Richards v Mosman Municipal Council

[2022] NSWLEC 1082

Land and Environment Court

New South Wales

Medium Neutral Citation:

Richards v Mosman Municipal Council [2022] NSWLEC 1082

Hearing dates:

30 November 2021

Date of orders:

17 February 2022

Decision date:

17 February 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

1) That the cl 4.6 written request to justify the contravention of the height of building development standard is upheld.

2) That the cl 4.6 written request to justify the contravention of the wall height development standard is upheld.

3) The appeal is upheld.

4) Development application No. 8.2021.20.1 seeking consent for the demolition of a dwelling house, construction of a new dwelling house, double carport and landscaping works. at 26 Kirkoswald Avenue, Mosman, legally described as Lot B in DP 345994 is determined by granting consent to the application subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – height of building development standard – wall height development standard – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Mosman Local Environmental Plan 2012, cl 4.3, 4.3A, 4.6

Cases Cited:

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

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

Category:

Principal judgment

Parties:

Antoinette Richards (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):

2021/227684

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the actual refusal of a development application No. 8.2021.20.1 (the DA) seeking consent for the demolition of a dwelling house, construction of a new dwelling house, double carport, and landscaping works (the Proposed Development) at 26 Kirkoswald Avenue, Mosman, legally described as Lot B in DP 345994 (the Site).

2. The parties rely on the evidence in the Joint Expert Report prepared by Greg Boston, Town Planner for the Applicant, and Steven Layman, Town Planner and Architect for the Respondent dated and filed 26 November 2021 (Ex 3) together with a Supplementary Town Planning Joint Expert Report dated 30 November 2021 (Ex 5).

3. The proceedings commenced with an inspection of the Site and two adjoining properties. Mr Goodyer, representing properties across the road and Mr Collins, representing adjoining neighbours at 1B and 1C Hopetoun Avenue, Mosman, gave oral evidence on site on behalf of their clients. Mr Goodyer said that the amendments made by the Applicant regarding the removal of the pop-up roof elements satisfactorily addressed his clients’ concerns and the there was no further objection to the Proposed Development. Mr Collins pointed out the concerns regarding visual bulk and privacy impacts and he particularly stressed the concern of the owner of 1C Hopetoun Avenue regarding drainage and overland flow, which is particularised in Contention 10 of the Statement of Facts and Contentions filed by the Respondent on 12 October 2021 (SOFAC) (Ex 1).

4. In response to the drainage and overland flow concern, the Respondent advised the Court that Council’s engineers were further consulted and that they confirmed that no changes were required to the drawings.

5. The parties participated in a conciliation conference on 29 November 2021 which was terminated in the morning of 30 November 2021. The parties consented to the matters raised in conciliation to be taken into account in the hearing.

6. The Applicant made further amendments to the Proposed Development and the Court notes that the Respondent consents to the amendments as follows:

1. Architectural Plans – Rev C (Ex F);

2. Basix Certificate and Energy Rating Certificate (Ex G);

3. Clause 4.6 Variations Requests dated 30 November 2021 (Ex H).

7. The Court further notes that the documents listed in par [5] above have been uploaded onto the NSW Planning Portal and filed with the Court on 30 November 2021.

8. The parties have agreed on Draft/Proposed Conditions of Consent filed 1 December 2021, marked Ex 6.

9. Prior to the conclusion of the hearing, the Respondent was contacted by a resident objector, Mr van Aanholt who sought to be given an opportunity to address the Court. The Court was referred to the written submissions from Denis Fish Planning Services dated 22 February 2021 on behalf of Mr and Mrs van Aanholt, the owners of 1 Hopetoun Avenue Mosman, contained in Ex 2, folio 171. Mr van Aanholt addressed the Court making oral submissions regarding his concerns with height, bulk and scale, setbacks, drainage and use of the undercroft space (Transcript 30 November 2021. P 31-32).

