Needham v Mosman Municipal Council

[2021] NSWLEC 1658

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Needham v Mosman Municipal Council [2021] NSWLEC 1658

Hearing dates:

21 and 22 September 2021

Date of orders:

28 October 2021

Decision date:

28 October 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

Orders – see [74] below.

Catchwords:

DEVELOPMENT – height controls – cl 4.6 variation – overlooking – amenity – streetscape

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.2, 8.3, 8.4, 8.6, 8.7(1), 8.10, 8.11, 8.15

Environmental Planning and Assessment Regulation 2000 cll 49, 55 and 77

Land and Environment Court Act 1979 ss 17(d), 34AA, 34, 39(2)

Mosman Local Environmental Plan 2012 cll 2.3, 4.3, 4.3A, 4.4, 4.6, 6.4, 6.6

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

State Environmental Planning Policy (Infrastructure) 2007 cl 2

State Environmental Planning Policy No 55 - Remediation of Land cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cll 2, 5

Cases Cited:

Australian Village No 12 - Gladstone St Pty Ltd v Inner West Council [2021] NSWLEC 1080

Davies v Penrith City Council [2013] NSWLEC 1141

Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Pafburn v North Sydney Council [2005] NSWLEC 444

Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91

The Benevolent Society v Waverley Council [2010] NSWLEC 1082

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Christopher Needham (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/142608

Publication restriction:

No

Judgment

1. The Applicant has appealed Mosman Municipal Council’s (Council) deemed refusal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to Development Application No. 8.2020.193.1 (DA) in relation to Lot 4 in Deposited Plan 14200 (the Site) known as 25 Cabban Street Mosman NSW 2088.

2. The proceedings were filed on 20 May 2021 [1] and fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

   1. Ex D: Application Class 1 filed 20 May 2021

Background

3. The DA is seeking approval for the demolition of the existing dwelling and single detached carport, and the construction of a 3 storey dwelling house, double garage, swimming pool and landscaping works.

4. The Site is located on the eastern side of Cabban Street between Magic Grove and the cul-de-sac end of Cabban Street. It is irregular in shape with a frontage of 15.655m to Cabban Street, and an area of 645m². The Site has a fall of 12.44m from east (rear) to the west (front).

5. The Site is located within the Sirius Slopes Townscape as defined by Part 7.4(2) of Mosman Residential Development Control Plan 2012 (MRDCP 2012). The surrounding area consists of dwelling houses of varying heights and styles.

6. The owners’ consent was given by Stephanie Partridge and Christopher Needham on 5 September 2020. [2]

   2. Ibid Ex D: Tab 3

7. The DA was lodged with Council on 9 October 2020, and the Applicant submitted amended plans to Council on 10 December 2020. However Council had not requested the amended plans and proceeded to assess the DA on the original plans.

8. On 20 December 2021 Council determined the DA by way of refusal.

9. On 4 March 2021 the Applicant lodged a Review of the Determination of the DA pursuant to s 8.3 of the EPA Act. [3]

   3. Ibid Ex D Tabs 8-13

10. On 20 May 2021 pursuant to ss 8.7(1), 8.10 and 8.11 of the EPA Act the Applicant appealed the “deemed refusal” of the DA as the review application had not been determined. [4]

    4. Ibid Ex D Tabs 1-7

11. On 16 June 2021 the Applicant’s Review of the Determination was refused by Council’s Local Planning Panel. [5]

    5. Ex 2 Tab 5 p 370

12. On 17 August 2021 the Applicant filed a Notice of Motion seeking leave to rely upon amended plans. The Motion included the following documents:

1. Architectural plans (Rev H), dated 14 August 2021 prepared by Corben Architects;

2. Landscape plans dated 22.7.21 prepared by Growing Rooms;

3. Clause 4.6 Variation (wall height) dated 16 August 2021 prepared by Minto Planning Services Pty Ltd;

4. Solar Access Assessment dated 17 August 2021 prepared by Minto Planning Services Pty Ltd.

13. On 25 August 2021 the Court granted the Applicant leave to rely upon the amended plans and documentation as set out in [12] above. The Court noted that Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to the Applicant amending the DA filed with the Court by Notice of Motion on 17 August 2021. In compliance with the Court’s Directions:

1. The Council, as the relevant consent authority, lodged the amendment of the DA on the NSW planning portal on 24 August 2021, being within 7 days of the date of the Court Direction; and subsequently notified the Applicant and the Court after it had done so;

2. On 8 September 2021 the Applicants filed the Amended Development Application as lodged on the NSW Planning Portal by the Council.

14. On 3 September 2021 the Council filed an Amended Statement of Facts and Contentions. [6]

    6. Ex 1 Council’s Amended Statement of Facts and Contentions filed 3 September 2021.

15. On 16 September 2021 the Town Planning Joint Experts’ Report by Andrew Minto for the Applicants and Peter Wells for the Council was filed. [7]

    7. Ex 4: Town Planning Joint Experts Report filed 16 September 2021

16. The Court ordered a s 34AA mandatory conciliation and arbitration. The conciliation conference commenced on site on 21 September 2021. At the conciliation conference the parties resolved all the Council’s contentions except for:

1. Bulk and scale as to the potential impact on 23 Cabban Street as follows:

1. Overlooking from Level 3 Terrace, towards the ground floor’s study/rumpus room, and the first floor’s middle bedroom.

2. Presentation to Cabban Street of the 1^st floor terrace off Bedroom 1.

17. Prior to attending on site I perused the submissions by the objectors. [8] At the commencement of the s 34 conciliation conference I inspected the Site together with 27 and 23 Cabban Street, and heard from 2 objectors [9] :

    8. Ibid Ex 2: Tabs 4 and 6

    9. Ex 3: List of Objectors

1. Mr and Mrs Vains, the owners of 27 Cabban Street Mosman who pointed out the potential impacts on their residence as:

1. Significant view loss from their family/living room, kitchen and loungeroom. Response: The town planners agreed in their Joint Report [10] the future view from the kitchen at 27 Cabban Street is as show on Attachment 15 to Ex 4, and on the basis that the interpolation in that photograph is correct (which was agreed by the town planners), noting the height poles erected upon the Site, then the occupants will continue to benefit from view of the City of Sydney skyline which includes views of Sydney Tower.

   10. Ibid Ex 4

2. In relation to the significant view loss, I noted on the site inspection that there is no interruption to the views from 27 Cabban Street from its first floor terrace; its adjoining loungeroom and approximately 50% of the windows in the kitchen.

3. Loss of amenity to the rear terrace adjoining the family room because of the Level 2 Terrace 1 proposed on the Site. The Applicant agreed to erect a fixed screen on the northern side of the Terrace 1 so as to ensure the privacy and amenity of 27 Cabban Street’s rear terrace/barbeque area. [11]

   11. Ex A: DA Plans by Corben Architects – Screen DA Plan 34 Rev H dated 14/8/21

4. In relation to the amenity of the rear terrace at 27 Cabban Street, I noted the view is mainly to the rear garden which steps up the slope to the rear boundary, and which is sympathetic to the rear garden of the adjoining property of Queenswood School. The outlook from the terrace area to the north-northeast is very attractive. The proposed screening to the Level 2 Terrace 1 on the Site will ensure the continued privacy and amenity of this terrace.

5. The ’boxed in’ feeling of 27 Cabban Street with a 2 storey wall of Queenswood School close to its boundary, and the proposed height of the new building on the Site. During the conciliation conference Council indicated its acceptance of the wall height variation proposed for the Site pursuant to Mr Minto’s Clause 4.6 Variation Report dated 21 September 2021. I shall deal with the Clause 4.6 Variation to cl 4.3A of Mosman Local Environmental Plan 2012 (MLEP2012) [12] later in the judgment.

