Franks v Mosman Municipal Council

[2020] NSWLEC 1577

Land and Environment Court

New South Wales

Medium Neutral Citation:

Franks v Mosman Municipal Council [2020] NSWLEC 1577

Hearing dates:

Conciliation conference on 9 and 10 November 2020;
Hearing on 10 and 13 November 2020

Date of orders:

24 November 2020

Decision date:

24 November 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1)   Leave is granted to rely on the amended plans in Exhibit A and as described in the conditions in Annexure A.

(2)   The written request under clause 4.6 of the Mosman Local Environmental Plan 2012 is upheld.

(3)   The appeal is upheld.

(4)   Development Consent is granted to DA 8.2019.154.1 at 19 Cabban Street, Mosman for alterations and additions to an existing semi-detached dwelling, including a new first floor addition and new garage at the street frontage, subject to the conditions in Annexure A.

(5)   The exhibits, with the exception of Exhibits A, D and 2 are returned upon publication of my decision to be finalised at the earliest opportunity.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – clause 4.6 variation to floor space ratio – streetscape impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Mosman Local Environmental Plan 2012

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

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

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

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Adam Franks (First Applicant)
Heng Lui (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2020/200339

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Land and Environment Court (the Court) under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Mosman Municipal Council (Council) of Development Application No DA8.2019.154.1 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 225.3m² parcel of land identified as Lot B in DP 440993 at 19 Cabban Street, Mosman (the site). It seeks consent for alterations and additions to an existing semi-detached dwelling, including a new first floor addition and new garage at the street frontage.

3. The DA was originally lodged with Council on 29 October 2019, and notified between 12 – 26 November 2019. Three submissions were received in response to the exhibited application. On 24 February 2020, Council issued its Notice of Determination setting out its reasons for refusal of the application. The Applicant filed the Class 1 application with the Court on 7 July 2020.

4. On 7 July 2020 the Applicant’s solicitors also filed a Notice of Motion seeking leave to rely on amended plans, referred to as the Issue F plans, and associated documents. On 28 July 2020 the Court granted leave to amend the DA to rely on the Issue F plans and supporting material. Those Issue F plans were notified and two further submissions were received. On 17 September 2020 the Council filed an Amended Statement of Facts and Contentions (Amended SOFC) in response to the Issue F plans.

5. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference held on 9 – 10 November 2020. The conciliation conference commenced with a view on site, attended by me along with the solicitors and town planning experts for both parties. Due to the Court’s COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, oral submissions from objectors were not taken on site, but heard on the afternoon of 9 November 2020 via a Microsoft Teams link. Oral submissions were taken by this method from residents of the adjoining dwellings at 17 and 21 Cabban Street, both of whom had previously lodged written objections with the Council. I note that an agreed record of the notes of the objectors oral submissions was tendered as part of the bundle of objector submissions that become Exhibit 4 in the proceedings.

6. The parties failed to reach an agreement as to the terms of a decision that would be acceptable to them. I therefore terminated the s34AA conference and a hearing under the provisions of s 34AA(2)(b)(i) of the LEC Act was convened on 10 November 2020.

7. In preparing for the s34AA conciliation conference the town planning experts, Mr Warren Long for the Applicant and Mr Peter Wells for the Council, (the town planners) had conferred and prepared a “Joint Experts Report – Town Planning” dated 5 November 2020 tendered as Exhibit 2 (Joint Report). The Joint Report related to the Issue F plans.

8. To address matters raised in the Joint Report and at the s34AA conciliation conference on 9 November 2020, the Applicant prepared further amended plans to increase the setback from the street of the first floor addition, lower the height of the subfloor area containing the air conditioning plant and rainwater tanks, and reduce the gross floor area of the building. The Applicant sought leave, without objection from the Council, to amend the DA to rely on those plans, which were tendered in the proceedings as Exhibit A (the Further Amended Plans).

9. The Applicant also tendered a “Further Amended” written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) for a variation to the floor space ratio (FSR) development standard that was prepared by Mr Warren Long and dated 10 November 2020 (Further Amended cl 4.6 request) that became Exhibit D in the proceedings.

10. On 10 November 2020 I stood the matter over until 13 November 2020, to allow the parties time to finalise a set of agreed draft conditions of consent and for the Applicant to submit a revised BASIX certificate. At the mention on 13 November 2020 those two documents were tendered as Exhibits 5 and B respectively.

