Ilme Pty Ltd v Mosman Municipal Council

[2020] NSWLEC 1165

Land and Environment Court

New South Wales

Medium Neutral Citation:	ILME Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1165
Hearing dates:	Conciliation conference on 30 March 2020
Date of orders:	07 April 2020
Decision date:	07 April 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) Leave is granted to the Applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits C. (2) The Applicant’s written requests made pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking to contravene development standards for minimum lot size at clause 4.1 and 4.3A of the Mosman Local Environmental Plan 2012 are upheld. (3) The appeal is upheld. (4) Development consent for Development Application 8.2017.260 for the demolition of the semi-detached dwelling, boundary adjustment and construction of a new part 3-storey, part 4-storey dwelling house and swimming pool, double garage, retaining walls, tree removal and landscaping is granted, subject to the conditions at Annexure ‘A’. (5) All exhibits are returned, except for Exhibits A, B, C and J.
Catchwords:	DEVELOPMENT APPLICATION – single dwelling residential development – height of buildings – minimum lot size – scenic foreshore protection
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Mosman Residential Development Control Plan 2012 Covid-19 Pandemic Arrangements Policy, Land and Environment Court of New South Wales
Category:	Principal judgment
Parties:	ILME Pty Ltd (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) R McCulloch (Solicitor) (Respondent)   Solicitors: Madison Marcus (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/235633
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal by the Mosman Municipal Council (the respondent) of Development Application 8.2017.260 for the demolition of the semi-detached dwelling, boundary adjustment and construction of a new part 3-, part 4-storey dwelling house and swimming pool, double garage, retaining walls, tree removal and landscaping (the site).

2. Leave was granted to the Applicant on 27 August 2019 to amend the application and rely upon amended plans and other documents that are marked Exhibit B. The amendments may be summarised as follows:

Studio Level

• Floor level lowered

• Bathroom size reduced

• Eastern and western side setbacks adjusted to 1500mm

Lower ground floor

• Floor level lowered

• Internal layout amended

Ground floor

• Split floor levels introduced

• Eastern side setback increased from 930mm to 1500mm

• Western side setback adjusted to 1500mm

• Green roof treatment increased in size

First floor

• Split levels introduced

• Green roof treatment introduced

• Eastern and western side setbacks adjusted to 1500mm

Roof plan

• Main roof lowered 590mm

• Secondary roof over lift lowered 790mm.

Conduct of the proceedings

3. The matter was listed for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (‘LEC Act’) on 30 March 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court’s website.

4. Consistent with the Pandemic Policy, the Court arranged a telephone mention with the parties on 27 March 2020 at which the parties consented to the hearing proceeding by telephone.

5. The conciliation conference commenced on 30 March 2020 by telephone. No objectors provided submissions at the commencement of proceedings, however written submissions were contained in materials provided by the Council prior to the proceedings, later marked Exhibit 2.

6. While the parties were able to resolve a number of matters during the conciliation, agreement was not reached on all of the issues in contention. Consequently, I terminated the conciliation conference pursuant to s 34(4) of the LEC Act.

7. The parties consented, in writing, to me as the presiding Commissioner, disposing of the proceedings on the basis of what occurred at the conciliation conference in accordance with s 34AA(2)(b)(ii) of the LEC Act.

The site and its context

8. The site currently contains a semi-detached dwelling comprising Lot Y in DP 440037, being known as No 7 Sirius Avenue, adjoining No 5 Sirius Avenue.

9. The site has a frontage to Sirius Avenue of 10.008m and a total area of 612.1m². There is a steep fall on the site, of 11.43m from Sirius Avenue to the north, to a reserve at the south of the site.

10. Curlew Camp Road runs between the southern boundary of the site and Sirius Cove Reserve, beyond which is Sirius Cove and Sydney Harbour.

11. The surrounding development consists of dwelling houses of varying heights and styles. To the immediate west of the site is a semi-detached dwelling at No 5 Sirius Avenue.

12. The site is within the R2 Low Density Residential zone pursuant to the Mosman Local Environmental Plan 2012 (MLEP) in which dwelling house development is permitted with consent, and wherein the objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

• To ensure that development is of a height and scale that seeks to achieve the desired future character.

• To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

• To minimise the adverse effects of bulk and scale of buildings.

13. The site is also within the Sirius Slopes Townscape as identified in Section 7.4(20) of the Mosman Residential Development Control Plan 2012 (MDCP).

The Contentions

14. The facts and contentions in this matter are contained in Exhibit 1, however joint conferencing by the experts resulted in agreement on a number of the issues that are incorporated in further amended plans at Exhibit C.

