Wan v Mosman Municipal Council

[2025] NSWLEC 1552

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wan v Mosman Municipal Council [2025] NSWLEC 1552

Hearing dates:

Conciliation conference held on 9 and 10 July 2025

Date of orders:

01 August 2025

Decision date:

01 August 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1)   Leave is granted to the Applicant to amend Development Application 8.2024.312.1 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2)   The Applicant’s written request, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the MLEP, is upheld.

(3)   The Applicant’s written request, pursuant to cl 4.6 of the MLEP, seeking to vary the development standard for wall height as set out at cl 4.3A of the MLEP, is upheld.

(4)   The appeal is upheld.

(5)   Consent is granted to Development Application 8.2024.312.1 (as amended) for the demolition of existing structures and construction of a new dwelling house, including excavated garage with parking for two cars and excavated storage and plant areas (accessed from Gibson Road), four bedrooms, kitchen, living, dining and outdoor dining area, lounge room and outdoor terrace at uppermost level, swimming pool and landscaping, at 193 Raglan Street, Mosman, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — single dwelling house — cl 4.6 written request — height of buildings — wall height — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979 (NSW), ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38

Mosman Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.3A, 4.6, 5.10, 6.4, 6.6, 6.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Category:

Principal judgment

Parties:

Lester Lay Wan (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2025/83387

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Lester Lay Wan (the Applicant), against the deemed refusal of Development Application 8.2024.312.1 (the DA) by Mosman Municipal Council (the Respondent).

2. At the date of its lodgement on 10 January 2025, the DA sought consent for the demolition of existing structures and construction of a new, single, detached dwelling house at 193 Raglan Street, Mosman (the site).

3. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 9 and 10 July 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of view impacts for neighbouring properties, unacceptable overshadowing impacts upon neighbouring properties, privacy and cross viewing impacts, inappropriate building form and bulk arising from the exceedance of the relevant building height, wall height and floor space ratio (FSR) controls, impacts arising from the proposed swimming pool and its pool fence enclosure, and inadequate landscape design.

6. Agreed design amendments have been made to reduce the scale of the dwelling, lowering the proposed building and its upper-most roof level by approximately 600mm. The form of the upper-most floor has been amended to increase its setback from the more sensitive southern neighbour. The extent of accessible outdoor terrace at the upper-most floor has been reduced. Together, the reduced height and adjusted building form mitigate against impacts of privacy and cross viewing, and deliver improved solar access for the neighbouring property (relative to the DA at the date of its lodgement).

7. The extent of paved pool surround has been reduced and the pool level lowered by approximately 700mm. Associated amendments to the proposed pool fence enclosure reduce impacts upon the lower-set neighbouring property to the east.

8. By agreement, the basement extent has been reduced by one car parking space to bring the amended proposal into compliance with the relevant FSR control, reducing the extent of excavation and delivering an improved landscape area situated above deep soil.

9. Collectively, these design amendments are agreed to resolve each of the contentions in this dispute.

10. 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 amended DA.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

12. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

13. The DA was publicly notified from 23 January to 7 February 2025. Twelve submissions were received by the Respondent, raising a range of concerns including:

1. View loss.

2. Impacts of overlooking and cross viewing.

3. Overshadowing impacts upon neighbouring properties.

4. Excessive visual bulk, visual impacts and inconsistency with local character.

5. FSR exceedance.

6. Excessive wall height.

7. Excessive building height.

8. Exceedance of the allowable number of storeys.

9. Excessive excavation and associated impacts.

10. Effect on the local scenic protection area.

11. Tree removal.

12. Inadequate front setback and landscaped area.

13. Impacts of proposed swimming pool, its levels and setback.

14. Boundary fence heights.

15. Site drainage.

16. Driveway turning paths.

17. Noise, dust and access impacts associated with construction.

14. At the site view on the morning of 9 July 2025, five affected local residents addressed the Court to restate many of these concerns, and the Court also visited two neighbouring properties to directly observe building separation, acoustic privacy and overshadowing relationships, along with potential view affectation issues.

