Naylor v Mosman Municipal Council

[2024] NSWLEC 1307

Land and Environment Court

New South Wales

Medium Neutral Citation:

Naylor v Mosman Municipal Council [2024] NSWLEC 1307

Hearing dates:

Conciliation conference on 03 June 2024

Date of orders:

07 June 2024

Decision date:

07 June 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The applicants’ written request pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) to vary the floor space ratio development standard in cl 4.4 of the MLEP is upheld.

(2) The appeal is upheld.

(3) Development Consent is granted to Development Application No. 8.2023.172.1 for landscaping works, including a new swimming pool, new sauna and associated works at 17 Balmoral Avenue, Mosman, subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – swimming pool – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Mosman Local Environmental Plan 2013, cll 4.3, 4.4, 4.4A, 4.6, 5.10, 6.1, 6.4, 6.6, 6.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.2, 6.6, Ch 6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Category:

Principal judgment

Parties:

Nadia Ann Naylor (First Applicant)
Michael John Humphreys (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/357371

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal arises from the actual refusal, by Mosman Municipal Council, of Development Application no. 8.2023.172.1. This application seeks consent for alterations and additions to a dwelling house including the demolition of an existing swimming pool, construction of a new pool and sauna, tree removal and associated landscape works at 17 Balmoral Avenue, Mosman, legally known as Lot 4 DP 1153909.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 June 2024 and over which I presided.

4. 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, and the matter did not proceed to a hearing. The decision of the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Under this agreement, the respondent also agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the applicants amending the application to:

1. Remove the proposed vehicular crossover;

2. Retain the existing driveway access and crossover off Balmoral Avenue;

3. Shorten the turning circle;

4. Retain the existing driveway gate and make good as necessary.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 explained how they have been satisfied. From this I note the following points.

6. The application has been made with the written consent of the owners of the subject site.

7. The development application was adequately notified, and five submissions were received. Two oral submissions were made at the commencement of this conciliation. Based on the parties’ submissions and the amended development application, I accept that the issues raised by these objectors have been considered and adequately addressed in the amended application.

8. The subject site is zoned C4 – Environmental Living under the Mosman Local Environmental Plan 2013 (MLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

9. The proposed development does not alter the building height, and therefore does not contravene MLEP cl 4.3.

10. MLEP cll 4.4 and 4.4A establish a maximum floor space ratio (FSR) to the subject site of 0.477:1, which the proposed development exceeds with an FSR of 0.52:1, an exceedance of 39.93m².

11. As a result of this exceedance, cl 4.6(3) of the MLEP allows the applicants to provide a written request to justify the contravention of this development standard. This written request must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a written request prepared by Tom Moody Planning and Development, dated 21 July 2023 (the written request). Pursuant to MLEP cl 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the C4 Environmental Living Zone and the   FSR development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties as it is situated within an existing alcove.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The existing dwelling currently exceeds the FSR standard, and the further exceedance of 7.92m² results from the construction of a sauna within the building footprint.

2. The addition that results in the breach will be an indiscernible addition in terms of bulk, scale and height, and does not reduce available deep soil.

3. The breach of FSR is minor in nature in both qualitative and quantitative terms and does not result in any adverse impacts on the heritage item or adjoining properties.

3. The contravention is therefore justified by a lack of adverse impact on the heritage item and neighbouring residents, and by the breach of the standard being minor in nature.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

12. The site is identified as a local heritage item (Item I20) and subsequently, pursuant to MLEP cl 5.10 (2), development consent is required. Clause 5.10(4) requires consideration of the effect of the proposed development on the heritage significance of the item. Subsequently, based on the Heritage Impact Assessment by GBA Heritage dated 6 July 2023 and the parties’ submissions, I am satisfied that the proposed development meets the objectives of cl 5.10, and further that the impact of the proposed development on the heritage significance of the item is acceptable.

13. Pursuant to MLEP cl 6.1, the site is not identified as within an Acid Sulfate Soil area or buffer area on the Acid Sulfate Soils Map.

14. The site is mapped as “Scenic Protection Area” pursuant to MLEP cl 6.4. Based on the parties’ submissions, my observations on site and the information contained in the Statement of Environmental Effects (SEE), I accept that the proposed development will have an acceptable visual impact to and from Sydney Harbour and will maintain the existing natural landscape and landform.