   12. Ex C: Clause 4.6 Variation report by A Minto dated 21 September 2021.

6. The present residence on the Site is setback 3m from its northern boundary with 27 Cabban St. The DA proposed a 1.5m setback. 27 Cabban Street objects to the 1.5 setback as it will make the southern side of their property cold and damp – making the landscape difficult to maintain. The Council control for side setback is contained in the MRDCP 2012 in Ex 2 [13] , and the control is 3m at ground level.

   13. Ibid Ex 2 Tab 2 page 136

2. Ms Mary Curtin of 23 Cabban Street raised the following impacts: overshading and loss of privacy:

1. where loss of privacy relates to impacts from the rear Level 2 Terrace 1 to the primary private outdoor space and dining/living room at 23 Cabban Street; and

2. from the west-facing Level 3 Terrace off Bedroom 1 to the ground floor rumpus/study and a first floor bedroom at 23 Cabban Street.

3. I inspected 23 Cabban Street in the company of Ms Curtin. The privacy impacts from the rear Level 2 Terrace 1 to the primary private outdoor space and dining/living room at 23 Cabban Street was resolved by the Applicant agreeing to a construct a fixed screen on the southern side of their Level 2 Terrace 1.

4. The other issues regarding privacy and amenity raised by Ms Curtin remained in dispute at the end of the conciliation conference.

18. During the conciliation conference the Applicant sought to introduce new plans and an updated Clause 4.6 Variation of Standard Report. The new plans, the updated Clause 4.6 Variation, and Basix Certificate arose out of the joint conference of the planning experts. In accordance with cl 55(1) of the EPA Regulation Council consented to the plans, the Clause 4.6 Variation and the Basix Certificate. The amended plans are listed below (excluding the unamended plans):

Drawing No’s	Date of drawing	Prepared by
DA07 Rev H North Elevation	21.09.21	Corben Architects
DA08 Rev H South Elevation	21.09.21	Corben Architects
DA51 Rev K Bed 1 Terrace Diagram	21.09.21	Corben Architects
Landscape Plans LD-03 Rev F Landscape Design Masterplan	21.09.21	Growing Rooms
Landscape Plans LD-04 Rev F Landscape Design Plan - Front	21.09.21	Growing Rooms
Landscape Plans LD-05 Rev F Landscape Design Plan Rear	21.09.21	Growing Rooms
Landscape Plan LD-06 Rev F LD: Planting Plan – Front Garden	21.09.21	Growing Rooms
Landscape Plan LD-07 Rev F LD: Planting Plan – Rear Garden	21.09.21	Growing Rooms
Clause 4.6 Variation Report	21.09.21	Minto Planning Services
BASIX Certificate No. 1126256S_3	20.09.21	Certified Energy ABN 95164564210

19. The conciliation conference was terminated on site and the hearing commenced at Noon in court by MS Teams. At the commencement of the hearing as the Council consented to the further amended plans, the Clause 4.6 Variation and the Basix Certificate, I agreed to the Applicant to relying upon the documents as listed in [18] above.

20. Mr Ward drew the following documents/matters to the Court’s attention:

1. The following provisions MLEP2012:

1. The aims include –

(a) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity.

2. Clause 2.3(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

3. The Site is in the Zone R2 Low Density Residential, and 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 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.

4. Clause 4.3 Height of Buildings:

1. The objectives of this clause are as follows:

(a)   for development on land in Zone R2 Low Density Residential …. –

(i)   to share public and private views, and

(ii)   to minimise the visual impact of buildings particularly when views from the harbour….

(iii)   to ensure that buildings are compatible with the designed future character of the area in terms of building height and roof form, and

(iv)   to minimise the adverse effect of bulk and scale of buildings.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

5. The height control for the Zone R2 land is 8.5m.

6. Clause 4.3A(4) A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres.

7. Clause 4.3A(5) In this clause - “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”.

8. I note that the Council’s Town Planning Expert, Mr Peter Wells, agreed with Mr Minto that the wall measurement denoted as “C” and “D” on p 2 of Ex C (Clause 4.6 Variation) exceeds the wall height control as follows:

“C – by 200mm (estimated)

D – by 9mm;”

9. The town planners also agreed that the height of the building at the top of the parapet is 7.8m which is under the height control of 8.5m.

10. Non Development Standards in the MLEP2012:

1. FSR: Council agrees that the Applicants are compliant with the FSR control of 0.5:1.

2. Clause 6.4 Scenic protection:

(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.

3. Clause 6.6 Landscaped Areas: for Zone R2 land: 35% if the site area is at least 500m² but less than 650m². The Site has an area of 645m². Council agrees the DA complies with the landscape control as the landscaped area is 37% of the Site.

2. The following provisions of MRDCP 2012:

1. Clause 1.3: “This Plan applies to development proposed on land in Mosman that is zoned residential under… R2…”

2. Clause 1.5: and in particular:

Cl 1.5(e): “minimise view loss to and from water and foreshore reserves, public areas, streets and residential allotments…”

3. Clause 4.2 Siting and Scale – regarding building setback: Planning Control:

“P8. (c) three storey (or over 7m wall height): 3m.”

“P11. Building bulk should be distributed to minimise overshadowing to neighbours, streets and public open space. Building forms should enable a sharing of views with surrounding residences and permit views from public streets and open spaces.”

4. Clause 4.3 View Sharing –

“New development should be designed to minimise view loss to the public and to adjoining and adjacent properties while still providing opportunities for views from the development itself. This approach is called “view sharing”. Sensitive new building design can ensure the reasonable sharing of views. By its nature view sharing will involve sharing on the part of the affected parties. Neither obtaining nor retention of views can be assured in this process having regard to the criteria set out below. In assessing applications for development, Council must consider the importance and need to protect views identified in the site analysis process.”

1. Control P4:

“New development should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities for views from the development itself.”

2. Control P5:

“Development must not significantly obstruct views enjoyed from living and entertainment areas of neighbouring properties. Views available from other areas within the residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the building concerned. Views from private dwellings considered in development assessment are those available to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth).”

5. Clause 5.1 Streetscape and building design: in particular Planning Control P1: “New development should incorporate articulated facades to avoid a bulky appearance and to create proportions consistent within the streetscape….”

6. Clause 5.7 Privacy and security: inter alia –

1. “Good design can minimise the loss of visual and acoustic privacy by reducing the extent of overlooking between dwellings and into the private open space of neighbouring dwellings…”

2. Planning Control P1:

“For new dwellings …., habitable room windows with a direct sightline to the habitable room windows or private open space in an adjacent dwelling within 9m should be either:

(a) offset from the edge of one window to the edge of the other by a distance equivalent to the width of the existing window; or

(b) have sill heights of 1.6m above floor level; or

(c) have permanently fixed translucent glazing in any part of the window below 1.6m above floor level.”

3. Planning Control P2:

“Above ground balconies, terraces, decks, verandahs, and outdoor spaces must not directly overlook rooms and private landscaped area of adjoining properties unless screening can mitigate overlooking. When overlooking would be likely, permanent screening will be required to mitigate overlooking.”

7. Clause 5.8 Solar access: The Council has adopted the planning principles of the Land and Environment Court of NSW as set out in The Benevolent Society v Waverley Council [2010] NSWLEC 1082, and in particular –

1. Planning Control P4: “North-facing windows to living areas and main ground level private open space of neighbouring dwellings should not have sunlight reduced to less than 3 hours between 9am and 3pm on 21 June.”

