Platform Project Services Pty Limited v Mosman Municipal Council

[2023] NSWLEC 1236

Land and Environment Court

New South Wales

Medium Neutral Citation:

Platform Project Services Pty Limited v Mosman Municipal Council [2023] NSWLEC 1236

Hearing dates:

Conciliation Conference 27 January 2023 and 19 April 2023.

Date of orders:

19 May 2023

Decision date:

19 May 2023

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The Applicants’ written request prepared by Longitude Planning dated 6 March 2023 pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 (MLEP 2012) to vary the wall height of building development standard in clause 4.3A of the MLEP 2012 is upheld.

(2) The Applicants’ written request prepared by Longitude Planning dated 6 March 2023 pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 (MLEP 2012) to vary the floor space ratio development standard in clause 4.4 of the MLEP 2012 is upheld.

(3) The appeal upheld.

(4) Development Application No. DA8.2022.200.1 for demolition of existing building and construction of residential flat building at 1A Hampden Street, (also known as 8 Warringah Road) Mosman being the whole of the land in Lots 1, 2 and 3 in Strata Plan No. 13223 is determined by the grant of consent subject to the conditions in Annexure A.

(5) The applicant is to pay Council’s costs thrown away in the agreed sum of $21,000 within 28 days of the date of this order pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPLICATION – floor space ratio – height control – landscaping – view loss

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.16, 4.17, 8.7, 8.11, 8.14, 8.15

Environmental Planning and Assessment Regulation 2021, ss 37, 91

Land and Environment Court Act 1979, ss 17, 34

Mosman Local Environmental Plan 2012, cll 2.3, 4.3, 4.3A, 4.4, 4.6, 5.10, 6.1, 6.4, 6.6, 6.7, Sch 5

State Environmental Planning Policy – Building and Sustainability Index (BASIX) 2004

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 2, s 2.1,Ch 10, Pt 10.3, Div 2

State Environmental Planning Policy No. 65 – Design Guidelines Residential Development, cl 4

State Environmental Planning Policy (Resilience and Hazards) 2021

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

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

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

Texts Cited:

Mosman Development Control Plan 2012

Mosman Community Participation Plan, June 2020

Category:

Principal judgment

Parties:

Platform Project Services Pty Limited (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
M Staunton(Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2022/304087

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal against a deemed refusal to grant development consent by Mosman Municipal Council (Council) in relation to development application DA 8.2022.200.1 (DA) which proposes the demolition of an existing strata titled residential flat building and construction of a new three storey residential flat building (also proposed to be strata titled) comprising 3 x 3 bedroom apartments over 3 floors, above basement car parking, at 1A Hampden Street (also known as 8 Warringah Road) Mosman being the whole of the land in Lots 1, 2 and 3 in Strata Plan No. 13223 (the Site).

2. The Site is a rectangular shaped allotment with dimensions of 18.29m (northern and southern boundaries) and a length of 44.805m giving an area of 819.5m².

3. The DA proposes excavation into the side of the north facing slope on the Site, and it then proposes a stepped form with a low pitch metal roof concealed by a masonry parapet.

4. For the lower two units, the driveway entry is to be provided from Warringah Road to a basement car parking level for four cars, including one visitor space. Pedestrian access is also provided from Warringah Road.

5. The upper level apartment will have direct vehicular and pedestrian access to a double garage together with separate pedestrian access to the main entry to Unit 3 from Hampden Street.

6. Approximately 20 small trees will be removed as part of the proposed works.

7. The Site is located on the western side of Hampden Street and the southern side of Warringah Road, Mosman. Hampden Street is closed at its northern end near the south-east corner of the Site. The unmade part of Hampden Street adjacent to the Site is a densely landscaped public reserve with a pedestrian path and steps winding down from the north end of Hampden Street to Warringah Road below.

