Thind v Mosman Municipal Council

[2021] NSWLEC 1494

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thind v Mosman Municipal Council [2021] NSWLEC 1494

Hearing dates:

Conciliation conference held on 12-13 August 2021

Date of orders:

30 August 2021

Decision date:

30 August 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

See orders at [22]

Catchwords:

DEVELOPMENT APPLICATION – residential dwelling – amenity – views – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34, 34AA

Mosman Local Environmental Plan 2012

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, Div 2

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Jehan Thind (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/74428

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 8.2020.93.1 by Mosman Municipal Council (hereafter the Council), which seeks the demolition of existing structures, and construction of a two storey dwelling house with garage and pool, tree removal, and landscaping on Lot A in DP 966029, known as 4 Inkerman Street, Mosman (hereafter the site).

2. The DA was submitted to Council on 24 June 2020. After internal review, the DA was refused on 1 October 2020.

3. The Class 1 appeal of the determination to refuse the DA is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams.

5. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the DA that contextualise the site.

6. The site is approximately 410m² in area. The surrounding area is consistent with the relative zoning, with single and two storey dwelling houses surrounding the site.

7. The site is currently occupied by single storey dwelling house with an outbuilding structure at the rear. The site has garden beds of shrubs and trees along the boundary, with grassed and paved areas across the remainder of the site, beyond the building envelope.

8. The Council agreed for the applicant to amend the plans and documents, that support an amended DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended plans and documents were uploaded to the NSW Planning Portal by Council.

9. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agreed that the contentions of Council and issues raised by residents have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA 8.2020.93.1 with conditions.

10. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 8.2020.93.1, with conditions provided in Annexure ‘A’.

11. In compliance with the requirements of State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55), the DA is supported by conditions of consent. The Council assesses the site has historically been used for residential purposes and there is no history of contamination on the site.

12. The proposed development is required to comply with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.

13. The site is located within the R2 Low Density Residential Zone, pursuant to the Mosman Local Environmental Plan 2012 (MLEP). The proposed development is permissible in this zone. The parties agree that the relevant objectives of the zone, as described in the MLEP, are satisfied. The proposed development, as amended, satisfies the relevant provisions of the MLEP, including the relevant numeric development standards.

14. The parties agree that the relevant requirements of Division 2 of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 are satisfied.

15. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the Mosman Residential Development Control Plan 2012 (MRDCP) are achieved to the satisfaction of the parties. The parties agree that the amended plans, together with amended supporting documents and agreed conditions of consent address any potential amenity impacts and view loss, that would warrant refusal of the DA.

16. The amended development protects the adjoining resident view corridor and ensures that view sharing is reasonable. The amenity to adjoining residents is not adversely impacted.

17. The parties agree that the requirements of the MRDCP are complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the MRDCP. During the notification period for the DA, three submissions were received by Council. The parties agree that the issues raised by residents have been resolved by amendments made to the DA and advice of the experts.

18. Based on the amended plans and supporting documents to the DA the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. The parties also explain that there are no jurisdictional impediments to making the agreement or for the Court making the orders, as sought.

19. I am satisfied, based on the evidence before me, that there are no known jurisdictional impediments to this agreement and that DA 8.2020.93.1 should be granted, as it satisfies the requirements of s 4.15 of the EPA Act.

20. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

21. The Court notes that the Council, as the relevant consent authority, has pursuant to cl 55 of the EPA Reg, agreed to amend Development Application 8.2020.93.1, and uploaded the amended plans and documents on the NSW Planning Portal, which were filed with the Court on 23 August 2021, and are listed in Annexure A.

22. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application 8.2020.93.1 for the demolition of existing structures, the removal of two trees and the construction of a two storey dwelling house with pool, garage and landscaping subject to the conditions in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (349313, pdf)

Plans (9249185, pdf)

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Decision last updated: 30 August 2021