Westaway v Mosman Municipal Council

[2024] NSWLEC 1585

Land and Environment Court

New South Wales

Medium Neutral Citation:

Westaway v Mosman Municipal Council [2024] NSWLEC 1585

Hearing dates:

Conciliation conference on 9 September 2024

Date of orders:

24 September 2024

Decision date:

24 September 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application number 8.2023.301.1, as amended, for alterations and additions to the existing dwelling on land identified as Lot B in Deposited Plan 322321 and known as 200B Raglan Street, Mosman, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – alterations and additions to dwelling house – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Mosman Local Environmental Plan 2012, Sch 5, cll 4.3, 4.3A, 4.4, 5.10, 6.3, 6.4, 6.7

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Mosman Community Participation Plan 2020

Category:

Principal judgment

Parties:

Jan Elizabeth Westaway (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/89435

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Mosman Municipal Council, of development application 8.2023.301.1 which seeks consent for alterations and additions to the existing dwelling at 200B Raglan Street, Mosman.

2. Specifically, the proposed development includes:

1. Provision of internal stairs from ground floor to the cellar;

2. Construction of an elevated terrace east of the living room at ground level, with associated new French doors;

3. A new juliette balcony to the eastern façade at first floor;

4. Alterations to some internal walls and openings, and construction of a new lift; and

5. Construction of a new pedestrian link between the garage and dwelling.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

4. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 September 2024. I presided over the conciliation conference.

5. At 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 the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

6. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Council agreed to the applicant amending the development application to adequately respond to the Council’s contentions.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. This decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

Jurisdictional matters

8. The development application was made with the written consent of the owner of the land.

9. The application was adequately notified in accordance with the Mosman Community Participation Plan 2020 from 8-29 January 2024. During this time, three submissions were received and one resident made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

10. In terms of the issues raised on behalf of Mr Bateman, the neighbour, at the commencement of proceedings, based on the parties’ submissions on site and in the jurisdictional note, and the amended architectural drawings, I accept that there are no unacceptable privacy or view loss impacts that result from the proposed works, and that the bulk and scale of the proposed alterations and additions is acceptable. Further, I accept that the architectural documentation has been resolved to a level that is acceptable, and that any remaining inconsistencies have no impact on the proposed works or consent being granted.

11. The subject site is zoned C4 Environmental Living under the Mosman Local Environmental Plan 2012 (MLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development, which consists of alterations and additions to a dwelling house, is consistent with the objectives of this zone.

12. Pursuant to MLEP cl 4.3, a maximum building height of 8m applies to the subject site. The proposed development complies with this development standard as it does not increase the existing maximum height of the dwelling, which is within the 8m limit.

13. MLEP cl 4.3A sets a wall height development standard of 7.2m to the site, with which the development complies.

14. MLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1, with which the development again complies.

15. The site is identified as a heritage item of local significance pursuant to s 5.10, Sch 5 and the Heritage Map of the MLEP. Pursuant to the requirements of s 5.10, from the parties’ submission and the information contained in the Heritage Impact Statement by Weir Phillips dated October 2023, I accept that the impact of the proposed development on the heritage significance of the item is acceptable. Of particular note is the roof form of the proposed pedestrian link between garage and dwelling. This was specifically amended to incorporate a pitched roof of a form and style that is most appropriate for the heritage context, and intended to have the lowest impact on the heritage significance of the item.

16. The site is mapped as being within a Scenic Protection Area pursuant to cl 6.4 of the MLEP. From the parties’ submission and my observations on site, I accept that the proposed development has been designed to minimise any visual impact to and from Sydney Harbour, and will not impact any existing natural landscape or landform.

17. MLEP cl 6.3 sets a standard for a minimum landscaped area for this site of 40%. Based on the parties’ submission I accept that the site currently meets and will continue to meet this requirement.

18. MLEP cl 6.7 sets out matters that must be considered when deciding whether to grant development consent for earthworks. This application proposes minor earthworks and, from the parties’ submission and the information contained in the amended application, I accept, that these matters have been considered and the application is acceptable pursuant to cl 6.7.

19. Pursuant to the State Environmental Planning Policy (Sustainable Buildings) 2022, the proposal is a BASIX affected development. Accordingly, the application was accompanied by a BASIX certificate which the parties submit, and I accept, is satisfactory.

20. State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission, I accept that there is no known contamination on the site, nor any history of contaminating activities and that the site is suitable for the continued residential use.

Conclusion

21. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

1. The Respondent has agreed to the Applicant amending the Application Class 1, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021, to rely on the following additional and amended materials.

Document Description	Prepared By	Date
Architectural plans:
Dwg. No. 01, Revision C – Cover Sheet / Finishes Schedule	Studio Redux	26 May 2024
Dwg. No. 02, Revision D – Floor Plans	Studio Redux	26 May 2024
Dwg. No. 03, Revision C – Lower Ground Floor Plan	Studio Redux	26 May 2024
Dwg. No. 04, Revision C – Site Plan	Studio Redux	26 May 2024
Dwg. No. 05, Revision C – Roof Plan	Studio Redux	26 May 2024
Dwg. No. 06, Revision C – Elevations	Studio Redux	26 May 2024
Dwg. No. 07, Revision D – Elevations	Studio Redux	26 May 2024
Dwg. No. 08, Revision C – Cross Section	Studio Redux	26 May 2024
Dwg. No. 09, Revision C – Section	Studio Redux	26 May 2024
Dwg. No. 10, Revision C – Existing Plan	Studio Redux	26 May 2024
Dwg. No. 11, Revision B – Southern Boundary Elevation & Perspective	Studio Redux	26 May 2024
Dwg. No. 12, Revision C – Demolition Plan	Studio Redux	26 May 2024
Dwg. No. 13, Revision B – GFA Plan	Studio Redux	28 April 2024
Dwg. No. 14, Revision A – Redan Street Montage	Studio Redux	13 February 2024
Lift Specification	Lift Shop	2024

23. The Court orders:

1. The appeal is upheld.

2. Development application number 8.2023.301.1, as amended, for alterations and additions to the existing dwelling on land identified as Lot B in Deposited Plan 322321 and known as 200B Raglan Street, Mosman, is determined by the grant of development consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

89435.24 Annexure A

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Decision last updated: 24 September 2024