Heaton v Mosman Municipal Council

[2024] NSWLEC 1346

Land and Environment Court

New South Wales

Medium Neutral Citation:

Heaton v Mosman Municipal Council [2024] NSWLEC 1346

Hearing dates:

17 June 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant’s written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) to vary the development standard for the height of buildings within cl 4.3 thereof, prepared by Boston Blyth Fleming Town Planners, is upheld.

(2) The Applicant’s written request made pursuant to cl 4.6 of the MLEP to vary the development standard for the height of buildings within cl 4.3A thereof, prepared by Boston Blyth Fleming Town Planners, is upheld.

(3) The appeal is upheld.

(4) Development application No. 8.2022.318.1 for the demolition of existing structures and construction of a new residential flat building comprising three dwellings, basement parking and associated site works at 92 Raglan Street, Mosman NSW 2088, is determined by the grant of consent subject to conditions of consent at annexure A.

(5) All exhibits are returned except for Exhibits A, B, D and E.

Catchwords:

DEVELOPMENT APPLICATION – Residential apartment development in R3 Medium Density Residential zone – orders by consent of the parties – public submissions

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 4.17, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.6, 5.10, 6.1, 6.4, 6.6, 6.7, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, 6.65, 6.6, 6.7, Chs 7-12

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

State Environmental Planning Policy Amendment (Water Catchments) 2022

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349

Texts Cited:

Land and Environment Court of NSW, Practice Note Class 1 Residential Development Appeals

Mosman Community Participation Plan

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Eva Heaton (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/309549

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A two-storey dwelling stands on land located to the west of Raglan Street, Mosman. Development is proposed on the land for the purpose of a residential flat building over basement car parking with associated landscaping.

2. To this end, Development application No 8.2022.318.1 (the DA), seeking consent for demolition of existing structures on the site and construction of three apartments over basement car parking, landscaping works, stormwater drainage and the like, was lodged by the Applicant in these proceedings, with Mosman Council (the Respondent) on 21 September 2022.

3. The DA was notified in accordance with the Mosman Community Participation Plan between 23 January 2023 to 6 February 2023, in response to which the Respondent received 96 submissions.

4. On 29 September 2023, the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Land and Environment Court’s jurisdiction.

5. On 21 March 2024, the Applicant was granted leave to rely on amended plans and other documents listed in a Notice of Motion filed with the Court on 15 March 2024, and the Respondent, as the relevant consent authority approved, under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the Applicant amending the DA (the DA as amended).

6. On 18 April 2024, the Respondent filed an amended statement of facts and contentions (Exhibit 1) in which all contentions are identified to be resolved.

7. On 6 June 2024, the Respondent filed proposed consent orders signed by the parties, in a manner consistent with par 94 of the Court’s Practice Note on Class 1 Residential Development Appeals.

8. Consistent with the terms of the Practice Note, the Respondent notified objectors of the proceedings, in response to which there were no further submissions beyond those written submissions contained in the Bundle of documents filed by the Respondent on 3 June 2024 (Exhibit 2).

The site and its context

9. The site is known as 92 Raglan Street, Mosman having a width of 20.32m, and an area of 752.5m².

10. The site is legally described as Lot B in DP 339106 on the survey prepared in support of the DA (Exhibit A, Tab 19).

11. Residential flat buildings generally occupy sites to the nominal south of the site, while single and two-storey dwellings occupy sites to the nominal north of the site.

12. The site itself is within 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 of 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.

The height standard is exceeded

13. The proposed development reaches a height of 8.86m above the existing ground level on the site. As such, it exceeds the height of buildings development standard found at cl 4.3 of the MLEP that sets a maximum height standard for the site of 8.5m.

14. The exceedance is depicted in Figure 1, on p 2 of the written request authored by Boston Blyth Fleming dated 7 March 2024 (height request) (Exhibit B, Tab 2) , re-produced below:

15. Clause 4.6 of the MLEP allows a consent authority, or the Court exercising the functions and discretions of the consent authority on appeal, to grant development consent to development that contravenes a development standard, but only after considering a written request from the Applicant that seeks to justify the contravention by demonstrating, firstly, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and  that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

16. The height request asserts it is unreasonable or unnecessary to comply with the height standard because the proposal is consistent with the objectives of the height standard, notwithstanding the non-compliance.

