4).

48. The objectives include minimising adverse impacts of bulk and scale of buildings, minimising visual impacts when viewed from the harbour, sharing private and public views, and ensuring buildings are compatible with the desired future character of the area.

49. I am satisfied the final amended proposal will not materially obstruct any public or private views from the immediate vicinity, and does not create adverse amenity impacts on adjoining properties as a result of the proposed bulk and scale. For these reasons, I accept the objectives of the height of building and wall height development standards are met despite the numeric contravention.

50. Similarly, and consistent with cl 4.6(4) of the MLEP, I am satisfied the two separate cl 4.6 written requests adequately address the objectives of the R2 – Low Density Residential zone, providing for the housing needs of the community within a low density residential environment. The final amended proposal provides for alterations and additions to a single existing dwelling.

51. Having accepted the proposal is consistent with the objectives for development in the particular land use zone, I consider the final amended proposal will be in the public interest.

52. As I am satisfied the matters in cl 4.6(4) of the MLEP have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I accept the proposed variations to the relevant height of building and wall height development standards.

53. I am satisfied that State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) has been appropriately considered given there is a power pole at the frontage of the property located within the road reservation. The proposed driveway extension (which involves penetration of ground) and garage additions are approximately 7m from the power pole. This separation is greater than the 2m threshold that would otherwise enliven s 45 of the Infrastructure SEPP.

54. I am satisfied that State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the proposal and has been properly considered. The parties agree that given the site's previous residential use, the land is unlikely to be contaminated nor to require remediation. I am satisfied the proposal does not require further consideration under cl 7(1)(b) and (c) of SEPP 55.

55. I am satisfied a BASIX Certificate has been prepared in support of the proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent will be imposed to ensure compliance with the BASIX Certificate.

56. I am satisfied the site is not identified within the Foreshores and Waterways Area map and therefore not subject to the detailed development control provisions of Deemed SEPP – Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.

57. Having regard to the information and evidence before me, I am satisfied the proposal is appropriate and there are no jurisdictional matters that would prevent the granting of consent. Accordingly, I am satisfied it is appropriate to make orders granting development consent and now dispose of the matter.

Orders

58. The orders of the Court are:

1. Leave is granted to the Applicant to amend the development application to rely on the plans referenced at condition 1 of Annexure ‘A’.

2. The Applicant's written request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking a variation to the development standard for height of building is upheld.

3. The Applicant's written request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking a variation to the development standard for wall height is upheld.

4. The appeal is upheld.

5. Consent is granted to development application DA 8.2020.212.1 to demolish part existing garage, alter existing garage to become double garage, new home office in the undercroft of existing garage slab, demolish roof of existing house, new gable roof and attic to existing house, subject to conditions of consent at Annexure ‘A’.

6. The exhibits, other than 1, 2, 6, A, B and D are returned.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (293449, pdf)

Decision last updated: 25 May 2021