15. As the matters in dispute are confined to planning issues, the Court was assisted by Town Planning experts being Mr George Karavanas for the Applicant, and Mr Peter Wells for the Respondent.

16. Notwithstanding the agreement of the experts, the parties seek the Court’s determination of the remaining issues that may be summarised as follows:

• Contention 1 – the proposed bulk and scale of the proposal is excessive.

• Contention 2 – The proposed setbacks are not satisfactory

• Contention 3 – The proposal causes a loss of visual privacy to surrounding properties

• Contentions 4-6 descend from the proposed stormwater disposal which the parties have resolved by way of a proposed deferred condition of consent.

• Contention 7- The proposal has an adverse visual impact when viewed from Sydney Harbour.

17. Objector submissions are found in Council’s bundle at Exhibit 2, Tab 3. In broad terms, the objections raised by the owners of No’s 8 and 10 Sirius Avenue relate to the bulk and scale of the proposal, and the potential for view loss.

18. While the contentions are set out at [16] in the order as they appear in the Statement of Facts and Contentions, the Respondent contends that the Court’s power to grant consent is constrained by two matters that are a pre-condition to the exercise of that power, being the contravention of the maximum wall height standard at cl 4.3 of the MLEP, and the Minimum lot size standard at cl 4.1 of the MLEP.

19. For this reason, I will consider the contentions that constitute a jurisdictional pre-condition first. In the event that I am satisfied that the pre-conditions are met, only then will I consider the remaining issues of merit.

Planning framework

20. The minimum lot size applicable to the site, at cl 4.1 of the MLEP is 930m². The objectives of the provision are in the following terms:

(1)  The objectives of this clause are as follows—

(a)  to retain the pattern of subdivision in residential zones while allowing infill development of smaller lots in some areas,

(b)  to ensure lots have a minimum size that is sufficient to provide useable area for building and landscaping,

(c)  to require larger lots along the foreshore or where the topography or other natural features of a site limit its subdivision potential,

(d)  to provide small lot subdivision in some zones as an alternative to redevelopment for the purpose of multi dwelling housing and the like to ensure the retention of the existing dwelling stock and the amenity of the area.

21. Clause 4.3A of the MLEP provides, at (1) that the maximum height of the building applicable to the site is 8.5m. Subclause (2) provides that the consent authority, or the Court on appeal, may refuse development consent if a building has more than two storeys above the existing ground level.

22. Clause 4.3A (4) provides for a maximum wall height of 7.2m. Wall height is defined at subcl (5) in the following terms:

Wall height means the vertical distance between the ground level (existing) and the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest.

23. Clause 4.3A, being additional provisions associated with cl 4.3, does not contain distinct objectives, however the Applicant relies upon the objectives at cl 4.3 being, relevantly:

(a) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential—

(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,

…

24. As the site is visible from Sirius Cove, the provisions of cl 6.4 apply and are in the following terms:

6.4 Scenic protection

(1) The objectives of this clause are as follows—

(a) to recognise and protect the natural and visual environment of Mosman and Sydney Harbour,

(b) to reinforce the dominance of landscape over built form,

(c) to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments.

(2) This clause applies to land identified as “Scenic Protection Area” on the Scenic Protection Map.

(3) Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that—

(a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and

(b) the development will maintain the existing natural landscape and landform.

The proposed bulk and scale of the proposal is excessive.

25. The experts are agreed that the amended plans at Exhibit C numerically comply with the height of buildings development standard, and that further detailed sections in Exhibit C provide clarity on the height and setback of areas originally contended to exceed the wall height provision at cl 4.3A of the MLEP.

26. To Mr Wells, the definition of wall height in the MLEP can be read in a manner for the dimension to be taken from the top of a flat roof in which case certain parts of the proposal remain in excess of 7.2m, including at the south eastern corner of the master bedroom, at the access to the master bedroom, and at the south eastern corner of the living/dining room.

27. That said, Mr Wells acknowledges that the provision of an eaves overhang will reduce the visual effect of the exceedance by throwing shadow on the walls.

28. The Applicant considers the definition of wall height is taken from the underside of the eaves, however as there is also a limit of two storeys which applies to residential development in the R2 Low Density Residential Zone, but which is not expressed as a prohibition on approval, the Applicant relies upon a written request made pursuant to cl 4.6 of the MLEP and prepared by Mr George Karavanas of GSA Planning, dated March 2020 (Exhibit D) to justify the contravention of the development standard.

