Smith v Mosman Municipal Council

[2024] NSWLEC 1201

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smith v Mosman Municipal Council [2024] NSWLEC 1201

Hearing dates:

Conciliation Conference 19 January

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The applicant is directed to file the amended modification application the subject of Order (3) below within seven (7) days of the date of this order.

(2) The appeal is upheld.

(3) Development consent No.8.2022.41.1 is modified in the terms at Annexure A.

(4) Development consent No.8.2022.41.2 as modified by the Court is set out in Annexure B.

Catchwords:

APPEAL – Modification Application – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.56, 8.9, 8.10, 8.14

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning and Assessment Regulation 2021, s 113

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.6, 5.10, 6.4, 6.6, 6.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy - Building Sustainability Index: BASIX 2004

State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:

Smith v Mosman Municipal Council [2023] NSWLEC 1156

Texts Cited:

Mosman Community Participation Plan, June 2020

Category:

Principal judgment

Parties:

Paul Smith (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
A Chryssochoides (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/339728

Publication restriction:

Nil

Judgment

1. COMMISIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s modification application seeking to modify DA8.2022.41.1 (Original Consent). The Original Consent was granted by the Land and Environment Court on 4 April 2023 and approved alterations and additions to an existing apartment building on Lot 1 in Deposited Plan 922512, also known as 20 Raglan Street, Mosman (Apartment Lot), and existing dwelling house on Lot 1 in Deposited Plan 919852, also known as 22 Raglan Street, Mosman (Dwelling Lot) (collectively, the Subject Land) including the construction of an interconnected basement car park, two swimming pools and landscaping works. The modification application the subject of this appeal, made under s 4.56 of the EPA Act, seeks to amend the Original Consent.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

Background

3. As set out at [1], the Subject Land comprises two allotments, being the Apartment Lot and the Dwelling Lot. The Apartment Lot has an area of 491.6m² and the Dwelling Lot has an area of 576.9m². The collective Subject Land has an area of 1068.5m².

4. The Apartment Lot presently contains a residential flat building comprising 6 dwellings and the Dwelling Lot contains a single dwelling house, comprising local heritage item 1233 “Bareena House”.

5. The Original Consent was granted by Land and Environment Court pursuant to a s 34 agreement on 4 April 2023.

6. The Original Consent relevantly contained the following conditions:

Post completion dilapidation reports

84. Prior to the issue of any occupation certificate a post completion dilapidation report is to be prepared for:

(a) 22 Raglan Street, confirming that the structure and materiality of the building has been protected. In the event the report identifies damage to the building this damage is to be made good, under the supervision of a qualified heritage architect or consultant, prior to the issue of the occupation certificate with a record of the required works to be provided to Council prior to commencement.

(b) The private works identified in Condition 12.

(c) The works in public ownership as identified in Condition 11.

PRIOR TO OCCUPATION

The following conditions must be satisfied prior to occupation of the development

…

Occupation Certificate

86. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with.

Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.

The Modification Application

7. The modification application (8.2022.41.2) as lodged with the respondent 30 June 2023 pursuant to s 4.56(1) of the EPA Act, sought to amend the Original Consent by seeking changes to the ability to obtain, and timing for obtaining, the issue of an occupation certificate (Modification Application). The Modification Application relevantly sought changes to conditions 84 and 86 of the Original Consent such that the apartments on the Apartment Lot could be occupied before any works on the Dwelling Lot were commenced, other than nominated works relating to the common basement, car lift and driveway.

8. On 9 October 2023, the respondent refused the Modification Application.

9. On 26 October 2023, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent’s refusal of the Modification Application.

10. The proceedings were commenced within the appeal period prescribed by s 8.10 of the EPA Act.

11. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 19 January 2024 and subsequently adjourned a number of times. I presided over the conciliation conference.

The Amended Modification Application

12. At the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement was provided to the Court on 29 February 2024 following the applicant amending its Modification Application with the respondent’s agreement. The agreed amendments to the Modification Application as lodged are outlined in the jurisdictional statement provided by the parties as follows:

1. the addition of a plant room on the ground floor of the Apartment Lot; and

2. amendments to the conditions of consent via the introduction of a construction methodology report that provides for interim landscaping works and heritage treatment on the Dwelling Lot depending on the sequence of the construction works, over both sites, to enable independent pathways for the issuing of separate occupation certificates for the Apartment Lot and Dwelling Lot,

3. (Amended Modification Application).

13. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.

14. 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. 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.

Jurisdictional considerations

15. As the presiding Commissioner, 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 form this state of satisfaction for the reasons that follow:

Owner’s consent

16. The applicant, Mr Paul Smith, is the sole director of 20 Raglan St Pty Ltd (ACN 645 575 444). 20 Raglan St Pty Ltd is the registered proprietor of the Apartment Lot.

