Qi Sheng v Mosman Municipal Council

[2021] NSWLEC 1748

Land and Environment Court

New South Wales

Medium Neutral Citation:

Qi Sheng v Mosman Municipal Council [2021] NSWLEC 1748

Hearing dates:

28 July, 20 September 2021 and 16 November 2021

Date of orders:

14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [26] for proceedings 2021/121082, and [27] for proceedings 2021/225698

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to dwelling house – application for building information certificate - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.25,

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 34AA

Mosman Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.6

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

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Qi Sheng (First Applicant)
Kieren O’Neill (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
Q Sheng (self-represented) (Applicant)
K O’Neill (self-represented) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Q Sheng (self-represented) (Applicant)
K O’Neill (self-represented) (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/121082;
2021/225698

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the owners of 87 Belmont Road, Mosman following the refusal by Mosman Municipal Council (the Respondent) of Development Application DA 8.2020.187.1 (the DA Appeal) that seeks consent for the partial demolition of the area of an unauthorised addition, further works as set out in the amended plans and use of an area of an addition that has been undertaken at 87 Belmont Road, Mosman (the site).

2. The appeal also relates to proceedings 2021/225698 in respect of a Building Information Certificate application 4.2021.42.1 (the BIC Appeal).

3. The Court listed the DA Appeal for a mandatory conciliation conference under s 34AA of the Land Environment Court Act 1979 (‘LEC Act’) on 28 July 2021, which commenced on MS Teams. I presided at the conciliation conference.

4. During the conciliation conference, the parties reached in-principle agreement on the matters in contention in the DA Appeal, subject to the resolution of a number of matters which the parties’ advised me were capable of resolution.

5. In particular, the Applicants undertook to amend the development application the subject of the Development Appeal to address all of the issues identified by the Respondent.

6. However, in respect of the BIC Appeal, the Applicants advised that previous attempts to lodge an application for a Building Information Certificate had been declined by the Respondent, frustrating genuine efforts by the Applicant to do so.

7. As the Applicants were not assisted in the proceedings by a design professional to give effect to the terms of the agreement by the preparation of amended documents, I considered there to be no prospects of a conciliated outcome and terminated the conciliation conference and proceeded forthwith to hearing.

8. The parties consented to discussions and documents produced during the conciliation conference being relied upon as evidence in the hearing in accordance with s 34(12) of the LEC Act.

9. In opening submissions, the Respondent recognised that the Applicants were not represented in the proceedings by a legal practitioner, and that attempts had been made by the Applicant to lodge an application for a Building Information Certificate.

10. On these grounds, the Respondent sought an adjournment to permit the Applicant to firstly prepare an amended development application and, secondly, to be permitted to lodge a Building Information Certificate that the Applicant understood would be refused, so as to join the proceedings in the BIC Appeal with the DA Appeal.

11. In considering the particular circumstances of this case, and the overriding purpose of the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings, I adjourned the matter, and directed that the Respondent receive an application for a Building Information Certificate from the Applicant, and for amended plans to be prepared and served on the Respondent no later than 25 August 2021, in accordance with the undertaking made by the Applicants.

12. I further directed the Respondent, on the same date, to advise the Court upon receipt of the amended plans. This did not occur.

13. When the matter resumed before me on 20 September 2021, the Applicant provided evidence that amended plans had been served on the Respondent on 25 August 2021, however due to limits imposed on the size of electronic files, the Applicants also advised that they had been unable to file the amended plans with the Court prior to the resumption of the hearing.

14. The Respondent advised the Court that the Respondent’s planning expert had reviewed the amended plans, which fully address the matters in contention in the DA Appeal. As such, there should be no impediment to the grant of consent by the Court, subject to the lodgement of the same on the NSW Planning Portal, and the filing of the same with the Court.

15. The Respondent agreed, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to the Applicant lodging the amended plans on the NSW Planning Portal.

16. On 23 September 2021, the Applicant filed the amended application with the Court, along with evidence that the amended application had been lodged on the NSW Planning Portal prior.

17. In respect of the BIC Appeal, the Applicant tendered an expert report on Building Code of Australia (BCA) compliance in respect of the BIC Appeal, marked Exhibit E, and additional information in relation to unauthorised work that the Respondent submits demonstrates sufficient adequacy of the unauthorised works to cause their retention, in part.

18. The parties have agreed conditions of consent that require the Applicant to:

• upgrade the northern wall to satisfy fire separation requirements of the Building Code of Australia

• obtain Sydney Water approval prior to obtaining a Construction Certificate, and

• obtain a structural engineering certificate in respect of the structural integrity of remaining building elements prior to release of the Building Information Certificate.

The DA Appeal warrants the grant of consent

19. The site is legally described as Lot A in DP 440114, and otherwise known as 87 Belmont Road, Mosman. The site is currently occupied by a detached, single storey dwelling and the site is located in the R2 Low Density Residential zone, as identified by the Mosman Local Environmental Plan 2012 (MLEP). Dwelling house development is permitted with consent, where it is consistent with the objectives of the R2 zone, which 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 maintain the general dominance of landscape over built form, particularly on harbour foreshores.

•  To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

•  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.

20. The amended application complies with development standards at cl 4.3 of the MLEP in respect of height, cl 4.4 in respect of FSR, and cl 6.6 in respect of landscape area.

21. The site is located within the Glover and Nathan’s Estate Heritage Conservation Area, and the effect of the proposed development on the heritage conservation area is acceptable pursuant to cl 5.10 of the MLEP.

22. While the amended application does not strictly conform to the Objectives and controls of the Mosman Residential Development Control Plan 2012, the town planning experts agree that the amended application reduces the visual bulk and shadow impacts on adjoining properties.

23. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the assessment report at folio 13 of the Respondent’s bundle (Exhibit 2), I am satisfied that the site is not contaminated.

Conclusion

24. On the basis of the amended application, I determine the DA Appeal to be deserving of the grant of consent in accordance with s 4.16 of the EPA Act, and after considering the further information in respect of unauthorised works, I consider it appropriate to direct the Respondent to issue a Building Information Certificate in accordance with s 8.25(3)(a) of the EPA Act.

Orders

In respect of the Application Appeal (proceedings 2021/121082):

25. The Court notes that:

1. The Applicant has amended the application with the consent of the Respondent.

2. The amended application was lodged on the NSW Planning Portal on 22 September 2021.

3. The Applicant has subsequently filed the amended application with the Court.

26. The Court orders that:

1. Leave is granted for the Applicant to rely upon the amended plans referred to in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Application No. 8.2020.187.1 for alterations and additions to the rear of a single storey dwelling house at 87 Belmont Road, Mosman is approved subject to conditions set out in Annexure A.

4. All exhibits are returned, except for Exhibits B and E.

In respect of the BIC Appeal (proceedings 2021/225698):

27. The Court orders that:

1. The appeal is upheld.

2. The Respondent Council is to issue a Building Information Certificate in respect of the retained eastern wall and floor of the unauthorised structure subject to the Applicant demonstrating compliance with conditions 37 and 38 of the development consent issued for DA 8.2020.187.1, including certification of the structural adequacy of the retained eastern wall and floor following demolition of the unauthorised structure.

……………………

T Horton

Commissioner of the Court

Annexure A (211821, pdf)

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Decision last updated: 14 December 2021