8. The Site slopes from south to north with a fall of approximately 12.5m between these boundaries.

9. The Site has views of Middle Harbour (near Clontarf Beach).

10. To the west of the Site at 10 Warringah Road is a townhouse development comprising 7, 2 and 3 storey townhouses with sloping metal clad roofs.

11. To the south of the Site, at 1 Hampden Street, is a 4 storey walk up residential flat building containing 12 units over 3 levels above an undercover carpark at ground level.

12. Opposite the Site in Warringah Road are contemporary style, two and three storey dwelling houses fronting the lower side of the road carriageway, many with views over Clontarf Beach and Middle Harbour.

13. The Site is not listed as a Heritage Item under Sch 5 of the Mosman Local Environmental Plan 2012 (MLEP 2012), and nor is it within a heritage conservation area. However, the Site is within the vicinity of heritage items I375, I376 and I474 in Sch 5 of MLEP 2012 which include the Hampden Road reserve and steps and Warringah Road road reserve (adjacent to 14 Warringah Road and 20 Fairfax Road).

14. Below is an aerial of the Site taken from annexure 3 of Council’s Statement of Facts and Contentions filed 28/11/22 (SOFAC):

15. 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 27 January 2023 and 19 April 2023. I presided over the conciliation conference.

16. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting development consent to the DA subject to the conditions in Annexure A.

17. 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. The parties’ decision involves the Court exercising the function under cl 4.6 of the MLEP 2012 to uphold the two development standard variations requested, and grant development consent to the DA pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 34(3)(a) and (b) of the LEC Act. There are jurisdictional prerequisites that must be satisfied before these functions can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how the jurisdictional prerequisites have been satisfied as set out below:

1. The owner of the Site is the Owners Strata Plan 13223. The DA was made by the Applicant with the consent of the owners (consent filed with Class 1 Application).

2. The DA was lodged with Council on 5 August 2022.

3. The DA in its original form was advertised and notified to adjoining and nearby landowners in accordance with the Mosman Community Participation Plan dated June 2020 from 15 to 30 August 2022. Council received 13 submissions relating to 9 properties objecting to the proposal. The submissions raised matters to do with height, impacts on views, front setbacks, side setbacks, overshadowing of property to the west, impact on heritage curtilage of Warringah Road steps, glare from roof materials and solar panels, construction impacts and impact of tree removal.

4. The objectors’ concerns were considered by the Council and where appropriate were incorporated into Council’s SOFAC. The objectors’ concerns have also been considered by the parties in the resolution of these proceedings.

5. The Class 1 Application originating these proceedings was filed on 12 October 2022 pursuant to the appeal provisions in s 8.7 of the EPA Act and within the time provisions for appeal in s 8.11 of the EPA Act.

6. During the s 34 conciliation conference the parties agreed to amend their plans and provide additional documents. These plans and documents were accepted by Council as resolving Council’s contentions as set out in its SOFAC.

7. The Council notified the amended plans and additional documents to those objectors who participated in the s 34 conciliation conference. Any submissions received as a result of that informal notification have been considered by the parties.

Mosman Local Environmental Plan 2012

1. Under MLEP 2012 the Site is zoned R3 Medium Density Residential.

2. Under the R3 zoning development for the purpose of residential flat building is permissible with consent.

3. Clause 2.3 of MLEP 2012 required the Council to have regard to the objectives of the R3 zone, which are:

• to provide for the housing needs of the community within a medium density residential environment.

• to provide a variety of housing types within a medium density residential environment.

• to enable other land uses that provide facilities or services to meet the day to day needs of residents.

• to provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale.

• to encourage residential development that has regard to local amenity and, in particular, public and private views.

4. The DA replaces an aged strata scheme and provides new quality apartment accommodation with generous amenity to occupants.

5. The Applicant lodged 2 requests to vary development standards pursuant to cl 4.6 of MLEP 2012 by Warren Long of Longitude Planning Pty Ltd, both dated 6 March 2023. The objectives of cl 4.6 are set out in sub-cl (1) 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 particularly circumstances.

