TLB Trading Pty Ltd v Mosman Municipal Council

[2023] NSWLEC 1643

Land and Environment Court

New South Wales

Medium Neutral Citation:

TLB Trading Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1643

Hearing dates:

Conciliation Conference 31 August, 20 September 2023

Date of orders:

31 October 2023

Decision date:

31 October 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No 8.2017.232.1 is modified in the terms in Annexure A.

(3) Development Consent No 8.2017.232.1 as modified by the Court is contained in Annexure B.

Catchwords:

MODIFICATION APPLICATION – demolition – construct residential flat building – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.55

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, ss 17, 34

Mosman Local Environmental Plan 2012, cl 2.7

Cases Cited:

TLB Pty Ltd v Mosman Municipal Council [2019] NSWLEC 1019

Category:

Principal judgment

Parties:

TLB Trading Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)

Representation:

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

Solicitors:
Macpherson Kelley (Applicant)
Pikes & Verekers (Respondent)

File Number(s):

2023/69794

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Appeal made directly to the Court pursuant to s 4.55(8) Environmental Planning and Assessment Act1979 (EPA Act) and s 17(d) Land and Environment Court Act 1979 (LEC Act) by the owner of the land, TLB Trading Pty Ltd (Applicant).

2. These proceedings relate to an application to modify Development Consent 8.2017.232.1 (the Consent) granted by the Court on 18 January 2019 for the demolition of an existing dwelling and the construction of a new three (3) storey residential flat building comprising four (4) strata title units, with basement parking and landscaping works (Original Approved Development) at 4 Parriwi Road, Mosman NSW 2088, known as Lot 16 DP 3601 and Lot 1 DP 1094676 (the Site) and as modified by a prior Modification Application No 8.2017.232.2 made directly to the Court pursuant to s 4.55(8) of the EPA Act and approved by the Court on 24 September 2020.

3. The Applicant now seeks approval from the Court pursuant to s 4.55(8) for Modification Application No 8.2017.232.4 (MA) to make the following changes to the proposed development, adjustment to the layout including minor external rear additions, alterations to the window opening proportions and adjustment to rationalise facades.

4. In exercising the functions of the consent authority, the Court has the power to determine the modification application pursuant to s 4.55(2) and s 4.55(8) of the EPA Act.

5. The Respondent is Mosman Municipal Council and the relevant consent authority pursuant to s 4.55(8) of the EPA Act is required to perform the functions imposed on a consent authority under ss 4.55(2)(b) and (c) in respect of the MA.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on site and at Mosman Council Chambers. I presided over the conciliation conference.

7. Shortly after 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 Council approving an application to amend the Applicant’s plans pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 Appeal and approve the works in the amended plans to modify the Consent with conditions.

8. Section 34(3) of the LEC Act requires me to 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.

9. There are jurisdictional prerequisites which require my satisfaction before the power to modify the Consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement.

10. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters that apply.

Section 4.55 – Environmental Planning and Assessment Act 1979

11. The MA and the Amended MA were made pursuant to s 4.55(2) of the EPA Act. In this regard, the parties agreed that:

• The development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted;

• The MA was appropriately notified; and

• Submissions received in response to the notification of the MA were considered.

12. I agree with the parties’ analysis and conclusion on the threshold jurisdictional question under s 4.55(2)(b) EPA Act that the development to which the Consent as modified relates is “substantially the same development as the development for which the Consent was originally granted”.

13. Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended MA against:

• Such of the matters referred to in s 4.15(1) of the EPA Act as they are of relevance to the proposal, as amended; and

• The reasons given by the consent authority for the grant of the Consent.

14. I accept the parties’ detailed analysis of the caselaw and conclusions that the amended MA satisfies the requirements of s 4.55 EPA Act and that the Court has the power to approve the amended MA and allow the Class 1 Appeal.

Notification

15. The MA was notified in accordance with the Mosman Community Participation Plan ‘Involving the Community in Planning’, (Community Participation Plan) from 6 April 2023 until 26 April 2023. Three submissions were received during the notification period. The issues raised in the submission were in relation to building height, amenity, visual and privacy impacts, solar access and noise intrusion from air conditioning plant. Two neighbouring owners/residents attended the on site s 34 conference and their concerns were considered by the Applicant.

16. Council is satisfied that the Amended MA addresses the concerns raised in those submissions.

17. In accordance with the Community Participation Plan, the amended MA was not renotified as the Council formed the opinion that the amendments did not significantly increase the environmental impact of the development.

18. I am satisfied that resident and neighbouring objectors were accorded procedural fairness.

State and Local Environmental Planning Instruments

19. The Site is zoned R3 Medium Density Residential under the Mosman Local Environmental Plan 2012 (MLEP) . The Approved Development is for a ‘residential flat building’, as modified by the Amended MA, and is permissible with consent in the R3 zone. Demolition works are permissible with consent under cl 2.7 of the MLEP.

20. Statutory planning controls applicable to the Site and the proposed development were considered by the Respondent in the previous assessment undertaken, prior to the s 34 agreement to the grant of consent by the Court. I note the jurisdictional issues covered by Commissioner Chilcott in his judgment: TLB Pty Ltd v Mosman Municipal Council [2019] NSWLEC 1019. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to reconsider each of the relevant environmental planning instruments and planning controls. I refer to the detailed analysis undertaken by the parties at paragraphs [30] to [50] of the Jurisdictional Statement and accept the agreed position of the parties.