8. The Site falls within Area 20 on the Townscape Areas Map. [14] The description of area and character is, inter alia:

“…a steeply sloping area in Mosman’s south located between 2 ridges, encompassing Little Sirius Cove and overlooking Sydney Harbour. The subdivision pattern is curvilinear with contoured streets reflecting the relatively steep topography....Larger lots and dwelling house sizes are prevalent. An irregular pattern of house orientation is also evident. There is a diversity of buildings, with many erected in the Federation and Inter-war periods……”

14. Ibid Ex 3, Tabl 3, p 199

21. Mr Ward then identified those contentions which remained in dispute in the Council’s Amended Statement of Facts and Contentions (SOFAC). [15]

    15. Ex 1: Council’s Amended Statement of Facts and Contentions filed 3 September 2021

Contentions

22. Council raised the following Contentions that the DA should be determined by refusal:

B1.1 Contentions that the Application be Refused: Impacts from the DA

1. Resolved: The town planning experts resolved the amenity impact/loss of privacy from rear Level 2 Terrace – the Level 2 Terrace will now have a privacy screen. The town planning experts agree that there is sufficient solar access to 23 Cabban Street.

2. Amenity impacts to 27 Cabban Street include potential loss of views and visual impacts. Once the height poles had been erected on 25 Cabban Street, the town planning experts agreed that 27 Cabban Street retains sufficient city views from its kitchen, main loungeroom and front terrace, and therefore the loss of views contention in regard to 27 Cabban Street is resolved.

3. Deleted.

4. Resolved: The Clause 4.6 Variation to cl 4.3A Report by Minto Planning Services [16] has resolved the exception to the development standard in relation to height of walls.

   16. Ibid Ex C

5. Deleted.

6. Resolved in relation to the objectives of the wall height standard in the R2 zone. Contention 1(f) remains in contention: The DA does not achieve the objectives of the wall height standard in the R2 zone.

1. B1.2 Bulk and Scale: the DA’s bulk and scale is excessive: resolved by Growing Rooms’ Drawings LD 04 and LD 06 dated 21.09.21 Rev F.

2. Deleted.

3. Clause 4.6 Variation (wall height): now resolved by Ex C: Clause 4.6 Variation.

4. Streetscape and design: Resolved by a further plan provided as part of the town planning joint report process: Landscape Plan Drawing LD 04 Rev F and LD 06 Rev F [17] .

   17. Ex B Growing Rooms landscapes for outdoor living – plans LD-04 and LD-06 dated 21/09/21 Rev F

5. R2 Zone Objectives: the DA does not satisfy the zone objectives of the R2 Low Density Residential zone as set out below:

1. To ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and

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

6. Nil further required.

B2 – Contentions that may be addressed by a condition: Condition 10

B3 – Contentions requiring further information: Resolved.

Legislation

Environmental Planning and Assessment Act 1979

8.2   Determinations and decisions subject to review

(cf previous ss 82A(1), 82B(1))

(1)  The following determinations or decisions of a consent authority under Part 4 are subject to review under this Division—

(a)  the determination of an application for development consent by a council, by a local planning panel, by a Sydney district or regional planning panel or by any person acting as delegate of the Minister (other than the Independent …

8.3   Application for and conduct of review

(cf previous ss 82A(2)–(4) (6), 82B(2)–(4))

(1)  An applicant for development consent may request a consent authority to review a determination or decision made by the consent authority. The consent authority is to review the determination or decision if duly requested to do so under this Division.

(2)  A determination or decision cannot be reviewed under this Division—

(a)  after the period within which any appeal may be made to the Court has expired if no appeal was made, or

(b)  after the Court has disposed of an appeal against the determination or decision.

(3)  In requesting a review, the applicant may amend the proposed development the subject of the original application for development consent or for modification of development consent. The consent authority may review the matter having regard to the amended development, but only if it is satisfied that it is substantially the same development…

8.4   Outcome of review

(cf previous ss 82A(4A), 82B(5))

After conducting its review of a determination or decision, the consent authority may confirm or change the determination or decision.

8.6   Decisions subject to appeal to Court under this Division

(cf previous s 23F)

(1)  A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division.

(2)  A decision subject to appeal includes a decision made after a review under Division 8.2.

8.7   Appeal by applicant—applications for development consent

(cf previous s 97)

(1)  An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

8.10   Time within which appeals may be made

(1) An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11)—

(a)  6 months after the relevant date, if the relevant date occurs after the prescribed period, or

8.11   Circumstances in which consent taken to have been refused for purposes of appeal rights

(cf previous s 82)

(1)  A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends.

Land and Environment Court Act 1979

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

(d)  appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6)  Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)  in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A)    (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

s 39: Am 1994 No 44, Sch 19; 1997 No 156, Sch 4.10 [6]; 2000 No 2, Sch 1 [4]; 2017 No 60, Sch 11.5 [1].

Evidence of Town Planners

23. Mr Andrew Minto, town planner, appeared for the Applicant. Mr Peter Wells, town planner, appeared for the Council.

24. The town planners conferred and prepared a Joint Report [18] . With the exception of the evidence given below, the contentions raised by Council were resolved during the town planners’ joint conference, or in the further plans and Clause 4.6 Variation Report.

    18. Ibid Ex 4

Remaining Contentions:

25. Mr Wells responded to questions in words to the effect as set out below:

1. The content of the Clause 4.6 Variation Report filed 21 September 2021. When questioned about the integrity of the Clause 4.6 Variation Report Mr Wells responded:

“I accept the 4.6. I do know that there are some limitations in relation to the environmental grounds – I can see some additional grounds. On the basis of the 4.6 Report (Ex C) there are sufficient environmental planning grounds established.”

2. When questioned about the potential view loss to No. 27 Cabban Street, Mr Wells responded:

“I refer to Attachment 15 to the Town Planning Joint Report [19] . The height poles of relevance to the kitchen both of which identify an RL51.100. Looking at the proposal from the middle of the kitchen, standing at the sink at approximately 1m back from the window in accordance with the DCP…. The height poles represent that area of the building which would impact the views from the kitchen…I have assessed that it (the kitchen) retains views to the city. The most habitable rooms west of the kitchen will remain to enjoy views of the city with this proposal.”

19. Ibid Ex 4 – attachment 15 is the last page

3. When questioned about solar access: “Attachment 14 (to Ex 4) Solar access – you proceed at attachment 14 to consider these parts of the subject proposal – what are your conclusions – you are satisfied?” Mr Wells replied:

“Yes, on the solar volume quantum.”

4. When questioned about the front boundary wall section: “Attachment 13 to Ex 4 – front boundary?” Mr Wells replied:

“I am satisfied on the basis of Attachment 13 and on the revised landscape plan...taking the retaining wall and landscape plan together.”

5. In relation to the Level 3 Terrace outside Bedroom 1, Mr Wells said words to the effect:

“I remain dissatisfied that the privacy impact to 23 Cabban Street, in particular the study/rumpus room, and first floor bedroom. Pl DA 53 Rev K [20] provides little comfort that the landscaping strip is going to prevent any view to 23 Cabban Street.”

20. Ex A: Plan DA 53 Rev K dated 21 September 2021

6. In relation to the provisions of clause 5.7 Privacy and security of MRDCP 2012, and in particular the words Planning Control P2: “Above ground balconies, terraces, decks, verandahs, and outdoor spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate overlooking. When overlooking would be likely, permanent screening will be required to mitigate overlooking.”, Mr Wells said words to the effect in response to questions:

“Must not directly overlook – placement of screens in any direct overlooking.”

7. Oblique angle?

“I do not accept that – it is direct overlooking by virtue of the proposed screen only covering one third of the Terrace.”

