TM Mosman Pty Ltd v Mosman Municipal Council

[2025] NSWLEC 1701

Land and Environment Court

New South Wales

Medium Neutral Citation:

TM Mosman Pty Ltd v Mosman Municipal Council [2025] NSWLEC 1701

Hearing dates:

Conciliation conference 19 September 2025

Date of orders:

26 September 2025

Decision date:

26 September 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Modification application DA.8.2023.218.3 is granted.

(2) Development consent DA.8.2023.218.1 granted on 20 November 2024 is modified as set out in Annexure A.

(3) The terms of the consolidated development consent DA.8.2023.218.1, as modified, are set out in Annexure B.

Catchwords:

APPEAL – modification application – mixed use development comprising a shop and shop top housing – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Category:

Principal judgment

Parties:

TM Mosman Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
S Gadiel (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

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

File Number(s):

2025/279993

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for a mixed use development comprising a ground floor shop and a residential flat building containing 7 dwellings at 938 Military Road, Mosman. The modification seeks to alter the internal and external layout of the level 3 units, including alterations to the balcony layout for each unit. The modification application was lodged with the Council on 27 February 2025. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 19 September 2025. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 23 September 2025, following the Council’s approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments relate to the design of the balcony and are aimed at protecting the privacy of neighbours in adjacent residential developments.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The signed agreement is supported by an agreed Note on Jurisdiction. Based on the agreed Note, the documents referred to therein, the Statement of Environmental Effects dated 19 February 2025 and the documents that accompany the Class 1 Application, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act.

5. 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 on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that it alters only the design of two of the units, without altering any essential element of the building the subject of the consent. The development remains a mixed use development with a ground floor shop and 7 residential dwellings.

6. The modification application was notified by the respondent between 12 and 26 March 2025 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, one submission was received. I have considered the issues raised in that submission.

7. Consistent with the requirements of s 100(3)(a) of EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 18 February 2025. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

8. As required by s 102(2) of the EPA Regulation 2021, the amended modification application is accompanied by a design verification statement dated 22 September 2025, which verifies that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development.

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

11. The Court notes:

1. That Mosman Municipal Council, as the relevant consent authority, has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending its modification application to rely on the following plans and documents:

1. Design verification statement prepared by Texco Design dated 22 September 2025;

2. Architectural drawings prepared by Texco Design:

1. Cover Page + Drawing List, Drawing A000, Revision 5 dated 19 September 2025;

2. Site Plan, Drawing A001, Revision 5 dated 19 September 2025;

3. Level 3 Deletion Plan, Drawing A107A, Revision 5 dated 19 September 2025;

4. Level 3 Amended Plan, Drawing A107B, Revision 5 dated 19 September 2025;

5. Roof Amended Plan, Drawing A108B, Revision 5 dated 19 September 2025;

6. West & East (Street) Elevations, Drawing A201, Revision 5 dated 19 September 2025;

7. North & South Elevations, Drawing A202, Revision 5 dated 19 September 2025;

8. Section A, Drawing A301, Revision 5 dated 19 September 2025;

9. Privacy Sections, Drawing A302, Revision 5 dated 19 September 2025; and

10. Planter Details & Materials Schedule, Drawing A303, Revision 5 dated 19 September 2025.

Orders

12. The Court orders that:

1. Modification application DA.8.2023.218.3 is granted.

2. Development consent DA.8.2023.218.1 granted on 20 November 2024 is modified as set out in Annexure A.

3. The terms of the consolidated development consent DA.8.2023.218.1, as modified, are set out in Annexure B.

J Gray

Commissioner of the Court

​​​​​​​Annexure A (213 KB, pdf)

Annexure B (378 KB, pdf)

**********

Decision last updated: 26 September 2025