Platform Project Services v Mosman Municipal Council

[2022] NSWLEC 1516

Land and Environment Court

New South Wales

Medium Neutral Citation:

Platform Project Services v Mosman Municipal Council [2022] NSWLEC 1516

Hearing dates:

Conciliation conference on 2 and 23 June 2022, 13 July 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $20,144.00 within 28 days of the making of this order.

(2) The written request pursuant to clause 4.6 of Mosman Local Environmental Plan 2012 seeking a variation to the height standard in clause 4.3 of Mosman Local Environmental Plan 2012 prepared by Longitude Planning dated 20 June 2022 is upheld.   

(3) The Appeal is upheld.

(4) Development consent is granted to Development Application No. DA8.2021.434.1 for the construction of a mixed use development comprising retail space, 28 dwellings, a public car park and stratum/strata subdivision at 7-11 Spit Road, Mosman subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development in B2 Local Centre zone – residential apartment development – residential flat building – conciliation conference – agreement between the parties - orders

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.11, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Land and Environment Court Act 1979, s 34

Mosman Local Environmental Plan 2021, cll 4.3, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 10.23, 10.24

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss, 2.48, 2.119, 2.120

State environmental planning policy No 65 – Design quality of residential apartment development, cll 28, 30

Cases Cited:

Bettar v Council of the City of Sydney [2014] NSWLEC 1070

Texts Cited:

Mosman Development Control Plan 2012

NSW Department of Planning, Apartment Design Guide (July 2015)

Category:

Principal judgment

Parties:

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

Representation:

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

Solicitors:
Sattler & Associates (Applicant)
Pikes & Verekers (Respondent)

File Number(s):

2022/32971

Publication restriction:

No

Judgment

1. COMMISSIONER: A mixed use development comprising ground floor retail tenancy, 28 dwellings, basement carparking and stratum/strata subdivision is proposed on land formerly owned by Transport for NSW at 7-11 Spit Road, Mosman.

2. To that end, the Applicant in these proceedings, Platform Project Services, lodged Development Application DA8.2021.434.1 (the DA) with Mosman Municipal Council on 15 December 2021. The DA was notified from 21 December 2021, until 17 January 2022.

3. The Applicant lodged an appeal against the deemed refusal of the DA under s 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 proceedings on 4 February 2022.

4. 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 2 June 2022, and at which I presided.

5. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application.

6. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted further adjournments so that additional amendments agreed between the parties could be made to the proposal.

7. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 5 August 2022.

9. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

10. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [42], and as follows:

11. The site is located in the B2 Local Centre zone according to the Mosman Local Environmental Plan 2021 (MLEP), in which development for the uses proposed is permitted with consent.

12. The objectives of the B2 zone are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To enhance the viability, vitality and amenity of the local centres.

• To maintain active uses at street level with a predominance of retail use.

• To allow the amalgamation and redevelopment of land in Spit Junction.

• To encourage residential development as part of the mixed use of sites.

13. A height standard of 15m applies to the site, according to cl 4.3 of the MLEP. The proposed development exceeds the height standard and so the DA relies upon a written request prepared by Longitude Planning in accordance with cl 4.6 of the MLEP.

14. The objectives of the height standard for the B2 zone at cl 4.3 are:

(b)  for development on land in Zone B1 Neighbourhood Centre, Zone B2 Local Centre or Zone B6 Enterprise Corridor—

(i)  to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form and will produce a cohesive streetscape, and

(ii)  to provide opportunities for buildings of a greater height than existing development in suitable locations to achieve the Council’s residential strategy and provide opportunities for economic growth

15. The written request observes that the site has been excavated prior to lodgement of the DA and so the ground level for the purposes of determining the height of building standard has been extrapolated in the manner set out in Bettar v Council of the City of Sydney [2014] NSWLEC 1070.

16. On this basis, the exceedance is expressed in the written request as a maximum of 570mm at the topmost level of the lift overrun and screen to rooftop services.