The evidence

11. At the hearing, the parties agreed that I could rely on oral submissions made by objectors, my own observations at the site view and discussions at the s34AA conciliation conference. The planning experts, Mr Wells and Mr Long, were available to provide oral evidence at the hearing.

12. A number of documents were tendered in evidence, of which the following were of particular relevance to my consideration of this matter:

1. The Joint Report (Exhibit 2), and the Amended Statement of Facts and Contentions (Exhibit 1) that had been addressed by the planners in the Joint Report.

2. The previously amended Landscape Plans, for which leave had already been granted on 28 July 2020, (Exhibit C);

3. Council’s Bundle of Documents (Exhibit 3) that included the MLEP and Mosman Residential Development Control Plan 2012 (DCP) and the public submissions.

4. A supplementary “Bundle of Submissions” (Exhibit 4) made by the objectors.

5. Various documents lodged as part of the Class 1 Application that remained relevant notwithstanding the changes made to the plans.

6. The draft conditions of consent (Exhibit 5).

The Planning controls

13. The following environmental planning instruments apply to the site:

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

2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55).

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

4. Mosman Local Environmental Plan 2012

14. Satisfaction of the requirements of first three of the above-listed environmental planning instruments was not in contention, nor pressed in the proceedings. I have nevertheless considered them, as set out at [15]-[17] below.

15. The Sydney Harbour REP is a deemed State Environmental Planning Policy (SEPP) that applies to the site, and indeed to the whole of the Mosman Local Government Area (LGA) as the LGA is within the Sydney Harbour Catchment. The Statement of Environmental Effects lodged with the original DA, and tendered as part of Ex E, (the original SEE) sets out the matters for consideration under cll 25 and 26 of the Sydney Harbour REP. Having considered those matters I am satisfied, for the reasons set out on pages 12–13 of the original SEE, that the proposal is acceptable.

16. SEPP 55, and in particular cll 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. I accept the advice in the original SEE and by agreement between the parties that the site has historically been used for residential purposes for a sustained period. Accordingly, the site is unlikely to contain any contamination, and therefore no opinion needs to be formed under cll 7(10(b)–(c) of SEPP 55. I also note that there are no contamination issues in contention, and there are suitable conditions of consent included in the unlikely event that any contaminated material is revealed during demolition or excavation works.

17. In relation to the BASIX SEPP a revised Certificate Number A377922_03 dated 10 November 2020 (Ex B) has been provided, demonstrating compliance with the BASIX SEPP.

The Mosman Local Environmental Plan 2012

18. The site is located within an area zoned as Zone R2 Low Density Residential (R2 Zone) under the MLEP. The relevant provisions are set out on Page 5 of the Amended SOFC (Ex 1). The development the subject of the DA is permissible with consent. It exceeds, however, the FSR development standard found at cl 4.4A(a) – Area 1 of the MLEP. The Applicant’s Further Amended cl 4.6 request (Ex D) addresses the variation to this standard. It is agreed between the parties and the planning experts that the amended development proposal does not contravene any other development standards in the MLEP.

Clause 4.6 variation to FSR standard

19. In relation to cll 4.4, 4.4A and 4.6 of the MLEP, I have considered the Further Amended cl 4.6 request to vary the FSR development standard. I have also taken into account the oral evidence of Mr Wells that he had considered the Further Amended cl 4.6 request and believed it to be well founded.

20. The variation, as agreed between the town planners, involves an increase in FSR of approximately 0.02:1 above the maximum FSR of 0.5:1, which equates to an additional 5.74m² of “gross floor area” (GFA) as defined in the MLEP. The town planners also agree that the Further Amended Plans have resulted in a reduction in the GFA (and FSR) that is achieved by:

1. reducing the height of the subfloor space contained the air conditioning plant and storage area for the water tanks so that it is no longer defined as GFA; and

2. reducing the floor space in the first floor addition.

21. In accordance with the requirements of cl 4.6(3)(a) of the MLEP, I am satisfied that the Further Amended cl 4.6 request has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Applying the first test established by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), the objectives of the standard are achieved notwithstanding the non-compliance with the standard. I accept the reasons contained in section 4 (pages 3–5) of the Further Amended cl 4.6 request as demonstrating achievement of the objectives, and specifically that the proposed development is compatible with the desired future character of the area in terms of building bulk and scale, that the adverse effects of that bulk and scale are minimised, that there is a suitable balance between landscaping and built form, and that excavation is limited.