8. Planter boxes together with 1m screening?

“My opinion is that I cannot normally rely upon landscaping.”

26. Mr Minto responded to questions in words to the effect as set out below:

1. “In relation to the word ‘likely’ as set out in MRDCP 2012 Clause 5.7 Planning Control P2?”

“The word ‘likely’ means it can be mitigated – it is not about preventing the impact.”

“Just here, it is mitigated by the proposed plantings plus the proposed privacy screen will give significant screening of that area.”

2. “Likely?”

“Overlooking unlikely. The primary purpose of persons using that part of the property (Level 3 Terrace outside Bedroom) will be to look towards the street and long distance City views.”

3. Questions to Mr Minto from Mr Ward: Terrace 1, 2 and 3 – 3 terraces appropriate?

“Yes”

4. Plan DA 05 Rev I: what is the size of the privacy screen?

“1.7m approximately”

5. “Then 2.3m no screen?”

“It is relevant for the frequency of use – type of use.”

6. “In relation to the Joint Report [21] pars 1.3(c), 1.4 and 1.5 you agreed landscaping alone does not provide an appropriate means of screening.”

   21. Ibid Ex 4 p5

“I agree with the statement in para 1.4. Terraces 1 and 2 now have privacy screens. In relation to the Terrace on level 3 because it is attached to a bedroom, and it is unlikely you will be carrying out entertaining activities on that terrace. It is more likely on Terrace 1 near the barbeque and swimming pool.”

7. “The proposal is 1.7m for screen, and remainder 600mm planter with 800mm plantings? You will agree with the decision in Super Studio v Waverley Council [22] (Super Studio) and in particular –

   22. Super Studio v Waverley Council [2004] NSWLEC 91

“[5] Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has 3 other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terrace, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible.

[6] The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight…..”

“The planter boxes will be 2.3m in length, 600m in depth, 1m width, with plantings at 1m which together with the privacy screen will give a level of privacy to the study/rumpus room.”

8. “There is no ability to control how someone will use the Terrace?”

“The Terrace is outside a bedroom. If someone is on the Terrace he will be more likely to be looking towards the City than looking directly at the windows in the study/rumpus room, or at an oblique angle towards the middle bedroom upstairs at 23 [Cabban Street].”

9. “Overlooking bedroom to bedroom – do you agree with that?”

“Not entirely. It is not a bedroom – it is a terrace.”

10. “Do you agree that the Terrace off Bedroom 1 can provide reasonable privacy to 23 Cabban Street?”

“The planting is set out in a number of landscape plans which is to be installed at a minimum height of 800mm, and are to grow to a minimum height of 1m and take the form of a hedge.”

11. “Do you agree with the Joint Report [23] assessments by Mr Wells as set out in Attachments 13, 14 and 15?”

“Yes”

23. Ex 4, Attachments 13 Front Boundary wall section, 14 solar access and 15 Interpolation of view impact from kitchen at 27 Cabban Street

27. Mr McKee to Mr Wells: “Contention 6: R2 Zone objectives: are you satisfied that contention is addressed?” To which Mr Wells replied:

“Yes I do agree.”

Submissions – by Applicants (Mr McKee)

28. The DA complies with the aims of the MRDCP 2012 par 1.5 –

“(d) protect, conserve and enhance the landform and vegetation, especially foreshores and bushland, in order to maintain the landscape amenity of Mosman.

(f) limit potential for large bulky dwelling houses and encourage sensitive siting of buildings and leafy garden character.”

29. The Council has accepted the Applicants’ Clause 4.6 Variation.

30. The live issue in this case is the bulk and scale of the Level 3 Terrace off Bedroom 1, which the Council also contends impacts on the privacy of 23 Cabban Street’s study/rumpus room on their ground floor, and the middle bedroom window on the first floor. The Council relies upon 2 provisions of the MRDCP 2012:

1. Clause 5.1 Streetscape and building design, and in particular:

Planning Control P2: “New development should incorporate articulated facades to avoid a bulky appearance and to create proportions consistent within the streetscape. The use of elements such as recesses, modulaton and setbacks in building walls, and varied materials is encouraged so as to avoid expansive uniform elevations. Pergolas, verandahs, decks and planter boxes are also appropriate provided they are suitably dimensioned and do not contribute to building bulk.”

2. Clause 5.7 Privacy and security, and in particular:

Planning Control P2: “Above ground balconies, terraces, …When overlooking would be likely, permanent screening will be required to mitigate overlooking.”

31. The evidence of Mr Minto in relation to the Level 3 Terrace off Bedroom 1 was:

1. It has a number of functions:

1. It provides for covering of the family room on Level 1 Terrace 2;

2. It provides for an area for infrequent physical use, primarily by the residents in Bedroom 1.

3. It is not off a living area, and it is not likely that people will be invited to the Terrace through Bedroom 1.

4. The installation of the privacy shutters to the window in Bedroom 1 ensures no overlooking from the bedroom;

5. The installation of the privacy screen for 1.7m will mitigate any overlooking to 23 Cabban Street.

6. With the addition of the plantings:

1. Keeps the view back from the edge of the rail;

2. Provides an additional barrier which will mitigate visual privacy between the Terrace and 23 Cabban Street.

7. It is not about prevention, it is about mitigation.

32. Plus the DA has a setback from the boundary with 23 Cabban of 3,941mm at Level 2, and at Level 5,787mm. The DA has a setback to the ground floor of 2,540mm. If a person was standing on the Level 2 Terrace off Bedroom 1 behind the planter boxes, the setback would be 3,541mm.

33. In the Joint Report Ex 4, Plate 6 on page 9, and Plate 7 on page 10 a person standing on the Terrace is behind the planter box and in front of the screen, that person would need to look down and under the eve to see into the Study/rumpus room, and would need to look back to see into the upstairs middle bedroom. A person on the Terrace is likely to be looking towards the street and/or to the distant City views. With the screen, the set backs, and the plantings, there will be no impact on the privacy in 23 Cabban Street.

34. The suggestion by Council during the hearing that the Level 3 Terrace off Bedroom 1 should be reduced by drawing a line from the western boundary outside Bedroom 1 to the eastern front corner of the Terrace would be a disaster for the design of the residence viewed from the Street.

35. Mr Minto’s opinion should be accepted. The Level 3 Terrace off Bedroom 1 would be infrequently used. In any event there is no direct overlooking.

Submissions – Council (Mr Ward)

36. As a result of additional information, and particularly in the joint conferencing process by the town planners, the contentions have narrowed. The contentions of view loss and solar access are resolved.

37. I take you through the objectors at 27 and 23 Cabban Street:

1. 27 Cabban Street: boxed in by subject Site and School at the rear, outdoor air conditioning units and privacy of their rear entertaining area. The air conditioning will be housed internally in a plant room and an airconditioning unit will not be able to be sited outside the residence without further consent. The rear entertaining area is to be protected with a privacy screen being erected on Terrace 1.

2. 23 Cabban Street: solar access and view of overlooking, principally from Level 3 Terrace. After further information, Council is satisfied with the quantum of solar access as it is in accordance with Council’s MRDCP 2012 requirements. The overlooking contention has not been satisfied.

1. Council proposes Condition 10 in Ex 5 [24] :

“To ensure sufficient privacy between the front Level 3 Terrace and 23 Cabban Street, a 1.8m high privacy screen must be erected along the southern end of the terrace in conjunction with (and not to replace) the landscaping within the planter on the terrace. In addition, the western extremity of the terrace (and associated balustrading) must be altered so that its north-western corner connects via a straight line with a point 1.5m from the south-eastern corner of bedroom 1. The privacy screen required by this condition shall be located between the (reduced) terrace and the planter. Amended plans demonstrating the above are to be provided to Council for approval prior to the issue of a Construction Certificate.”