21. The parties have agreed on modified conditions of consent. The modified conditions of consent can be lawfully imposed having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

Conclusion

22. For these reasons, based on the evidence before me and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

23. 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. 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.

Notations

24. The Council, as the relevant consent authority pursuant to section 113 of the Environment Planning and Assessment Regulation 2021, has consented to the Applicant amending Modification Application No. 8.2017.232.4 in accordance with the amended documents filed with the Court on 27 September 2023 and 6 October 2023 as described in the table below.

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1.	Drawing No. 101 Issue F	Basement Floor Plan	Cracknell & Lonergan Architects Pty Ltd	7 September 2023
	Drawing No. 102 Issue F	Ground Floor Plan		7 September 2023
	Drawing No 103 Issue F	First Floor Plan		7 September 2023
	Drawing No. 104 Issue F	Second Floor Plan		7 September 2023
	Drawing No. 105 Issue F	Roof Plan		7 September 2023
	Drawing No. 201 Issue F	Elevations		7 September 2023
	Drawing No. 202 Issue F	Elevations		7 September 2023
	Drawing No. 301 Issue F	Sections		7 September 2023
	Drawing No. 302 Issue F	Landscape Section		7 September 2023
	Drawing No. 303 Issue F	Landscape Section		7 September 2023
	Drawing No. 401 Issue F	Areas Schedule Comparison		7 September 2023
	Drawing No. 402 Issue F	Areas Schedule Comparison		7 September 2023
	Drawing No. 501 Issue F	Materials & Finishes		7 September 2023
	Drawing No. 811 Issue F	View from the Sun | Mid-Winter 09:00am		7 September 2023
	Drawing No. 812 Issue F	View from the Sun | Mid-Winter 09:30am		7 September 2023
	Drawing No. 813 Issue F	View from the Sun | Mid-Winter 10:00am		7 September 2023
	Drawing No. 814 Issue F	View from the Sun | Mid-Winter 10:30am		7 September 2023
	Drawing No. 815 Issue F	View from the Sun | Mid-Winter 11:00am		7 September 2023
	Drawing No. 816 Issue F	View from the Sun | Mid-Winter 11:30am		7 September 2023
	Drawing No. 817 Issue F	View from the Sun | Mid-Winter 12:00pm		7 September 2023
	Drawing No. 818 Issue F	View from the Sun | Mid-Winter 12:30pm		7 September 2023
	Drawing No. 819 Issue F	View from the Sun | Mid-Winter 01:00pm		7 September 2023
	Drawing No. 820 Issue F	View from the Sun | Mid-Winter 01:30pm		7 September 2023
	Drawing No. 821 Issue F	View from the Sun | Mid-Winter 02:00pm		7 September 2023
	Drawing No. 822 Issue F	View from the Sun | Mid-Winter 02:30pm		7 September 2023
	Drawing No. 823 Issue F	View from the Sun | Mid-Winter 03:00pm		7 September 2023
Landscape Plans
2	Drawing No. LPS4.56 18 – 108 (Page 1) Rev H	Landscape Plan – Ground Floor	Conzept Landscape Architects	12 September 2023
	Drawing No. LPS4.56 18 – 108 (Page 2) Rev H	Landscape Plan – Ground Floor		12 September 2023
	Drawing No. LPS4.56 18 – 108 (Page 3) Rev H	Landscape Plan – First & Second Floor		12 September 2023
	Drawing No. LPS4.56 18 – 108 (Page 4) Rev H	Specification & Detail		12 September 2023
	Drawing No. LPS4.56 18 – 108 (Page 5) Rev H	Details & Sections		12 September 2023
Stormwater Drainage Plans
3	Drawing No. ST01 Rev B	Basement Floor Stormwater Drainage Plan	Stronghold Engineers	8 September 2023
	Drawing No. ST02 Rev B	Basement Stormwater Drainage Details		8 September 2023
	Drawing No. ST03 Rev B	Site Stormwater Drainage Plan		8 September 2023
	Drawing No. ST04 Rev B	Stormwater Drainage Details		8 September 2023
4	BASIX Certificate (No.875406M_05)		Greenworld Architectural Drafting	15 September 2023
NatHERS Certificates
5	NatHERS – Lot 16 DP3601 (No.0003927820)		John Boutros, Greenworld Architectural Drafting	15 September 2023
	NatHERS – Unit 1 (No.0008252033-01)			15 September 2023
	NatHERS – Unit 2 (No.0008252066-01)			15 September 2023
	NatHERS – Unit 3 (No.0008252058-01)			15 September 2023
	NatHERS – Unit 4 (No.0008252041-01)			15 September 2023
Reports
6	Statement of Heritage Impact		Cracknell & Lonergan	15 August 2023
7	SEPP 65 Design Verification Statement		Cracknell & Lonergan	15 August 2023

25. The Court orders that:

1. The appeal is upheld.

2. Development Consent No 8.2017.232.1 is modified in the terms in Annexure A.

3. Development Consent No 8.2017.232.1 as modified by the Court is contained in Annexure B.

L Byrne

Acting Commissioner of the Court

69794.23 Annexure A

69794.23 Annexure B

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Decision last updated: 31 October 2023