6. Sub-clause (3) of cl 4.6 requires the Applicant to lodge a written request 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.

7. The first request for a variation to a development standard relates to a prescribed wall height of 7.2m pursuant to cl 4.3A(4) of MLEP 2012. The DA exceeds the standard by up to 0.75m at the greatest extent of the breach. In reference to the written request for the Applicant by Warren Long of Longitude Planning Pty Ltd; Clause 4.6 Exceptions to development standards (In respect of the wall height development standard of clause 4.3A(4) of the MLEP, in relation to amended plans for a residential flat building, at 1a Hampden Street Mosman); Mr Long’s report dated 6 March 2023 (Wall Height Variation Report) –

1. Clause 4.3A applies to Zone R3 to which a maximum building height of 8.5m applies as shown on the Height of Building Map in MLEP 2012. The objectives of cl 4.3A(1A) are:

(a) To provide for view sharing,

(b) To minimise the adverse effects of the bulk and scale of buildings,

(c) To encourage 2-storey buildings consistent with the desired future character of the area.

2. Set out below is Figure 2 from the Wall Height Variation Report: page 6 – Extract from Drawing DA.509 Wall height Limit blanket overlay, showing the extent of the breach of the 7.2m wall height standard outlined in red.

3. Clause 4.6(8) sets out the circumstances in which exceptions to development standards cannot be made. Clause 4.3A(4) relating to the wall height is not expressly excluded from the operation of cl 4.6 of the MLEP 2012, and therefore a cl 4.6 request can be made, and granted, in relation to a non-compliance with the 7.2m wall height standard.

4. During the conciliation conference the plans were amended by reducing the height of the building by 300mm and setting the upper level back from the north (upper level moved slightly uphill), the wall height measured to the parapet of flat roof at RL69.25 will be 7.55m in height on the north west corner of the roof above the existing ground level of RL61.7. The wall will be 7.95m in height on the north east corner above RL61.3 and therefore exceeds the 7.2m wall height standard in part along the north end of the flat roof. There is also a minor breach of the wall height on the north eastern corner of the Level 1 apartment, which is 7.5m in height. The wall height at the rear, south end of the roof, is only 4.52m in height which is substantially less than 7.2m wall height control and the 8.5m maximum height of buildings standard (cl 4.3(2) of MLEP 2012). The DA is not in breach of the 8.5m maximum height of buildings standard.

5. Compliance would be unreasonable and unnecessary because it is consistent with the objectives of the wall height standard:

1. In relation to view sharing, there will be a minor impact on views from the living room and balcony of the first floor level of the adjoining residential flat building at 1 Hampden Street by the leading edge, northern end of the roof. The impact on views is minor but acceptable as there will also be a minor view gain because the proposed roof is actually lower in height and narrower than the existing pitched roof that it replaces. Further there is not likely to be an adverse impact on the existing view to the north from the carport roof terrace at the front of the house at 3 Hampden Street, nor an impact on the harbour views to the north and north east from the townhouses at 10 Warringah Road.

2. The design is such as to minimise the adverse effects of the bulk and scale of buildings by siting of the building in a similar position to the existing building, and the stepped form and low profile design of the building starting at the Warringah Road side, and the upper level presenting a single storey form and scale to Hampden Street – noting the fall on the Site is approximately 12.5m. The upper level of the building is narrower with a wider setback on the sides and at the front compared to the 2 levels below. The result is that the building maintains solar access to the western neighbours at 10 Warringah Road and views, and view corridors, along the eastern and western sides of the building for properties uphill to the south in Hampden Street.

3. A variation of the 7.2m wall height standard in this case is in the public interest because the proposal achieves an acceptable environmental planning outcome for the Site and the surrounds.

4. The DA is therefore consistent with the objectives (a) and (b) of the wall height standard, and strict compliance with the 7.2m wall height standard is unreasonable and unnecessary in the circumstances.