10. The Respondent put on the record that the Respondent council’s development engineer has considered concerns raised by the neighbours, specifically 1C Hopetoun Avenue Mosman, as to the Applicant’s drainage proposal and has confirmed his decision that the drainage is appropriate subject to appropriate conditions of consent. In relation to setback, the Respondent noted the nature of the amendments to the rear where there is an increase to a 2m setback on the western side and a 3m setback on the eastern side towards the rear of the property. The Applicant further explained the amendment of the Proposed Development which at the highest point of the proposed development is to pull back the roof element over the deck area and which would reduce the bulk and scale over and above the plans that Mr Denis Fish advised on. The Applicant submits that all the amendments that have been made to the Proposed Development are beneficial to the concerns that were raised in Mr Fish’s written submission and that the most important thing is that there is currently no control of stormwater runoff or drainage on this Site whatsoever whereas with the re-development of the Site water will be directed to the street from the roof and it will be directed through a managed system which has been designed and approved and will demonstrably improve the current stormwater and overland flow issues experienced by the neighbours.

11. Accordingly, I am satisfied that the submissions received by the Respondent have been appropriately taken into consideration pursuant to s 4.15(1)(d) of the EPA Act.

12. The parties agree and I accept that the Respondent’s contentions particularised in the SOFAC have been resolved by the amended plans and documents and the Respondent did not present any expert evidence in the maintenance of the continued defence of the appeal. The parties rely on the Supplementary Joint Town Planning Expert Report filed 30 November 2021 prepared by Greg Boston, Town Planner for the Applicant and Steven Layman, Town Planner and Architect for the Respondent (Ex 5) which considers the amended Proposed Development and confirms the resolution of the contentions by the amended Proposed Development subject to agreed conditions of consent.

Justification of the contravention of the maximum building height development standard

13. Contention 1 of the SOFAC, dealing with building height and wall height development standard, raises a jurisdictional prerequisite of which the Court needs to be satisfied pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP).

14. The Applicant relies on a written request prepared by Greg Boston dated 30 November 2021, pursuant to cl 4.6 of the MLEP (Written Request) (Ex H) to justify the contravention of the following development standards of the MLEP:

1. Maximum Building Height (cl 4.3 MLEP);

2. Maximum wall height (cl 4.3A MLEP).

15. The Expert Town Planners agree that based on the amended plans, which include the overall reduction in building height through the removal of the pop-up roof elements that the amended cl 4.6 variation requests dated 30 November 2021, are well founded. (Ex 5 at par 10)

16. I have read the Written Request and have formed the requisite states of satisfaction as required by cl 4.6 of the MLEP. I give my reasons below.

Maximum Building Height (cl 4.3 MLEP)

17. The Written Request describes the contravention and assesses the height of the building to be:

1. 9.11m in height at the north-eastern corner of the parapeted roof form representing a variation of 610m or 7.1%; and

2. 8.78m in height at the north-western corner of the parapeted roof form representing a variation of 280mm or 3.2%,

while noting that the breach commences approximately 6.3m to the south of the north-western corner of the roof and 4.2m to the south of the north-eastern corner of the roof. The upper level operable and fixed balcony shade structures exceed the height standard by approximately 500mm or 5.8%.

18. Strict compliance with the height of buildings development standard at cl 4.3 of the MLEP is considered to be unreasonable or unnecessary in the circumstances of this case (cl 4.6(3)(a) MLEP) and that there are considered to be sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) MLEP). The Written Request adopts the first and most commonly invoked option, to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard in accordance with the decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (“Wehbe”) as summarised in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (“Initial Action”).

19. The Objectives of the development standard in cl 4.3 of the MLEP regarding the height of buildings for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential are as follows:

(i)  to share public and private views, and

(ii)  to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

(iii)  to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and

(iv)  to minimise the adverse effects of bulk and scale of buildings,

20. I have read and considered the assessment as to consistency of the Proposed Development with the objectives of the height of buildings development standard in the Written Request (Ex 5) at pp 9 to 17 and accept the conclusion that the non-compliant component of the building will achieve the objectives of the standard to at least an equal degree as would be the case with a development that complied with the building height development and (at p 19 of the Written Request) “adopting the first option in Wehbe strict compliance with the height of buildings standard has been demonstrated to be unreasonable and unnecessary”.

21. From p 20 of the Written Request, I have considered the demonstration that sufficient environmental planning grounds exist to justify the contravention of the height of building development standard as required pursuant to cl 4.6(3)(b) of the MLEP. The environmental planning grounds relied on are “the constraints imposed by the Site’s steep topography and the juxtaposition of adjoining development having regard to the need to maintain existing view corridors across the Site and a view sharing outcome from both the public and private domains” (p 20, Written Request). I am satisfied that the Written Request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.