24. Ex 5 Council’s Draft Conditions of Consent

38. This Terrace on Level 3 is the second largest terrace at approximately 20m². There are 2 further terraces: one on the level below and one at the rear barbeque area – both have privacy screens, and provide open space on that property. To mitigate the impacts on 23 Cabban Street the Terrace on Level 3 should be reduced in size, and have a privacy screen 1.5m from Bedroom 1, together with the planter boxes. It is proposed the planter boxes be the ‘screen’ for approximately 2.3m. Consistent with Super Studio plantings should be given little weight.

39. In relation to the impact of the Level 3 Terrace, I refer to the evidence of Mr Wells:

1. Joint Report, Ex 4, pp 6-7, par 1.7 where he states:

“... there are no effective measures to minimise overlooking from the proposed terrace…to the ground floor rumpus/study at 23 Cabban Street. The landscape planter should not be relied on in isolation of any other measures due to the risk of poor growth or death of plantings. The privacy impact could be sufficiently minimised with a skilfully designed privacy screen in conjunction with landscaping.”

2. Ex 4, p 9, Plate 6 – “Line of sight from proposed terrace to adjoining habitable ground floor rooms at 23 Cabban Street. The red lines indicate a direct line of sight and the purple line a line of sight 15 degrees to the vertical.”

3. Ex 4, pp 10 and 11, Plates 7 and 8, particularly in relation to the overlooking of the study at 23 Cabban Street.

Again, in accordance with Super Studio minimal weight should be given to landscaping when considering overlooking.

40. I refer to clause 5.7 in MRDCP 2012 – Privacy and security, particularly Planning Control P1:

“For new dwellings and additions, habitable room windows with a direct sightline to the habitable room windows or private open space in an adjacent dwelling within 9m should be …..”

A fixed permanent screen is required to mitigate the overlooking.

41. In the context of ‘overlooking’ see [46] in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 the Court of Appeal stated:

“Once it is accepted that the primary judge was entitled to consider for himself whether the bridge was ‘likely’ to be constructed as a consequence of approving the development application, and once the challenge to that decision is rejected, the respondents must show some implied restriction on the remoteness of the chain of likely consequences. Some such limitation must follow from the concept of ‘impact’: as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. “Likely” in this context has the meaning of a “real chance or possibility” rather than more probably than not: Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 279-281; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 193.”

42. In accordance with Mr Wells’ evidence, the overlooking of the study/rumpus from the Level 3 Terrace would be “likely”.

43. Mr Minto overstates human behaviour in saying that a person on the Level 3 Terrace would only be interested in the distant City views and the street view. In Council’s submissions these views of 23 Cabban Street coupled with the size of the Level 3 Terrace, leads to an unacceptable impact on 23 Cabban Street.

44. Council proposes that the Level 3 Terrace be reduced at an angle from 1.5m from the south-east corner to the end of the proposed screen. This proposal still provides for a properly accessed terrace.

Applicants’ Submissions in Reply

45. In response to Council’s submissions regarding reducing the size of the Level 3 Terrace, the Applicants refer to the amended planning principle in Davies v Penrith City Council [2013] NSWLEC 1141 where Senior Commissioner Moore (as he then was) amended the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444 in [121] as follows:

“Revised planning principle: criteria for assessing impact on neighbouring properties: The following questions are relevant to the assessment of impacts on neighbouring properties:

How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?

How reasonable is the proposal causing the impact?

………

Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?”

46. The only affectation of the impact is found in Planning Control P2 of clause 5.7 of MRDCP 2012, and the question which arises is – is it “likely” or “unlikely”. If “likely” then permanent screening would be required. However it will not be likely on the evidence of Mr Minto. It will be unlikely because:

1. Plan DA51 Rev K of Ex A demonstrates that a person will be looking back and down towards the neighbour’s window (under the eve) in the study/rumpus room. If that were to occur, the solid screen and landscaping as set out in the Applicants’ Draft Conditions of Consent, Ex E, would be sufficient to make it “unlikely” in terms of the clause 5.7 – proposed Condition 10:

“Privacy – Front terrace (Level 3)

To ensure sufficient privacy between the front Level 3 terrace and 23 Cabban Street, a planter box with plants growing to a height of 1m is to be installed and maintained along the southern end of the terrace. Amended plans demonstrating the above are to be provided to the Principal Certifying Authority prior to the issue of the Construction Certificate.”

47. “Adequate control” is a low bar because there must be overlooking in residential environments. Plan DA36 Rev H of Ex A ensures the privacy of 23 Cabban Street. It is not about protection. It is about mitigation and this design ensures the appropriate mitigation measures. It is not a matter of ensuring the privacy. It is a matter of managing the privacy of the neighbours. The design of the terrace, the screen and the plantings ensure that the privacy is protected because, as shown in Section C of Plan DA 51 Rev K, the person on the terrace is looking down over a screen 1.6m high (or plantings 1.6m high) to the rumpus room which is underneath an eve; or back towards (15 degree angle) to the window of the middle bedroom on level 1 at 23 Cabban Street.

48. The only privacy impact on 23 Cabban Street is if a person is in the location beyond the screen and somewhat looking down or back. That is not a likely circumstance.

49. The suggestion by the Council of reducing the size of the Level 3 terrace by “cutting” off a triangular area from the edge of Bedroom 1 to the eastern corner is an anathema to the design of the residence.

50. There is no reason to refuse the DA.

Findings

51. The DA was lodged with Council in accordance with cl 49 of the EPA Regulation.

52. The applicants requested a review pursuant to s 8.3 of the EPA Act of Council’s determination of the development application by way of refusal.

53. Prior to Council determining the review under s 8.3 of the EPA Act, the Applicants filed the appeal in accordance with s 8.7(1), and the timing provisions in ss 8.10 and 8.11 of the EPA Act.

54. During the s 34 conciliation conference Council consented to the Applicants filing the amended plans, amended Clause 4.6 Variation and BASIX’s reports as set out in [18] above.

55. No evidence was lead in relation to the following planning instruments although Council recited them in its Amended SOFAC [25] :

    25. Ibid Ex 1

1. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the Plan). The Site does not fall within any of the aims as set out in cl 2 of the Plan, and Council as the consent authority in accordance with cl 5 has not raised any contention with regard to the Plan.

2. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). The Amended SOFAC demonstrates that the Site has formerly been developed for low density residential uses and therefore from a contamination perspective would have a minimal risk of harm to human health. The Site does not pose a risk of contamination and as such the Site is suitable for the proposed use.

3. State Environmental Planning Policy (Infrastructure) 2007 – the aims of the Policy as set out in cl 2 demonstrate that this Policy is not applicable to a residential development such as this particular Site.

4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 – the Applicant has filed a BASIX Certificate [26] , and have therefore complied with the Policy. Further requirements are listed in the conditions of consent in Annexure A.

   26. Ibid Ex F

56. MLEP2012 Development Standards:

1. the DA complies with the Building Height Control of 8.5m as it is 7.8m in height.

2. The DA complies with the Floor Space Ratio (FSR) of 0.5:1 and its FSR is 0.5:1.

3. The DA does not comply with the Wall height standard of 7.2m and in this regard the Applicants filed the Clause 4.6 Variation [27] .

