Wellstone Mosman Pty Ltd v Mosman Municipal Council

[2020] NSWLEC 1675

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wellstone Mosman Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1675

Hearing dates:

11 December 2020

Date of orders:

30 December 2020

Decision date:

30 December 2020

Jurisdiction:

Class 1

Before:

O’Neill C and Shiels AC

Decision:

The Orders of the Court are:

(1) The applicant is granted leave to amend the application to rely on the architectural and landscape plans listed in condition 1 of Annexure A and the amended written requests to vary development standards.

(2) The appeal is upheld.

(3) Development Application No. 8.2019.43.1 for the demolition of existing structures, removal of 8 trees, site works, construction of a residential flat building comprising 5 apartments and basement carpark for 12 cars accessed via a car lift and landscaping, is approved, subject to the conditions of consent at Annexure A.

(4) The exhibits, other than exhibits 1 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – amended proposal – no contentions

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Rural Fires Act 1997

State Environmental Planning Policy No 19 – Bushland in Urban Areas

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Tenacity Consulting v Warringah [2004] NSWLEC 140

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Reid (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Thomson Geer Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2020/67472

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 8.2019.43.1 for the demolition of existing structures, removal of trees, site works, construction of a residential flat building comprising 5 apartments and basement carpark for 12 cars accessed via a car lift and landscaping (the proposal) at 24-26 Boyle Street, Mosman (the site) by Mosman Municipal Council (the Council).

2. The appeal was subject to conciliation on 29 October 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. The hearing commenced onsite with a view of the site and environs in the company of the representatives and the planning experts. The hearing was thereafter conducted via Microsoft Teams.

4. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application by relying on amended architectural and landscape plans and amended written requests to vary development standards (Ex A). The amendments made to the proposal are listed on page 3 of the amended architectural plans (Ex A).

Issues

5. The Council submitted that the contentions raised in the amended statement of fact and contentions filed 13 November 2020 (Ex 1) have been addressed to the Council’s satisfaction by the amended proposal in Ex A and the agreed conditions of consent (Annexure A).

The site and its context

6. The site is on the southern side of Boyle Street (aka Lower Boyle Street), Mosman, to the east of Spofforth Street. The site is comprised of two allotments, with a frontage to Boyle Street of 30.48m and an area of 1519sqm. The site falls steeply to the south, approximately 16.5m from the street front boundary to the rear boundary. The site overlooks Mosman Bay.

7. The site contains a part two and part three storey residential flat building at 24 Boyle Street and a part two and part three storey dwelling house at 26 Boyle Street.

The proposal

8. The amended proposal in Ex A consists of the following:

• Demolition of all existing structures.

• Lower Ground Floor RL 25.1: car parking accessed via a car lift for 12 cars including 10 residential and 2 visitor, motorcycle and bicycle parking, private storage, plant and garbage room.

• Ground Floor RL 28.1: Units G.01 and G.02, each three bedroom units.

• First Floor RL 31.5: Units 1.01 and 1.02, each three bedroom units.

• Second Floor RL 34.9: Lobby and Unit 2.01, a three bedroom and study unit.

• Landscaping, including outdoor communal space.

Planning framework

9. The proposal is integrated development pursuant to Div 4.8 of the EPA Act. Authorisation under s 100B of the Rural Fires Act 1997 is required in respect of bush fire safety for the subdivision of land that could lawfully be used for residential purposes. The NSW Fire Service has issued general terms of approved (Ex C) which are included in the conditions of consent (conditions 8 to 13, Annexure A).

10. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site at cl 3. The consent authority, or the Court exercising the functions of the consent authority, is to take into consideration the matters under Div 2, before granting consent to development under Part 4 of the EPA Act, at cl 20. The Council submitted that there are no issues raised by the amended proposal in relation to the matters listed under Div 2 and having considered the matters under Div 2, we accept the Council’s submission.

11. State Environmental Planning Policy No 19 – Bushland in Urban Areas applies to the site at cl 3 and Sch 1. Clause 9 applies to land which adjoins bushland zoned or reserved for public open space purposes, which includes the site. A public authority is to consider the following matters before granting development consent in relation to development on land to which cl 9 applies:

(c) the need to retain any bushland on the land,

(d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland, and

(e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes.

12. The site is zoned R3 Medium Density Residential pursuant to the Mosman Local Environmental Plan 2012 (LEP 2012). The proposal is permissible with consent. The objectives of the R3 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale.

• To encourage residential development that has regard to local amenity and, in particular, public and private views.