22. As the first test in Wehbe is satisfied, and bearing in mind the circumstances of this matter, there is no need to demonstrate that compliance is unreasonable or unnecessary in more than one of the ways outlined in Wehbe: refer to (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) Preston CJ at [22].

23. In accordance with the requirements of cl 4.6(3)(b), I am satisfied that the Further Amended cl 4.6 request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. I have reached this conclusion for the reasons set out in section 6 (pages 8–10) of the Further Amended cl 4.6 request and taking into account Mr Wells’ oral evidence that there were, as a result of the amendments illustrated in the Further Amended Plans, now sufficient environmental planning grounds to warrant the proposed departure from the standard.

24. For the reasons above, I am therefore satisfied that the Applicant’s Further Amended cl 4.6 request has adequately addressed the two matters referred to in cl 4.6(3) as required under cl 4.6(4)(a)(i).

25. In accordance with the requirements of cl 4.6(4)(a)(ii), I am also satisfied that the proposed development will be in the public interest because:

1. it is consistent with the objectives of the particular standard for the reasons set out in section 4 (pages 3–5) of the Further Amended cl 4.6 request, and

2. it is consistent with the objectives for development within the “Zone R2 Low Density Residential” zone in which the development is proposed to be carried out, for the reasons set out in section 4 (pages 5–7) of the Further Amended cl 4.6 request.

Impacts of the development

26. Section 2.1 of the Joint Report identifies 7 “key issues” in this matter. The issues of FSR, streetscape, semi-detached dwelling compatibility, bulk and scale, garage design and landscape design are inter-related design and streetscape compatibility issues that the experts agreed had been satisfactorily resolved with the Further Amended Plans.

27. In oral evidence Mr Wells advised the Court that the Further Amended Plans resulted in a proposal that had satisfactorily resolved the contentions. Of particular significance to Mr Wells was the fact that the reduction in floor space on the first floor was achieved by an appreciable increase in the setback of that extension behind the gable roof alignment. The resultant reduction in the visual impact of the proposal on the streetscape, coupled with the landscaping treatment around the proposed garage, rendered the development, as amended, acceptable in terms of its impacts on the streetscape and the desired future character of the street and locality. He also considered as well founded that the Further Amended cl 4.6 request which, amongst other things, addresses the bulk and scale of the building and the impact on the streetscape.

28. With both the planners in agreement that the proposed development as amended was acceptable, the Council did not press any of the contentions, subject to the imposition of conditions as set out in the agreed final set of conditions (Ex 5).

29. The amenity of adjoining properties in terms of solar access or view loss was not identified by the town planners in their Joint Report as “key issues” and these were not contested. The planners agreed that potential impacts on the visual privacy of adjoining properties had been addressed by the use of screening or obscure glazing as noted on the plans or by the inclusion of suitable conditions.

Decision

30. Having considered the submissions of the objectors, the evidence of the expert town planners and the submissions of the parties, as well as the matters for consideration under s 4.15 of the EPA Act, and taking into account my own observations at the site view, I am satisfied for the reasons set out in this judgment that:

1. The Further Amended cl 4.6 request for a variation to floor space ratio development standard (Exhibit D) is well founded; and

2. the proposed development, as amended by the Further Amended Plans (Exhibit A), is acceptable in terms of its environmental impacts, subject to conditions; and

3. there are no jurisdictional impediments to the granting of consent.

31. I therefore find that the proposed development should be approved, subject to the conditions as agreed between the parties.

Orders

32. The Court therefore orders:

1. Leave is granted to rely on the Further Amended Plans in Exhibit A and as described in the conditions in Annexure A of this judgment.

2. The written request under clause 4.6 of the Mosman Local Environmental Plan 2012 is upheld.

3. The appeal is upheld.

4. Development Consent is granted to DA 8.2019.154.1 at 19 Cabban Street, Mosman for alterations and additions to an existing semi-detached dwelling, including a new first floor addition and new garage at the street frontage, subject to the conditions in Annexure A.

5. The exhibits, with the exception of Exhibits A, D and 2 are returned upon publication of my written decision to be finalised at the earliest opportunity.

………………………….

J Bindon

Acting Commissioner of the Court

Annexure A (239401, pdf)

Plan (548944, pdf)

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Decision last updated: 24 November 2020