Simpson v Mosman Municipal Council

[2022] NSWLEC 1241

Land and Environment Court

New South Wales

Medium Neutral Citation:

Simpson v Mosman Municipal Council [2022] NSWLEC 1241

Hearing dates:

Conciliation conference on 27 April 2022

Date of orders:

9 May 2022

Decision date:

09 May 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application 8.2021.316.1 for demolition of existing dwelling and construction of new dwelling, swimming pool and garage on land legally comprising of the allotment described as Lot 65 DP 6648, known as 36 The Grove, Mosman is determined by the grant of consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in R2 Low Density Residential zone – Balmoral Conservation Area – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 34AA, 39

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.6, 6.1, 6.4, 6.6

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

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Marc Simpson (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/346110

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Mosman Municipal Council of Development application No. 8.2021.316.1 seeking consent for the demolition of the existing dwelling and construction of a dwelling house, swimming pool and associated earthworks and landscaping at 36 The Grove, Mosman (the site).

2. The appeal was listed for mandatory conciliation on 27 April 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. Prior to the conciliation conference, at which I presided, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, addressed the matters in contention.

4. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 27 April 2022.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [1].

8. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

9. The site is located within the R2 Low Density Residential zone pursuant to the Mosman Local Environmental Plan 2012 (MLEP) in which dwelling house development is permitted with consent, where consistent with the following objectives for development in the R2 zone:

•  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.

The contravention of the height of buildings standard, and wall height standard are upheld

10. The proposed development exceeds the height of building standard applicable to the site by virtue of cl 4.3 of the MLEP, and the wall height standard at cl 4.3A of the MLEP.

11. The Applicant relies upon two written requests, prepared in accordance with cl 4.6 of the MLEP to justify the exceedance (the written requests), authored by Vaughan Milligan Development Consulting Pty Ltd dated 27 April 2022.

12. As the grounds advanced for the height of building exceedance and wall height exceedance are essentially identical, it is appropriate to deal with the written requests together.

13. The written requests identify the exceedances in the following terms:

1. The non-compliance with the height of building standard is expressed as 1.93m above the maximum height of 8.5m, resulting in a height measured at 10.43m.

2. The non-compliance with the wall height standard is expressed as an exceedance of 1.6m in height above the maximum height of 2m. It is relevant to note here that the standard at cl 4.3A excludes features such as chimneys.

14. For the reasons that follow, I am satisfied that the written requests have demonstrated that compliance with the development standards is unreasonable or unnecessary as the objectives of the standards are achieved, notwithstanding the non-compliance.

15. The objectives of cl 4.3 of the MLEP and cl 4.3A are, in essence, shared and are in the following terms:

(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,

16. The reasons advanced by the written request are summarised as follows:

1. Firstly, as the ridgeline of the proposed roof level (RL 49.290) is only 560mm higher than the existing ridge (RL 48.73), and the surrounding properties to the west are substantially elevated above the site, including the northern neighbour at No 38 The Grove having a ridge level of up to 6.71m above the maximum ridge level of the proposed dwelling, the exceedance will not result in a loss of view from nearby land, in accordance with the objective at subcl (1)(a)(i).

2. Likewise, in respect of the wall height exceedance, due to the natural topography, the exceedance occurs on the south east corner of the proposed development, with no loss of view resulting.

3. Secondly, the proposal is separated from the harbour and surrounding foreshores by several layers of development, involves a modest variation to both height standards, is a minor change from the existing bulk and scale, and proposes extensive landscape planting which has the effect of minimising the visual impact of the proposed development in accordance with the objective at subcl (1)(a)(ii).

4. Thirdly, the proposal is compatible with the desired future character of the area because the proposed development replaces an existing dwelling of similar bulk and scale, demonstrates contemporary design, with a low pitch roof that is compatible with the diversity of roof forms within the locality; and is consistent with the height and number of storeys evident in surrounding development, with the height, bulk and scale of the dwelling house being an appropriate contextual fit in the Balmoral Townscape, in accordance with the objective at subcl (1)(a)(iii).

5. Fourthly, the adverse effects of bulk and scale are addressed by distributing bulk away from The Grove via a greater front setback of the upper levels where the exceedances occur, therefore minimising visual amenity impacts to the streetscape. In respect of overshadowing, the analysis on Dwg SD1.2 confirms the proposal to replace an existing three storey dwelling with a new three storey dwelling of similar ridge height and similar setbacks to the southern boundary, inclusive of the portions of wall height exceedance, will not result in any substantial change to the existing solar access to the southern neighbour at No 34 The Grove once the increase and decrease from the existing overshadowing is considered, in accordance with the objective at subcl (1)(a)(iv).

