Schonell v Mosman Municipal Council

[2023] NSWLEC 1154

Land and Environment Court

New South Wales

Medium Neutral Citation:

Schonell v Mosman Municipal Council [2023] NSWLEC 1154

Hearing dates:

Conciliation conference on 23 March 2023

Date of orders:

04 April 2023

Decision date:

04 April 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) Modification Application No 8.2021.278.2 (as amended) for modification of the approved pool and adjoining lawn area, the addition of a gym, bathroom, sauna, external stair and new window to Bathroom 2 and associated works at Lot 2 in DP 1272943, known as 21 Parriwi Road Mosman, is approved and the Development Consent granted to Development Application 8.2021.278.1 by the Respondent on 15 December 2021, is modified as set out in Annexure “A” to this judgment.
(3) The Development Consent to Development Application 8.2021.278.1, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B” to this judgment.

Catchwords:

MODIFICATION APPLICATION – Dwelling House and Ancillary Structures – amended plans – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.55, 8.9
Land and Environment Court Act 1979, ss 34, 34AA

Category:

Principal judgment

Parties:

Stefan Schonell (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
R McCulloch (Solicitor)(Respondent)

Solicitors:
Stefan Schonell (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2022/318751

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Stefan Schonell (Applicant) against Mosman Municipal Council’s (the Respondent’s) refusal of the Modification Application made pursuant to s 4.55(2) of the EPA Act.

2. The application is to modify the Development Consent 8.2021.278.1 issued by Council on 15 December 2021. This modification application, numbered 8.2021.278.2, seeks approval for proposed modifications to the existing Development Consent for the construction of a dwelling house, attached garage, swimming pool and landscaping works at Lot 2 in the DP 1272943 known as 21 Parriwi Road, Mosman.

3. The Modification Application seeks approval (following production of further amended plans) for proposed modifications to an approved dwelling as follows:

• Raising the pool terrace level by 1.15m from RL43.90 to RL45.05;

• Raising the lawn level at rear by 1.1m from RL45.4 to RL46.5;

• Change the pool dimensions from 8m x 3m to 7.5m x 3.6m;

• Add an infinity edge to the northern side of the pool;

• Additional structure adjacent to the southern side of the pool comprising a gym, bathroom, and sauna;

• Additional external stair providing access from the pool terrace to the proposed gym level and relocation of the pool plant;

• Add a new window to Bathroom 2 on Level 3 on the south elevation; and,

• Associated excavation and retaining wall.

4. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 23 March 2023. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. As this is a modification application pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the consent as modified relates is “substantially the same” as the development for which consent was originally granted.

7. The parties agree, after both a qualitative and quantitative assessment of the proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally granted. The parties agree, consistent with the evidence in the addendum to the Expert Joint Town Planning report, dated 20 March 2023, that the overall impacts of the proposed modification are acceptable following the production of further amended plans and a reduction in the maximum height of the swimming pool.

8. The parties agree that the Court could be satisfied, based on a qualitative and quantitative assessment, that the development is “substantially the same”. As a result, this is an outcome that the Court could have made in the proper exercise of its functions.

9. The s 4.55 Modification Application was notified by the Respondent and subsequent submissions considered by the parties. The concerns of adjoining and nearby neighbours were conveyed to the Court. This included oral submissions at the on site view by adjacent property owners. The notification requirements have been met.

10. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note filed with the s 34 agreement.

11. Based on the material provided by the parties, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ agreement.

12. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Modification Application No 8.2021.278.2 (as amended) for modification of the approved pool and adjoining lawn area, the addition of a gym, bathroom, sauna, external stair and new window to Bathroom 2 and associated works at Lot 2 in DP 1272943, known as 21 Parriwi Road Mosman, is approved and the Development Consent granted to Development Application 8.2021.278.1 by the Respondent on 15 December 2021, is modified as set out in Annexure “A” to this judgment.

3. The Development Consent to Development Application 8.2021.278.1, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B” to this judgment.

S Harding

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 04 April 2023