Sit Family Pty Ltd ATF Sit Family Trust No. 2 v Mosman Municipal Council

[2021] NSWLEC 1565

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sit Family Pty Ltd ATF Sit Family Trust No. 2 v Mosman Municipal Council [2021] NSWLEC 1565

Hearing dates:

Conciliation conference on 16-17 September 2021

Date of orders:

26 October 2021

Decision date:

26 October 2021

Jurisdiction:

Class 1

Before:

Shiels AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application 8.2020.185.1 for the demolition of existing dwelling and construction of a new dwelling house, garage, swimming pool, fencing and landscaping works at 22 Lavoni Street, Mosman subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – s34AA conciliation – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34AA

Mosman Local Environmental Plan 2012, cll 4.3, 4.4

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

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021)

Mosman Development Control Plan 2012

Category:

Principal judgment

Parties:

Sit Family Pty Ltd ATF Sit Family Trust No. 2 (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/115259

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application no. DA 8.2020.185.1. The application sought consent for demolition of the existing dwelling and structures and the construction of a part two and part three-storey dwelling, basement garage, swimming pool and landscape works at 22 Lavoni Street, Mosman.

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 September 2021. I presided over that conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams and a site view was not undertaken prior to the commencement of the conciliation conference. The parties did provide a number of photographs which assisted in gaining an appreciation for the site in the context of the local area.

4. The Court heard from three objectors namely:

• Dr Marion Carey of 20 Lavoni Street who expressed concern at the size and bulk of the dwelling and the lack of landscaping and setbacks from side boundaries;

• Ms Jones of 22 Awaba Street who expressed concern at the loss of view from her verandah. She suggested that her privacy should be retained and the vegetation on the site should be limited; and

• Mr Houng Lee of 24 Lavoni Street expressed concern at the non-compliance with the height, the proposed building being forward on the site and the impingement over the Sydney Water easement.

All of these matters were discussed by the parties during the conference.

5. Following the original conciliation conference, amended plans were prepared and commentary was provided by the two experts, Mr Steven Layman on behalf of the Council and Mr Robert Chalmers on behalf of the Applicant. The Applicant agreed to make minor amendments to the architectural drawings and the parties reached agreement as to the terms of the decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. That agreement had been reached following discussions between the parties during the proceedings. That agreement had been reached following discussions between the parties addressed the contentions raised in the Council’s Amended Statement of Facts and Contentions filed on 26 August 2021.

6. The application was formally amended by lodgement on the NSW planning portal on 28 September 2021.

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 reasonably 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, the parties agree, and I am satisfied, Mosman Local Environmental Plan 2012 (LEP) is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the amended proposal is permissible with consent.

10. The proposal complies with all of the relevant development standards in Pt 4 of the LEP. The proposal also complies with the relevant provisions in the Mosman Development Control Plan 2012 (DCP). I am satisfied that the relevant provisions in the LEP and DCP have been satisfied and the contentions in these proceedings have been addressed. In particular, the development standards per cl 4.3 relating to height and cl 4.4 relating to FSR and considered in the LEP are satisfied.

11. Having regard to the location of the site and the character of the area, I consider the design of the development is compatible with the character of the local area. There are no draft planning proposals that apply to the land.

12. Pursuant to cl 7(1)(a) of the State Environmental Planning Policy No 55—Remediation of Land, I am satisfied that the parties have given consideration to whether the site is contaminated and concluded no further assessment is required. I accept this conclusion.

13. The evidence of the Council and the Applicant is that the development is consistent with the provisions and objectives of the DCP and that where variations are proposed, such variations are acceptable and do not result in any unreasonable impacts to adjoining properties or the environment. I accept that submission.

14. There are not any matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent the granting of consent.

15. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed.

16. Having regard to the Applicant’s explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council.

17. Accordingly, I am satisfied that the proposal is in the public interest.

18. 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.

19. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to Development Application 8.2020.185.1 for the demolition of existing dwelling and construction of a new dwelling house, garage, swimming pool, fencing and landscaping works at 22 Lavoni Street, Mosman subject to conditions contained in Annexure A.

……………………….

Gary A Shiels

Acting Commissioner of the Court

Annexure A (284227, pdf)

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