Rosenberg v Mosman Council

[2025] NSWLEC 1432

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rosenberg v Mosman Council [2025] NSWLEC 1432

Hearing dates:

Conciliation conference on 12 June 2025

Date of orders:

18 June 2025

Decision date:

18 June 2025

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Consent is granted to Development Application 8.2023.277.1 for alterations and additions to an existing residential flat building on Lots 1, 2, 3, 4 and the Common Property in Strata Plan 54241 known as 102 Cabramatta Road, Mosman, NSW 2088 subject to Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.5, 4.15, 4.16, 4.17, 8.7, 8.10

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Mosman Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.7, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Buildings

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2

State Environmental Planning Policy (Sustainable Building) 2022

Texts Cited:

Mosman Community Participation Plan June 2020

Category:

Principal judgment

Parties:

Isabel Rosenberg (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/274760

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant has appealed Mosman Council’s (Council) refusal of Development Application No 8.2023.277.1 on 21 February 2024 (DA) for alterations and additions to an existing residential flat building on Lots 1, 2, 3, 4 and the Common Property in Strata Plan 54241 known as 102 Cabramatta Road, Mosman, NSW 2088 (Land) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings are s 34(3) of the LEC Act and s 4.16(1) of the EPA Act.

4. The DA seeks consent for:

1. Construction of new balconies to the rear of each unit with associated new doorways.

2. Regulation of the conversion of non-habitable floor space on the lower ground floor level into a one-bedroom unit; and

3. Associated amendments to Strata Plan 54241.

5. The Land has the following characteristics:

1. It is located on the southern side of the road between Spofforth Street and Glover Lane.

2. It is rectangular in shape with a 12.19m wide frontage to Cabramatta Road, and a depth of 39.625m giving a total area of 480.6m².

3. The Land slopes downwards from the street frontage towards the rear boundary, with a fall of approximately 7.66m.

4. The Land contains a two-three storey residential flat building.

5. It is located within the R3 Medium Density Residential zone under the Land Zoning Map of Mosman Local Environmental Plan 2012 (MLEP 2012).

6. It is located within the Glover and Nathan’s Estates Heritage Conservation Area, as identified by Sch 5 and the Heritage Map of MLEP 2012.

7. The locality is characterised by residential development of various architectural styles.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 June 2025. presided over the conciliation conference.

7. 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.

8. 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. This decision involved the court upholding the appeal, and granting consent to the DA pursuant to s 4.16(1) of the EPA Act subject to conditions of consent pursuant to s 4.17(1) of the EPA Act. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they had been satisfied as set out below:

1. On the 13 November 2024 the DA was lodged with Council.

2. The DA contained the Owner’s Consent by the Applicant (Tab 4 in the Class 1 Application).

3. Council is the authorised authority to grant consent pursuant to s 4.5(d) of the EPA Act.

4. The Applicant commenced proceedings within the time period set out in s 8.10(1)(a) of the EPA Act.

5. Assessment pursuant to s 4.15(1)(a)(i) of the EPA Act relating to environmental planning instruments:

1. State Environmental Planning Policy No. 65 – Design Quality of Residential Flat buildings does not apply as the works, the subject of the DA, are not considered as constituting substantial redevelopment or refurbishment.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 does not apply because:

1. The parties have considered whether the Land is contaminated, and agree that the historical and existing use of the site for residential purposes ensures that contamination is highly unlikely.

2. The Land is not identified as a ‘coastal use area’, a ‘coastal vulnerability area’ or ‘coastal wetlands and littoral rainforest area’ pursuant to Ch 2.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 does not apply because:

1. Chapter 2 does not apply because no native vegetation will be cleared for the DA.

2. Chapter 6 applies because the land is located within the Sydney Harbour Catchment, however, the Land is not identified as falling within any Foreshores and Waterways Area, or a strategic foreshore site, or a heritage item or within the wetlands protection area.

4. State Environmental Planning Policy (Sustainability Building) 2022 (BASIX) applies to the DA, and BASIX Certificate No 1403394M dated 19 July 2023 has been filed. Although the plans have been amended since the date of the BASIC Certificate, the description of the development remains substantially the same in accordance with s 37(4) and (5) of the Environmental Planning and Assessment Regulation 2021.

5. MLEP 2012:

1. The objectives of the Land which is zoned R3 Medium Density Residential 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.

2. Clause 2.3(2) of MLEP 2012 requires the Court to have regard to the zone objectives. The DA does not change the existing use of a residential flat building on the Land and is a consistent with the zone objectives.

3. The proposed development in the DA does not result in an increase to the maximum building height of the existing residential flat building and therefore does not breach the height control in cl 4.3 of MLEP 2012.