   27. Ibid Ex C

4. MLEP Clause 4.6 Variation Request: the Applicant requests a variation to the development standard contained in cl 4.3A(4) of the MLEP2012 in relation to the Wall Height Control and relies upon Ex C: Clause 4.6 Variation Request. The Council accepts the Clause 4.6 Variation report resolved the contention in relation to the breach of the wall height development standard. In order to be satisfied that the cl 4.6 variation should be upheld, I will consider this issue. The position of the Applicant in relation to the maximum wall height is set out below:

Mosman LEP 2012	Control	Applicants Ex C p2
Zone R2 Low Density Residential	Cl 4.3A
Wall Height See Ex C p2 for “C” and “D”	7.2m	C: 7.4m – variance 2.8% D: 7.29mm – variance 1.3%

1. The standard can be varied having regard to cl 4.6 of the MLEP2012.

2. Clause 4.6   Exceptions to development standards

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

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

3. Of particular relevance in this instance is Part 1, that “the proposal, despite numerical non-compliance, [would] be consistent with the relevant environment or planning objectives”.

4. In order for there to be 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 written request adequately demonstrates that compliance with the development standard is unreasonable and unnecessary in circumstances of the case (cll 4.6(3)(a) and 4.6(a)(i));

2. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cll 4.6(3)(b) and 4.6(4)(a)(ii));

3. The proposed development will be in the public interest because it is consistent with the objectives of the zone (cl  4.6(4)(a)(ii)); and

4. The proposed development will be in the public interest because it is consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

(Australian Village No 12 - Gladstone St Pty Ltd v Inner West Council [2021] NSWLEC 1080 (Australian Village), and Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action)).

5. The Court, in exercising the functions of the consent authority, must be satisfied of the above matters in [56(4)(d)]. The state of satisfaction that compliance is “unreasonable and unnecessary” and that there are “sufficient environmental planning grounds” to justify the contravention ([56(4)(d)(i) and (ii) above] must be reached only by reference to the written request (Ex C). Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the cl 4.6 objection, it cannot supplement what is in the cl 4.6 written objection (Australian Village at [82]).

6. On the other hand, the state of satisfaction that the proposed development is in the public interest, because it is consistent with the objectives of the standard and of the zone ([56(4)(d)(iii) and (iv)] above) can be reached by considering the evidence before the court, without being limited to what is contained in the cl 4.6 objection (Australian Village at [83]).

7. A further precondition in cl 4.6(4), which must be satisfied before the power can be exercised to grant development consent for development that contravenes a development standard, is that the concurrence of the Secretary has been obtained. The Secretary’s concurrence can be assumed as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003 (Australian Village at [84]).

8. In the decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe v Pittwater), Chief Justice Preston outlined the rationale for development standards, and the ways by which a standard might be considered unnecessary and/or unreasonable. At [43] of his decision Preston CJ noted:

“The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

9. Wehbe v Pittwater also established the ‘five-part test’ to determine whether compliance with a development standard is unreasonable or unnecessary based on the following:

1. Would the proposal, despite numerical non-compliance, be consistent with the relevant environmental or planning objectives;

2. Is the underlying objective or purpose of the standard not relevant to the development thereby making compliance with any such development standard unnecessary;

3. Would the underlying objective or purpose be defeated or thwarted were compliance required, making compliance with any such development standard unreasonable;

4. Has Council by its own actions, abandoned or destroyed the development standard, by granting consents that depart from the standard, making compliance with the development standard by others both unnecessary and unreasonable; or

5. Is the “zoning of particular land” unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable and unnecessary as it applied to that land. Consequently, compliance with that development standard is unnecessary and unreasonable.

10. The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

11. The Clause 4.6 Variation relies upon the first of the Wehbe v Pittwater methods for demonstrating that compliance with the standard is unreasonable or unnecessary – that the proposal satisfied the objectives of the standard notwithstanding the non-compliance. The objectives of the standard are those identified in cl 4.3A(1)(a):

(i)   to share public and private views, and

(ii)   to minimise the visual impact of buildings particularly when views from the harbour….

(iii)   to ensure that buildings are compatible with the designed future character of the area in terms of building height and roof form, and

(iv)   to minimise the adverse effect of bulk and scale of buildings.

12. In relation to objective (i), the Clause 4.6 Variation in summary states that the proposed new dwelling and in particular the non-compliance, will not result in the loss of any public views nor will it materially impact view corridors across the subject site towards the harbour and foreshore from the surrounding properties.

13. Objective (ii) to minimise the visual impact of the buildings, particularly when views from the harbour and surrounding foreshores – is addressed as follows: The proposed building is well removed from the harbour, and the proposal shall not be visible from the harbour and surrounding foreshore areas.

14. Objective (iii) to ensure that the buildings are compatible with the desired future character of the area in terms of building height and roof form, and the Objective (iii) has been addressed:

1. The proposal is compatible with the desired future character of the area in terms of building height and roof form. The proposal is below the height control of 8.5m, and although it has a flat roof, part of the roof of the adjoining property at 23 Cabban Street is also flat.

2. The proposal steps up the Site appropriately with the topography, and is compatible with the height, bulk and scale (it complies with the FSR control) of the existing and likely future character of the dwelling houses along Cabban Street. The non-compliances of 200mm and 9mm on the wall height control are minor and will not be discernible from the street or adjoining properties.

15. Objective (iv) to minimise the adverse effects of bulk and scale of buildings: The proposed height form and floor space distribution is the outcome of a detailed site and view loss analysis undertaken to minimise the adverse effects of bulk and scale, namely shadowing impact on 23 Cabban Street. The ground floor has been centrally sited but the first floor has been set back 3.941mm from the southern boundary to ensure solar access to 23 Cabban Street. The building element does not result in any unreasonable overshadowing.

15. The proposed development is in the public interest because it is consistent with the objects of the R2 Zone as follows:

1. The Site has a fall from back to front of approximately 3.5m and a diagonal cross fall of approximately 5m from north-east to south-west.

2. The Site has been previously excavated, as is evident from the existing dwelling on the Site.

3. The east-west orientation of the Site placing the proposed building envelope to the north of 23 Cabban Street, which in conjunction with the fall of the land, exacerbates the effects of overshadowing.

4. The proposed building has been designed to be less than the height control, to step up the Site to ensure solar access to 23 Cabban Street, with Level 2 being stepped back from the site boundary 3.941mm.

5. The exceedances are minor: on a 7.2m wall the exceedances are 200mm and 9mm – neither exceedance will be able to be identified as an exceedance from the street.

6. The proposal satisfies the objectives of both the zone and the particular standard.

7. The proposed non-compliance will not unreasonably impact upon the views of 27 Cabban St.

8. The proposal will not result in any unreasonable overshadowing of 23 Cabban St.

17. The Clause 4.6 Variation complies with the objectives of the cl 4.6 in the R2 Low Density Residential Zone in that:

1. The proposal retains the single dwelling use of the Site;

2. The proposal complies with the landscaped area of MLEP2012;

3. The proposal does not seek to alter the size of the existing allotment and is therefore of a sufficient size;

4. The proposal ensures that the development is of a height and scale that seeks to achieve the desired future character. The development is below the height control of 8.5m, complies with the FSR control and the control for landscaping. The setback of the first floor to the southern boundary is 3.941m, approximately 941mm greater than the minimum setback required by Council’s MRDCP 2012. It is a development that is consistent with the desired future character.

5. The proposal maintains local amenity in regard to public and private views – the small view loss to 27 Cabban Street is considered reasonable by the town planning experts and in compliance with MRDCP 2012.

6. The proposal does not adversely impact the area as a result of its bulk and scale – as stated earlier, the proposal is below the height control of 8.5m and complies with the FSR control and the landscaping control.