6. The cl 4.6 Wall Height Variation Report by Mr Long establishes sufficient environmental planning grounds to justify contravening the wall height development standard.

8. The second request for a variation to a development standard relates to the maximum floor space ratio (FSR) pursuant to cl 4.4(2) of MLEP 2012. In reference to the written request for the Applicant by Warren Long of Longitude Planning Pty Ltd; Clause 4.6 Exceptions to development standards (In respect of the Floor Space Ratio), development standard of clause 4.3A(4) of the MLEP 2012 dated 6 March 2023 (FSR Variation Report), and to the amended plans:

1. Clause 4.4(2) applied to Zone R3 which provides that the FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map. The objectives of cl 4.4(1)(a) are:

(i)   to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and

(ii)   to provide a suitable balance between landscaping and built form, and

(iii)   to minimise the effects of bulk and sale of buildings;

(iv)   to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,

2. In accordance with the FSR Map of MLEP 2012, the R3 Medium Density Residential Zone (area ‘F’) the Site has a maximum FSR of 0.6:1. For the Site this calculation equates to a maximum floor area of 491.7m² on a site having an area of 819m².

3. The parties negotiated amendments to the plans and a reduction to the FSR to reduce the gross floor area by 29m² to 511.1m², which represents a FSR of 0.62:1. The amendments involved a reduction to the size of the ground floor apartment and Level 1 apartment together with a reduction in the length at the rear of the Level 2 apartment. The gross floor area calculations are shown on Drawing DA.510 Rev B.

4. The DA building will not be excessive in height, bulk and scale. It will be compatible with the predominant two, three and four storey height form and scale of the surrounding development which includes dwelling houses, townhouses and residential flat buildings of various styles and height, some of which are greater in height and storeys, and are more prominent in Warringah Road, and on the slope facing Warringah Road, than the DA building. The Level 3 apartment facing onto Hampden Street is compatible with the dwellings in that street.

5. The DA building provides a suitable balance between landscaping and built form. The adverse effects of bulk and scale of the building are minimized because the amended plans show the building reduced in height by 300mm, and set back on the Site. It is a building low set on the steeply sloping site and well below the 8.5m height of building standard, particularly at the rear where existing views are available from the adjoining flat building at 1 Hampden Street above and behind the Site.

6. The DA building endeavours to retain natural ground levels for the purpose of landscaping and containing urban run-off. The amended plans reduces excavation by reducing the areas at the back of the basement level and Ground Floor Level. The parking level off Warringah Road will be setback 2.835m to 4.425m from the front boundary, and 3.250m from the western side boundary to the entry hall and the lift, and 3.250m from the eastern boundary. The ground floor unit sits directly above the parking level with the same side setbacks and a front terrace and planter box with landscaping, and 6.9m setback to the front wall of the unit.

7. The excavation within the eastern side setback will vary from 0.350m opposite the living room, 2.35m on the side of Bedroom 2, and 2.5m on the side of the main bedroom. This part of the eastern side setback will be landscaped but at a slightly lower level. The existing ground levels along the eastern boundary adjoining the reserve will be maintained.

9. In relation to both requests for a cl 4.6 variation of development standard, the Court can grant consent without the concurrence of the Secretary to the Department of Planning and Infrastructure pursuant to s 8.14(3) of the EPA Act, but should take into account the matters in cl 4.6(5). In this case the DA is a local development with two minor non-compliances and an adequately justified breach of the two development standards (wall height development standard and FSR development standard). In the circumstances of this case the contravention of cll 4.3A(4) and 4.4(2) of MLEP 2012 do not raise any matter of significance for state or regional planning, and there is no public benefit in maintaining the standards.

10. The Council agrees that the applicant’s 2 cl 4.6 variation requests are well founded.

9. Clause 5.10 of MLEP 2012 relates to heritage. The road reserve of Hampden Street adjacent to the Site, and Warringah Road road reserve in front of the Site are listed as I375, I376, and I474 in Sch 5 of MLEP 2012 as heritage items of local heritage significance. The parties agree that the DA will not extend beyond the title boundaries of the Site, and will not involve any perceptible impact on the heritage significance of the adjacent road reserve of Hampden Street, and the divided road section of Warringah Road.