17. The objectives of the height standard at cl 4.3(1)(a) of the MLEP are:

(i)  to share public and private views, and

(ii)  to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

(iii)  to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and

(iv)  to minimise the adverse effects of bulk and scale of buildings,

18. In respect of objective (i), the height request considers there to be no view corridors of note, as evidenced by the absence of the site from the Significant Public Views and Vistas of the Sirius Slopes Townscape Map at Part 7.4 of the Mosman Residential Development Control Plan 2012 (MRDCP).

19. In respect of objective (ii), the non-compliant portion of the development is lower than the height of the existing building on the site and that of neighbouring building to the south west, and is limited to the thickness of the upper roof form. The visual impact has been minimised by locating the driveway on the lower portion of the site that enables the built form over to be kept as low as possible, and by tapering the upper eave detail to minimise its perceived thickness.

20. In respect of objective (iii), the proposal does not impose unreasonable amenity impacts on surrounding properties and remains 2.46m below the ridgeline of the existing dwelling on the site, and 1.7m below the height of the roof of the adjoining residential flat building at No 90 Raglan Street. When understood in the context of surrounding development, the proposal is compatible, with a height and bulk that is not offensive, jarring or unsympathetic in the streetscape.

21. In respect of objective (iv), steps have been taken to minimise the adverse effects of bulk and scale by locating the driveway at the lower point on the site, tapering the eaves that exceeds the height standard, and by increasing side boundary setbacks at the rear of the site reduce the bulk and scale of the built form.

22. Next, the height request advances environmental planning grounds. It considers sufficient to justify the contravention of the height standard, summarised as follows:

1. Firstly, the proposal is contextually compatible with the height of adjacent and nearby development that will not give rise to streetscape or residential amenity impacts that are unreasonable or unacceptable. Requiring strict compliance would either require the removal of the uppermost storey, or lowering of the building by additional excavation that would compromise the amenity of the ground floor apartment.

2. Secondly, the extent of the exceedance is partly due to the fall in topography towards the rear of the site. Accordingly, the building has been tapered to minimise the extent of greatest exceedance.

3. Thirdly, the variation furthers the objects of the EPA Act in respect of objects at subss 1.3(c) and (g) to promote orderly and economic development, and to promote good design of amenity of the built environment.

23. Finally, the height request also asserts that the proposed development is in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R3 zone at [12] in which the development is proposed to be carried out (cl 4.6(4)(a)(ii) of the MLEP). This is because the proposed residential flat building will provide three dwellings in development with a housing density consistent with a medium density residential environment, and because three by three-bedroom apartments contribute to the variety of housing typologies in the area, such as providing larger apartments than those at 86, 88 and 90 Raglan Street in which two-bedroom apartment predominate. Furthermore, the proposal is compatible with the desired future character for reasons similar to those at [20].

24. I note here that the Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R3 Medium Density Residential Zone.

25. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP.

26. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height standard under cl 4.3 is justified.

27. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R3 Medium Density Residential Zone, for the reasons given in the height request, summarised above.

28. In forming this opinion of satisfaction, I note the shadow diagrams prepared by Platforms Architects (Exhibit B, Tab 1) demonstrate that overshadowing of the proposal, when compared to the existing built form, represents improved solar access to the lower units of the building to the south, No 90 Raglan Street, most notably between 11am and 1pm in midwinter. Such an outcome supports the assertion made in the height request that adverse impacts are minimised by increasing side boundary setbacks at the rear of the site reduce the bulk and scale of the built form.

29. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find no grounds on which the Court should not uphold the height request.

The wall height standard is exceeded

30. Clause 4.3A of the MLEP provides that the wall height of a building shall not exceeds 7.2m at any point.

31. The Dictionary of the MLEP defines wall height in the following terms:

wall height means the vertical distance from ground level (existing) to—

(b)  the underside of the eaves at the wall line, parapet or flat roof, whichever is highest, or

(a)  for a building with a mansard roof—1.8m above the finished floor level of the roof space.

32. The façade facing Raglan Street has a maximum height of 8.5m, as so exceeds the wall height standard at cl 4.3A. Likewise, the rear façade, at 8.68m, exceeds the wall height standard.

33. The Applicant relies on a written request authored by Boston Blyth Fleming dated 7 March 2024 (wall height request) (Exhibit B, Tab 3) to assert it is unreasonable or unnecessary to comply with the wall height standard because the proposal is consistent with the objectives of the height standard, notwithstanding the non-compliance.