29. Clause 4.6 of the MLEP provides the Court with the power to grant development consent to the development even though the development would contravene the additional provisions associated with cl 4.3 of the MLEP in relation to wall height and number of storeys, but that power is subject to conditions

30. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and

2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)),

3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and

4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

31. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that:

1. the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3); and

2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

32. Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act but should still consider the matters in cl 4.6(5) of the MLEP (Initial Action at [29]).

33. The written request states the exceedance occurs in 2 locations on the site, close to the eastern setback and due, in part, to the step fall in topography. While the development will present to the street as a 2-storey form, two portions of the development are 3-storeys in height, providing a ground for refusal under subcl 4.3A(2).

34. The written request seeks to demonstrate that compliance with the height standard is unreasonable or unnecessary based on two of the commonly relied upon tests set out in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (“Wehbe”).

35. The written request also relies upon the reading of cl 4.3A as a whole to derive the underlying purpose of the standard as it appears in cl 4.3A. In particular, subsection (2) and (3) in which operative provisions are found:

(2) The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing).

(3) However, the consent authority may grant development consent for an additional storey in the foundation space of an existing building on land to which this clause applies if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale.

36. The written request states firstly, that the objectives of the standard, being those set out at cl 4.3 of the MLEP at [23], are achieved notwithstanding the non-compliance with the standard because:

1. Despite the non-compliance, the proposal achieves the low density character of the zone with a complying floor space ratio and a bulk and scale that is consistent with Council’s controls and with adjoining properties on Sirius Avenue.

2. The proposal is not likely to result in any view loss from neighbouring properties, is consistent with Figure 4 at Part 4.3 of the MDCP and will provide new public view corridors through a 1.5m setback to the western boundary which does not currently exist.

3. Due to the steep topography, existing vegetation and additional soft landscaping at upper levels of the building, the proposed development will not be readily visible from the harbour.

37. The written request also maintains that the underlying objective or purpose of the standard would be defeated or thwarted if compliance was required, and also relies on existing dwellings on the northern side of Sirius Avenue at No’s 2, 4, 6, 8 and 12 Sirius Avenue which present as 3-storeys to demonstrate that while the development standard may not have been virtually abandoned, those dwellings, and others listed in the written request show evidence of approvals exceeding the building height, and wall height provisions in the MLEP. This includes consent for the neighbouring property at No 5 Sirius Avenue with a greater level of non-compliance in wall height and side setbacks, and where view loss was acknowledged.

38. I am satisfied that the objectives of the standard are achieved notwithstanding the non-compliance with the standard for the reasons set out in the written request, and I note that it is sufficient to establish only one way that compliance with a development standard is unreasonable or unnecessary (Initial Action at [22]). In arriving at this conclusion, I also give weight to the agreement of the experts contained in Exhibit J that the exceedance is minor, likely to be imperceptible when viewed from the street and adopts the guidance at Figure 4 of Part 4.3 of the MDCP.

39. Next, I am satisfied that there are sufficient environmental planning grounds that justify the non-compliance with the standard for those reasons contained in the written request as follows:

1. The proposal steps down the site responsive to the steep topography and does not evidence adverse amenity impacts such as privacy, overshadowing or view loss.

2. The non-compliant portions serve to connect compliant portions to minimise internal stepping of internal floor levels without requiring significant additional excavation.

3. Those portions of the proposed development which exceed the control are located in the middle of the site and so does not add to the visual bulk evidence at the street frontage.

4. The proposed height is consistent with the surrounding density and scale in the area.

40. For the reasons stated at [38] I am satisfied that the proposed development is consistent with the objectives of the height standard. In accordance with cl 4.6(4)(a)(ii) I am also satisfied that the proposed development is consistent with the objectives of the R2 zone because:

1. Firstly, the proposal provides new housing appropriate for the site while maintaining existing residential amenity to adjoining and nearby properties.

2. Secondly, the stepped form of the proposal, and integration of ‘green roof’ landscaping is likely to protect and enhance the natural, visual and environmental heritage qualities of the harbour while retaining views to and from nearby properties in Sirius Avenue.

1. Thirdly, the stepped form of the proposal avoids undue excavation which, in my view, assists to protect and conserve the landform in the vicinity of the harbour foreshore, and maintains the landscape amenity of Mosman.

41. Finally I am satisfied that the minor exceedance of the height control in relation to storeys is within the scope of the Secretary’s concurrence as set out in Planning Circular PS 18-003, in accordance with cl 4.6(4)(b) of the MLEP. For the reasons set out above, the written request made pursuant to cl 4.6 of the MLEP can be upheld.

