Oriental Project Pty Ltd v Mosman Municipal Council

[2021] NSWLEC 1432

Land and Environment Court

New South Wales

Medium Neutral Citation:

Oriental Project Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1432

Hearing dates:

Conciliation conference on 31 May 2021 and 24 June 2021

Date of orders:

30 July 2021

Decision date:

30 July 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

(2) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 28 days.

(3) The Appeal is upheld.

(4) Development Application 8.2020.112.1 for the demolition of existing structures and construction of a 4 x multi-dwellings and basement carparking cars at 13 Reginald Street, Mosman, NSW is approved subject to the conditions set out in Annexure “A”.

Catchwords:

APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached – development consent granted

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979 s 34

Mosman Local Environmental Plan 2012

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Oriental Project Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/17100

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of multi dwelling housing comprising 4 dwellings and basement carparking at 13 Reginald Street, Mosman. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 31 May 2021 and 24 June 2021. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 20 July 2021 and is supported by a joint jurisdictional note that sets out the background to the appeal and the jurisdictional considerations. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application include changes to the roof ridge and the façade, and an increased rear setback.

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

• The site is zoned R3 Medium Density Residential, pursuant to the Mosman Local Environmental Plan 2012 (MLEP 2012), in which multi dwelling housing is permitted with consent.

• The proposed development complies with the applicable development standards in the MLEP 2012 for height, floor space ratio and wall height.

• The development application that was lodged with the Council was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated.

5. 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)).

6. 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.

7. The Court orders that:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

2. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 28 days.

3. The Appeal is upheld.

4. Development Application 8.2020.112.1 for the demolition of existing structures and construction of a 4 x multi-dwellings and basement carparking cars at 13 Reginald Street, Mosman, NSW is approved subject to the conditions set out in Annexure “A”.

……………………….

J Gray

Commissioner of the Court

Annexure A (395021, pdf)

Architectural Plans (8102460, pdf)

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Decision last updated: 30 July 2021