Sit Family Pty Ltd v Mosman Municipal Council

[2023] NSWLEC 1198

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sit Family Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1198

Hearing dates:

1 and 2 March 2023

Date of orders:

28 April 2023

Decision date:

28 April 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

In respect to proceedings 2022/290750 – the Court orders that:

(1) The appeal is upheld.

(2) Modification Application numbered DA 008.2020.185.001.2 (the Plant Room) is approved and the Development Consent granted to Development Application 008.2020.185.001 is modified as set out in Annexure “A” to this judgment.

(3) The exhibits are to be returned except for Exhibits B and 1.

In respect to proceedings 2022/290728 – the Court orders that:

(1) The appeal is upheld.

(2) Modification Application No 008.2020.185.001.3 (the Rumpus Room) is approved and the Development Consent granted to Development Application 008.2020.185.001 is modified as set out in Annexure “B” to this judgment.

(3) The Development Consent to Development Application 008.2020.185.001, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “C” to this judgment.

(4) The exhibits are to be returned except for Exhibits A and 1.

Catchwords:

MODIFICATION APPLICATION – dwelling – FSR –amended plans – excavation – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.55, 8.9
Land and Environment Court Act 1979, ss 34, 34AA
Mosman Local Environmental Plan 2012, cll 4.3, 4.4, 4.6

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Sit Family Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)

Representation:

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

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

File Number(s):

2022/290728
2022/290750

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These are two appeals made pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Sit Family Pty Ltd (Applicant). The two appeals have been made directly to the Land and Environment Court for Modification Applications made pursuant to s 4.55(8) of the EPA Act. The applications, being heard concurrently, are to modify the Development Consent DA 008.2020.185.001, issued by the Court on 26 October 2021, for demolition of the existing dwelling house, construction of a new dwelling house, swimming pool and landscaping work at 22 Lavoni Street, Mosman (the Site).

2. The first Modification Application, numbered DA 008.2020.185.001.2 (Appeal 22/290750, the Plant Room MA), seeks approval for proposed modifications to an approved dwelling and associated buildings including various ancillary works. The modifications are to accommodate plant rooms associated with the dwelling.

3. The second Modification Application, numbered DA 008.2020.185.001.3 (Appeal 22/290728, the Rumpus Room MA), seeks approval for proposed modifications to an approved dwelling and associated buildings including various ancillary works. The modifications are generally the provision of a rumpus room on the ground floor and changes to the foyer and entry areas.

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 1 March 2023. The parties failed to reach an agreement that would be acceptable. The conciliation conference was terminated and the matters proceeded to hearing over two days, being 1 and 2 March 2023.

Public Submissions

5. The s 4.55 Modification Applications were notified by the Respondent between 23 November and 7 December 2022. Subsequent submissions have been considered by the parties and provided to the Court. As part of the Court process, several submissions were made at the site view at the commencement of the proceedings.

The Mosman Local Environmental Plan 2012

6. The Site is located within the C4 Environmental Living zone pursuant to Mosman Local Environmental Plan 2012 (MLEP 2012). The proposed developments, being alterations and additions to a dwelling house, are permissible with development consent in the zone.

7. The MLEP 2012 contains Development Standards applicable to development of the Site. The proposal is compliant with the Development Standard in cl 4.3 which sets a Height of Building maximum for the Site of 8.5m. The proposal is not compliant with the Development Standard contained in cl 4.4 which sets a maximum Floor Space Ratio (FSR) of 0.5:1. As these are modification applications, there is no jurisdictional requirement for a written request pursuant to cl 4.6 of MLEP 2012 to vary the Development Standard, but a merit consideration is still required.

8. The Site is not identified as an item of heritage significance, nor located within a heritage conservation area, or in the vicinity of heritage items.

The Mosman Residential Development Control Plan 2012

9. The Mosman Residential Development Control Plan 2012 (MRDCP 2012) applies to the Site. The provisions of Part 4.2 (Siting and Scale) and Part 5.14 (Excavation and Site Management) of the MRDCP 2012 are raised in Contention 2 in the Statement of Facts and Contentions (SOFAC’s).