15. The parties agree, and I am satisfied, that the final amended DA and conditions of consent now satisfactorily consider the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

16. The parties agree, and I am satisfied, that the Mosman Local Environmental Plan 2012 (MLEP) is the relevant local environmental planning instrument. The site is zoned C4 Environmental Living. The amended DA - characterised as a detached single dwelling house - is permissible with consent.

17. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the MLEP, the amended DA is consistent with the relevant C4 Environmental Living zone objectives, which include:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access and landscaping and to retain natural topographical features.

• To ensure that development is of a height and scale that achieves the desired future character of the area.

• To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

• To minimise the adverse effects of bulk and scale of buildings.

18. The amended DA provides the anticipated detached single dwelling house on the site, of a height, bulk and scale that achieves consistency with nearby development, that provides an appropriate landscape response to maintain the scenic and landscape character of the local area, and establishes reasonable view sharing with existing nearby development.

19. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the MLEP, consent is required to carry out demolition, and accordingly consent for the demolition of the existing structures on the site is sought within the amended DA.

20. The parties agree, and I am satisfied, that all principal development standards of the MLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings, and cl 4.3A - Height of buildings (additional provisions).

21. In such an instance, cl 4.6(3) of the MLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with these relevant development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

Height of buildings

22. The Applicant has provided a written document seeking to vary the height of buildings development standard, prepared by Boston Blyth Fleming Town Planners and dated 10 July 2025.

23. Pursuant to cl 4.3 of the MLEP the site is subject to a height of building development standard of 8.5m.

24. The amended DA proposes a maximum building height of 9.74m, exceeding the height of building development standard by 1,240mm and representing a variance of approximately 14.6%.

25. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

2. The majority of the proposed building complies with the development standard, while the portion of the building which exceeds 8.5m is limited to a relatively small area of the upper-most floor, generally set towards the front of the site as it presents to the streetscape and away from the sensitive southern neighbour.

3. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

4. The building height exceedance, in part, arises as a consequence of the existing ground level of the site having previously been excavated to accommodate the existing dwelling house, and due the relatively steeply sloping topography, which falls away from Raglan Street.

5. The objectives of the MLEP C4 Environmental Living land use zone include to provide for low-impact residential development in areas with special ecological, scientific or aesthetic values; to ensure that residential development does not have an adverse effect on those values; to retain the single dwelling character of the environmentally sensitive residential areas of Mosman; to maintain the general dominance of landscape over built form, particularly on harbour foreshores; to ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access and landscaping and to retain natural topographical features; to ensure that development is of a height and scale that achieves the desired future character of the area; to encourage residential development that maintains or enhances local amenity and, in particular, public and private views; and to minimise the adverse effects of bulk and scale of buildings. I am satisfied the amended DA is consistent with these objectives.

6. The relevant objectives of cl 4.3 of the MLEP - Height of buildings - include to share public and private views; to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores; to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form; and to minimise the adverse effects of bulk and scale of buildings. I am satisfied the amended DA meets these objectives.

26. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

Wall height

27. Further, the Applicant has provided a written document seeking to vary the wall height development standard, prepared by Boston Blyth Fleming Town Planners and dated 10 July 2025.

28. Pursuant to cl 4.3A of the MLEP the site is subject to a wall height development standard of 7.2m.

29. The amended DA proposes a maximum wall height of 9.39m, exceeding the wall height development standard by 2,190mm and representing a variance of approximately 30.4%.

30. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the wall height development standard for the following reasons:

1. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality, presenting generally as a two-storey dwelling with a relatively small, third level, set back from the primary street frontage and from neighbouring properties.

2. The majority of the proposed building complies with the development standard, with the portion of the proposed dwelling walls which exceed 7.2m being limited to a relatively small extent of the upper-most floor and away from the sensitive southern neighbour.

3. The proposed wall height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

4. The wall height exceedance, in part, arises as a consequence of the existing ground level of the site having previously been excavated to accommodate the existing dwelling house, and due the relatively steeply sloping topography, which falls away from Raglan Street.

5. I am satisfied the amended DA is consistent with the objectives of the MLEP C4 Environmental Living land use zone as previously noted in this judgment.

