Stone v Mosman Municipal Council

[2022] NSWLEC 1046

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stone v Mosman Municipal Council [2022] NSWLEC 1046

Hearing dates:

Conciliation conference on 27 January 2022

Date of orders:

01 February 2022

Decision date:

01 February 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 to vary the development standard for height contained in clause 4.3 thereof, as prepared by Bonus + Associates dated 10 November 2021, is upheld.

(2) The appeal is upheld.

(3) Development Application No. 8.2020.220.1 for alterations to an existing dual occupancy building to incorporate a lift to connect the basement level to the first floor level at 38 Botanic Road, Mosman is approved, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions to add a passenger lift connecting basement parking to residence – cl 4.6 written request to justify contravention of maximum building height development standard – flood planning - conciliation conference – 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, 102

Land and Environment Court Act 1979, s 34

Mosman Local Environmental Plan 2012, cll 4.3. 4.3A, 4.6, 5.1, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4

State Environmental Planning Policy (Building Sustainability Index BASIX) 2004

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

State Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 13,18, 24, 25, 26

Category:

Principal judgment

Parties:

Harry Stone (First Applicant)
Jacqueline Stone (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
A Adams (Solicitor)(Applicant)
T Ward (Solicitor)(Respondent)

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

File Number(s):

2021/259483

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of a development application No 8.2020.220.1 seeking development consent for alterations to an existing dual occupancy building to incorporate a lift to connect the basement level to the first floor level (the Proposed Development) at 38 Botanic Road, Mosman legally described as Strata Plan 52316 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 January 2022. I have 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. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) to vary a development standard, as well as the satisfaction of other provisions of the MLEP addressed below.

6. The parties explained how the jurisdictional prerequisites have been satisfied in a written jurisdictional statement, and orally during the conciliation conference. I summarise the parties’ explanation below.

7. The Applicants are the registered proprietors of Unit 2 of the dual occupancy. Owners consent was provided by the Owners Corporation and registered proprietor of Unit 1 for the Development Application.

8. The Site is identified as falling within the Sydney Harbour Catchment pursuant to the State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour Catchment). The Site is located within the foreshore and waterway area. The Site is not identified as a wetlands protection area.

9. Alterations and additions to an existing residential development is permissible with consent under the Sydney Harbour Catchment (cl 18).

10. The Respondent has considered cl 13 of the Sydney Harbour Catchment and is satisfied that the proposal is consistent with the relevant planning principles because the existing driveway will be regraded to mitigate flooding, the Proposed Development will be well absorbed into the visual fabric of the existing building and will not be visible from the public domain, and any cumulative impact is reasonable.

11. The Respondent has considered cll 24, 25 and 26 of the Sydney Harbour Catchment and is satisfied that the proposal is consistent with the relevant objectives.

12. The provisions of State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) have been taken into consideration in assessing the Development Application. Under cl 7(1)(a) of SEPP 55, consideration has been given as to whether the Site is contaminated. As the current and proposed long-term use of the Site is residential, it is unlikely to be contaminated. No change of use is proposed. While there will be site works, further investigation outside of what is provided for in the proposed conditions in Annexure 'A' is considered unnecessary. Accordingly, the parties agree that the proposal in the Development Application, as amended, satisfies the matters outlined in cl 7 of SEPP 55.

13. The Applicant’s BASIX Consultant has confirmed that as the proposed lift is not a ‘dwelling’, there is no requirement for a BASIX Certificate. The Respondent is satisfied that a certificate is not required pursuant to State Environmental Planning Policy (Building Sustainability Index BASIX) 2004.

14. Development for the purpose of alterations to a ‘residential dwelling’ is permitted with consent in the R3 Medium Density Residential zone of the land use table in the MLEP. The parties are satisfied the Development Application, as amended, satisfies the objectives of the R3 Medium Density Residential zone.

15. The Site is subject to a maximum building height development standard of 8.5m pursuant to cl 4.3 of the MLEP. The existing building exceeds the maximum building height and the Proposed Development proposes a maximum height of 8.8m. The Applicant relies on a cl 4.6 written request to justify the contravention of the maximum building height development standard prepared by Bonus + Associates dated 10 November 2021, which the parties agree is well founded for the following reasons:

1. The proposal satisfies the relevant objectives of the height control notwithstanding the variation.

2. There are sufficient environmental planning grounds to justify contravening the height control.

16. With respect to the maximum wall height development standard in cl 4.3A of the MLEP contended in the Statement of Facts and Contentions, filed 12 October 2021, the Respondent is now satisfied that a cl 4.6 variation request is not required for the Proposed Development in relation to the wall required to enclose the proposed lift and lift landings at the ground and first floor levels, noting that when measured externally the wall complies with the maximum permissible wall height of 7.2m.

17. The provisions in cll 5.1 (public purpose land acquisition), 5.10 (heritage) and 5.21 (flood planning) of the MLEP have also been considered in assessing the Proposed Development.

18. The Site is not identified as land intended to be acquired for public purposes pursuant to cl 5.1 of the MLEP.

19. The Site is not a heritage item and is not located within a heritage conservation area. Therefore, cl 5.10 of the MLEP is not enlivened by the Development Application.