17. The written request asserts that compliance with the standard is unnecessary or unreasonable in the circumstances of this case as the objectives of the height standard are achieved, notwithstanding the non-compliance with the numerical standard because:

1. The desired future character of the area envisages a 15m height containing 5 storeys and a floor space ratio of 3:1, and is the only site in the Mosman Municipal Council local government area so designated.

2. Given a similar height, or identical heights are permitted on adjoining and nearby sites, the proposal will be compatible with the desired future character expressed in future development in the vicinity of the site, will provide a cohesive streetscape despite the exceedance, while also achieving the greater height than existing development, consistent with the second objective at cl 4.3.

18. The written request also asserts that requiring compliance would thwart the achievement of the objectives of the height standard as the actions of the Council over time consistently equate the 15m height limit with development of five storeys, which appears to misalign with the requirements of the Apartment Design Guide (ADG) which establishes certain heights for ground floor retail development.

19. I am satisfied that the proposal is consistent with the objectives of the height standard in cl 4.3, despite the exceedance, which I consider to be minor. In forming this opinion of satisfaction, I accept the site is subject to a combination of height and floor-space ratio (FSR) standards that is unique in the immediate area, and which has the effect of promoting development of greater height than existing development in the area. This is achieved by a proposal that complies with the FSR applicable to the site, and largely within the height standard, despite a fall in the land to the north east where an exceedance occurs.

20. I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the height standard for reasons contained in the written request, that may be summarised as follows:

1. The slope of the land in the vicinity of the site imposes constraints in providing universal access to the ground floor tenancy while also accommodating the number of storeys envisaged by the control.

2. Relatedly, the exceedance occurs at the north east and eastern portion of the development, due in part to the slope of land along the Clifford Street and Spit Road frontage.

3. The height exceedance does not flow from a desire for, or achieving of, additional FSR beyond the 3:1 permitted on the site.

4. While the height of the proposal results in an impact on views from an existing building at 34 Spit Road, I accept the impact is one that largely results from the envelope envisaged by the controls applicable to the site. That said, the view impact assessment depicts a view to the horizon line of the harbour and Pacific Ocean that is substantially retained.

5. Likewise, the impact on solar access to existing dwellings at 11-17 Clifford Street retains the degree of direct solar access required by the Mosman Development Control Plan 2012 (MDCP).

6. Finally, I accept that the proposal is consistent with the objective for development in the B2 zone set out at [12], because:

• An accessible ground floor retail tenancy is an identified use within the objective that also encourages employment opportunities, and contributes to the predominance of retail uses.

• The proposal is located at a bus stop for the ‘B-line’ service, accommodates bicycle and motorcycle parking, and end of trip facilities to encourage the same.

• The proximity of the development to existing amenities in Spit Road and Military Road will enhance the viability and vitality of the local area, and basement parking reserved for public use may likewise contribute to this objective.

• The residential development comprises a mix of 1-, 2- and 3-bedroom apartments above ground floor retail tenancy which achieves the mixed use development sought by the objectives.

• Accordingly, I am satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP, and also that the development is in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the B2 zone in which the development is proposed to be carried out.

21. Clause 4.6(4)(b) of the MLEP requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.

22. That said, s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought to be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.

23. I have considered whether the contravention of the height standard raises any matter of significance for State or regional environmental planning, and whether there is a public benefit of maintaining the development standard. I conclude that no matter of significance arises, and I consider there to be a public benefit served by upholding the written request for the reasons set out above.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the site, and the DA relies upon a Preliminary Site Investigation Report and Supplementary Sampling prepared by EI Australia dated November 2021, confirming that there was no contamination identified on the site.

25. Accordingly, I am satisfied that the site is suitable for the purpose for which development is proposed, in accordance with s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

26. As the proposed development is within 5m of a power pole and overhead electricity power line, s 2.48(1)(b)(iii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires the electricity supply authority be notified in writing, and for any response to be taken into consideration. On the basis of written evidence provided to the Court, I am satisfied that the requirements of s 2.48(2) of the Transport and Infrastructure SEPP have been met.