6. The relevant objectives of cl 4.3A of the MLEP - Height of buildings (additional provisions) - include to provide for view sharing; to minimise the adverse effects of the bulk and scale of buildings; and to encourage two-storey buildings consistent with the desired future character of the area. I am satisfied the amended DA meets these objectives.

31. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the wall height development standard, and I find to uphold the written request.

32. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the MLEP - Heritage conservation - the site is not a listed heritage item and is not situated within a heritage conservation area. However, the site is in reasonably close proximity to two identified heritage items, being ‘House’ at 189 Raglan Street (item No. l249) and ‘House’ at 218 Raglan Street (item No. I252).

33. The amended DA is agreed to be of a scale and character that will not detract from the heritage significance of the nearby heritage items, nor will it have any direct physical impact on these items or their setting.

34. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the MLEP - Scenic protection - the site is situated within an identified Scenic Protection Area in the MLEP Scenic Protection Map. Consequently, cl 6.4 sets out objectives to minimise the visual impact of development to and from Sydney Harbour, and to maintain the existing natural landscape and landform.

35. The parties agree, and I am satisfied, that the amended DA meets the objectives of cl 6.4 because the site is situated approximately 450m west of Balmoral Beach, and obscured to a significant extent by intervening building and landscape elements. The form and siting of the amended DA will not be readily discernible from Sydney Harbour or environs. The amended DA does not bring about excessive change to the natural landform.

36. The parties agree, and I am satisfied, that pursuant to cl 6.6 of the MLEP - Landscaped areas - the minimum required landscaped area for the site is 40%, being 278.24 sqm. The amended DA provides for 291.4 sqm of landscaped area, representing 41.9% of the site area and satisfying cl 6.6. Agreed conditions of consent are imposed to ensure compliance with the landscaped area.

37. The parties agree, and I am satisfied, that pursuant to cl 6.7 of the MLEP - Earthworks - the matters set out at cl 6.7(3) have been appropriately addressed in the amended DA. The amended DA proposes land modification including excavation for footings and drainage. The amended DA has reduced the extent of excavation by limiting car parking within the basement, and results in a greater landscaped area. It is agreed to be unlikely the amended DA will have a detrimental effect on soil stability or site hydrology. The land modification facilitates the development of the proposed new residential dwelling. Excavated material is unlikely to be contaminated given the long-term residential use of the site. Excavated material will be utilised on site where possible, with excess spoil appropriately disposed of. Agreed conditions are imposed to ensure sediment-laden stormwater does not impact the catchment area.

38. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

39. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

40. Chapter 6 of SEPP BC deals with water catchment. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment. The amended DA is agreed to appropriately manage stormwater quality and quantity. Agreed conditions of consent are imposed to control erosion and sediment.

41. Similarly, the amended DA is agreed to not result in any adverse impacts on terrestrial, aquatic or migratory animals or vegetation, does not result in the clearing of riparian vegetation, does not result in erosion or sedimentation of a waterbody, impact on wetlands or impact on aquatic ecology.

42. Finally, the amended DA is agreed to not result in an adverse environmental impact on downstream areas in adjacent local government areas.

43. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), a BASIX certificate number 1778000S_06, dated 15 July 2024, has been provided with the DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

44. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Acthave been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

31. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

32. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 22 July 2025.

Orders

47. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application 8.2024.312.1 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. The Applicant’s written request, pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the MLEP, is upheld.

3. The Applicant’s written request, pursuant to cl 4.6 of the MLEP, seeking to vary the development standard for wall height as set out at cl 4.3A of the MLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application 8.2024.312.1 (as amended) for the demolition of existing structures and construction of a new dwelling house, including excavated garage with parking for two cars and excavated storage and plant areas (accessed from Gibson Road), four bedrooms, kitchen, living, dining and outdoor dining area, lounge room and outdoor terrace at uppermost level, swimming pool and landscaping, at 193 Raglan Street, Mosman, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (389 KB, pdf)

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Amendments

22 August 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), Annexure A has been replaced by the corrected version.

Decision last updated: 22 August 2025