17. Ms Susan Housan is the registered proprietor of the Dwelling Lot and provided consent to the Modification Application when it was lodged with the respondent (Class 1 Application – tab 7).

EPA Act – s 4.56

18. As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged with the respondent pursuant to s 4.56 of the EPA Act.

19. Section 4.56 of the EPA Act relevantly provides that a consent authority may modify development consent granted by the Court if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.56 is addressed below.

20. For the purposes of s 4.56(1)(a), I am satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted for the following reasons:

1. the modifications proposed primarily relate to changes in the process for obtaining an occupation certificate;

2. there are no changes to the external presentation of the final built form as contemplated by the Original Consent;

3. the conversion of existing redundant internal space to plant room on the Apartment Lot constitutes a minor modification to the approved internal layout of the Apartment Lot when considering the development proposed by the Amended Modification Application versus the development approved under the Original Consent; and

4. the contingency works contemplated by the Amended Modification Application are interim requirements during the course of construction.

21. For the purposes of s 4.56(1)(b) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been notified in accordance with a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of application for modification of development consent.

22. The parties agree that public notification was not required for the Modification Application (or Amended Modification Application) in accordance with the Mosman Community Participation Plan.

23. As such, the Court is satisfied that the requirements under s 4.56(1)(b) of the EPAA have been appropriately addressed.

24. On the basis that the Modification Application did not need to be notified in accordance with the Mosman Community Participation Plan, subss 4.56(1)(c) and (d) are not relevant.

25. In respect of s 4.56(1A) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case the Court) for the grant of the Original Consent.

Mosman Local Environmental Plan 2012

26. The Site is zoned R3 Medium Density Residential under the Mosman Local Environmental Plan 2012 (MLEP). Accordingly, residential flat buildings and dwelling houses are permitted with consent in the R3 zone.

27. The objectives of the R3 zone are extracted below:

To provide for the housing needs of the community within a medium density residential environment.

To provide a variety of housing types within a medium density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale; and

To encourage residential development that has regards to local amenity and, in particular, public and private views.

28. The parties agree, and I accept, that the Amended Modification Application is compatible with the R3 zone objectives.

29. Clause 4.3 of the MLEP provides that the height of any building does not exceed the maximum height shown on the Height of Building Map.

30. The Height of Building Map identifies the Subject Land as I2 and provides that the maximum building height is 8.5m. A cl 4.6 written request was prepared and considered as part of the grant of the Original Consent justifying the exceedance of the building height by 3.08m for the Apartment Lot and 2.24m for the Dwelling Lot. The parties agreed that notwithstanding the height exceedance, the development achieved the objectives of the R3 zone for the reasons set out in the cl 4.6 written request.

31. The Amended Modification Application does not propose any changes to the approved height as set out in the Original Consent.

32. On this basis, I am satisfied that the height of the approved development will remain unchanged as the Amended Modification Application does not propose nor contemplate any changes to the height of the approved built form.

33. Clause 4.3A of the MLEP provides that the maximum allowable wall height for the Subject Land is 7.2m. The development as approved by the Original Consent exceeds this development standard between 3.2m – 5.18m for the Apartment Lot and 0.95m – 2.38m for the Dwelling Lot.

34. A clause 4.6 written request was prepared and considered as part of the grant of the Original Consent which justified the exceedance of the allowable wall height. The parties agreed that notwithstanding the allowable wall height exceedance, the development achieved the objectives of the R3 zone for the reasons set out in the cl 4.6 written request.

35. The Amended Modification Application does not propose any modification to the wall heights as set out in the Original Consent.

36. On this basis, I am satisfied that the wall height will remain unchanged as the Amended Modification Application does not propose any changes to the wall height of the approved built form.

37. Pursuant to cl 4.4 of the MLEP and the Floor Space Ratio (FSR) Map, the FSR development standard for the Subject Land is 0.6:1. The FSR of the development as approved by the Original Consent is 0.93:1 (following the preparation and consideration of a cl 4.6 request justifying the FSR exceedance).

38. The parties agreed that notwithstanding the FSR exceedance, the development achieved the objectives of the R3 zone for the reasons set out in the cl 4.6 written request.

39. The Amended Modification Application proposes the addition of a plant room into what was a redundant internal space within the Apartment Lot. However, any area designated as plant room is excluded from the calculation of gross floor area under the MLEP and therefore does not alter the existing and approved FSR.

40. On this basis, I am satisfied that the FSR of the Amended Modification Application will remain unchanged.

41. Pursuant to clause 5.10 of the MLEP, before granting development    consent in respect of a heritage item, a consent authority must consider the effect of the proposed development on the heritage significance of the item concerned.

42. The dwelling located on the Dwelling Lot is identified as a heritage item under Schedule 5 of the MLEP. The Subject Land is also located within the vicinity of other heritage items.

