Sartori v Mosman Municipal Council

[2024] NSWLEC 1407

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sartori v Mosman Municipal Council [2024] NSWLEC 1407

Hearing dates:

Conciliation conference on 5 July 2024

Date of orders:

18 July 2024

Decision date:

18 July 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The Applicant’s written request, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP), seeking to vary the development standard for height of buildings set out in cl 4.3 of the MLEP is upheld.

(2) The appeal is upheld.

(3) Development Application No 8.2023.178.1 for alterations and additions to a dwelling house at 5 David Street Mosman, Lot 19, DP 6294, is determined by the grant of consent subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – alterations and additions to dwelling house – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Mosman Local Environmental Plan 2013, cll 4.3, 4.3A, 4.4, 4.4A, 4.6, 6.1, 6.4, 6.6, 6.7

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

Category:

Principal judgment

Parties:

Giancarlo Sartori (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
HPL Lawyers (Applicant)
Pikes and Verekers (Respondent)

File Number(s):

2023/460258

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Mosman Municipal Council, of Development Application 8.2023.178.1 for alterations and additions to a dwelling house at 5 David Street, Mosman, Lot 19 in DP 6924. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 July, 2024. I presided over the conciliation conference.

3. 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 the Court upholding the appeal and granting development consent to the development application subject to conditions. The matter subsequently concluded in conciliation and the hearing was vacated.

4. As part of this agreement between the parties, Mosman Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021, to the applicant, Giancarlo Sartori, amending the development application. In detail, this application as amended seeks approval for alterations and additions to the dwelling house including:

• demolition of internal walls;

• excavation to facilitate a new lower ground floor level;

• extension of existing garage;

• landscaping works including garden roof;

• new lower ground floor area incorporating rumpus room, sunroom and lounge room;

• extension to the ground floor level for kitchen, dining room, living room and verandah;

• new bathrooms to the first floor;

• new front fence, and;

• construction of a swimming pool to the rear.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if this decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 the jurisdictional prerequisites have been satisfied, and from this I note the following points.

6. The applicant is the owner of the subject land and provided owner’s consent at the time of lodging the development application.

7. The development application was adequately notified between 17 August and 1 September 2023, during which time five submissions were received. Three oral submissions were made at the commencement of this conciliation. Based on the parties’ submissions and the amended development application, I accept that the issues raised by these objectors have been considered and adequately addressed in the amended application.

8. The subject site is zoned C4 – Environmental Living under the Mosman Local Environmental Plan 2012 (MLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

9. Pursuant to MLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development exceeds this development standard to the front of the dwelling, where the ridge of the existing roof is to be extended to create a front gable. This will result in this roof feature being 10.17m at its maximum height, extending the line and height of the existing ridgeline of the roof. All new additions to the rear of the building comply with the maximum height of buildings standard.

10. As a result of this exceedance, cl 4.6(3) of the MLEP allows the applicants to request a contravention of this development standard through the submission of a document. This document must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a document prepared Warren Long, dated 5 July 2024 (the cl 4.6 request). Pursuant to MLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the C4 Environmental Living Zone and the Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties due to its siting and it being minor in nature.

2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The breach is the result of an architectural modification to change the shape and height of the roof to better reflect the style and character of the existing dwelling, and adjoining dwellings to either side.

2. The breach of building height is minor in nature in both qualitative and quantitative terms and does not result in any adverse impacts on adjoining properties. Further, it does not result in a dwelling that is excessive in terms of bulk and scale within its context.

3. The contravention is therefore justified by a lack of adverse impact on the neighbouring residents, by the breach of the standard being minor in nature, and by the resulting contribution and compatibility with the architectural style of the building and neighbouring buildings.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

11. MLEP cl 4.3A(4) establishes a maximum wall height development standard, to which the proposed development as amended complies.

12. MLEP cll 4.4 and 4.4A establish a maximum floor space ratio (FSR) to the subject site of 0.465:1, to which the proposed development complies with an FSR of 0.42:1.

13. Pursuant to MLEP cl 6.1, the site is not identified as within an Acid Sulfate Soil area or buffer area on the Acid Sulfate Soils Map.

14. The site is mapped as “Scenic Protection Area” pursuant to MLEP cl 6.4. Based on the parties’ submissions, my observations on site, the revised architectural drawings, and the information contained in the Statement of Environmental Effects (SEE) prepared by Longitude Planning Pty Ltd, I accept that the proposed development will maintain its two storey height and appearance and will be compatible with the scale and character of the locality. Subsequently, the proposed development will not impact the natural and visual qualities of Sydney Harbour, and will maintain the existing natural landscape and landform.

15. MLEP cl 6.6. sets a minimum landscaped area of 50% of the site, or 535.35m². The landscape of the proposed development represents a slight shortfall of this area at 49.31% however the parties submit, and I accept, that based on the landscape design for the proposed development and in accordance with the objectives of cl 6.6, the proposed development will maintain and enhance the landscape and townscape area character and the visual dominance of landscape over buildings, and will provide adequate useable ground level open space for recreation, landscaping and management of urban runoff.

16. Earthworks are proposed in this development application. The parties submit and, based on this and the architectural drawings, I accept that the matters listed in MLEP cl 6.7 have been considered, and the proposed earthworks will not have a detrimental impact on the soil stability or the amenity of the neighbouring uses. This is supported by a geotechnical assessment by Green Geotechnics dated 1 May 2023, and a structural engineers report by Cosmo Farinola, Rebal Engineering, dated 24 October 2023. These documents provide detail regarding the existing studio structure and the boundary retaining wall adjacent to 3 David Street, and sets out procedures to ensure that the proposed works will appropriately manage any impact on existing structures and therefore on the neighbouring properties.

17. Pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP), the site is located within the Sydney Harbour Catchment, but not within the Foreshores and Waterways Area. Based on the information contained in the SEE, the stormwater plans prepared by United Consulting Engineers and the parties’ submissions, I accept that the matters identified in Division 2 have been considered in the assessment of this application, and that:

1. The effect of the development on the quality of water entering Sydney Harbour will be beneficial, and further that there will be no adverse impact on the water flow of a natural waterbody (s 6.6).

2. The development will not have an adverse impact on terrestrial, aquatic, or migratory animals or vegetation, nor on aquatic reserves (s 6.7).

3. The site is not identified as flood liable land (s 6.8).

4. The development has no impact on access to recreational land uses or foreshores (s 6.9).

5. The development will not have an adverse environmental impact on any adjacent local government area (s 6.10).

18. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy 2004 (Building and Sustainability Index: BASIX). Compliance with the commitments within this certificate is further required through a condition of consent.

19. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the SEE and the parties’ submission, I accept that the subject site has been historically used for residential purposes and there are no known actions that may have led to contamination of this land. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the subject site is suitable for its intended purpose.

20. For these reasons, 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.

21. 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.

22. The Court notes:

1. Mosman Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application 8.2023.178.1 to rely upon the plans and documents in Annexure A.

23. The Court orders:

1. The Applicant’s written request, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP), seeking to vary the development standard for height of buildings set out in cl 4.3 of the MLEP is upheld.

2. The appeal is upheld.

3. Development Application No 8.2023.178.1 for alterations and additions to a dwelling house at 5 David Street Mosman, Lot 19, DP 6294, is determined by the grant of consent subject to the conditions in Annexure B.

E Washington

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 18 July 2024