Dracena Group Pty Ltd v Mosman Municipal Council

[2021] NSWLEC 1636

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dracena Group Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1636

Hearing dates:

Conciliation conference held on 5 October 2021

Date of orders:

01 November 2021

Decision date:

01 November 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification Application No.8.2016.217.4 is approved and Development Consent No.8.2016.217.1 is modified in the terms set out in Annexure A.

(3) As a consequence of order (2) above, Development Consent No.8.2016.217.1 is now subject to the consolidated modified conditions of development consent set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – residential development – front fences constructed contrary to development consent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cl 121B

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

Mosman Local Environmental Plan 2012

State Environmental Planning Policy No 55— Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Dracena Group Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors
McKee Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

21/165186

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant appeals from the Council’s refusal of an application to modify development consent No. 8.2016.217.1, granted by the Council on 21 June 2017 (the Consent) in relation to the land described as Lot 1 DP 1243075 and known as 4 Bond Street and 5 Earl Street, Mosman (the Site).

2. The Consent approved the demolition of the then existing commercial suites, retention of the existing basement carparking and podium slab, construction of 7 new residential dwellings over the existing podium slab, reconfiguration of the existing carparking for 16 cars, associated landscaping and the change of use from commercial to residential.

3. Modification application No. 8.2016.217.4 as originally lodged sought to modify the Consent to “Increase hight (sic) of front boundary fence to both Earl Street and Bond Street frontage”. The modification application was amended, with the agreement of the Council, to modify the Consent as follows:

“Modification to the extent of approved masonry and metal fence / gate elements located forward of the front building façade to both the Bond Street and Earl Street frontages as depicted on plans CD301(C) and CD302(C) prepared by Corbin Architects.”

4. The amended plans (CD301(C) and CD302(C) prepared by Corbin Architects) were uploaded to the NSW Planning Portal on 30 September 2021 and lodged with the Court on 1 October 2021. The amended modification application was uploaded to the NSW Planning Portal on 5 October 2021 and lodged with the Court on the same day.

5. The Consent has been modified on two previous occasions, first on 17 September 2018 to increase the number of approved dwellings from 7 to 8 (Modification Application No. 8.2016.217.2) and again on 21 February 2019 for internal and external changes to units 1, 7 and 8 (Modification Application No. 8.2016.217.3)).

6. The modification application the subject of this appeal (Modification Application No. 8.206.217.4) was made to the Council on 24 June 2020 (the Modification Application).

7. The Modification Application was refused by the Council on 17 February 2021 and this appeal was commenced by the Applicant pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 8 June 2021.

8. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 5 October 2021. I presided over the conciliation conference.

9. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 7 October 2021 and is supported by a Joint Jurisdictional Note provided by the parties on 5 October 2021. The agreement involves the Court approving the modification application subject to conditions of consent pursuant to s 4.55(2) of the EPA Act.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

11. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. The development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, this being the test required by s 4.55(2)(a) of the EPA Act. The modifications relate only to the front fences on the Bond St frontage of Unit 1 and the Earl St frontage of Unit 7 and do not change the development in any material way.

2. The notification requirements of s 4.55(2)(c) of the EPA Act have been met. The Modification Application was publicly notified by the Council between 8 and 23 July 2020. One submission was received by the Council but this was later withdrawn.

3. The Joint Jurisdictional Note refers to the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP), which applies to all of the local government area of Mosman and therefore applies to the Site. The Joint Jurisdictional Note states that the Site is not identified by the SREP as being:

1. within the Foreshores and Waterways Area;

2. as a strategic foreshore site;

3. as a heritage item;

4. within the wetlands protection area.

4. Accordingly, the SREP does not impose any jurisdictional requirements which are relevant to the approval of the Modification Application.

5. The Joint Jurisdictional Note also refers to State Environmental Planning Policy No 55—Remediation of Land. However, the obligations imposed by cl 7 of that Policy apply only to the determination of a development application and not a modification application. The Joint Jurisdictional Note notes that the potential for contamination was considered by the Council in the determination of the original development application and that the Council was satisfied that the land was, or could be made, suitable for use for residential purposes. The Modification Application does not involve any change to the approved development that would affect the Council’s original assessment.

6. The Site is within Zone R3 Medium Density Residential under the Mosman Local Environmental Plan 2012 (LEP). The current use of the Site for the purposes of a residential flat building remains a use that may be carried out with development consent on land within that zone. The only development standard that is relevant to the Modification Application is contained in cl 4.3 of the LEP. That clause imposes a maximum building height of 8.5m. The maximum height of the proposed fence is 1.8m and therefore complies with the applicable height limit.

12. As I have concluded that the parties’ agreement involves the making of a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

13. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the Modification Application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

14. The Court notes that:

1. Mosman Council as the relevant consent authority has agreed, under clause 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Modification Application No. 8.2016.217.4.

2. The applicant lodged the following amended plans (the amended plans) prepared by Corben Architects and dated 22 September 2021 on the NSW planning portal on 30 September 2021: Drawing No. CD301 Bond St Fence and Courtyard Rev C and Drawing No. CD302 Earl St Fence and Courtyard Rev C

3. The applicant filed the amended plans with the Court on 1 October 2021.

4. The applicant lodged an amended modification application seeking to rely on the amended plans on the NSW planning portal on 5 October 2021.

5. The amended modification application was lodged with the Court on 5 October 2021.

15. The Court orders that:

1. The appeal is upheld.

2. Modification Application No.8.2016.217.4 is approved and Development Consent No.8.2016.217.1 is modified in the terms set out in Annexure A.

3. As a consequence of order (2) above, Development Consent No.8.2016.217.1 is now subject to the consolidated modified conditions of development consent set out in Annexure B.

.………………………..

A Bradbury

Acting Commissioner of the Court

Annexure A (136691, pdf)

Annexure B (314352, pdf)

Plans (561078, pdf)

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Decision last updated: 01 November 2021