The Issues

10. As these are Modification Applications pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the Development Consent, as modified, is “substantially the same” as the development for which consent was originally granted. The parties made opposing submissions on this issue.

11. The SOFAC’s for both matters were identical and covered both appeals. The SOFAC’s identified the issues of FSR and Excavation as the main contentions that inform the Respondent’s position that the respective applications should be refused.

12. A Joint Town Planning Expert Report (Ex 5) was prepared by Mr Chambers (Applicant) and Mr Layman (Respondent). This report covered the Town Planning evidence on both appeals.

Is there power to modify the Development Consent?

13. There are two parts to the Respondent’s objections in respect to the power to modify. The first part is whether the proposed changes are contrary to the reasoning for the grant of Development Consent in the first instance. The second is the “substantially the same” test required for Modification Applications. The latter issue is dealt with towards the end of this judgment, and after consideration of the merit issues, which informs the extent of modification.

14. The parties disagreed as to the extent that the original Development Consent was relevant. In particular, the evidence of Mr Layman, submissions by the Respondent, and the SOFAC’s, made a number of references to deliberations on the previous matter. The Applicant objects to this approach.

15. The Applicant says that the LEC Act limits the ability to discuss outcomes, or more specifically, reasoning for amendments in discussions in s 34 conciliations that lead to agreements. A consequence of this approach is that, where elements of a proposal may have been deleted from plans in order to achieve a conciliated agreement, the elements deleted do not form part of the subsequent Development Consent.

16. It is also the Applicant’s position that the case that the reasoning that forms part of the without prejudice discussion must stay contained within that process. As the Development Consent (and attached conditions) only apply to the proposal, as amended to form the basis of the agreement, the reasoning for conditions can only apply to matters that are relevant to the Development Consent which is absent the deleted components. The deleted parts of the scheme are no longer subject to the Development Consent, either broadly or as conditions, because they are no longer part of the application. I agree with the Applicant, the current proposal is not inconsistent with the reasoning contained within the current Development Consent, in terms of the excavated area, as the area to be excavated, no longer formed part of the approved Development Consent.

Is the Floor Space Ratio acceptable?

17. The experts clarified that the FSR contention was limited to the Rumpus Room MA. They agree that no additional excavation is required for the rumpus roof itself but excavation would be required as a result of the proposed repositioning of the entry doors to the ground floor foyer area.

18. Mr Layman, whose evidence was largely objected to by the Applicant, was involved in the previous Court appeal. His evidence refers to the outcomes relating to that conciliated agreement resulting in a Development Consent being issued by the Court. The history of the application, and matters discussed confidentially in previous s 34 conciliation processes, do not inform the matters now requiring assessment in these applications. My Layman had the opportunity to expand on the consequences of this proposal and how the outcomes may be unsatisfactory. His evidence, in respect to the merit considerations of these applications, is limited.

19. Whilst Mr Layman (at paragraph 42 of Ex 5) deals with the visual consequence of increase floor space, I note the Applicant’s submissions that these are not matters raised in the contentions before the Court. The contentions only raise issues of excavation in respect to the increased gross floor area.

20. In contrast, and notwithstanding the narrow issues in Contention 1, the evidence of Mr Chambers deals with the variation to the FSR Development Standard, both numerically and on merit. Mr Chambers, at paragraphs 25 to 31 of Ex 5, deals with the performance of the proposal against the planning criteria and objectives and outlines the minor visual impacts and the adequacy of the proposed setbacks. Mr Chambers notes:

“The rumpus room does not result in any material change to the perceived bulk and scale of the approved dwelling as it sits relatively centrally beneath Level 1 above, and the new dwelling, as modified, will remain entirely compatible with the desired future character of the local area”. (paragraph 29, Ex 5).

