Kavoosi v Mosman Council

[2020] NSWLEC 1277

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kavoosi v Mosman Council [2020] NSWLEC 1277

Hearing dates:

Conciliation conference on 22 June 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

Refer to orders at [6]

Catchwords:

MODIFICATION APPLICATION – conciliation conference – contravention of development standards – retrospective approval – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Cases Cited:

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240

Category:

Principal judgment

Parties:

Kambiz Kavoosi (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/341628

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s determination of a modification application (MA) made pursuant to s 4.55(2) of the EPA Act.

2. The MA (reference number 8.2006.337.5) seeks to modify Development Consent No. 8.2006.337.1 which was for alterations and additions to a dwelling house at 13 Euryalus Street, Mosman (site). The MA proposes changes to the approved building height, floor space ratio, built form including roof and changes to landscaping.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 June 2020 and at which I presided. At the conciliation conference, the parties came to an 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 consent to the modification application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In particular they drew my attention to an assessment report prepared by the Council in regard to the matter (Council’s Bundle of Documents filed 28 February 2020, behind Tab 8).

4. In regard to jurisdiction, I find as follows:

1. Having regard to s 4.55(2)(a), the parties indicated their agreement that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I agree with the parties. This is because the original consent involved alterations and additions to a dwelling house, as does this application. That is, the proposed use does not change. Further, the external building envelope, internal configuration and landscape arrangements, after modification, would be essentially and materially the same as that originally approved.

2. Having regard to ss 4.55(2)(b), (c) and (d), I am satisfied with the advice of Council that proper notification and consultation has occurred, and that there were no submissions.

3. Having regard to s 4.55(3) of the EPA Act, I have taken into consideration the reasons given by the consent authority for the grant of the original consent. While no “reasons” are nominated as such in the existing conditions of consent, I have had regard to the original assessment report which I believe represent the reasons implicit in the grant of consent and the conditions (Council Assessment Report dated 19 June 2007 and provided to the Court by email on 23 June 2020). I have also taken into consideration relevant matters in s 4.15(1) of the EPA Act. Assisting me here was Council’s statement of facts and contentions (filed 20 December 2019) which referenced pertinent controls (s 5). Further in regard to s 4.15(1) of the EPA Act:

1. I have noted the changes to the MA during the course of the appeal in response to contentions raised by Council with regard to particulars of these controls.

2. I accept the advice of the parties that the MA may be approved notwithstanding contravention of development standards (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468.

3. Mindful of s 4.15(1)(a)(i), I have also given consideration to cl 7 of State Environmental Planning Policy No 55—Remediation of Land) and take the view that in recognition of previous assessment by Council, this modification does not call up any need for remediation works (reference Council Assessment Report for the original application dated 19 June 2007).

4. I accept the advice of the parties that the Court may lawfully approve a modification application retrospectively (Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240;.

5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I note that I am not required to, nor have I, considered the merits of the application in coming to this position.

6. The Court orders:

1. The Applicant is granted leave to amend the modification application to incorporate the architectural and landscape plans filed on 17 June 2020 as follows:

Drawing Nos.	Date of drawing	Prepared by
Site Plan - 002 Rev B	21 May 2020	JCA - John Chetham & Associates
Basement – 003 Rev B	21 May 2020	JCA - John Chetham & Associates
Ground – 004 Rev B	21 May 2020	JCA - John Chetham & Associates
First Level – 005 Rev B	21 May 2020	JCA - John Chetham & Associates
Second Level – 006 Rev B	21 May 2020	JCA - John Chetham & Associates
Roof – 007 Rev B	21 May 2020	JCA - John Chetham & Associates
East & West Elevations – 008 Rev B	21 May 2020	JCA - John Chetham & Associates
North & South Elevations – 009 Rev B	21 May 2020	JCA - John Chetham & Associates
Proposed Landscape Plan – LP01 Rev D	11 June 2020	JCA - John Chetham & Associates
Landscape Sections & Elevations – LP02 Rev D	11 June 2020	JCA - John Chetham & Associates

2. The appeal is upheld.

3. Modification application DA 8.2006.337.5, for modification of Development Consent No. 8.2006.337 for alterations and additions to a dwelling house at 13 Euryalus Street, Mosman (“the development consent”) including additional storage in the basement, amendments to external paths and driveway, reduction of the landscaped area on the site and changes to the roof form and the height of the building, is approved subject to the amended conditions at Annexure “A” and the development consent as modified is subject to the consolidated conditions contained in Annexure "B".

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (221911, pdf)

Annexure B (242816, pdf)

Plans (3308361, pdf)

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Decision last updated: 26 June 2020