43. The parties agree that the Amended Modification Application proposes new conditions of consent and contingency works which address heritage considerations and ensure that there is an appropriate heritage response to the carrying out of the works depending on the sequencing of the construction program.

44. As such, I am satisfied that the matters set out in cl 5.10 of the MLEP have been addressed.

45. Pursuant to cl 6.4 of the MLEP, a consent authority must not grant development consent unless it is satisfied that:

measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour; and

the development will maintain the existing natural landscape and landform.

46. The Subject Land is identified as a scenic protection area on the Scenic Protection Map.

47. The Amended Modification Application does not propose any changes to the approved external built form of the development as approved by the Original Consent and the parties agree that there will be no increased or altered visual impact on the scenic area, including Sydney Harbour.

48. On this basis, I am satisfied that the Amended Modification Application satisfies the requirements set out in cl 6.4 of the MLEP.

49. Clause 6.6 of the MLEP 2012 provides that the minimum landscaping for the Apartment Lot is 50% and 35% for the Dwelling Lot.

50. The development as approved by the Original Consent provides less than the minimum landscaped area required for the Subject Land. However, the parties agreed that notwithstanding the deficiency in landscaped area, the development was consistent with the objectives of cl 6.6 of the MLEP.

51. The Amended Modification Application does not change the total percentage of landscaping on the Subject Land or the final built form. However, new conditions have been imposed to ensure that landscaping is appropriately maintained during the carrying out of the development, including during the contingency works, if required.

52. I am therefore satisfied that the Amended Modification Application achieves the objectives of clause 6.6 of the MLEP in respect of landscaping.

53. Pursuant to cl 6.7 of the MLEP, a consent authority must consider various matters before granting development consent for earthworks.

54. The Amended Modification Application does not propose any modifications to the conditions set out in the Original Consent which will effect adjoining land, existing drainage patterns or vegetation within the locality or any other the various matters set out in cl 6.7.

55. Appropriate conditions are already imposed and remain unchanged which will ensure all construction certificate application plans for excavation and earthworks are endorsed by a qualified practicing Geotechnical Engineer.

56. I am therefore satisfied that clause 6.7 of the MLEP has been addressed.

State Environmental Planning Policy (Resilience and Hazards) 2021

57. I accept the parties’ submission that it is satisfied that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and are satisfied in relation to the Amended Modification Application on the basis of the historical residential use of the Subject Land.

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

58. The parties agree, and I accept, that a BASIX certificate is not required in relation to the Amended Modification Application.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

59. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Subject Land.

60. The Amended Modification Application does not propose the removal of any native vegetation, including within any of the contingency construction pathways under the construction methodology report.

61. The Amended Modification Application does not propose any works which would change its assessment under the Biodiversity and Conservation SEPP as being acceptable as part of the grant of the Original Consent.

62. As such, I accept the parties’ submission that the relevant provisions of the Biodiversity and Conservation SEPP have been considered and are satisfied in relation to the Amended Modification Application.

State Environmental Planning Policy (Housing) 2021

63. Part 3 of Chapter 2 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the Apartment Lot as it is a low-rental residential building within the Greater Sydney Region.

64. The parties agree that the Amended Modification Application does not propose any modification to the conditions of consent relating to the payment of a monetary contribution in respect of affordable housing under the Original Consent.

63. Chapter 4 of the Housing SEPP applies to the Amended Development Application as the proposed development includes a residential apartment development. As the Amended Modification Application does not alter the design of the proposed development (with the limited exception of the conversion of internal unused space to a plant room within the Apartment Lot), I am satisfied that Chapter 4 of the Housing SEPP has been adequately considered for the reasons set out in Smith v Mosman Municipal Council [2023] NSWLEC 1156 (being the decision of the Court granting the Original Consent).

64. On this basis, I am satisfied that the requirements under the Housing SEPP have been satisfied.

Conclusion

67. 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.

68. The Court notes that the respondent, as the relevant consent authority has approved the amendment of the Modification Application under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to amend Modification Application No.8.2022.41.2 to rely on the following drawings and documents:

Drawing/Description	Date	Prepared by
Ground Floor Plan, DA 102, Issue D	21.02.24	PBD Architects
Elevation Sheet 01, DA200, Issue D	26.02.24	PBD Architects
Construction Methodology	1 February 2024	Peter Smith Constructions

Orders

69. The Court orders that:

1. The applicant is directed to file the amended modification application the subject of Order (3) below within seven (7) days of the date of this order.

2. The appeal is upheld.

3. Development consent No.8.2022.41.1 is modified in the terms at Annexure A.

4. Development consent No.8.2022.41.2 as modified by the Court is set out in Annexure B.

N Targett

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 19 April 2024