The lot size does not comply

42. The proposal includes a minor boundary adjustment and it is commonly held between the parties that the site does not comply with the minimum lot size development standard of 930m², as required by cl 4.1 of the MLEP.

43. The Applicant relies upon a written request to justify the contravention of the minimum lot standard, prepared by GSA Planning (Exhibit E). The written request states that the proposal is not for subdivision but to rationalise a kink in the boundary that does reflect the proposed built form, but instead marks the location of existing fireplaces which are no longer relevant with the detached nature of the proposed development. The proposed realignment of the boundary will retain the current lot size, and result in a regular lot boundary.

44. Relevantly, the Applicant submits evidence of the owner’s consent from No 5 Sirius Avenue at Exhibit F in support of the boundary adjustment.

45. The written request relies on three of the commonly applied tests in Wehbe, including:

1. Firstly that the objectives of the standard are achieved notwithstanding non-compliance with standard for the reasons that follow:

• The existing lot boundary ‘goes around’ fireplaces that are proposed to be demolished, and the new dwelling on No 7 Sirius Avenue, and that proposed for No 5 Sirius Avenue, which is not the subject of the appeal, propose individual, detached dwellings consistent with the pattern of subdivision to allow infill development.

• The regularisation of the boundary will not affect the capacity for the lots to provide useable area for building and landscaping, and not affect the size of the lot which is pre-existing.

• The resulting lot(s) will retain the existing small lot subdivision while ensuring the dwelling type without unacceptable amenity impacts.

2. Secondly, the underlying objective or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable because the underlying purpose is to present buildings that are compatible with development in the vicinity while retaining the subdivision pattern in the R2 zone. Enforcing strict compliance would prevent development consistent with the pattern of detached housing with straight-sides boundaries.

3. Thirdly, the development standard, while not abandoned, is departed from in the immediate vicinity as No’s 4, 5, 6 and 8 Sirius Avenue do not meet the development standard and the subject site will be similar to a number of other properties in the vicinity.

46. Next the written request states that there are sufficient environmental planning grounds to justify the contravention because:

1. The short fall in the lot size will not result in adverse impacts on adjoining properties.

2. Regardless of the lot size, the site can accommodate a low density built form.

3. The existing lot, along with its semi-detached neighbour at No 5 Sirius Avenue, currently fails to comply, and the proposal will maintain the current non-compliance but will result in a regular lot boundary.

4. To require compliance would not be orderly or economic as it would require the consolidation of the lots.

47. As the proposed regularising of the lot boundary will have no practical or visible effect on the pattern of subdivision in Sirius Avenue other than to retain the pattern in the street, and the lot, being setback from the foreshore by Curlew Camp Road, can be developed notwithstanding the topography of the site, I am satisfied that the objectives of the standard are achieved notwithstanding non-compliance with standard.

48. I am also satisfied that there are sufficient environmental planning grounds to support the contravention for the reasons set out in the written request. Additionally, I consider the regularising of the lot boundary has the potential to avoid conflict between neighbours in the future as it removes an inconsistency that could otherwise result in improvements being undertaken inadvertently on land that is not in the ownership of the owner undertaking the improvements, and for this reason I consider the regularising of the boundary to fit the description of orderly development (object 1.3(c) of the EPA Act). Finally, I note that the proposed boundary realignment is with the consent of the owner of No 5 Sirius Avenue.

49. In accordance with cl 4.6(4)(a)(ii) I am satisfied that the contravention of the minimum lot size is consistent with the objectives of the standard for the reasons stated at [20], and consistent with the objectives of the zone because the contravention does not give rise to an inconsistency with the objectives to provide housing needs of the community in a low density residential environment in the form of a single detached dwelling that is located in an environmentally sensitive area of Mosman and which integrates soft landscaping in the built form and so can be said to be consistent with the height and scale of the desired future character.

50. Finally I am satisfied that the minor exceedance of the minimum lot size control is within the scope of the Secretary’s concurrence as set out in Planning Circular PS 18-003, in accordance with cl 4.6(4)(b) of the MLEP. For the reasons set out above, the written request made pursuant to cl 4.6 of the MLEP can be upheld.

The proposed setbacks are not satisfactory

51. In essence, the issue in dispute is whether the proposal breaches the side setback provisions found in Section 4.2 of the MDCP at Objective 6, P8 due to the exceedance of the wall height control.

52. P8 is in the following relevant terms:

“Development must have a minimum side boundary setback of:

…

(b) two storey (or up to 7.2m wall height): 1.5m.