18. I find the proposed development is in the public interest because it is consistent with the objectives of both the R2 Low Density Residential Zone, the objectives of cl 4.3A(1)(a) of MLEP2012, and the objectives and the aims of MLEP2012 to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity.

57. The DA complies with the non-development standard in MLEP2012 in that it proposes landscaping to 37% of the Site whereas the control is for 35% of the Site. It also complies with the non-development standards in MLEP2012 in relation to solar access and car parking.

58. In relation to MRDCP 2012 – the DA:

1. Does not comply with the ground floor setback of 3m on each site: it has 1.5m on the northern side, and 2m on the southern side. The Level 1 setback is 1.665m on the northern side, and 4m south. It is compliant in relation to the setback of Level 1 to the southern side.

2. The DA is compliant with the volumetric solar access on the winter solstice.

3. The BASIX Certificate [28] has been tendered.

   28. Ibid Ex F

59. The remaining contentions are:

1. Overlooking 23 Cabban Street, and in particular from the Level 3 Terrace off Bedroom 1 towards the middle bedroom on level 1, and the study/rumpus room on the ground floor.

2. Bulk and scale when viewed from the street, particularly in relation to the Level 3 Terrace.

Overlooking

60. The issue is whether a person standing on the south-western side of the Level 3 Terrace is ‘likely’ to overlook the study/rumpus room and/or the upstairs middle bedroom window on level 1 of 23 Cabban Street. The evidence is set out in the Town Planners’ Joint Report [29] and their oral evidence in [25] and [26] above. I do not consider it will be ‘likely’ (as that word is used in clause 5.7 of MRDCP 2012, and Planning Control P2) because:

    29. Ibid Ex 4

1. The Terrace is adjacent to Bedroom 1 – the main bedroom in the dwelling to be occupied by the parents as a parents’ retreat.

2. The interesting views are towards the street, and the distant City views which include Centre Point Tower and other high-rise buildings.

3. The usual use of the Terrace by the occupants of Bedroom 1 is likely to sitting on the Terrace to enjoy breakfast, read the paper, relax, etc. It is unlikely that a person will be standing as close as possible to the south-western side of the Terrace (which is 1m from the edge) to look down to the study/rumpus room next door, or to look back at 15 degrees to the middle upstairs bedroom window next door. Every metre extra a person stands from the south-western corner, the overlooking moves from ‘unlikely’ to be not possible.

4. In the situation that the Terrace is used for entertaining, say for example to see the fireworks on New Year’s Eve, then the view will be to the City and not overlooking the neighbour’s study/rumpus room or middle upstairs bedroom window. Further, it is also likely at this point that the neighbours on the other side, 27 Cabban Street, may also be entertaining and have friends/family on their first floor Terrace, or indeed the terrace above their garage. In those circumstances the interest lies in the distant fireworks, not the close neighbours.

5. The Council raised the issue of there being 3 terraces in the proposed DA: Terrace 1 on Level 2, Terrace 2 on the ground level, and the Level 3 Terrace adjacent to Bedroom 1 (parent’s retreat). However, 27 Cabban Street has 3 terraces: one above the garage, one adjacent to their loungeroom on level 1, and one adjacent to their barbeque area at the rear of level 1. Having 3 terraces is not exceptional in the circumstances of Cabban Street.

6. The Applicants have agreed to include the following in their plans/conditions of consent to the DA in order to mitigate the overlooking of 23 Cabban Street:

1. Fixed shutters on their Bedroom 1 window which prior to the shutters would have allowed them to see into the rumpus or study on the ground floor, or the upstairs middle bedroom window;

2. Fixed screen from the edge of Bedroom 1 for 1.7m at a height of 1.8m along the south-western edge of the Terrace;

3. Also along the whole length of the south-western edge of the Terrace planter boxes 600mm high with hedge-like plantings which will grow to 1m high – with a width of 1m so that a person standing as close as possible to 23 Cabban Street must stand 1m from the edge of the Terrace. Standing further than 1m from the balustrade lessens the possibility of overlooking.

7. The Council wanted its draft Condition 10 to be included in Annexure A. However, in my view redesigning the Level 3 Terrace so as to “cut” it by about half in area by a line drawn from “the western extremity of the terrace (and associated balustrading) ….so that its north-western corner connects via a straight line with a point 1.5m to from the south-eastern corner of bedroom 1”. I disagree with Council’s viewpoint on the Level 3 Terrace. In considering Corben Architects’ Plan DA 35 Rev H dated 14/8/21 the balustrading of the Level 2 and Level 3 terraces mirror each other and form a design feature – if the Level 3 Terrace was cut in a diagonal way from 1.5m on the south-eastern corner of bedroom 1 via a straight line to the front corner adjacent to 27 Cabban Street, the design feature would be compromised. I consider that suggestion by Council to be unacceptable in relation to the design of the building.

8. Council submitted that little weight should be given to the planter boxes and plantings applying the decision in Super Studio. However in this case the Applicants are not just relying upon the plantings – they are relying upon the fixed shutters to their bedroom 1 window, a fixed screen 1.7m long and 1.8m high together with planter boxes which will force them to stand 1m from the balustrade, and the plantings are to reach 1m in height above the 600mm planter boxes. It is also necessary to consider the use of the Level 3 Terrace considering it is adjacent to the parents’ retreat, and there are 2 other terraces adjacent to living areas. For the reasons set out above I find that the Level 3 Terrace outside Bedroom 1 is acceptable, and that by the inclusions of fixed shutters on the bedroom 1 window, the fixed screen for 1.7m long and 1.8m high, together with the planter boxes 600mm high x 1000mm wide, with 1000mm planters on the Terrace to be sufficient mitigation to prevent the occupiers of 25 Cabban Street being ‘likely’ to overlook the study/rumpus room on the ground level, and the middle upstairs bedroom window at 23 Cabban Street.

61. For the reasons set out above, I find that the Level 3 Terrace is acceptable, and that the overlooking of the study/rumpus room and the upstairs middle bedroom window at 23 Cabban Street will not be ‘likely’ in accordance with clause 5.7 Planning Control P2 of MRDCP 2012.

Bulk and Scale

62. Council contends that the DA does not satisfy the particular zone objectives of the R2 Low Density Residential zone as set out below:

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

• To ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form;

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

63. The particulars given to Contention 6 in the Amended SOFAC [30] are:

“The proposal does not satisfy the R2 zone objectives as it does not sufficiently maintain or enhance local amenity, or minimise the adverse effects of bulk and scale of buildings. This is due to the quantum of development and its distribution of bulk, which creates overshadowing and view loss impacts.”

30. Ibid Ex 1

64. I note the town planners agreed:

1. The DA is compliant with cl 4.3 of MLEP2012 - the height control of 8.5m.

2. Notwithstanding the DA is not compliant with the wall height control in cl  4.3A(4) of MLEP2012 of 7.2m the Clause 4.6 Variation by Mr Minto is sufficient to satisfy the tests set out in Clause 4.6 and the case law.

3. The DA is compliant with cl 4.4 of MLEP2012 - the FSR control.

4. The DA is compliant with cl 6.6 of MLEP2012 – the landscaping control.

5. The DA is compliant with MRDCP 2012 with regard to the sharing of views control.

6. The DA is not compliant with the side setback controls in MRDCP 2012 but is compliant with the front setback in MRDCP 2012.

7. The DA is compliant with the solar volumetric control in MRDCP 2012.

8. The DA is compliant with the parking requirements in MRDCP 2012.

9. An up-to-date BASIX Certificate [31] has been supplied.

   31. Ibid Ex F

65. I further note that Mr Wells agreed in cross examination that Contention 6 had been addressed – [27] above.

66. Council still presses Contention no. 6. In his submissions, Mr Ward traversed the Level 3 Terrace issue including overlooking, and then raised the objections by 27 and 23 Cabban Street.

