DEDICO Development Services v Mosman Municipal Council

[2022] NSWLEC 1339

Land and Environment Court

New South Wales

Medium Neutral Citation:

DEDICO Development Services v Mosman Municipal Council [2022] NSWLEC 1339

Hearing dates:

Conciliation conferences on 9, 12 and 27 May 2022, 8 and 9 June 2022.

Date of orders:

07 July 2022

Decision date:

07 July 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [19]

Catchwords:

DEVELOPMENT APPLICATION: residential flat building – conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979, ss 34, 39

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 5.10, 6.4, 6.6

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

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

Category:

Principal judgment

Parties:

DEDICO Development Services (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Dentons (Applicant)
Pikes & Verekers (Respondent)

File Number(s):

2022/14001

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) following the refusal by Mosman Municipal Council (the Respondent) of Development Application 8.2021.310.1 seeking consent for the demolition of a dwelling house, swimming pool and tennis court and construction of a residential flat building comprising 6 units, basement car parking, tree removal and landscaping at 22 Redan Street, Mosman (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 May 2022, and at which I presided.

3. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application.

4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted further adjournments so that additional amendments agreed between the parties could be made to the proposal.

5. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 27 June 2022.

7. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

8. 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. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [19], and as follows:

9. The site is located within the R3 Medium Density Residential zone, according to the Mosman Local Environmental Plan 2012 (MLEP), in which residential flat buildings are permitted with consent, where consistent with the following objectives for development in the R3 zone:

•  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

10. The proposed development complies with development standards at cll 4.3, 4.3A and 4.4 of the MLEP.

11. As the site adjoins the heritage item identified in Sch 5 of the MLEP as ‘Divided Road’ (item I440), the provisions of cl 5.10 apply. I have considered the effect of the proposed development on the heritage item, and I conclude that as the landscaped setting of the heritage item will be retained in the Redan Street frontage, the proposal is not detrimental to the heritage significance of the item, and I do not consider a heritage management document required to assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item, as cl 5.10(5) so provides.

12. On the basis of the landscape plans prepared by Dangar Barrin Smith I am also satisfied that the proposal is designed to minimise the visual impact of the development to and from Sydney Harbour, and will maintain the existing natural landscape and landform in accordance with cl 6.4 of the MLEP.

13. The proposed development includes landscaped area equivalent to 50.3% of the site area, which is in accordance with the provisions of cl 6.6(3)(b)(i) of the MLEP.

14. I have considered whether the land is contaminated in accordance with cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. While fill is present on the site, and its state is unknown, I note firstly, the area and depth of fill is minor and, secondly, is located in a position on the site that coincides, in part, with substantial excavation for the basement carpark and other foundations. I also accept the reasons given in the statement of environmental effects as to the long history of residential use on the site, and so I am satisfied the site will be suitable for the purpose proposed to be carried out.

15. Finally, I am satisfied that the application is accompanied by a BASIX certificate (BASIX Certificate No.1223255M_02), prepared by Max Brightwell, dated 5 June 2022 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

Conclusion

16. 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.

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

18. The Court notes that the Respondent, Mosman Municipal Council, uploaded the amended documents to the NSW Planning Portal on 14 June 2022.

Orders

19. The Court orders that:

1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 (NSW) the function of the consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW), agrees to the Applicant amending development application 008.2021.00000310.001 filed with the Court on 17 January 2022 by including and substituting (as the circumstances require) the amended plans and documents listed below:

