Hualand Ida Rd Pty Ltd v Mosman Council

[2020] NSWLEC 1451

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hualand Ida Rd Pty Ltd v Mosman Council [2020] NSWLEC 1451

Hearing dates:

16 September 2020, Conciliation conference on 17 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant’s to amend the development application and rely on the plans and documents listed under condition 1 of Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application.

(3) The appeal is upheld.

(4) Development consent is granted to development application number 008.2019.00000009 for demolition of existing dwellings and construction of a two-storey residential flat building comprising five apartments with basement car park at 2 Ida Avenue, Mosman in accordance with the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Demolition and construction of new residential flat building – extent of excavation – amenity of apartments – amended plans – agreement between the parties – orders

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

Category:

Principal judgment

Parties:

Hualand Ida Rd Pty Ltd (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
C McEwen SC (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Pikes Verekers Lawyers (Respondent)

File Number(s):

2019/122098

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant, Hualand Ida Rd Pty Ltd, against the deemed refusal of its development application by Mosman Council (the Respondent). The development application, DA8.2019.9.1, sought consent for demolition of the existing dwelling house, removal of trees and construction of a residential flat building comprising 5 dwellings and basement carparking. The application also seeks consent for strata subdivision. The development is proposed at 2 Ida Avenue, Mosman (Lot L in DP 19527).

2. Prior to the commencement of the proceedings the applicant sought and was granted leave to amend their development application. These amendments reduced the extent of tree removal proposed, resulted in the development complying with the development standards for building height, wall height and floor space.

3. Leave for the Applicant to further amend their application in response to the joint report of the town planning experts was unopposed and granted by the Court at the commencement of the hearing.

4. At the close of the first day of the hearing, the parties requested an adjournment of the hearing to allow the matter to be referred to conciliation. The Court arranged a further conciliation conference under s 34(1)(a) of the Land and Environment Court Act 1979 (LEC Act) and I adjourned the remainder of the hearing of the proceedings until after that conciliation conference had been held.  I presided over that conference. At the conciliation conference the parties advised that they had resolved the merits of the application and reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves the Court upholding the appeal and granting consent to Development Application DA008.2019.00000009 subject to agreed conditions of consent.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was lodged with the consent of the owner of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

2. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. I accept that the likelihood of contamination is low.

3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the subject site. In determining the development application, I have taken into consideration the matters in Division 2 of the instrument as are relevant to the development application. The subject site is not within the Foreshores and Waterways area as mapped.

4. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged.

5. Pursuant to the Mosman Local Environmental Plan 2012 (LEP 2012) the subject site is zoned R3 Medium Density Residential. The proposed development, residential flat building, is permissible with consent in the zone. As required by cl 2.3(2) of LEP 2012 I have taken into consideration the objectives of the zone in determining the development application.

6. The development is compliant with the development standards in LEP 2012 for maximum height (cl. 4.3), wall height (cl. 4.3A) and floor space ratio (cl. 4.4).

7. As required by cl 5.10(4) of LEP 2012 I have given consideration to the potential for the proposed development to impact on the heritage significance of the adjoining local heritage item: I289 ‘House’ (230 Spit Road, Mosman). I am satisfied any impact arising from the development is not sufficient to warrant the refusal of the application.

8. In determining the development application, I have given consideration to the specific impacts of the proposed development listed at cl 6.2(2) of LEP 2012.

9. Clause 6.4: Scenic Protection in LEP 2012 applies to the subject site. As required by cl 6.4(3) of LEP 2012 I am satisfied that measures will be taken to minimise the visual impact of the development to and from Sydney Harbour and that the development will maintain the existing natural landscape and landform.

10. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. Leave is granted to the Applicant’s to amend the development application and rely on the plans and documents listed under condition 1 of Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application.

3. The appeal is upheld.

4. Development consent is granted to development application number 008.2019.00000009 for demolition of existing dwellings and construction of a two-storey residential flat building comprising five apartments with basement car park at 2 Ida Avenue, Mosman in accordance with the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (83183, docx)

Plans (2312470, pdf)

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Decision last updated: 25 September 2020