Derrin v Mosman Municipal Council

[2023] NSWLEC 1542

Land and Environment Court

New South Wales

Medium Neutral Citation:

Derrin v Mosman Municipal Council [2023] NSWLEC 1542

Hearing dates:

Conciliation conference on 28 August 2023

Date of orders:

20 September 2023

Decision date:

20 September 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicant’s cl. 4.6 submissions written by Four Towns Planning pursuant to cl. 4.6 of Mosman Shire Local Environment Plan 2012 (MLEP) to vary the height and wall height development standards in cl 4.3 and cl. 4.3A of MLEP are upheld.

(2) The Appeal is upheld.

(3) Development Application No. 8.2022.286.1 for construction of a dwelling with garage and landscape works at 9 Sirius Avenue, Mosman (Lot B DP395035) is determined by the grant of consent subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – construction of residential dwelling – Clause 4.6 request -- agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.4A, 4.6, 6.1, 6.4, 6.6, 6.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 10, Pt 10.2

State Environmental Planning Policy Building Sustainability Index: BASIX 2004

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

Texts Cited:

Mosman Municipal Council Community Participation Plan (2020)

Category:

Principal judgment

Parties:

William Derrin (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
Sattler & Associates (Applicant)
Pikes and Verekers (Respondent)

File Number(s):

2023/100263

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings have been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and arise as a result of the actual refusal, by Mosman Municipal Council of Development Application No 8.2022.286.1. This development application seeks consent for the construction of a dwelling, garage and landscape works (proposed development) at 9 Sirius Avenue, Mosman, Lot B in DP 395035 (the site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 August 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the 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 identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following jurisdictional points.

5. The development application has been made with the written consent of the owners.

6. The development application was appropriately notified in accordance with Mosman Municipal Council’s Community Participation Plan (2020), and six submissions were received. The parties submit, and I accept that the submissions of objectors have been considered, and taken into account in the preparation of the amended plans that are now the subject of this agreement.

7. Pursuant to the requirements of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, I must consider whether the site is contaminated and if so, whether it is suitable for the intended purpose or whether it will be following remediation. The parties submit, and I accept that the site is located within an established residential area with low risk for potential land contamination, that there is no knowledge of any historical contaminating development or land uses on the site, and that the site is suitable for the intended residential purpose.

8. Pursuant to the savings provisions at s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), Chapter 10 of the SEPP applies to the site as it is identified on the Sydney Harbour Catchment Map. The parties submit and I accept that the site is not visible from the foreshore or waterways of Sydney Harbour, but notwithstanding this, the proposal has been strategically designed to integrate and blend into the natural environment of the site and its surrounds. I further note that as part of this s 34AA process the development has been amended to retain significant mature trees and to reduce the visual impact of the dwelling and ancillary structures on views from the public domain to an acceptable level. I therefore accept that for the purpose of the planning principals and considerations in Pt 10.2 of the Biodiversity and Conservation SEPP that, as per the joint submission of the parties, the proposed development is acceptable.

9. A BASIX Certificate has been provided that applies to the proposed development, as required pursuant to State Environmental Planning Policy Building Sustainability Index: BASIX 2004.

10. Pursuant to the Mosman Local Environmental Plan 2012 (MLEP), the subject site is zoned C4 Environmental Living within which dwelling houses are permissible with consent. The parties submit and I accept that the proposed development is consistent with the relevant objectives of this zone.

11. During the s 34AA conference, the position of the proposed dwelling was amended to facilitate the retention of tree no. T5. The result of this is that the upper edges of the building will exceed the 8.5m height limit and the 7.2m wall height limit established under MLEP cll 4.3 and 4.3A respectively. As these are both development standards established under MLEP, two written requests have been filed pursuant to MLEP cl 4.6 (the written requests), which request variations to these two development standards. As the breach of both development standards is the result of the same amendment, the two written requests seek variation on the same grounds and as such I will deal with them concurrently.

12. The written requests prepared by Four Towns Planning and dated 26 July 2023 both:

1. Demonstrate that compliance with the development standards is unreasonable and unnecessary as the proposal complies with the relevant objectives of both the zone and the development standards, notwithstanding the non-compliance with the development standards. They also demonstrate that the non-compliance does not create any adverse impacts on the amenity of adjoining properties.

2. Establish sufficient environmental planning grounds to justify non-compliance with the development standards by demonstrating that the breach of both the height and wall height limit result from the sloping topography of the site and the Council’s requirement to retain tree T5. Further, as these breaches are minor, and result in no adverse visual or amenity impacts, the contraventions demonstrate an appropriate design response to the constraints of the site.

3. Demonstrate that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standards.

13. As identified on the Floor Space Ratio map of the MLEP, the site is partially subject to a maximum floor space ratio (FSR) of 0.5:1 and partially to a maximum of 0.4:1. The resulting maximum FSR for the site is 0.48:1, to which the dwelling, with a FSR of 0.358:1, complies.

14. Although a portion of the site is identified as being located within a ‘buffer zone’ for the purposes of Acid Sulfate Soils, development consent within this buffer zone is only required if the proposed works involve excavation more than 1m below Australian Height Datum or will likely lower the water table. No excavation works are proposed within this buffer zone, and subsequently the parties submit, and I accept, that there are no requirements pursuant to MLEP cl 6.1 that affect this development application.

15. Pursuant to the requirements of MLEP cl 6.4, Scenic Protection, the site is mapped within a scenic protection area for the purposes of this clause. The parties submit and I accept that based on the information provided in the Statement of Environmental Effects, the development will not impact views to and from Sydney Harbour, and further that the development will maintain the existing natural landscape and landform.

16. Clause 6.6 of MLEP establishes a minimum landscaped area of 45% for this site. The proposed development complies with a landscaped area of 53.7%.

17. The development application seeks consent for earthworks. Based on the Geotechnical Assessment prepared by AscentGeo dated 12 September 2022, the parties submit, and I accept that the matters listed in MLEP cl 6.7(3) have been considered as part of the assessment of the amended plans, and that the proposed earthworks and excavation will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

18. For these reasons, 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.

19. 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.

20. The Court notes:

1. Mosman Council, as the relevant consent authority, has agreed, pursuant to cl 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 8.2022.286.1 to rely upon the plans and documents in Annexure A.

2. The Applicant filed the amended development application with the Court on 28 August 2023.

21. The Court orders:

1. The Applicant’s cl. 4.6 submissions written by Four Towns Planning pursuant to cl. 4.6 of Mosman Shire Local Environment Plan 2012 (MLEP) to vary the height and wall height development standards in cl 4.3 and cl. 4.3A of MLEP are upheld.

2. The Appeal is upheld.

3. Development Application No. 8.2022.286.1 for construction of a dwelling with garage and landscape works at 9 Sirius Avenue, Mosman (Lot B DP395035) is determined by the grant of consent subject to the conditions in Annexure B.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (169074, pdf)

Annexure B (384308, pdf)

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Decision last updated: 20 September 2023