13. The height of buildings development standard for the site is 8.5m (cl 4.3(2) and Height of Buildings Map Sheet HOB_002 of LEP 2012). The objectives for the height of buildings development standard, at cl 4.3(1)(a) are:

(i) to share public and private views, and

(ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

(iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and

(iv) to minimise the adverse effects of bulk and scale of buildings,

14. Clause 4.3A Height of buildings (additional provisions) applies to the site at cl 4.3A(1). A building on land to which cl 4.3A applies must not have a wall height, at any point of the building, that exceeds 7.2m, at cl 4.3A(4).

15. The site has a floor space ratio (FSR) development standard of 0.55:1, at cl 4.4 of LEP 2012, and the parties agreed that this development standard is met by the amended proposal.

16. The site is within the vicinity of heritage items, including the park at the lower end of Orlando Avenue, opposite the site (Item 420, Sch 5 to LEP 2012).

17. The site is within the Scenic Protection Area (cl 6.4(2) and Scenic Protection Map Sheet SCP_002 of LEP 2012). The objectives for scenic protection, at cl 6.4(1), are:

(a) to recognise and protect the natural and visual environment of Mosman and Sydney Harbour,

(b) to reinforce the dominance of landscape over built form,

(c) to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments.

18. The Mosman Residential Development Control Plan 2012 (DCP 2012) applies to the site at section 1.3.

19. The relevant objectives for the siting and scale, at section 4.2 of DCP 2012, are:

“O2. To have a scale of development which is not excessive and is consistent with the existing or desired future townscape area character.

O3. To have a built form that is typical of traditional building types in Mosman, and encourage pitched and gabled roof forms.

O4. To have front setbacks complementing existing setbacks in the street.

O5. To have adequate side setbacks for basement excavation to allow for deep soil planting between buildings.

O6. To have adequate side setbacks to provide spatial relief between buildings, encourage view sharing, and minimise overshadowing of neighbouring properties.

O9. To have buildings which are sited to relate to the topography with minimal cut and fill, preserve existing significant trees, vegetation, rock outcrops, water courses, natural features and promote new vegetation links.”

20. The relevant objectives for view sharing, at section 4.3 of DCP 2012, are:

“O1. To have opportunities for public vistas and public views from streets and public places protected.

O2. To have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscape design, whilst not restricting the reasonable development potential of a site.”

21. The relevant objectives for landscaping, at section 4.4 of DCP 2012, are:

“O4. To have the existing canopied and vegetated landscaped character of Mosman protected and enhanced.

O6. To have front gardens and areas forward of the front building alignment include vegetation and landscaping that makes a positive contribution to the streetscape.

O10. To have natural ground levels maintained, especially near boundaries.”

Public submissions

22. The submissions of the resident objectors were admitted into evidence as Ex 2. The submissions regarding the most recent iteration of the plans, for which leave was granted by the Court for the applicant to rely upon on 26 November 2020, were included behind tab 5 of Ex 2. The concerns of the objectors can be summarised as:

• The proposal is an overdevelopment of the site;

• The proposal is out of character with the locality;

• The proposal will result in the loss of views from properties that overlook the site;

• The proposal has dangerous street access and will lead to overcrowding of limited on-street parking spaces; and the car lift will result in vehicles waiting to access the lift and blocking the street;

• The scale of the demolition will cause damage to neighbouring dwellings; and

• The proposal will result in noise impacts on adjoining development.

Expert evidence

23. The applicant relied on the expert evidence of Jason Rudd (traffic) and Sue Francis (planning). The Council relied on the expert evidence of Chris Saunders (traffic) and Peter Wells (planning).

24. The traffic engineers disagreed over whether the default position of the vehicle platform should be at the level immediately below street level, because Mr Saunders opined that waiting 19 seconds for the vehicle platform to arrive at the ground level ready for a car to drive onto the platform would be inconvenient and any unnecessary delays should be eliminated. Notwithstanding Mr Saunders view, the Council pressed for the default position of the vehicle platform to be at the level immediately below street level so that the car lift resembles a conventional carport when the car lift is not in use. The applicant agreed to a condition of consent requiring the default position of the vehicle platform to be at the level immediately below street level (condition 112, Annexure A).

Contravention of the height of buildings development standard

25. The proposal has a maximum height of 11.22m. The height of buildings development standard for the site is 8.5m. The contravention of the height of buildings development standard occurs primarily at the southern portion of the pitched gable roofs, to a greater extent on the western gable, and the lift overrun.

26. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex A, tab 3).

27. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

28. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

29. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

30. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority must be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

31. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

• the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

• the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

• the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

• the development standard has been abandoned by the council;

• the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

32. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

33. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved, notwithstanding non-compliance with the numerical standard, for the following reasons:

• The proposal minimises the bulk of the building envelope at the street elevation, where the bulk would have the greatest impact on harbour views from the public reserve and dwellings that overlook the site, and relocates that bulk further down the site;

• The non-compliant elements of the proposal are located centrally on the site to appear less visually prominent;

• The contravention of the height of buildings development standard is minor;

• The proposal is consistent with the view sharing objective of the development standard;

• The building form reflects the subdivision pattern of the area, has a pitch roof and is consistent with the surrounding development;

• The proposal includes generous side setbacks of 3m and 3.2m to allow for views to be obtained across the side setbacks;

• The proposal is compatible in scale with adjoining developments;

• There are no amenity impacts on adjoining properties caused by the contravention of the height of buildings development standard.

34. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

35. The environmental planning grounds advanced by the applicant in the written request include the following:

• The site’s steep and irregular topography is a constraint, because a building envelope that is compliant with the height of buildings development standard would locate the bulk of the building at the street front, high on the site, where it would have the greatest impact on views obtained from dwellings that overlook the site;

• The creation of a larger building platform and one which extends northward across the different levels allows the proposal to retain views across the site.

36. We are satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the height of buildings development standard as a justified response to the steep topography of the site and locating the building envelope, which is compliant with the FSR development standard, in a location on the site that minimises the impact of the proposal on views from neighbouring dwellings across the site to the harbour. We are satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

37. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

38. We are satisfied that the proposal is consistent with the objectives of the height of buildings development standard and the zone. The proposal allows for the sharing of public and private views across the site by locating the bulk of the building envelope further down the slope of the site, instead of at the front setback at a compliant height, in order to minimise the impact of the building envelope on views across the site. This is demonstrated by the View Study prepared by the applicant (Ex A, tab 2) which illustrates the additional impact of a building envelope that is compliant with the height of buildings development standard at the front setback of the site, shown from a number of viewing locations on the high side of Boyle Street, overlooking the site. In this way, the proposal minimises the adverse effects of the bulk and scale of the building envelope. We accept the agreement of the planning experts that the impact of the proposal on views obtained from viewing points on the high side of Boyle Street are either not changed or minor, within the meaning of minor in the Court’s planning principle on assessing view impacts (Tenacity Consulting v Warringah [2004] NSWLEC 140 at [26]-[29]). We accept their agreed assessment that the proposal is reasonable because it complies with the FSR development standard and setback controls and the limited view loss is acceptable.

39. The proposal locates the building envelope on the site in a location that is consistent with neighbouring development, so that the visual impact of the proposal when viewed from the harbour and surrounding foreshores will be minimised. The proposal is well articulated.

40. We are satisfied that the proposal is compatible with the desired future character of the area in terms of bulk, height and scale, because the proposal is consistent with the scale, heights and setbacks of nearby buildings and the scale of development envisaged by the development standards for the R3 Medium Density zone.

Contravention of the wall height development standard

41. The proposal has a maximum wall height of 10.01m. The wall height development standard for the site is 7.2m. The contravention of the wall height development standard occurs in the centre of the site, including the part of the side wall of the second floor at the southern end of the building, the parapet over the first floor and the walls of the lift overrun.

42. The applicant provided a written request seeking to justify the contravention of the wall height development standard (Ex A, tab 4).

The applicant’s written request to contravene the wall height development standard

43. The applicant’s written request justifies the contravention of the wall height development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the height of buildings development standard are achieved, notwithstanding non-compliance with the numerical standard for wall height, for the same reasons as for the height of buildings development standard. The environmental planning grounds advanced by the applicant in the written request are the same as for the height of buildings development standard.

44. We are satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the wall height development standard as a justified response to the steep topography of the site and locating the building envelope, which is compliant with the FSR development standard, in a location on the site that minimises the impact of the proposal on views from neighbouring dwellings across the site to the harbour. We are satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

45. We are satisfied that the proposal is consistent with the objectives of the height of buildings development standard and the zone, for the reasons set out at [38] to [40].

Orders

46. The Orders of the Court are:

1. The applicant is granted leave to amend the application to rely on the architectural and landscape plans listed in condition 1 of Annexure A and amended written requests to vary development standards.

2. The appeal is upheld.

3. Development Application No. 8.2019.43.1 for the demolition of existing structures, removal of 8 trees, site works, construction of a residential flat building comprising 5 apartments and basement carpark for 12 cars accessed via a car lift and landscaping, is approved, subject to the conditions of consent at Annexure A.

4. The exhibits, other than exhibits 1 and A, are returned.

___________________               ___________________   

Susan O’Neill               Gary Shiels

Commissioner of the Court       Acting Commissioner of the Court

Annexure A (391255, pdf)

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Decision last updated: 30 December 2020