Maravalle v Mosman Municipal Council

[2022] NSWLEC 1462

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Maravalle v Mosman Municipal Council [2022] NSWLEC 1462

Hearing dates:

Conciliation conference on 17 and 18 August 2022

Date of orders:

05 September 2022

Decision date:

05 September 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is allowed.

(2) Development consent is granted to development application 8.2021.356.1 for the demolition of the existing dwelling and the erection of a new dwelling house, garage and swimming pool at 20A Kirkoswald Avenue Mosman subject to the conditions in Annexure A

Catchwords:

APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021 cll 21, 38

Land and Environment Court Act 1979 ss 34, 34AA

Mosman Local Environmental Plan 2012 cl 5.10, Sch 5 Pt 1

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Category:

Principal judgment

Parties:

Deborah Maravalle (First Applicant)
David Salvatore Giuseppe Portale (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondents)

Solicitors:
Piper Alderman (Applicants)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/138675

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing dwelling and the construction of a new dwelling, garage and swimming pool at 20A Kirkoswald Avenue, Mosman. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 17 August 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 23 August 2022, following the Council’s approval of an application for an amendment to the development application submitted by lodgement of amended plans on the NSW Planning Portal on 22 August 2022, pursuant to cl 38(1) and of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments made in the amended development application include the reduction in the overall height of the dwelling, so that a larger proportion of the views enjoyed from properties at 7A, 9 and 11 Kirkoswald Avenue are retained.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that was provided on 19 August 2022, and which sets out the matters about which the Court must be satisfied in order to grant development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Mosman Local Environmental Plan 2012 (MLEP).

• The proposed development complies with the applicable development standards in the MLEP for height, floor space ratio and wall height.

• The development is located in the vicinity of a local heritage item, which is identified in Sch 5 Pt 1 of the MLEP and described as “Divided Road”.  The effect of the development on the heritage significance of the heritage item has been considered, as required by cl 5.10(4) of the MLEP, and I am satisfied that, as the proposed development does not involve any works within the Kirkoswald Avenue road reserve, it does not unacceptably impact the heritage significance of the heritage item.

• An amended BASIX Certificate No. A426800_02 dated 10 August 2022 accompanies the amended development application, in satisfaction of the requirements of cl 21 of the EPA Regulation 2021.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified pursuant to the EPA Act and in accordance with the Mosman Community Participation Plan. The submissions received following the notification period have been considered and adequately addressed through the amended plans and conditions imposed on the development consent.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. Development application 8.2021.356.1 has been amended and the amendment has been approved by the Council pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021 in accordance with the plans and documents listed in the table to condition 1 of Annexure A. Those plans and documents were uploaded to the planning portal by 22 August 2022.

9. The Court orders that:

1. The appeal is allowed.

2. Development consent is granted to development application 8.2021.356.1 for the demolition of the existing dwelling and the erection of a new dwelling house, garage and swimming pool at 20A Kirkoswald Avenue Mosman subject to the conditions in Annexure A

……………………….

J Gray

Commissioner of the Court

Annexure A (311147, pdf)

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Amendments

14 September 2022 - Annexure A attached

Decision last updated: 14 September 2022