15. MLEP cl 6.6. sets a minimum landscaped area of 50% of the site, or 451.73m². The site currently does not comply with this minimum, with a landscaped area of 286.15m² (31.7%), and the proposed development will not radically alter this, increasing the landscaped area by 2.3% to 307.63m², or 34.1%. Despite this, the parties submit and I accept that the objective of cl 6.6 are met with the proposed development, and that this non-compliance is acceptable.

16. Minor earthworks are proposed in this development application. The parties submit and, based on this and the architectural drawings, I accept that the matters listed in MLEP cl 6.7 have been considered, and the proposed earthworks are acceptable subject to the agreed conditions of consent at Annexure A.

17. The proposed development includes the removal of trees T2, T5 and group G3, as identified in the Arboricultural Impact Assessment Report by Martin Peacock Tree Care dated 29 June 2023 (the AIA). Pursuant to the requirements of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP) s 2.6, development consent is required for the removal of these trees. This consent is requested in this development application and based on the parties’ submission and the information contained in the AIA, I accept that these trees are not classified as native vegetation, and that removal of these trees is acceptable.

18. The site is located within the Sydney Harbour Catchment, and subsequently Ch 6 of the B&C SEPP applies to the development. Pursuant to the requirements of s 6.6, based on the information contained in the SEE and the stormwater plans prepared by Partridge Hydraulic Services dated June 2023, I accept that the matters identified in s 6.6 have been considered in the assessment of this application, and that the effect of the development on the quality of water entering Sydney Harbour will be beneficial, and further that there will be no adverse impact on the water flow of Sydney Harbour.

19. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy 2004 (Building and Sustainability Index: BASIX). Compliance with the commitments within this certificate is further required through a condition of consent.

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the SEE and the parties’ submission, I accept that the subject site has been historically used for residential purposes and there are no known actions that may have led to contamination of this land. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the subject site is suitable for its intended purpose.

21. For these reasons, 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.

22. 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.

23. The Court notes:

1. The respondent, Mosman Municipal Council, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No. 8.2023.172.1 to rely on the documents listed below:

Architectural Drawings
Reference	Description	Author/Drawn	Date
DA_00, Revision 03	Cover Page	Wyer & Co	03.06.24
DA_01, Revision 02	Site Analysis Plan	Wyer & Co	09.05.24
DA_02, Revision 02	Demolition Plan	Wyer & Co	09.05.24
DA_03, Revision 03	Site Plan	Wyer & Co	03.06.24
DA_04, Revision 02	Landscape Area Calculations	Wyer & Co	09.05.24
DA_05, Revision 02	Floor Plan – Ground	Wyer & Co	09.05.24
DA_06, Revision 02	Floor Plan – Lower Ground	Wyer & Co	09.05.24
DA_07, Revision 02	Elevation AA – Balmoral Avenue	Wyer & Co	09.05.24
DA_08, Revision 02	Elevation BB – Eastern Boundary Fence	Wyer & Co	09.05.24
DA_09, Revision 02	Elevation CC – Driveway	Wyer & Co	09.05.24
DA_10, Revision 02	Elevation DD & EE – Pool	Wyer & Co	09.05.24
DA_11, Revision 02	Elevation FF & GG – Pool	Wyer & Co	09.05.24
DA_12, Revision 02	Elevation HH, II & JJ – Sauna Details	Wyer & Co	09.05.24
DA_13, Revision 02	Detailed Plan – Pool	Wyer & Co	09.05.24
DA_14, Revision 02	Materials & Finishes Schedule	Wyer & Co	09.05.24
LP_01, Revision 02	Landscape Cover Page	Wyer & Co	09.05.24
LP_02, Revision 02	Landscape Plan	Wyer & Co	09.05.24

24. The Court orders:

1. The applicants’ written request pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) to vary the floor space ratio development standard in cl 4.4 of the MLEP is upheld.

2. The appeal is upheld.

3. Development Consent is granted to Development Application No. 8.2023.172.1 for landscaping works, including a new swimming pool, new sauna and associated works at 17 Balmoral Avenue, Mosman, subject to the conditions contained in Annexure A.

E Washington

Acting Commissioner of the Court

Annexure A

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Decision last updated: 07 June 2024