Item no.	Document	Prepared by	Date
1.	Amended Architectural Plans • Title Sheet, Drawing no. 000-001, Revision C • Site Analysis Plan, Drawing no. 001-0001, Revision C • Site Plan, Drawing no. 001-002, Revision C • Demolition Plan, Drawing no. 001-003, Revision C • Survey Overlay, Drawing no. 001-004, Revision C • Block Plan, Drawing no. 001-005, Revision C • Survey/Basement Overlay, Drawing no. 001-006, Revision B • Lower Ground/ Basement, Drawing no. 002-001, Revision F • Ground Floor, Drawing no. 002-002, Revision D • First Floor, Drawing no. 002-003, Revision D • Roof Plan, Drawing no. 002-004, Revision D • North & East Elevation, Drawing no. 003-001, Revision D • South & West Elevation, Drawing no. 003-002, Revision D • Section A/A & Section B/B, Drawing no. 004-001, Revision D • Section C/C, Drawing no. 004-002, Revision D • Section D/D, Drawing no. 004-003, Revision C • Section Details, Drawing no. 004-004, Revision C • Ramp Section, Drawing no. 004-005, Revision C • Section E/E, Drawing no. 004-006, Revision D • Lowered Roof Section Detail, Drawing no. 004-007, Revision C • Deck Sections, Drawing no. 004-008, Revision B • Shadow Diagrams – 08:00, Drawing no. 005-001, Revision C • Shadow Diagrams – 09:00, Drawing no. 005-002, Revision C • Shadow Diagrams – 10:00, Drawing no. 005-003, Revision C • Shadow Diagrams – 11:00, Drawing no. 005-004, Revision C • Shadow Diagrams – 12:00, Drawing no. 005-005, Revision C • Shadow Diagrams – 13:00, Drawing no. 005-006, Revision C • Shadow Diagrams – 14:00, Drawing no. 005-007, Revision C • Shadow Diagrams – 15:00, Drawing no. 005-008, Revision C • Shadow Diagrams – 16:00, Drawing no. 005-009, Revision C • Elevational Diagram – 08:00, Drawing 005-010, Revision C • Elevational Diagram – 09:00, Drawing no. 005-011, Revision C • Elevational Diagram – 10:00, Drawing no. 005-012, Revision C • Elevational Diagram – 11:00, Drawing no. 005-013, Revision C • Elevational Diagram – 12:00, Drawing no. 005-014, Revision C • Elevational Diagram – 13:00, Drawing no. 005-015, Revision C • Elevational Diagram – 14:00, Drawing no. 005-016, Revision C • Elevational Diagram – 15:00, Drawing no. 005-017, Revision C • Elevational Diagram – 16:00, Drawing no. 005-018, Revision C • VFS – Proposed, Drawing no. 006-001, Revision C • VFS – Proposed, Drawing no. 006-002, Revision C • VFS – Proposed, Drawing no. 006-003, Revision C • VFS – Proposed, Drawing no. 006-004, Revision C • VFS – Proposed, Drawing no. 006-005, Revision C • VFS – Proposed, Drawing no. 006-006, Revision C • VFS – Proposed, Drawing no. 006-007, Revision C • VFS – Proposed, Drawing no. 006-008, Revision C • VFS – Proposed, Drawing no. 006-009, Revision C • GFA Diagram, Drawing no. 007-001, Revision D • Site Diagrams, Drawing no. 007-002, Revision C • 3D Views, Drawing no. 008-001, Revision C • Adaptable Apartment, Drawing no. 009-001, Revision C • Material Schedule, Drawing no. 010-001, Revision C	Studio Johnston	3 June 2022
2.	BASIX Assessment	Max Brightwell	05.06.2022
3.	Amended Landscape Plans: • DA Cover Page - LP01-D5121, Issue 01 Rev K • Lower Ground Landscape Plan - LP02-D5121, Issue 01 Rev K • Ground Landscape Plan - LP03-D5121, Issue 01 Rev K • First Floor Landscape Plan – LP04-D5121 Issue 01 Rev K	Dangar Barin Smith	2 June 2022
4.	Arborist Letter	Landscape Matrix	5 May 2022
5.	Further Arborist Letter	Landscape Matrix	26 May 2022
6.	View Impact Assessment report and Appendix A to that report	Urbaine Architectural	May 2022
7.	Basement Plant Room	ITM Design Pty Ltd	12 May 2022
8.	Traffic Letter	TTPA Transport & Traffic Planning Associates	6 May 2022

2. The Applicant is to file a copy of the amended documents with the Court by 27 June 2022.

3. In accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs thrown away as a result of the amendment in the sum of $18,000 within 14 business days of the making of these orders.

4. The appeal is upheld.

5. The Court grants development consent to development application 008.2021.00000310.001 for the demolition of a dwelling house and construction of a residential flat building comprising 6 dwellings at 22 Redan Street, Mosman subject to the conditions of consent at “Annexure A”.

……………………

T Horton

Commissioner of the Court

Annexure A (285802, pdf)

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Decision last updated: 07 July 2022