On v Mosman Municipal Council

[2025] NSWLEC 1585

Land and Environment Court

New South Wales

Medium Neutral Citation:

On v Mosman Municipal Council [2025] NSWLEC 1585

Hearing dates:

Conciliation Conference on 29 July 2025

Date of orders:

18 August 2025

Decision date:

18 August 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application 8.2024.19.1 for alterations to an approved dual occupancy and change of use to a dwelling house at 10 Esther Road, Mosman (Lot 11, DP 5478) is determined by the grant of consent, subject to the conditions contained in Annexure A.

(3) The Applicant’s written request prepared by Minto Planning Services dated 29 July 2025, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 seeking to vary the height of building development standard as set out in cl 4.3 of the MLEP is upheld.

(4) The Applicant’s written request prepared by Minto Planning Services dated 29 July 2025, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 seeking to vary the development standard for floor space ratio as set out in cl 4.4 of the MLEP is upheld.

Catchwords:

APPEAL — development application — alterations to dual occupancy and change of use to a dwelling house — conciliation conference — agreement reached — orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979 (NSW), ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), ss, 23, 27, 38, Sch 7

Mosman Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.21, 6.1, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1, s 2.1

Category:

Principal judgment

Parties:

Quinn On (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
J Palmer (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2025/55884

Publication restriction:

Nil

JUDGMENT

Introduction

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 8.2024.19.1 for alterations to an approved dual occupancy and change of use to a dwelling house at 10 Esther Road, Mosman (Lot 11, DP 5478) (the Site) by Mosman Municipal Council. The application amends Development Application 8.2019.158.1 for which consent was issued on 15 April 2020.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 29 July 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

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

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 29 July 2025 and are listed under Condition 1 of the conditions of consent at Annexure A. Changes made to the proposal to address the contentions include:

1. Proposed roof design amended to reflect roof design approved in Original Consent – DA 8.2019.158.1

2. Relocation of rainwater tank underneath driveway, and

3. Removal of car wash parking bay and provision of a topping slab.

Jurisdictional matters

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

7. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 in respect of vegetation in non-rural areas and it is noted that the proposal seeks consent for tree removal and therefore the provisions of Ch 2 do not apply.

8. I am also satisfied that the requirements of Ch 6 – Water Catchments including s 6.6 Water Quality and Quantity, s 6.7 Aquatic Ecology, s 6.8 Flooding, 6.9 Recreation and Public Access and s 6.10 Total Catchment Management have been satisfied on the basis of the Stormwater Plans (ITM Design, 17/07/2025), the Flood Risk Assessment Report and Flood Risk Management Plan (Acor, 26/02/2020), the parties’ agreement and the condition of consent.

State Environmental Planning Policy (Sustainable Buildings) 2022

9. The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 apply. A BASIX Certificate has been submitted prepared by Certified Energy (Cert No. 173290S_03 dated 30 July 2025) as required by s 27 of the EPA Reg. The embodied emissions of the proposal have also been quantified in accordance with s 2.1.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the existing consent, the parties’ agreement and the site’s existing residential use I am satisfied in respect of s 4.6 and accept that the site is suitable for the continued residential use.

Mosman Local Environmental Plan 2012

11. The development is for the purposes of alterations to an approved dual occupancy and change of use to a dwelling house which is permissible in the R3 Medium Density Residential zone in which the site is located pursuant to Mosman Local Environmental Plan 2012 (MLEP).

12. The development has regard to the objectives of the R3 Medium Density Residential zone as required by cl 2.3.

13. Under cl 4.3 a maximum height of 8.5m applies to the subject land. The original consent has a maximum height of 8.5m and is compliant. The subject height is consistent with this approval however as a result of basement excavation, that has occurred since approval of the original application, the proposed development now technically has a maximum height of 11.3m and therefore does not comply with the development standard. A variation request in accordance with cl 4.6 of MLEP has therefore been submitted seeking to vary the building height development standard. I am satisfied that consent should be granted notwithstanding the contravention of the building height development standard having regard to the circumstances of the case. In particular I am satisfied that:

1. The written request, dated 29 July 2025 prepared by Minto Planning Services, lodged pursuant to cl 4.6 of the MLEP adequately establishes sufficient environmental planning grounds that justify the breach in the building height development standard

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts, and

3. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

14. Under cl 4.4 of MLEP a maximum floor space ratio (FSR) of 0.6:1 applies to the subject land. The parties agree that the proposal (as amended) has an FSR of 0.63:1 and therefore does not comply with the development standard. A variation request in accordance with cl 4.6 of MLEP has therefore been submitted seeking to vary the FSR development standard. I am satisfied that consent should be granted notwithstanding the contravention of the FSR development standard having regard to the circumstances of the case. In particular I am satisfied that:

1. The written request, dated 29 July 2025 prepared by Minto Planning Services, lodged pursuant to cl 4.6 of the MLEP adequately establishes sufficient environmental planning grounds that justify the breach in the FSR development standard

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts, and

3. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

15. Clause 5.21 Flood Planning of MLEP applies to the site which is affected by the 1% AEP overland flows and is identified as being within a low flood hazard area. I am satisfied in respect of the matters at 5.21(2) on the basis of the Flood Risk Assessment Report and Flood Risk Management Plan (Acor, 26/02/2020), the parties’ agreement and the conditions of consent.

16. The site is mapped as being in an Acid Sulfate Soils area therefore cl 6.1 of MLEP applies. In satisfaction of the requirements contained therein I note that a Preliminary Acid Sulfate Soils Assessment was prepared for the original consent and that an Acid Sulfate Soils Management was not required. I further note that a condition of consent is proposed requiring the preparation of an Acid Sulfate Soils Management if required by the Additional Geotechnical Investigation (JK Environmental, 19/09/2025) submitted with the subject application. I am therefore satisfied that the requirements of the clause are addressed.

17. I am further satisfied that the proposed development complies with the relevant requirements of cl 6.4 in respect of scenic protection having regard to the original consent, the parties’ agreement and the assessment contained in the SEE prepared by Minto Planning Services (31 January 2024).

Other Matters

18. The development application is accompanied by owners’ consent in accordance with s 23 of the EPA Reg.

19. The Respondent notified the original development application between 26 February and 12 March 2025. A total of 10 submissions were received in response to the notification. Further one objector addressed the Court at the commencement of the site view. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submission.

Conclusion

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

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

Orders

22. The orders of the Court are:

1. The appeal is upheld.

2. Development Application 8.2024.19.1 for alterations to an approved dual occupancy and change of use to a dwelling house at 10 Esther Road, Mosman (Lot 11, DP 5478) is determined by the grant of consent, subject to the conditions contained in Annexure A.

3. The Applicant’s written request prepared by Minto Planning Services dated 29 July 2025, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 seeking to vary the height of building development standard as set out in cl 4.3 of the MLEP is upheld.

4. The Applicant’s written request prepared by Minto Planning Services dated 29 July 2025, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 seeking to vary the development standard for floor space ratio as set out in cl 4.4 of the MLEP is upheld.

H Miller

Acting Commissioner of the Court

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Annexure A (399 KB, pdf)

Decision last updated: 18 August 2025