22. The Court as the consent authority is required to be satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the cl 4.3 MLEP and the objectives of the R2 Low Density Residential zone (cl 4.6(4)(a)(ii) MLEP). The Written Request demonstrates the consistency of the Proposed Development with the objectives of the R2 Low Density Residential zone in the Land Use Table of the MLEP at pp 17 to 19.

23. For these reasons, I conclude that I am satisfied that the Applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the MLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

24. I am also satisfied that the matters in cl 4.6(5) of the MLEP are addressed and I adopt the reason given at p 24 of the Written Request, namely because the contravention does not raise any matter of significance for regional or state planning given that the building height breaching elements achieve a view sharing outcome and are located where they will not give rise to inappropriate or jarring streetscape or residential amenity consequences with the result that there is no public benefit in maintaining the standard in the particular circumstances of this case.

Maximum wall height (cl 4.3A MLEP)

25. The Written Request addresses the justification the contravention of the maximum wall height development standard contained in cl 4.3A of the MLEP from p 31. Relevantly, cl 4.3A(2)-(4) of the MLEP provides as follows:

…

(2) The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing).

(3)  However, the consent authority may grant development consent for an additional storey in the foundation space of an existing building on land to which this clause applies if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale.

(4)  A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres.

26. The objectives of the wall height development standard are provided in cl 4.3 MLEP and are reproduced above at [19].

27. The Written Request describes the contravention of the wall height development standard on pp 32 and 33 as a wall height of the building to be 9.11m in height at the north-eastern corner of the parapeted roof form representing a variation of 1.91m or 26.5%, 8.78m in height at the north-western corner of the parapeted roof form representing a variation of 1.58m or 21.9% noting that the breach commences approximately 10.3m to the south of the north-western corner of the roof and 8.2m to the south of the north-eastern corner of the roof. The upper level balcony privacy screens exceed the wall height standard by approximately 700mm or 9.7%.

28. I have read and considered the assessment as to the consistency of the Proposed Development with the objectives of the wall height development standard in the Written Request (Ex 5) at pp 40 to 47 and accept the conclusion that the non-compliant component of the building will achieve the objectives of the standard to at least an equal degree as would be the case with a development that complied with the wall height development and (at p 49 of the Written Request) “adopting the first option in Wehbe strict compliance with the height of buildings standard has been demonstrated to be unreasonable and unnecessary.”

29. From p 50 of the Written Request, I have considered the demonstration that sufficient environmental planning grounds exist to justify the contravention of the wall height development standard as required pursuant to cl 4.6(3)(b) MLEP. The environmental planning grounds relied on are “the constraints imposed by the Site’s steep topography and the juxtaposition of adjoining development having regard to the need to maintain existing view corridors across the Site and a view sharing outcome from both the public and private domains” (p 50, Written Request). I am satisfied that the Written Request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.

30. The Court as consent authority is required to be satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the cl 4.3A MLEP and the objectives of the R2 Low Density Residential zone (cl 4.6(4)(a)(ii) MLEP). The Written Request demonstrates the consistency of the Proposed Development with the objectives of the R2 Low Density Residential zone in the Land Use Table of the MLEP at pp 48 to 49.

31. For these reasons I conclude that I am satisfied that the Applicant’s written request seeking to justify the contravention of the development standard in cl 4.3A of the MLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

32. I am also satisfied that the matters in cl 4.6(5) MLEP are addressed and I adopt the reason given at p 54 of the Written Request, namely, because the contravention does not raise any matter of significance for regional or state planning given that the building height breaching elements achieve a view sharing outcome and are located where they will not give rise to inappropriate or jarring streetscape or residential amenity consequences with the result that there is no public benefit in maintaining the standard in the particular circumstances of this case.

33. Accordingly, for the reasons given in this judgment, I conclude on merit that the Proposed Development should be approved.

Orders

34. The Court orders:

1. That the cl 4.6 written request to justify the contravention of the height of building development standard is upheld.

2. That the cl 4.6 written request to justify the contravention of the wall height development standard is upheld.

3. The appeal is upheld.

4. Development application No. 8.2021.20.1 seeking consent for the demolition of a dwelling house, construction of a new dwelling house, double carport and landscaping works. at 26 Kirkoswald Avenue, Mosman, legally described as Lot B in DP 345994 is determined by granting consent to the application subject to the conditions in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (279958, pdf)

**********

Decision last updated: 17 February 2022