17. Next, the written requests advance grounds that I am satisfied are sufficient to justify the contravening of the standard. Those reasons are:

1. The site has a substantial cross fall in excess of 14m, located generally within the building zone, posing a particular challenge to comply with the relevant height standards. That said, the proposal manages this topographical change by providing the living levels at the level of the rear yard, and stepping down the site to provide vehicle access at the level of The Grove frontage.

2. Notwithstanding the exceedances, the proposed development respects surrounding properties by locating the development where it will not unreasonably obstruct views across the site while also maintaining views from the site.

3. The proposed development will reinforce the existing streetscape, is consistent with the general bulk and scale of the existing surrounding development and respects the prevailing development pattern.

18. I am also satisfied that the proposed development is in the public interest because it is consistent with the objectives of the height standard, and of the R2 zone. Firstly, the objectives of the standard are met, for the reasons set out at [16]. Secondly, consistency with the objectives of the R2 zone at [9] is achieved by proposing a single dwelling in a landscaped setting that minimises the adverse effects of bulk and scale for reasons stated at [16(5)] and [17(1)].

19. In arriving at the state of satisfaction required by cl 4.6(4)(a)(ii) of the MLEP, I note that there are particular features or aspects to the site that impose certain relationships between the adjoining properties on The Grove, and to properties to the rear of the subject site, on Stanley Avenue. Firstly, the fall of The Grove from north to south makes some overshadowing to the south and the imposition of bulk to the north and east, to some extent, inevitable.

20. The concurrence of the Secretary has not been obtained in this matter. Nonetheless, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of the MLEP.

21. I have considered the matters in subcl 4.6 (5)(a), (b) and (c) including whether any matter of significance for State or regional environmental planning is raised and the public benefit of maintaining the standard, and have decided that in the circumstances of this case, for the reasons outlined above, that the standard can be contravened as there is no apparent public benefit maintaining strict compliance with the standard in the circumstances of this case.

22. For those reasons, and the reasons set out above, I find that the Applicant’s written requests made pursuant to cl 4.6 of the MLEP to contravene cll 4.3 and 4.3A of the MLEP, should be upheld.

Other relevant considerations   

23. On the basis of the Acid Sulfate Soils Map at cl 6.1 of the MLEP, I am satisfied that the site is not subject to acid sulfate soils.

24. The site is identified on the Scenic protection map at cl 6.4(2) of the MLEP, and I am satisfied that the Applicant has taken measures that minimise the visual impact of the development to and from Sydney Harbour, and maintain the existing natural landscape and landform. In particular, I note the increased setback of the proposed built form from The Grove frontage permits greater landscape planting in the front setback relative to adjacent properties to the south, and the retention of natural rock outcrops to the rear of the property, while also proposing a terrace over that has the effect of increasing the area of soft landscape planting.

25. Clause 6.6 of the MLEP requires 50% of a site to be landscaped area where the site is at least 900m² in area. I note the landscaped area is denoted on Dwg A1.02 to be 53.51%.

26. While the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour Catchment SEPP) applies to all of the Mosman area, the site is not identified in the Foreshore and Waterways Area, is not a strategic foreshore site, is not a heritage item, and is not within the wetlands protection area, and I am satisfied the proposed development is consistent with the aims of the Sydney Harbour Catchment SEPP.

27. I accept the agreed position of the parties that the site has historically been used for residential purposes and, absent records to indicate otherwise, I am satisfied that the site is not contaminated, pursuant to cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land.

28. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1161753S_02, dated 24 August 2021) , prepared by Stritt Design and Construction Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

29. 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.

30. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

31. The Court notes that:

1. Mosman Municipal Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA Number 8.2021.316.1, filed with the Court on 6 December 2021 with the plans listed in Condition 1 of the Conditions of Consent provided as Annexure ‘A’.

2. The Applicant has lodged the amended application on the NSW Planning Portal on 27 2022.

3. The Applicant has filed the amended application with the Court on 29 April 2022.

Orders

32. The Court orders that:

1. The appeal is upheld.

2. Development Application 008.2021.00000316.001 for demolition of existing dwelling and construction of new dwelling, swimming pool and garage on land legally comprising of the allotment described as Lot 65 DP 6648, known as 36 The Grove, Mosman is determined by the grant of consent subject to the conditions set out in Annexure “A”.

……………………

T Horton

Commissioner of the Court

(Annexure A) (276345, pdf)

**********

Decision last updated: 09 May 2022