27. Furthermore, I note the agreed conditions of consent require compliance with relevant Ausgrid network standards, safe work NSW codes of practice, Codes of Practice or constructions works near existing electrical assets.

28. As the site has a frontage to Spit Road, being a classified road within the terms of the Transport and Infrastructure SEPP, I note that practicable and safe vehicular access is provided off Clifford Street, and I accept that no aspect of the proposed development will affect the safety, efficiency and ongoing operation of the classified road by reference to those matters at s 2.119(2)(b)(i)-(iii) of the Transport and Infrastructure SEPP.

29. Relatedly, on the basis of the Amended DA Acoustic Assessment prepared by Pulse White Noise Acoustics dated 16 August 2022, I am also satisfied that development is appropriately designed and includes measures to ameliorate potential traffic noise within the site of the development arising from the adjacent classified road, subject to façade and window specifications as set out at Appendix C, and I am also satisfied that appropriate measures will be taken to ensure that those LAeq levels set out at s 2.120(3)(a) and (b) are not exceeded.

State environmental planning policy No 65 – Design quality of residential apartment development (SEPP65)

30. As the proposal is for mixed use development comprising residential apartment development, the provisions of SEPP 65 apply.

31. Clause 28 of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following:

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

32. Where an application relates to residential apartment development, cl 50(1A) of the EPA Regulation requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

33. The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65. I am satisfied that the statement provided by Mr Paul Buljevic (Arch Reg No.7768) is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, objectives and design criteria of the ADG.

34. On the basis of the design statement prepared by Mr Buljevic, I am also of the opinion that adequate regard has been had to the design quality principles and to the objectives specified in the ADG, in accordance with cl 30(2) of SEPP 65.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

35. Mosman Municipal Council LGA is within the Sydney Harbour catchment. As such, s 10.23 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) requires matters relating to foreshore and waterway scenic quality to be taken into account.

36. I have considered whether, and I accept that, the scale, form, design and siting of the proposed development is consistent with those aspects set out at s 10.23 (a)(i)-(iii), including the likely future character.

37. For the reasons set out at [20(4)], I consider the views to Sydney Harbour to be maintained, protected and enhanced within the terms of the applicable controls, in accordance with s 10.24 of the Biodiversity and Conservation SEPP.

State Environmental Planning Policy (BASIX) 2004

38. I am satisfied that a BASIX certificate No. 1250307M_02 dated 22 July 2022 has been prepared by Greenview Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

Conclusion

39. 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.

40. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

41. The Court notes:

1. That Mosman Municipal Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA8.2021.434.1 to rely upon the following plans and documents:

