Heaton v Mosman Municipal Council

[2024] NSWLEC 1309

Land and Environment Court

New South Wales

Medium Neutral Citation:

Heaton v Mosman Municipal Council [2024] NSWLEC 1309

Hearing dates:

Conciliation Conference 31 May 2024

Date of orders:

11 June 2024

Decision date:

11 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. 8.2023.161.1 for the change of use from an office to a residential apartment and use of certain “as built” internal non-loadbearing walls and associated minor works at 5/645 Military Road, Mosman NSW 2088, as amended, is determined by grant of consent, subject to the conditions set out in Annexure “A”.

(3) The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $8,000 within 14 days of the date of this order.

Catchwords:

DEVELOPMENT APPEAL – change of use to residential – use of various ‘as built’ internal non-loadbearing walls – minor works – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, Sch 7, ss 38, 64

Mosman Local Environmental Plan 2012, cll 4.4, 5.10

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

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Nicholas James Heaton (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
K Garnock (Solicitor)(Applicant)
R McCulloch (Respondent)

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

File Number(s):

2023/285624

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. 8.2023.318.1 for the change of use of an office to a residential apartment and use of various “as built” internal non-loadbearing walls (the Proposed Development) at 5/645 Military Road, Mosman legally described as Lot 5 in Strata Plan 79896 (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 has been held on 31 May 2024. 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. The Development Application, as amended, seeks consent for the change of use from an office to a residential apartment and use of certain “as built” internal non-loadbearing walls and associated minor works. The key changes made to the Development Application essentially include the following:

1. Introduction of fire safety measures;

2. Reconfiguration of internal layouts including kitchen, relocation of bedroom 1 and office;

3. Amended waste storage room; and

4. Addition of clothes drying area.

5. 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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 the parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement.

8. The Applicant has obtained owner’s consent from the relevant registered proprietor of the Site, evidence of which is located at Tab 2 of the Class 1 Application filed on 7 September 2023 and Tab 6 of the Amended Application filed 29 May 2024 (Amended Application).

9. The Site is located in the E1 Local Centre zone pursuant to the Mosman Local Environmental Plan 2012 (MLEP) where development for the purpose of shop top housing is permitted with consent.

10. The Respondent explains that as the Proposed Development is an alteration of part of an existing building, it complied with s 64 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) and considered whether appropriate and adequate measures have been taken to bring the existing building into total or partial conformity with the Building Code of Australia (BCA) with respect to fire safety measures. In that regard, a BCA report (Issue 2.1) prepared by Building Certificates Australia dated 22 February 2024 has been provided by the Applicant at Tab 2 of the Amended Application. The BCA report recommends an appropriate strategy for fire protection to ensure that the existing tenancy will be fit for use for residential purposes. The parties are satisfied that there are sufficient measures as to the fire protection and structural capacity of the building pursuant to s 64 of the EPA Regulation.

11. The Site is a BASIX affected building in accordance with Schedule 7 of the EPA Regulation and the Applicant has provided a BASIX Certificate at Tab 5 of the Amended Application.

12. The Proposed Development proposes a change of use of the existing first floor tenancy of the existing building and there are no changes proposed to the existing fabric of the building and there are no known historical uses which would indicate contamination. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties agree that it is considered that the Site is consistent with the requirements of the Resilience and Hazards SEPP and is suitable for use for residential purposes.

13. The Proposed Development does not alter the existing floor space ratio (FSR) and gross floor area of 431.4m² where the Site is subject to a maximum FSR of 2.5:1 pursuant to cl 4.4 of the MLEP.

14. The Site is located within the Military Road Heritage Conservation Area and is in close proximity to several heritage items. The parties agree that cl 5.10 of the MLEP, which provides that a consent must not be granted to a development unless the consent authority has considered the impact of the development with respect to a heritage item or if the development is located within a heritage conservation area, is satisfied because the Development Application is accompanied by a Heritage Impact Statement (HIS) prepared by Boston Blyth Fleming Town Planners dated 20 March 2023 at Tab 4 of the Class 1 Application. The HIS concludes that:

1. The proposed change of use does not require any external physical changes to the building or spatial relationship with the surrounding development;

2. The development will have a neutral impact on the significance of adjacent buildings and their settings; and

3. The existing streetscape will be preserved.

15. 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. I adopt the reasons given by the parties as set out in this judgment.

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.

Notations:

17. The Court notes that the Respondent has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. 8.2023.161.1 to rely on the following amended plans and documents:

Tab	Document	Date
1.	Amended Architectural Plans (Rev 9) prepared by Platform Architects: • DA 01, Level 1 Floor Plan, Rev 9	1 March 2024
2.	Building Code of Australia Report, Issue 2.1 prepared by Building Certificates Australia	22 February 2024
3.	DA Acoustic Assessment, Rev 4 prepared by Acoustic Logic	30 January 2024
4.	Operational Waste Management Plan, Rev F prepared by Elephants Foot Consulting Pty Ltd	1 March 2024
5.	BASIX Certificate No. 1738521S prepared by AGA Consultants Pty Limited	5 March 2024
6.	Minutes of EGM of SP 77381 recording Owner’s consent	29 January 2024

Orders:

18. The Court orders:

1. The appeal is upheld.

2. Development Application No. 8.2023.161.1 for the change of use from an office to a residential apartment and use of certain “as built” internal non-loadbearing walls and associated minor works at 5/645 Military Road, Mosman NSW 2088, as amended, is determined by grant of consent, subject to the conditions set out in Annexure “A”.

3. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $8,000 within 14 days of the date of this order.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 11 June 2024