Simmonds v Mosman Municipal Council

[2022] NSWLEC 1004

Land and Environment Court

New South Wales

Medium Neutral Citation:

Simmonds v Mosman Municipal Council [2022] NSWLEC 1004

Hearing dates:

Conciliation conference on 16 - 17 December 2021

Date of orders:

6 January 2022

Decision date:

06 January 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court Orders:

(1) The Appeal is upheld.

(2) Development Application DA8.2020.191.1 for demolition of the existing garage and construction of a new double carport, driveway, front fence and landscape works is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – carport in front setback – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34AA

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

Mosman Local Environmental Plan 2012 cll 6.4, 6.6

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Stuart Duncan Simmonds (First Applicant)
Kathleen Joan Simmonds (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicants)
S Patterson (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd (Applicants)
Mosman Municipal Council (Respondent)

File Number(s):

2021/238351

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) against the deemed refusal of Development Application DA8.2020.191.1. This application sought approval for the construction of a new double garage, driveway, front fence and landscape works, and the conversion of an existing garage into a store room at 33 Wolseley Road, Mosman, Lot 61 in DP 3437.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 & 17 December 2021. 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.

4. As a result of the conciliation conference, the Applicant amended the development application from that described above to replace the double garage with a double carport, narrow the proposed internal path to 1.2m wide, lower the front boundary fence and remove the existing garage at the side of the dwelling.

5. The amended development application subsequently requests the construction of a new double carport, driveway, front fence, and landscape works. This amendment occurred with the agreement of the Respondent as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (Regulation). The Court has been notified that the amended development application has been lodged on the NSW Planning Portal and filed with the Court, and that subsequently, the requirements of cl 55 of the Regulation are met.

6. 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. 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 and, in this regard, I note the following:

1. The development application was lodged with the consent of the owners of the subject land, Stuart Duncan Simmonds and Katherine Joan Simmonds.

2. The development application was notified in accordance with Mosman Council’s requirements between 13 and 28 October 2020. Two submissions were received and were incorporated into the respondent’s Statement of Facts and Contentions. Based on the revised drawings and the submission of the parties, I am satisfied that the relevant concerns raised are adequately addressed in the revised application.

3. The site is zoned R2 Low Density Residential under the Mosman Local Environmental Plan 2012 (MLEP). The proposed development is permitted with consent in this zone.

4. The proposed development is within the permitted maximum wall height of 7.2m, maximum building height of 8.5m, and maximum floor space ratio of 0.486:1.

5. MLEP cl 6.4 Scenic Protection applies to the site. Based on the observations I was directed to make at the site view and the joint submissions of the parties, I am satisfied that the amended design recognises and protects the natural and visual environment of Mosman and Sydney Harbour, reinforces the dominance of the landscape over built form, and is located and designed to minimise the visual impact on the environments of Mosman and Sydney Harbour. In meeting these objectives I am satisfied that the requirements of MLEP cl 6.4(3) are achieved with the proposed development.

6. MLEP cl 6.6(3(a)(v) requires the site to have a minimum landscaped area of 45% of the site area which, based on the site area of 809.7m² is a minimum of 364.37m². The revised application, through the demolition of the existing garage and modifications to paths, complies with this.

7. Clause 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) requires the Consent Authority to consider whether the land is contaminated. As per Council records, the site is currently in use for residential purposes with no recorded prior land use. The site poses little to no risk of contamination and is considered suitable for continued residential use.

8. The site is outside of Council’s mapped areas of classed Acid Sulfate Soils and there is subsequently no need for an acid sulfate assessment or management plan.

9. The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the site. The aims of the SREP are to ensure that the Sydney Harbour Catchment, foreshores, waterways and Islands are recognised, protected, enhanced and maintained. The Statement of Facts and Contentions does not raise any contention in regard to non-compliance with this SREP, and based on the further submissions of the parties I am satisfied that the objectives of this SREP are achieved with the proposed development.

7. 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.

8. 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.

9. The Court notes:

1. that the Applicant has amended Development Application DA8.2020.191.1 with the agreement of Mosman Council (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the amended plans listed in Condition 1 of the conditions of consent in Annexure A.

2. that the Amended Development Application has been lodged on the NSW planning portal on 21 December 2021.

3. that the Applicant has subsequently filed the Amended Development Application with the Court on 21 December 2021.

10. The Court Orders

1. The Appeal is upheld.

2. Development Application DA8.2020.191.1 for demolition of the existing garage and construction of a new double carport, driveway, front fence and landscape works is approved subject to the conditions in Annexure A.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (247482, pdf)

**********

Decision last updated: 06 January 2022