21. The Applicant submits that the additional excavation associated with the rumpus room is an area that is still within the allowable FSR for the development. The additional excavation for the entry, and lift, adds a small amount of floor area to the proposal. The Applicant notes that the currently approved scheme is below the allowable FSR and that the small area of entry takes up some of the remaining allowable area. The Applicant acknowledges that the enclosing of the rumpus room results in an exceedance of the FSR Development Standard but to the extent that Contention 1 is limited to an issue of excavation, the excavation required, for the entry and foyer can be achieved within the allowable FSR for the Site.

22. Whilst a cl 4.6 written request is not required, the evidence of Mr Chambers is convincing in terms of an assessment against the required objectives and planning controls which is required in order to support a variation to the FSR Development Standard. I accept that the contention focuses on excavation, and to that extent, the excavation required for altering the entry area is minor and generally within the allowable floor space for the building.

23. In respect to enclosing the ground floor undercroft area, I agree with Mr Chambers’ evidence that the decision to enclose this area of the undercroft remains consistent with the objectives of the controls for the reasons outlined in his evidence in Ex 5 and as discussed above.

Is the extent of Plant Room excavation acceptable?

24. The experts agree that the area of excavation to cater for three plant rooms is approximately 64m². They also agree that the area to be occupied by the three plant rooms is within that part of the Site which is to be excavated for the new dwelling. The proposed plant rooms will necessitate a deeper excavation.

25. Contention 2 extracts the following MRDCP 2012 controls.

“…

(b)   The proposal is inconsistent with objective O9 and Planning Control P21 of Part 4.2 Siting and Scale of MDCP:

O9. To have buildings which are sited to relate to the topography with minimal cut and fill, preserve existing significant trees, vegetation, rock outcrops, water courses, natural features and promote new vegetation links.

P21. Buildings should be sited having regard to topographical features. The building footprint should be designed to minimise cut and fill. Refer to excavation and site management controls of this Plan for more details.

(c)   The proposal is inconsistent with Objective O1 and Planning Control P2 of Part 5.14 Excavation and Site Management of MDCP:

O1. To have the integrity of the physical environment preserved and enhanced by ensuring minimal site disturbance and the geotechnical stability of landfill and excavations.

P2. Site excavation must be designed and located with an aim to minimise cut and fill requirements (especially on sites that have steep slopes). There must be minimal site disturbance.

…”

26. The experts agree, at paragraph 51 of Ex 5, that the proposed plant rooms are setback 1.5m from each side boundary and 6.0m from the rear boundary. This is an important outcome as the MRDCP 2012 allows excavation for basements, which are related to the main building, subject to compliance with setback controls. Objective O5, in Part 4.2 Siting and Scale, states:

“O5. To have adequate side setbacks for basement excavation to allow for deep soil planting between buildings.”

27. The performance criteria related to objective O5 states:

“P5. The setback of any basement area must be at minimum equivalent to the setback of the ground floor of the building.”

28. To the extent that the Contentions raise Part 5.14 of the MRDCP, it is also relevant to include the requirements of P1 which states:

“P1. Compliance with guidelines for excavation within the setback area in the siting and scale controls in this Plan must be achieved.”

29. The evidence points to two different considerations in terms of excavation, the first being the suitability of cut and fill, and the second being excavation for basements. The MRDCP notes that these are not always the same issue by considering excavation for basement rooms separately from issues around cut and fill (for the siting of buildings).

30. Mr Layman’s evidence on the merits of this proposal is that the Applicant has not demonstrated the need for the additional excavation (paragraph 65 Ex 5). He says, on the basis that excavation should be minimised, an inability to demonstrate the need for excavation results in an outcome contrary to the planning controls. Mr Layman notes that the original approval had no plant rooms.

31. The Applicant, as stated by Mr Chambers at paragraph 55 of Ex 5, prepared reports on the need for various plant facilities associated with the dwelling. This includes a report prepared by ACOR consultants dated 27 June 2022 which accompanies the Plant Room MA.