34. The objectives at cl 4.3A are as follows:

(a)  to provide for view sharing,

(b)  to minimise the adverse effects of the bulk and scale of buildings,

(c)  to encourage 2-storey buildings consistent with the desired future character of the area.

35. The wall height request asserts the objectives are achieved because there are relevant views to be shared, and that the adverse effects of bulk and scale are minimised for reasons virtually identical to those at [21]. Finally, the number of storeys presented to Raglan Street is consistent with existing development that forms the built context of the site, including three and four-storey residential flat buildings.

36. The environmental planning grounds said to be sufficient to justify the contravening of the wall height standard are essentially identical to those at [22], and consistency with the objectives of the R3 zone are likewise identical to those at [23].

37. The Respondent is satisfied that the wall height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the wall height standard and the objectives for development in the R3 Medium Density Residential Zone.

38. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP.

39. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the wall height standard under cl 4.3A is justified.

40. I am satisfied under cl 4.6(4) that the wall height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the R3 Medium Density Residential Zone, for the reasons given in the wall height request, summarised above.

41. In forming this opinion of satisfaction, I note the upper level that gives rise to the exceedance is inset to the front and rear setback, and is also recessed to the side setbacks and treated in a different and more lightweight material to the two storeys below.

42. I have considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find no grounds on which the Court should not uphold the wall height request.

Jurisdictional considerations, Mosman Local Environmental Plan 2012

43. The site is not identified as an item of heritage significance, and is not located within a heritage conservation area identified in Sch 5 of the MLEP. However, the site is located in the vicinity of several heritage items, and in the vicinity of the Shadforth Street Conservation Area. While not a matter of contest between the parties, I note cl 5.10(5) of the MLEP provides for circumstances where development is proposed in the vicinity of a heritage item. A Heritage Impact Statement, prepare by Weir Phillips dated February 2024 (SHI) (Exhibit B, Tab 5), undertakes an assessment of the proposed development on heritage items in the vicinity, and concludes the proposal is consistent with the evolving modern setting of the area, without imposing any adverse impact on heritage items or nearby conservation areas.

44. According to the Acid Sulfate Soils Map at cl 6.1(2) of the MLEP, the site is not affected by Acid Sulfate Soils.

45. The site is identified within the Scenic Protection Area by the relevant map at cl 6.4(2) of the MLEP, however I am satisfied that the lower built form when compared to neighbouring buildings, retention of existing trees and perimeter landscape planting has the effect of minimising the visual impact of the development to and from Sydney Harbour, and the development will maintain the existing natural landscape and landform.

46. As the site has an area of 752.5m², cl 6.6(3)(b)(i) of the MLEP requires 50% of the site area to be landscaped area to preclude refusal. The architectural plans (Exhibit B, Tab 1) provide calculations indicating a landscaped area of 30% of the site is proposed. The parties agree the addition of two native canopy trees with a minimum height of 8m achieves the quantum and quality of landscaping proposed considered appropriate for the R3 zone, and is consistent with the objectives of cl 6.6 of the MLEP, being as follows:

(a)  to have the landscape and townscape area character of Mosman’s residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development,

(b)  to have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores, while recognising the difficulty of achieving this on small lots where there are existing buildings such as semi-detached dwellings,

(c)  to have adequate and usable ground level open space for recreation, landscaping and containing urban run-off.

47. I have considered the Geotechnical Investigation Report prepared by EI Australia dated 17 November 2022 (Exhibit A, Tab 8), Structural statement prepared by SCP engineers and development consultants dated 30 January 2024 (Structural Statement) (Exhibit B, Tab 11), Landscape Plans prepared by Paul Scrivener (Exhibit B, Tab 9), and Stormwater Drainage Plans prepared by IStruct Consulting Engineers (Stormwater Plans) (Exhibit B, Tab 10). I have considered those matters at cl 6.7(3) of the MLEP and conclude the proposed excavation is reasonable because rock anchors are not required under neighbouring properties, and because a pile and capping beam is proposed to be installed prior to excavation.

47. I note here that the site falls to the rear of the site, away from Raglan Street and in the direction of properties fronting Shadforth Street to the west.

48. The Applicant submits that the development the subject of the DA does not propose works on adjoining land, but rather proposes a 1m wide easement for the disposal of stormwater over adjoining land, subject to the easement that is the subject of a deferred commencement condition.