10. Clause 6.1 of MLEP 2012 relates to acid sulphate soils. The Site is shown uncoloured on the Acid Sulphate Soils Map and therefore an assessment under this heading is not necessary.

11. Clause 6.4 of MLEP 2012 relates to scenic protection. A part of the northern end of the Site fronting Warringah Road is subject to cl 6.4 of MLEP 2012. However the proposal is to be constructed below the maximum height limit and the development will be screened by an appropriate landscape design. The parties agree that the DA will meet the objectives of cl 6.4 to recognise and protect the natural and visual environment of Mosman and Sydney, reinforce the dominance of landscape over built form and ensure that development is located and designed to minimise its visual impact on those environments.

12. Clause 6.7 of MLEP 2012 relates to earthworks. The applicant relies upon the Preliminary Geotechnical Assessment dated 23 June 2022 by eiaustralia, and the Preliminary Site Investigation dated 14 April 2022 by eiaustralia. These reports have tested ground conditions on the Site, and assessed stratigraphy, groundwater, excavation retention systems, foundations, basement floor slab and the minimisation of effects on neighbouring properties during construction. The amended plans have significantly reduced the basement and ground floor excavation. The parties agree that the Applicant has met the requirements of cl 6.7 of MLEP 2012.

13. Clause 6.6 of MLEP 2012 relates to landscaped areas. Clause 6.6 provides that the consent authority may refuse to grant development consent unless (as applicable) 50% of the Site area is landscaped. The DA has been amended to increase the landscaped area from 33% to 41.1%, and the quality of the landscaped area has been improved. The Council is satisfied that the applicant meets the requirements of cl 6.6 of MLEP 2012 as it meets the objectives of the clause:

(a)  to have the landscape and townscape area character of Mosman’s residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development,

(b)  to have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores, while recognising the difficulty of achieving this on small lots where there are existing buildings such as semi-detached dwellings,

(c)  to have adequate and usable ground level open space for recreation, landscaping and containing urban run-off.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Having regard to the Preliminary Site Investigation by eiaustralia dated 14 April 2022, and the history of the Site as being used solely for residential purposes, the Site is not contaminated and therefore remediation of the Site is not required.

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

1. An Amended BASIX certificate No. 1312985M_02 dated 17 March 2023 has been filed (BASIX certificate), and it references the plans as amended and referred to in Annexure A. The BASIX certificate confirms that the DA development will meet sustainability requirements if it is built in accordance with the commitments set out therein.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The applicable section is Ch 2 in non-rural areas. Pursuant to s 2.1 the aims are:

(a)  to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and

(b)  to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

2. Council may authorise vegetation clearing provided that:

1. The clearing does not exceed the biodiversity offsets scheme threshold pursuant to the Biodiversity Conservation Act 2016;

2. The vegetation is not part of a heritage item or a heritage conservation area; or

3. The vegetation neither is, nor forms part of, an Aboriginal object or that it is an Aboriginal place of heritage significance.

3. The DA if approved will not result in the clearing of any native vegetation or clearing that exceeds the biodiversity offsets scheme, and does not involve clearing that is, or forms part of, an Aboriginal object or that is a known Aboriginal place of heritage significance.

4. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) consolidates and replaces the former deemed SEPP, Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the Harbour REP). The Biodiversity and Conservation SEPP was amended on 21 November 2022 and Ch 10 was repealed, however, Ch 10 continues to apply to the DA by virtue of s 6.65 – savings and transitional provisions as the DA was lodged with Council on 05/08/22. The Site is not zoned under the Biodiversity and Conservation SEPP, and the parties agree that the proposed DA is appropriate having regard to the matters for consideration in Div 2 of Pt 10.3 of the of the Biodiversity and Conservation SEPP.