32. Mr Chambers also notes, at paragraph 59 of Ex 5:

“To the extent that objective O1 of the excavation controls in the DCP seeks “to have the integrity of the physical environment preserved and enhanced by ensuring minimal site disturbance”, the part of the site on which the plant rooms are to be located is that part on which excavation has been approved to accommodate the new dwelling. In my opinion, there is a material difference when considering the additional excavation for the plant rooms in the light of this objective between additional excavation on a part or parts of the site on which no excavation has previously been approved, and on part or parts of the site already approved for excavation.”

33. The Respondent’s case, as outlined in Contention 2, focuses on the controls that deal with cut and fill rather than the controls for excavation for basement rooms. Notwithstanding, the Building Setbacks section, of Part 4.2 Siting and Scale, foreshadows excavation for basement rooms. The proposed plant rooms, which are below ground, would be consistent with a basement room, which is defined in the Dictionary to the MLEP 2012 as, “the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing)”.

34. The experts agree that the area of excavation sits below the approved footprint of the building. Mr Chambers says that the area of excavation, in terms of the requirements of Par 4.2 - Siting and Scale, has little impact on the topographical features that are at the centre of the objectives and performance criteria in this part.

35. I agree with the evidence of Mr Chambers. The consequence of the excavation being below the existing footprint is that there is little change to the outcomes in the objectives which seek to preserve existing significant trees, vegetation, rock outcrops, water courses, natural features and the like.

36. It is for the reasons outlined above that I agree that the excavation is not inconsistent with the objectives and outcomes envisaged by the MRDCP 2012 in respect to excavation for rooms below ground level.

Is the Modified Development substantially the same?

37. As these are Modification Applications pursuant to s 4.55 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. This requires both a qualitative and quantitative assessment of the proposed development and a subsequent conclusion 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.

38. The Applicant has demonstrated that the modification for the Rumpus Room MA involves very minor visual and functional change to the approved development. This modification involves minor re-organisation of the entry and the enclosure of an undercroft with predominantly glass walls. The Applicant argues that there is little if any, discernible visual consequence of enclosing this space (paragraphs 25 to 27 and 29, Ex 5).

39. The Applicant also notes that the excavation for the plant room is contained within the existing footprint. Mr Chambers notes that the area for excavation of the plant rooms is on that part of the Site to be excavated for the rear building (paragraph 58, Ex 5).

40. On review of the modifications in both applications, and as elaborated in the evidence of Mr Chambers, I am satisfied that the proposed development, as modified, passes the “substantially the same” test for modification applications. The proposals do not involve a radical transformation of the development and the essence of the development remains the same. It is for these reasons that I am satisfied that this jurisdictional element has been met.

Conclusions

41. The Applicant has demonstrated that, after both a merit and jurisdictional consideration of the proposal, the granting of approval to the modifications can be supported.

42. In respect to proceedings 2022/290750 – the Court orders that:

1. The appeal is upheld.

2. Modification Application numbered DA 008.2020.185.001.2 (the Plant Room) is approved and the Development Consent granted to Development Application 008.2020.185.001 is modified as set out in Annexure “A” to this judgment.

3. The exhibits are to be returned except for Exhibits B and 1.

43. In respect to proceedings 2022/290728 – the Court orders that:

1. The appeal is upheld.

2. Modification Application No 008.2020.185.001.3 (the Rumpus Room) is approved and the Development Consent granted to Development Application 008.2020.185.001 is modified as set out in Annexure “B” to this judgment.

3. The Development Consent to Development Application 008.2020.185.001, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “C” to this judgment.

4. The exhibits are to be returned except for Exhibits A and 1.

S Harding AC

Acting Commissioner of the Court

Annexure A 22.290750 (163614, pdf)

Annexure B 22.290728 (164889, pdf)

Annexure C 22.290728 (284882, pdf)

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Decision last updated: 28 April 2023