(c) three storey (or over 7.2m wall height): 3m.

…

Only storeys predominantly above ground level (existing) are to be included in the calculation of number of storeys, ie any basement level is not included.”

53. The experts are agreed that, on the basis of additional sections contained in Exhibit C, the proposed setbacks are satisfactory (Exhibit J). As put by the Applicant, as the 3-storey portions of the development contain a basement that is predominantly below ground, the setback at P8(b) is applicable.

54. I accept the agreement of the experts in relation to the setbacks. In doing so, I also prefer the definition of wall height adopted by Mr Karavanas given what I consider to be unambiguous language in the definition found in the MLEP when it refers to the ‘underside of the eaves’, which is generally understood to be the underside of a roof overhang, whether or not the wall structure continues in to the structure or cavity of the roof.

The proposal causes a loss of visual privacy to surrounding properties

55. The Respondent contends that a person using the rooftop terrace, shown on the first floor plan, would result in a loss of privacy to adjoining properties.

56. Section 5.7 of the MDCP, Objective 1 at P3 is in the following terms:

“Objective 1: To have adequate visual privacy levels for residents and neighbours.

P3: Due to their potential to affect privacy and views, roof top terraces are not permitted unless it can be demonstrated that there is no loss of privacy or view impact.”

57. Plans marked Exhibit C reduce the extent of the proposed rooftop terrace, and the experts agree that the amendment resolves the potential for loss of privacy to neighbouring properties, subject to the non-trafficable portion of the roof to the south of the terrace being designated a green roof which the Applicant agrees to provide by condition.

58. I accept the agreement of the experts that the reduced extent of the terrace resolves the contention regarding loss of privacy. In doing so, I note the proposed rooftop terrace is setback 3000m or more from side boundaries, and the location of the glass roof to the east and green roof to the south and west are likely to obstruct sightlines from an occupant standing on the terrace. Furthermore, I consider the proposed conditions of consent to be adequate in requiring an amended Landscape Plan to assist in achieving the objectives of privacy at this location.

59. In my view, the stepped built form and integration of soft landscaping at the Ground and First floor roof terraces satisfactorily minimises the visual impact of the development to and from Sydney Harbour, and will maintain the existing natural landscape and landform as required by cl 6.4 of the MLEP.

60. The parties are agreed that the remainder of the contentions can be resolved by the proposed conditions of consent that were initially marked Exhibit 3, but were later uploaded to the Dropbox relied on during the conciliation conference and titled “Amended Conditions (ver 3) 30.03.20”.

61. In particular, the manner in which stormwater is disposed to the street, or to an absorption system is the subject of a deferred commencement condition that was the subject of discussion at the conciliation conference and for which a condition has been agreed. The condition requires the advice of a suitably qualified geotechnical engineer, and verification of a civil engineer. Furthermore, the stormwater solution must be designed to avoid damage to the roots of any trees to remain on site, consistent with cl 6.4 of the MLEP.

Conclusion

62. The proposed development is a single detached dwelling in a low density residential zone that is, other than for those portions the subject of a written request made pursuant to cl 4.6 of the MLEP, compliant with the controls for FSR, height and setbacks.

63. I consider the regularising of the alignment to the western lot boundary to be a logical consequence of the decision to redevelop the subject site as a detached single dwelling consistent with the dominant dwelling type in the area and reflective of the subdivision pattern.

64. The proposal conforms to the requirements of the MDCP for view sharing as expressed in Figure 4 of Part 4.3 of the MDCP and so, in my view, addresses the matters stated in the objector submissions in relation to building height and scale, and view loss. I also consider the provision of a new view corridor along the western setback from Sirius Avenue to the foreshore and harbour beyond makes a positive contribution to the area.

65. I conclude that the proposed development warrants the grant of consent, subject to the conditions agreed between the parties.

Orders

66. The Court orders that:

1. Leave is granted to the Applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits C.

2. The Applicant’s written requests made pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking to contravene development standards for minimum lot size at clause 4.1 and 4.3A of the Mosman Local Environmental Plan 2012 are upheld.

3. The appeal is upheld.

4. Development consent for Development Application 8.2017.260 for the demolition of the semi-detached dwelling, boundary adjustment and construction of a new part 3-storey, part 4-storey dwelling house and swimming pool, double garage, retaining walls, tree removal and landscaping is granted, subject to the conditions at Annexure ‘A’.

5. All exhibits are returned, except for Exhibits A, B, C and J.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (117 KB)

Plans (1.29 MB)

**********

Decision last updated: 08 April 2020