67. In relation to the objections from Mr and Mrs Vains at 27 Cabban Street:

1. The town planners found the view loss from the kitchen to be acceptable in accordance with the interpolation in Attachment 15 to Ex 4. I noted on site that Mr and Mrs Vains would still maintain their views from the terrace off their loungeroom, their loungeroom and approximately half the window area in their kitchen.

2. The loss of privacy to their rear terrace adjacent to their barbeque area has been dealt with by the Applicants agreeing to a fixed screen on their Terrace 1.

3. The air-conditioning units are located internally on the ground floor, away from 27 Cabban Street. Council is imposing a condition that an air-conditioning unit cannot be installed outside the building without development consent.

4. The side setback at ground level of the proposed building is 1.5m instead of the control of 3m. This is not a reason to refuse the DA. I note that the landscaping will be 37% which is above the control of 35%.

68. In relation to the objections from Mrs Curtin at 23 Cabban Street:

1. The Applicants have agreed to a fixed screen on the southern side of Terrace 1 to protect the privacy of the living area in 23 Cabban Street and their outdoor terrace.

2. In relation to overlooking from Level 3 Terrace to the study/rumpus room and the upstairs middle bedroom window, I have found that the overlooking is not ‘likely’ as described in clause 5.7 of MRDCP 2012, Planning Control P2.

3. The town planners agree that the solar access to 23 Cabban Street meets the volumetric solar control.

69. In relation to Council’s particulars regarding the desired future character, street views together with bulk and scale, I note:

1. The substantial compliance with the planning controls, and the only non-compliance is the side setbacks of 1.5m and 2m respectively.

2. The Site is a sloping site, having a fall back to front of 3.5m and a cross fall from the rear north corner to the front south western corner of 5m. Further the Site has been previously excavated, and the excavated area forms Level 1 (the ground floor) of the proposed building.

3. The proposed height, form and floor space distribution is the outcome of a detailed site and view loss analysis undertaken to minimise the adverse effects of bulk and scale, namely shadow impacts on 23 Cabban Street, and view loss from 27 Cabban Street. The height and siting of the proposed floor space is in a central position on the ground floor, with the first floor setback 3.94m from the southern boundary to ensure solar access to 23 Cabban Street.

4. The building at a height of 7.8m is below the MLEP2012 height control of 8.5m. Although the building has a flat roof, it is not the only residence in the street with a flat roof, or partially flat roof – 23 Cabban Street has a partially flat roof.

5. Corben Architects’ Plan DA09 Rev H dated 14/8/21 shows the eastern elevation of the proposed building between 23 and 27 Cabban Street. The proposed building sits within and slightly under the roof lines of 23 and 27 Cabban Street – it does not sit proud of either 23 or 27 Cabban Street.

6. Corben Architects’ Plan DA 11 Rev H dated 14/8/21 is a photomontage that shows the building sitting sympathetically with 23 and 27 Cabban Street.

7. Corben Architects’ Plan DA 35 Rev H dated 14/8/21 shows 2 street views:

1. Street view from the South West adjacent to 23 Cabban Street;

2. Street view from the North West adjacent to 27 Cabban Street.

Both views demonstrate that the proposed building sits with the future character of the street; it does not overshadow; it does not cause view loss, and the entrance to its property is more attractive than either 23 or 27 Cabban Street which both have garage entrances directly onto the street. No 25 Cabban Street will have an attractive stone fence, with landscaping and sufficient driveway to drive into the property to park their cars underneath the building.

70. I find that the bulk and scale of the building at 25 Cabban Street is acceptable, and the evidence including amended architectural plans, including the amended Landscape Plans [32] demonstrate that Contention 6 is resolved.

    32. Ibid Ex C

71. In relation to the proposed condition 10 in Annexure A, I find the Applicant’s drafting condition 10 to be appropriate with the additional words “and form a hedge” to be inserted so that condition 10 reads:

“Privacy – Front terrace (Level 3)

To ensure sufficient privacy between the front Level 3 terrace and 23 Cabban Street, a planter box with plants growing to a height of 1m and to form a hedge is to be installed and maintained along the southern end of the terrace. Amended plans demonstrating the above are to be provided to the Principal Certifying Authority prior to the issue of the Construction Certificate.”

72. Subject to the parties complying with the directions below, I find that the DA should be determined by way of a grant of consent.

73. The Court notes that:

1. Mosman Municipal Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicants amending the development application 8.2020.193.1 filed with the Court on 20 May 2021 by amending the following plans/documents on 21 September 2021:

Drawing No.’s	Date	By	Amendment
DA07 Rev H North Elevation	21.09.21	Corben Architects	Showing privacy screen inserted
DA08 Rev H Southern Elevation	21.09.21	Corben Architects	Showing privacy screen inserted
DA51 Rev K Bed 1 Terrace Diagram	21.09.21	Corben Architects	Showing privacy screen, window shutters and planter boxes/plantings, and potential overlooking
Landscape Plans LD-03 Rev F Landscape Design Master Plan	21.09.21	Growing Rooms	Planter boxes and plantings inserted on Level 3 Terrace
Landscape Plans LD-04 Rev F Landscape Design Plan - Front	21.09.21	Growing Rooms	Planter boxes and plantings inserted on Level 3 Terrace.
Landscape Plans LD 05 Rev F Landscape Design Plan Rear	21.09.21	Growing Rooms	RL corrected on lawn at the rear of Level 2
Landscape Plan LD 06 Rev F Planting Plan	21.09.21	Growing Rooms	Planter boxes and plantings inserted on Level 3 Terract
Landscape Plan LD 07 Rev F Rear Garden	21.09.21	Growing Rooms	RL corrected on lawn at the rear of Level 2
Clause 4.6 Exceptions to Development Standards Variation to Clause 4.3A	21.09.21	Andrew Minto of Minto Planning Services	Updated Clause 4.6 Variation
BASIX Certificate No. 1126256S_3	20.09.21	Certified Energy	Updated to reflect amended plans

74. The Court directs that:

1. The respondent, Mosman Municipal Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the applicants and the Court after it has been lodged.

2. The applicants are to file a copy of the amended development application within 7 days after the respondent has notified the applicant that the amendment has been lodged on the NSW planning portal.

3. In the event the respondent, Mosman Municipal Council, is unable to lodge the amended application on the NSW planning portal as directed in (1) above, the respondent is to notify the Court Online Court as soon as possible but no later than 14 days after the date of the order and request for the matter to be relisted for further directions.

4. Deleted.

5. The respondent, Mosman Municipal Council, is to amend its draft conditions of consent in Ex 5 by deleting condition 10 and inserting in place thereof, and filing the amended condition of consent within 7 days of these orders:

“Privacy – Front terrace (Level 3)

To ensure sufficient privacy between the front Level 3 terrace and 23 Cabban Street, a planter box with plants growing to a height of 1m and to form a hedge is to be installed and maintained along the southern end of the terrace. Amended plans demonstrating the above are to be provided to the Principal Certifying Authority prior to the issue of the Construction Certificate.”

75. Upon compliance with the above Directions final orders shall be made.

…………………………

M Peatman

Acting Commissioner of the Court

********

Endnotes

Amendments

03 November 2021 - Pursuant to UCPR r 36.17, and with the consent of the parties, the Judgment is amended by deleting Order (4) in [74] as follows:

“(4) In the event that (1) and (2) above are complied with, the applicants are to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment to the developments application as agreed or assessed.”

[74(4)] will now read “Deleted”.

Decision last updated: 03 November 2021