4. The height of building control in cl 4.3 is 8.5m. The proposed upper balcony at the rear of the residential flat building does exceed the height control as its height is 10.51m from existing ground level. However, the approved residential flat building has a height of 11.82m. Having regard to the facts of the DA that the existing building is 11.82m and the upper balcony will be 10.51m in height, and noting the cl 4.6 statement which has been filed which demonstrates that compliance with the control is unreasonable or unnecessary in the circumstances, and provides sufficient environmental planning grounds to justify the departure from the height control in cl 4.3, I accept the cl 4.6 variation of height control statement.

5. The DA does not result in an increase in the Floor Space Ratio pursuant to cl 4.4.

6. In respect of cl 5.10, the Land is located within the Glover and Nathan’s Estate heritage Conservation Area (C12) pursuant to Sch 5 of MLEP 2012. A Heritage Impact Statement dated 1 November 2023 has been filed which demonstrates that the streetscape will remain unchanged as the proposed development takes place at the rear of the building and that proposed development will not be visible from the streetscape. Council did not raise any objection on heritage grounds. The DA is consistent with the objectives of cl 5.10 of MLEP 2012 and the requirements under cl 5.10(4) have been satisfied.

7. Clauses 5.21 (flooding) and 6.7 (earthworks) are not applicable to the DA.

6. Pursuant to s 4.15(1)(d) of the EPA Act the DA was notified from 5 to 20 December 2023 in accordance with the Mosman Community Participation Plan dated June 2020. Four submissions were received, and the objectors were given the opportunity to address the Court at the s 34(1) conciliation conference under the LEC Act on 17 December 2024. The objectors were also given the opportunity to address the Court at the s 34(1) conciliation conference under the LEC Act on 12 June 2025. No objectors appeared on 12 June 2025, but each of their written submissions have been read by me. The Council has considered the submissions by the objectors which resulted in amended plans and documents. In particular privacy screens are to be built at each end of the balconies.

7. Pursuant to s 4.15(1)(e) of the EPA Act the parties have considered the public interest, and considered that the amended plans and documents together with the proposed conditions of consent in Annexure A have addressed the public interest.

8. The parties have agreed the conditions of consent pursuant to s 4.17(1) of the EPA Act.

9. Further, the parties consider that by granting consent to the DA there is no contravention of the EPA Act, any environmental planning instrument or the Environmental Planning and Assessment Regulation 2021.

9. For the reasons set out above, 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.

10. I am not required to consider the merit issues relating to the DA, and I have not done so.

11. 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.

12. The Court notes:

1. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 Mosman Council has consented to the Applicant amending Development Application 8.2023.277.1 to incorporate the following amended plans and additional information:

1. Architectural Plans by Group Architects:

Drawing Number	Issue	Title	Date
2023-002-000	5	COVER SHEET	May 2025
2023-002-100	5	SITE ANALYSIS	May 2025
2023-002-100	5	SITE PLAN – SITE ANALYSIS	May 2025
2023-002-101	5	BASEMENT FLOOR PLAN	May 2025
2023-002-102	5	GROUND FLOOR PLAN	May 2025
2023-002-103	5	FIRST FLOOR PLAN	May 2025
2023-002-104	5	ROOF PLAN	May 2025
2023-002-200	5	WEST ELEVATION	May 2025
2023-002-201	5	SOUTH ELEVATION	May 2025
2023-002-202	5	EAST ELEVATION	May 2025
2023-002-203	5	NORTH ELEVATION	May 2025
2023-002-300	5	SECTIONS 1	May 2025
2023-002-400	5	LANDSCAPE CALCULATION	May 2025
2023-002-401	5	LANDSCAPE CONCEPT PLAN	May 2025
2023-002-402	5	STORMWATER MANAGEMENT PLAN	May 2025
2023-002-500	5	SHADOWS	May 2025
2023-002-501	5	SUN EYE VIEW	May 2025
2023-002-502	5	SUN EYE VIEW	May 2025
2023-002-500	3	STRATA PLAN	June 2025
2023-002-501	3	STRATA PLAN	June 2025

2. Landscape plans, prepared by Breana Graham Landscape Architecture

Sheet Number	Revision	Title	Date
LC_01	B	COVERSHEET	29.05.2025
LC_02	B	EXISTING VEGETATION	29.05.2025
LC_03	B	LANDSCAPE CALCULATIONS	29.05.2025
LC_04	B	LANDSCAPE PLAN – FRONT	29.05.2025
LC_05	B	LANDSCAPE PLAN – REAR	29.05.2025
LC_06	B	PLANTING PLAN	29.05.2025

3. Joint Expert Report filed 28 May 2025 by Peter Smith, Paul Corbett and Hugh Halliwell.

13. The Court orders:

1. The appeal is upheld.

2. Consent is granted to Development Application 8.2023.277.1 for alterations and additions to an existing residential flat building on Lots 1, 2, 3, 4 and the Common Property in Strata Plan 54241 known as 102 Cabramatta Road, Mosman, NSW 2088 subject to Annexure A.

M Peatman

Acting Commissioner of the Court

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Annexure A.258 KB.pdf

Decision last updated: 18 June 2025