49. The purpose of depicting that pathway is to permit the Court to assess the impacts of those off-site works, in a manner consistent with that found in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349, where there is no implied limitation on the exercise of considering matters of relevance to the development the subject of the development application, whether or not the development consent sought is subject to a deferred commencement condition (Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [37]).

50. The land on which development is proposed to be carried out is not the adjoining land, and does not involve stages as in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 (‘Al Maha’) at [157], and does not propose conditions of consent for the undertaking of such works, which further distinguishes this case from that of Al Maha.

51. Instead, the propose a deferred commencement condition to require an easement to drain stormwater over adjoining lot(s) to be obtained within 365 days of the grant of consent.

52. The Stormwater Plans depict the necessary components of the stormwater drainage system proposed on the site, and the parties agree that a pathway for drainage to Shadforth Street can be achievable through Nos 17, 19 and 21. Shadforth Street, free of structures or impact on existing trees. To this end, plans and other images are relied on by the Applicant (Exhibits D), and a Stormwater plan, identified as Drawing D03 (Exhibit E), depicts one possible pathway to drain stormwater through the side setback of No 21 Shadforth Street.

Public submissions

54. In broad terms, public submissions prepared in response to the proposal, and contained in Exhibit 2, fall into the following themes that I will now consider. As is not uncommon where there is great public interest in the proposed development, some of the submissions appear identical, and so reference to one infers reference to all such submissions. That said, not all submissions object to the proposal but rather some submissions voice support for the development as proposed.

Solar Access

55. Shadow diagrams indicate a greater extent of overshadowing to No 90 Raglan Street than by the existing building (folio 70), that may result in loss of sunlight and views from apartments in No 90 Raglan Street (folios 131, 157).

56. I note the proposed development increases the setback to the south of the site from 900mm, as shown on the survey, to a minimum of 5100mmin the proposed development. As such, I consider the consequence of this is to increase the sunlight and views enjoyed by apartments to the south of the site, as stated at [28].

The existing dwelling is to be demolished/ heritage lost

57. Public submissions seek the retention of the existing dwelling on the grounds it is part of Mosman’s heritage and history (folio 17, 152), its historical significance (folio 18), as a Mosman Historical Landmark (folio 21), and there are other ‘non heritage sites’ that are very suitable for development such as that proposed (folio 15).

58. While the existing building has stood for over a century, as stated at [43], the site is not listed for its heritage significance, and the SHI concludes, unopposed by expert evidence, that the proposed development will not impose an adverse impact on heritage items or conservation areas in the vicinity of the site.

The proposal diminishes the character of the area

59. It will be an eyesore among beautiful homes (folios 36, 83), it is oversized, presents three storeys and not two (folio 93), increases density with inadequate side setbacks, height and landscape area. The design is not sympathetic to surrounding styles of dwellings but is an unattractive box-like structure (folio 73) with a communal stair in the front setback that is barely screened (folio 76), and akin to a stairway to a parking station (folio 179). It is out of sync with the traditional architectural styles of Mosman (folio 126), and does not fit or blend with the existing historical and heritage style of surrounding houses (folio 161).

60. In a development assessment report prepared on behalf of the Respondent (Assessment Report) (Exhibit 3), the roof form of the proposal is considered ‘congruent’ with the diversity of roof forms evident in the locality, is not excessive in its height, bulk or scale, notwithstanding its exceedance of the height standard, and imposes no adverse amenity on the area. In fact, the overall height of the proposal is lower than the existing, and the siting and layout of the proposal has the effect of minimising its bulk and scale.

Excavation is excessive

61. The extent and depth of excavation may disturb adjoining and nearby properties (folios 29, 67, 78), with further investigation into groundwater conditions warranted (folio 67).

62. The Applicant’s Structural Statement cited at [47] considers a construction methodology for excavation, piling, rock anchors and the like where excavation is closest to the side boundaries.

Traffic and parking

63. The existing deficit of on-street car parking will be exacerbated (folio 42), in part due to the demographic profile of potential buyers that are likely to own two plus vehicles (folio 84). Parking is already difficult due to commuter’s choosing to park in Raglan Street en route to ferry wharfs close by (folio 124).

64. I note agreement between the experts as to the number of parking spaces provided in the proposed basement.

Landscaping is inadequate

65. One submission expresses concern at the potential for tree loss on adjoining land at No 90 Raglan Street (folio 156), and a number express concern that the proposal does not provide sufficient landscaped area.

