TLB Trading Pty Ltd v Mosman Municipal Council

[2019] NSWLEC 1019

Land and Environment Court

New South Wales

Medium Neutral Citation:	TLB Trading Pty Ltd v Mosman Municipal Council [2019] NSWLEC 1019
Hearing dates:	Conciliation conference on 18 January 2019
Date of orders:	18 January 2019
Decision date:	18 January 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [12] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environment Plan 2012 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide (Department of Planning and Environment) 2015
Category:	Principal judgment
Parties:	TLB Trading Pty Ltd (Applicant) Mosman Municipal Council (Respondent)
Representation:	Solicitors: G Hartley, Hartley Solicitors (Applicant) R McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2018/136752
Publication restriction:	No

Judgment

1. COMMISSIONER: TLB Trading Pty Ltd (the Applicant) has appealed the deemed refusal by Mosman Council (the Respondent) of its development application 8.2017.232.1 for demolition of an existing dwelling, excavation of the site, and construction of 3-storey residential flat building comprising four strata title units, with basement car parking, and landscaping works (the proposed development) at 4 Parriwi Road, Mosman (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 15 November 2018.

4. At a subsequent conciliation conference held on 18 January 2019, over which I presided, 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 consent to the development application, subject to conditions.

5. 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.

6. The Parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 proposed development exceeds the maximum height of building and maximum wall height development standards under the provisions of cll 4.3 and 4.3A (respectively) of Mosman Local Environment Plan 2012 (MLEP).

8. The Applicant had prepared two written requests to vary these standards under the provisions of cl 4.6 of MLEP, and, on the basis of these requests, said that:

1. compliance with these controls was unreasonable or unnecessary because the proposed development achieved the objectives of those controls, which had been demonstrated within the cl 4.6 written requests;

2. there are sufficient environmental planning grounds to justify contravening the standards, specifically:

1. the slope of the Subject Site required that elements of the proposed built form be shifted towards the front of the Subject Site in order to provide compliant levels of solar access to an adjoining property;

2. the elements of the proposed built form that exceeded the height of building development standard are centralised on the Subject Site and not visible from the public domain;

3. the exceedance of the height of building development standard, which results in the exceedance of the wall height development standard, facilitated compliance of the proposed development with floor-to-ceiling height controls within the Apartment Design Guide published by the NSW Department of Planning and Environment, and which provides design criteria and general guidance about how development proposals can achieve the nine design quality principles identified in State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development;

3. the proposed development is consistent with the objectives for development in the R3 (Medium Residential Development) zone applicable to the Subject Site.

9. The Respondent concurred with the submission of the Applicant, and on the basis of these points, and the submissions of the Parties, I accept the conclusion of the Applicant’s cl 4.6 written requests that the proposed development is in the public interest, and that the jurisdictional perquisites of cl 4.6 of MLEP are fulfilled.

10. Further, 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.

11. 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.

12. The orders of the Court are:

1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans, landscape plans and stormwater plans referred to in condition 1 of Annexure A to this judgment;

2. The Applicant shall pay the Respondent’s costs pursuant to section 8.15(3) EP&A Act 1979 as agreed in the sum of $8,000.00 on or before 1 February 2019;

3. The Applicant’s written requests pursuant to cl 4.6 MLEP 2012 in relation to the development standards for height of buildings and wall height, contained in cll 4.3 and 4.3A MLEP 2012, are upheld;

4. The Appeal is upheld;

5. Development Application No. 8.2017.232.1 for the demolition of the existing dwelling and the construction of a three storey residential flat building comprising four strata title units with basement car parking and landscaping work at 4 Parriwi Road, Mosman is determined by the grant of consent, subject to the conditions attached in Annexure A.

………………………

M Chilcott

Commissioner of the Court

Annexure A

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Decision last updated: 21 January 2019