Mosman Development Control Plan 2012

18. The parties agree, having regard to the SOFAC and the contentions set out therein, that the Court would be satisfied that the DA can be granted having regard to Mosman Development Control Plan 2012 (MDCP 2012) and s 4.15(1)(a)(iii) of the EPA Act.

19. The parties also agree that the DA can be granted taking into consideration the matters in s 4.15(1)(b)-(e) of the EPA Act, including consideration of the submissions by the objectors, and the public interest.

20. Finally, the parties consider that in granting the DA, the DA does not result in any contravention of the EPA Act, or any environmental planning instrument, or the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). As such the Court may exercise its function under s 4.16(1) of the EPA Act, and grant consent to the DA.

21. I set out below why I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

1. The Applicant applied for the DA with the consent of the owners of the Site in accordance with s 4.12 of the EPA Act.

2. The Applicant appealed to the Court pursuant to s 8.7(1) of the EPA Act, and in accordance with the provisions of s 8.11(1) of the EPA Act as a deemed refusal applying the time prescribed by s 91(1) and (4) of the EPA Regulation.

3. The Court has jurisdiction to hear and determine the proceedings in accordance with s 17(d) of the LEC Act, and s 4.16 of the EPA Act.

4. The DA was notified in accordance with the Mosman Community Participation Plan, adopted by Council in June 2022. I read the 13 submissions objecting to the DA, which related to 9 properties. At the commencement of the s 34 conciliation conference on Site, I heard from 3 objectors relating to 4 adjoining properties. I inspected the relevant 4 properties to understand the potential impact of the DA being granted and listened to the objectors’ concerns. The objections were from the townhouses situated at 10 Warringah Road. Their concerns were:

1. Impact of the height of the proposed building;

2. Impact on views;

3. Front and side setbacks;

4. Overshadowing

5. Impact of tree removal, and in one case the retention of a tree.

5. Amendments were agreed to the plans, partly in consideration of the objectors’ concerns, and partly in response to issues raised by Council. The final plans were informally notified by Council to those submitters who had participated in the s 34 conciliation conference. Any informal submissions received by Council as a result of that informal notification have been considered by the parties.

6. Since the on-site view by the Court, the plans have been amended as set out in paragraph 17 sub-paragraphs (14) (d) and (e), and (15) (c) – (g). The remaining concerns of the objectors have been considered, and in particular in paragraph 17 sub-paragraphs (18), (20), (21) and (22). I have taken into consideration all of the concerns raised in writing and orally by the objectors.

7. Council, as the relevant consent authority, has agreed, pursuant to s 37 of the EPA Regulation, to the Applicant amending the DA to rely upon the following plans and documents:

Drawing	Date	Prepared By
Draft Strata Plan	17.03.23	Strata Surv
Demolition Plan, DA.003, Rev B	20.02.23	Mathieson Architects
Site Plan, DA.100, Rev B	20.02.23	Mathieson Architects
Basement Plan, DA.101, Rev B	20.02.23	Mathieson Architects
Ground Plan, DA.102, Rev B	20.02.23	Mathieson Architects
Level 1 Plan, DA.103, Rev B	20.02.23	Mathieson Architects
Level 2 Plan, DA.104, Rev B	20.02.23	Mathieson Architects
Roof Plan, DA.105, Rev B	20.02.23	Mathieson Architects
East & West Elevation, DA.200, Rev B	20.02.23	Mathieson Architects
North & South Elevation, DA.201, Rev B	20.02.23	Mathieson Architects
North­South Section, DA.300, Rev B	20.02.23	Mathieson Architects
External Finishes, DA.900, Rev B	20.02.23	Mathieson Architects
Landscape Plans LP00-LP04-D5722 Rev D	24.03.23	Dangar Barin Smith
Stormwater Management Plans C1 – C7 Issue C	15.03.23	ACOR Consultants (CC) Pty Ltd
Document	Date	Prepared By
Statement of Environmental Effects	6 July 2022	Longitude Planning Pty Limited
BASIX Certificate No.1312985M_02	17 March 2023	E­LAB Consulting
Clause 4.6 Exemption to Development Standard ­ Wall Height	6 March 2022	Longitude Planning Pty Limited
Clause 4.6 Exemption to Development Standard ­ Floor Space Ratio	6 March 2023	Longitude Planning Pty Limited
Arboricultural Impact Assessment Report	30 May 2022	Apex Tree & Garden Experts
BCA Capability Statement	30 June 2022	Blackett Maguire + Goldsmith
DDA Compliance Statement	6 July 2022	Blackett Maguire + Goldsmith
Environmental Noise Impact Assessment	29 June 2022	ADP Consulting
Preliminary Geotechnical Assessment	23 June 2022	eiaustralia
Preliminary Site Investigation	14 April 2022	eiaustralia
Operational Waste Management Plan	29 June 2022	Elephants Foot Consulting Pty Limited
Transport and Parking Impact Assessment	2 July 2022	Transport Strategies
BCA letter	22 February 2023	Blackett Maguire + Goldsmith
Traffic letter	24 February 2023	Transport Strategies