66. For reasons set out at [46], the parties agree the landscape design is appropriate for the site, and the area. I also note here that the provision at cl 6.6 of the MLEP does not require the Court to refuse consent in the event a development does not achieve 50% landscaped area. Rather, the provision is worded to extend discretion where a landscaped area of 50% is not achieved.

67. The Assessment Report concludes that the proposal satisfies the objectives at cl 6.6 of the MLEP, subject to agreed conditions of consent, annexed at Exhibit 4.

68. I accept the view of the parties that the landscape design is not rendered inappropriate or unacceptable by achieving a landscaped area of less than 50% of the site and is not, of itself, a reason for refusal.

Setback is inadequate

69. The proposal has a setback of only 1500mm to the property to the north of the site, No 94a Raglan Street (folio 183), that does not conform with the requirement for 3m setback.

70. I note the Assessment Report considers the south western setback appropriate as it exceeds the 3m setback required by the provisions at Part 4.2 of the MRDCP. The siting of the building with such a setback is also a reason the Assessment Report cites in providing appropriate solar access to neighbouring properties. While the setback to the north is less than 3m, the Assessment Report concludes the design and siting of the current proposal avoids undesirable amenity impacts on neighbouring properties.

State Environmental Planning Policy (Transport and Infrastructure) 2021

71. The Respondent’s assessment report, filed with the Court, on 17 May 2024, records that the DA was referred to the relevant electricity supply authority, Ausgrid, in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021.

72. While undated, Ausgrid advises it does not object to the proposal but advised care should be taken to ensure the proposed works do not interfere with existing electrical network assets (Exhibit 2, folio 14).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

73. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The DA is accompanied by an arboricultural impact assessment report prepared by Blues Bros Arboriculture dated 16 November 2022, and by an Arborist Addendum of the same author, dated 30 January 2024 (Arborist Addendum) recording the likely impact of development on the northern hedge, a street tree identified as T10, and trees on neighbouring properties identified as T1 and T11. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

74. On the basis of the conclusions reached in the Arborist Addendum, comprising the replacement of the hedge with a similar hedge-forming Lilly Pilly, and reduction in impact on tree protection zones of remaining trees, I consider the aims of Ch 2 to be achieved.

75. As the DA was lodged after the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022, the savings and transitional provisions at s 6.65 of the Biodiversity SEPP do not apply. The effect of this is that Chs 7-12 are repealed.

76. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. The parties agree the site is not within the Foreshores and Waterways Area, is not a strategic foreshore site, a heritage item or land within a wetland’s protection area.

77. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

78. On the basis of the detention and filtration of stormwater depicted in the Stormwater Plans, I am satisfied that the proposal demonstrates conformity with s 6.6 of the Biodiversity SEPP by providing sediment control and water capture in the post-development scenario in a manner that achieves a neutral or beneficial effect on the water quality and water flow into the harbour.

79. For similar reasons, I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion.

State Environmental Planning Policy (Resilience and Hazards) 2021

80. On the basis of the detailed historical assessment of the site that appears in SHI, I accept the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

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

81. The application is accompanied by a BASIX certificate (Cert No. 1340992M_02 dated 8 February 2024) prepared by Eco Certificates Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

82. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the DA as amended from the provisions of Sustainable Buildings SEPP.

Conclusion    

83. Having considered the public submissions, I conclude the proposed development is deserving of the grant of consent, subject to conditions agreed between parties and in accordance with s 4.17 of the EPA Act.

84. I note here that the DA as amended was notified to objectors between 6 and 21 February 2024, and again on 22 March 2024.

Orders

85. The Court orders that:

1. The Applicant’s written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) to vary the development standard for the height of buildings within cl 4.3 thereof, prepared by Boston Blyth Fleming Town Planners, is upheld.

2. The Applicant’s written request made pursuant to cl 4.6 of the MLEP to vary the development standard for the height of buildings within cl 4.3A thereof, prepared by Boston Blyth Fleming Town Planners, is upheld.

3. The appeal is upheld.

4. Development application No. 8.2022.318.1 for the demolition of existing structures and construction of a new residential flat building comprising three dwellings, basement parking and associated site works at 92 Raglan Street, Mosman NSW 2088, is determined by the grant of consent subject to conditions of consent at annexure A.

5. All exhibits are returned except for Exhibits A, B, D and E.

……………………

T Horton

Commissioner of the Court

Annexure A (358874, pdf)

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Decision last updated: 25 June 2024