Drawing	Date	Prepared By
Basement 3 Plan - DA100 Issue E	04 July 2022	PBD Architects
Basement 2 Plan - DA101 Issue E	04 July 2022	PBD Architects
Basement 1 Plan - DA102 Issue E	04 July 2022	PBD Architects
Lower Ground Floor Plan - DA103 Issue D	04 July 2022	PBD Architects
Ground Floor Plan – DA104 Issue E	04 July 2022	PBD Architects
Level 1 Plan - DA105 Issue F	29 July 2022	PBD Architects
Level 2 Plan - DA106 Issue F	29 July 2022	PBD Architects
Level 3 Plan – DA107 Issue D	04 July 2022	PBD Architects
Roof Plan - DA108 Issue D	04 July 2022	PBD Architects
Elevation 01 - DA200 Issue D	04 July 2022	PBD Architects
Elevation 02 - DA201 Issue D	04 July 2022	PBD Architects
Section 01 - DA300 Issue D	04 July 2022	PBD Architects
Section 02 - DA301 Issue D	04 July 2022	PBD Architects
Material Finishes – DA400 Issue C	04 July 2022	PBD Architects
Landscape Plan - Contents - 2 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Plan – Design Statement – 3 – Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Plan – Landscape Master Plan – 4 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Plan – Lower Ground - 5 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Plan - Ground - 6 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Plan - Level 01 - 7 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Plan - Level 02 - 8 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Plan – Level 03 - 9 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Planting on Structure – 10 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Landscape Section A - 11 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Indicative Materials & Planting Palette - 12 Issue B	19 July 2021 (sic)	LandFX Landscape Architecture
Planting Schedule - 400 Issue B	15 July 2022	LandFX Landscape Architecture
Planting Plan Lower Ground - 401 Issue B	15 July 2022	LandFX Landscape Architecture
Planting Plan Ground Floor - 402 Issue B	15 July 2022	LandFX Landscape Architecture
Planting Plan Level 1 - 403 Issue B	15 July 2022	LandFX Landscape Architecture
Planting Plan Level 2 - 404 Issue B	15 July 2022	LandFX Landscape Architecture
Planting Plan Level 3 – 405 Issue B	15 July 2022	LandFX Landscape Architecture
Landscape Details - 701 Issue B	15 July 2022	LandFX Landscape Architecture
Landscape Specification - 800 Issue B	15 July 2022	LandFX Landscape Architecture
Draft Plan of Subdivision of Lot 36 in DP3174 & Lots 1-3 in DP1269406 - Sheets 1 to 7 inclusive	All dated 05/07/2022	StrataSurv
Draft Plan of Subdivision of Lot 50 in DP… - Sheets 1 to 7 inclusive	All dated 07/07/2022	StrataSurv
Civil Design Notes & Legends - C01 Rev 4	22 July 2022	Greenview Consulting
Civil Design Basement 3 Drainage Plan - C02 Rev 4	22 July 2022	Greenview Consulting
Civil Design Basement 2 Drainage Plan - C03 Rev 4	22 July 2022	Greenview Consulting
Civil Design Basement 1 Drainage Plan - C04 Rev 4	22 July 2022	Greenview Consulting
Civil Design Ground Floor Drainage Plan - C05 Rev 4	22 July 2022	Greenview Consulting
Civil Design Site Stormwater Details Sheet 1 - C06 Rev 4	22 July 2022	Greenview Consulting
Table 1 - Apartment Design Guide - Compliance Chart - Rev 2	18 July 2022	PBD Architects
BASIX Certificate No.1250307M_02	22 July 2022	Greenview Consulting Pty Ltd
NatHERS Certificate No. 0006792330	22 July 2022	Greenview Consulting Pty :Ltd
Design Verification Statement & SEPP 65 Assessment	August 2022	PBD Architects & Project Managers
Clause 4.6  Height of Buildings	20 June 2022	Longitude Planning Pty Ltd
Detailed Site Investigation - E25362.E02.Rev0	12 May 2022	EI Australia Pty Ltd
Operational Waste Management Plan - 3439 Rev D	2 March 2022	Elephants Foot Consulting Pty Ltd
Fire Safety Upgrade Report	4 August 2022	E-Lab Consulting Fire Engineers
BCA Compliance Statement	29 July 2022	Blackett Maguire & Goldsmith
Acoustics Assessment - 210425 Rev 3	22 July 2022	Pulse White Noise Acoustics
Access Report - 21317 Issue B	22 July 2022	Vista Access Architects Pty Ltd

2. The Applicant uploaded the documents set out in paragraph 2(i) above onto the NSW Planning Portal by 5 August 2022.

3. The Applicant filed the amended development application with the Court on 5 August 2022.   

Orders

42. The Court orders that:

1. The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $20,144.00 within 28 days of the making of this order.

2. The written request pursuant to clause 4.6 of Mosman Local Environmental Plan 2012 seeking a variation to the height standard in clause 4.3 of Mosman Local Environmental Plan 2012 prepared by Longitude Planning dated 20 June 2022 is upheld.   

3. The Appeal is upheld.

4. Development consent is granted to Development Application No. DA8.2021.434.1 for the construction of a mixed use development comprising retail space, 28 dwellings, a public car park and stratum/strata subdivision at 7-11 Spit Road, Mosman subject to the conditions in Annexure A.

……………………

T Horton

Commissioner of the Court

**********

Annexure A 

Decision last updated: 21 September 2022