8. The Applicant filed the amended development application with the Court on 14 and 16 April 2023.

9. I accept that the Site is R3 Medium Density Residential zone pursuant to MLEP 2012, and that the DA complies with the objectives of the R3 zone.

Breach of Development Standards

1. The parties agree that a variation to the Wall Height and Floor Space Ratio (FSR) development standards, pursuant to cll 4.3A(4) and 4.4(2) of MLEP 2012 can be supported.

2. In relation to the variations of the development standards (both wall height and FSR), the parties’ arguments to uphold the appeals in relation to cl 4.6 of MLEP 2012 is set out in at [17(12)] to [17(17)] above.

3. Chief Justice Preston set out 5 tests to be applied in considering whether a cl 4.6 request should be upheld in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (‘Wehbe’):

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 the 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 or unnecessary as it applied to that land. Consequently, compliance with that development standard is unnecessary and unreasonable.

4. However, the five ways to demonstrate if compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (per Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGRA 256; [2018] NSWLEC 118 at [22]).

5. The cl 4.6 of MLEP 2012 variations to the development standards by exceeding the prescribed wall height, and FSR, have been established in accordance with the first test in Wehbe for the following reasons as set out in the Wall Height Variation Report and the Variation of FSR Report:

1. Both variations meet the objectives of cl 4.6 in MLEP 2012;

2. Both variations meet the objectives of the R3 Medium Density Residential zone of MLEP 2012;

3. Both variations meet the objectives of cll 4.3(A) and 4.4(2) of MLEP 2012.

4. The DA design is compliant with the desired future character of the area.

5. The neighbours have wide and clear views of Middle Harbour which will not be unreasonably impacted by the DA. In some ways those views will be enhanced by the substitution of a flat roof to the presently hipped roof on the Site.

6. The DA is in the public interest because it is consistent with the objectives of both the R2 Low Density Residential zone, the objectives of cll 4.3A(1)(a) and 4.4(2) of MLEP 2012, to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity.

6. I accept that the parties have met the pre-requisite jurisdictional information in relation to the following:

1. The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004;

2. State Environmental Planning Policy (Resilience and hazards) 2021;

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021;

4. Clause 5.10 of MLEP 2012 – Heritage conservation;

5. Clause 6.1 of MLEP 2012 – Acid Sulphate Soils;

6. Clause 6.4 of MLEP 2012 – Scenic Protection

7. Clause 6.7 of MLEP 2012 – Earthworks

8. Clause 6.6 of MLEP 2012 – Landscaping

7. The DA is not subject to the provisions of State Environmental Planning Policy No. 65 – Design Quality Residential Apartment Development as although the building is 3 storeys (cl 4(1)(b)), it does not contain 4 or more dwellings (cl 4(1)(c)).

22. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall grant consent to the DA in accordance with s 4.16(1)(a) of the EPA Act and subject to the conditions in Annexure A which are in accordance with s 4.17(1)(a) of the EPA Act.

23. The Court notes that:

1. Mosman Municipal Council, as the relevant consent authority, has agreed, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA8.2022.200.1 to rely upon the following plans and documents:

Drawing	Date	Prepared By
Draft Strata Plan	17.03.23	Strata Surv
Demolition Plan, DA.003, Rev B	20.02.23	Mathieson Architects
Site Plan, DA.100, Rev B	20.02.23	Mathieson Architects
Basement Plan, DA.101, Rev B	20.02.23	Mathieson Architects
Ground Plan, DA.102, Rev B	20.02.23	Mathieson Architects
Level 1 Plan, DA.103, Rev B	20.02.23	Mathieson Architects
Level 2 Plan, DA.104, Rev B	20.02.23	Mathieson Architects
Roof Plan, DA.105, Rev B	20.02.23	Mathieson Architects
East & West Elevation, DA.200, Rev B	20.02.23	Mathieson Architects
North & South Elevation, DA.201, Rev B	20.02.23	Mathieson Architects
North­South Section, DA.300, Rev B	20.02.23	Mathieson Architects
External Finishes, DA.900, Rev B	20.02.23	Mathieson Architects
Landscape Plans LP00-LP04-D5722 Rev D	24.03.23	Dangar Barin Smith
Stormwater Management Plans C1 – C7 Issue C	15.03.23	ACOR Consultants (CC) Pty Ltd
Document	Date	Prepared By
Statement of Environmental Effects	6 July 2022	Longitude Planning Pty Limited
BASIX Certificate No.1312985M_02	17 March 2023	E­LAB Consulting
Clause 4.6 Exemption to Development Standard ­ Wall Height	6 March 2022	Longitude Planning Pty Limited
Clause 4.6 Exemption to Development Standard ­ Floor Space Ratio	6 March 2023	Longitude Planning Pty Limited
Arboricultural Impact Assessment Report	30 May 2022	Apex Tree & Garden Experts
BCA Capability Statement	30 June 2022	Blackett Maguire + Goldsmith
DDA Compliance Statement	6 July 2022	Blackett Maguire + Goldsmith
Environmental Noise Impact Assessment	29 June 2022	ADP Consulting
Preliminary Geotechnical Assessment	23 June 2022	eiaustralia
Preliminary Site Investigation	14 April 2022	eiaustralia
Operational Waste Management Plan	29 June 2022	Elephants Foot Consulting Pty Limited
Transport and Parking Impact Assessment	2 July 2022	Transport Strategies
BCA letter	22 February 2023	Blackett Maguire + Goldsmith
Traffic letter	24 February 2023	Transport Strategies

2. The Applicant filed the amended development application with the Court on 14 and 16 April 2023.

Orders

24. The Court orders:

1. The Applicants’ written request prepared by Longitude Planning dated 6 March 2023 pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 (MLEP 2012) to vary the wall height of building development standard in clause 4.3A of the MLEP 2012 is upheld.

2. The Applicants’ written request prepared by Longitude Planning dated 6 March 2023 pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 (MLEP 2012) to vary the floor space ratio development standard in clause 4.4 of the MLEP 2012 is upheld.

3. The appeal is upheld.

4. Development Application No. DA8.2022.200.1 for demolition of existing building and construction of residential flat building at 1A Hampden Street, (also known as 8 Warringah Road) Mosman and being the whole of the land in Lots 1, 2 and 3 in Strata Plan No. 13223 is determined by the grant of consent subject to the conditions in Annexure A.

5. The Applicant is to pay Council’s costs thrown away in the agreed sum of $21,000 within 28 days of the date of this order pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

M Peatman

Acting Commissioner of the Court

Annexure A

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Decision last updated: 19 May 2023