20. In relation to flood planning, a Stormwater Overland Flow Study has been prepared by the Applicant that assesses the upstream stormwater flow rate and the 100-year ARI flood level. The Respondent is satisfied that the requirements under cl 5.21 of the MLEP are met by the Development Application.

21. Further, the provisions in cll 6.1 (Acid sulfate soils), 6.2 (Natural watercourse), 6.3 (Foreshore building line), and 6.4 (Scenic protection area) of the MLEP have been considered in assessing the Development Application.

22. The Site is classified as an Acid Sulfate Soil Area in the MLEP Acid Sulfate Soils Map – Sheet 02. However, the Development Application does not propose additional earthworks 1m below existing ground level, does not involve the disturbance of more than 1 tonne of soil and is not likely to lower the ground water table. Accordingly, an acid sulfate soils management plan is not required pursuant to cl 6.1 of the MLEP.

23. Pursuant to cl 6.2 of the MLEP, the Applicant’s Stormwater Overland Flow Study provides a detailed assessment of the impact on water quality and waterflow as a result of the proposed development. The Respondent is satisfied that the requirements under cl 6.2 of the MLEP are met by the Development Application.

24. The Site is identified in the Scenic Protection Map Sheet 002 of the MLEP as a scenic protection area, therefore cl 6.4 of the MLEP applies to the Site. The Respondent is satisfied that the Proposed Development, as amended will be located and designed to minimise its visual impact on public areas of the coastline and contributes to the scenic quality of the coastal foreshore. Overall, the scale, form and design of the development, as amended, is consistent with the applicable planning controls and will not have any adverse impacts on public spaces within the foreshore area.

25. The Development Application was initially notified on 5 November 2020 and no submissions were received by the Respondent in response to the notification.

26. The conditions of consent annexed to the s 34 agreement filed by the parties includes a provision for the preparation and registration of an amended Strata Plan prior to the release of the Occupation Certificate.

27. 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. I adopt the reasons given by the parties.

28. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the MLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. Having considered the submissions of the parties and having read the cl 4.6 written request, I form this state of satisfaction for the following reasons:

1. I accept that compliance would be unreasonable or unnecessary because the proposed passenger lift is consistent with the underlying purpose, or objectives, of the height of buildings standard, for the detailed reasons set out by Geoff Bonus of Bonus + Associates at p 6 of the written request which include: unchanged views, lack of visibility from the public domain, no change to character and no change to bulk and scale.

2. I accept that there are sufficient environmental planning grounds to justify contravening the maximum building height development standard, as the passenger lift will provide access from the basement level garage to the apartment’s front door at ground floor level, and principal living space at first floor level, and that this “modification to an existing two storey walk-up apartment building will improve liveability and provide for aging-in-place, that is “remaining living in the community, with some level of independence, rather than in residential care”.” (p 6, cl 4.6 written request). I am satisfied that the Proposed Development represents a better environmental planning outcome for the Site and that there is an absence or lack of environmental harm in this case, and there will be no adverse impacts of the amenity of the surrounding development or the locality by virtue of the breach of the height standard (p 7, cl 4.6 written request).

3. I am satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the development standard in cl 4.3 of the MLEP and with the objectives of the R3 Medium Density Residential zone.

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. The Court notes:

1. That Mosman Municipal Council, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), to the Applicant amending Development Application No. 8.2020.220.1 to include the following:

1. Addition of metal deck skillion roof to lift shaft;

2. Addition of planter bed adjacent to lift shaft;

3. Addition of splitter from skillion roof over garden bed;

4. Addition of metal balustrade to landing;

5. Porch level and entry raised;

6. Retention of existing roof parapet and box gutter; and

7. Additional details in relation to roof height.

2. That the amended application as listed below was uploaded onto the NSW Planning Portal on 18 January 2022:

1. Clause 4.6 Variation Request – Height of Building – prepared by Bonus + Associates, 10 November 2021

2. Lift Installation Specification prepared by Lift Shop 14 October 2021

3. Stormwater Overland Flow Study prepared by Woolacotts Consulting Engineers 31 May 2021

4. BCA Statement prepared by Building Innovations Australia 14 October 2021

5. BASIX requirement correspondence from Building Sustainability Assessments, 29 January 2020

6. Architectural plans, prepared by Bonus + Associates dated 10 November 2021:

1. DA01 – Site Analysis – Issue C

2. DA02 – Site & Landscape Plan – Issue E

3. DA03 – Demolition Plans – Issue E

4. DA04 – Plans – Issue F

5. DA05 – Elevations – Issue D

6. DA06 – Sections – Issue E

7. DA07 – Concept Drainage Plan – Issue C

3. That the Applicant subsequently filed the amended application with the Court on 18 January 2022.

Orders

31. The Court orders that:

1. The request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 to vary the development standard for height contained in clause 4.3 thereof, as prepared by Bonus + Associates dated 10 November 2021, is upheld.

2. The appeal is upheld.

3. Development Application No. 8.2020.220.1 for alterations to an existing dual occupancy building to incorporate a lift to connect the basement level to the first floor level at 38 Botanic Road, Mosman is approved, subject to the conditions of consent in Annexure ‘A’.
    

E Espinosa

Commissioner of the Court

Annexure A (204075, pdf)

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Decision last updated: 01 February 2022