Xiradis v Mosman Municipal Council

[2024] NSWLEC 1298

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Xiradis v Mosman Municipal Council [2024] NSWLEC 1298

Hearing dates:

Hearing on 4 April 2024

Date of orders:

4 June 2024

Decision date:

04 June 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application 8.2022.361.1 seeking consent for demolition of the existing dwelling on the site, and construction of a new dwelling house, swimming pool, landscaping and site works, including the re-location of an existing inter-allotment drainage easement, is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All exhibits are returned except for Exhibits A, B, C, J and 6.

Catchwords:

DEVELOPMENT APPLICATION: dwelling house development in C4 Environmental Living zone – the height standard is exceeded – the wall height standard is exceeded

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 8.7

Land and Environment Court Act 1979, s34AA

Environmental Planning and Assessment Regulation 2021, s 38

Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.4A, 4.6, 5.10, 6.1, 6.4, 6.6, 6.7, Sch 5

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

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.65, 6.7

State Environmental Planning Policy Amendment (Water Catchments) 2022

Cases Cited:

Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582

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

Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Texts Cited:

Mosman Community Participation Plan

Category:

Principal judgment

Parties:

Paul Xiradis (First Applicant)
Eva Xiradis (Second Applicant)
Nick Xiradis (Third Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
A Galasso (Applicant)
R McCulloch (Solicitor) (Respondent)

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

File Number(s):

2023/270894

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Grove is a small local street that runs roughly parallel to Balmoral Beach, between Mandalong Road and Awaba Street, and approximately half way up the steep rise between The Esplanade and Spit Road on what is known as the Balmoral Slopes.

2. The Grove deviates and narrows to the south as it approaches Mandalong Road. On the western side of this portion of The Grove, is a lot of land known as 6 The Grove.

3. On 20 January 2023, development application 8.2022.361.1 was lodged with Mosman Municipal Council (the Respondent) by the owners of a site at 6 The Grove, seeking consent for demolition of the existing dwelling on the site, and construction of a new dwelling house, swimming pool, landscaping and site works, including the re-location of an existing inter-allotment drainage easement.

4. The DA was notified from 8 February to 22 February 2023 in accordance with the Mosman Community Participation Plan, in response to which eight submissions were received.

5. On 25 August 2023, as the DA was not otherwise determined, the owners of the site, being the Applicants in this matter, filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction.

6. The appeal was listed for mandatory conciliation on 3 April 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

7. At the conciliation conference, the parties were unable to reach agreement on those matters in contention. Accordingly, I terminated the conciliation and proceeded forthwith to hearing.

8. At the commencement of the hearing, the Respondent agreed to the amending of the application by the Applicant, in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) by amendments contained in the following amended plans and other documents:

1. Amended Stormwater Easement plans, later marked Exhibit C.

2. Amended Stormwater Management Plans, later marked Exhibit D.

3. Amended Arboricultural Impact Assessment, later marked Exhibit E.

9. However, the Respondent neither approves or rejects the proposal by the Applicant to amend the development application before the Court by the amended plans listed below, in respect of which the Court, exercising its power under s 39(2) of the LEC Act, approved the amending of the application pursuant to s38 of the EPA Regulation:

1. Amended architectural plans, later marked Exhibit A.

2. Amended Landscape plans, later marked Exhibit B.

10. At the close of the hearing, I directed that certain of the architectural plans be corrected and filed with the Court no later than 11 April 2024, and that conditions of consent be filed by the Applicant in the same timeframe, and by the Respondent in reply by no later than 17 April 2024.

The site and its context

11. The site is legally identified as Lot B in Deposited Plan 384948, with an area of 683.3m².

12. The site falls steeply from the rear of the site, to the eastern frontage to The Grove, measuring a fall of around 11m.

13. There is also a cross fall from a higher point to the south of the site, adjoining 4 The Grove, to a lower point where the site adjoins 8 The Grove.

14. Rock outcrops and trees, including a mature Angophora Costata, characterise the rear of the site, where it adjoins the property known as 7A Little Street.

15. The site is burdened by an existing easement for drainage that runs diagonally across the site from the south-western rear corner in the vicinity of 4 The Grove, to a point approximately halfway along the northern side boundary with 8 The Grove, and along the northern boundary to the north-eastern corner of the site fronting The Grove.

16. The site is located within the C4 Environmental Living zone, according to the Mosman Local Environmental Plan 2012 (MLEP), in which development for the purpose of a dwelling house is permitted with consent, where consistent with the following objectives of the C4 zone:

•  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.

Public submissions

17. The proceedings commenced with an onsite view at which the Court, in the company of the legal representatives and experts, heard oral submissions from three residents of the area.

18. The concerns expressed by the residents are in a form similar to those prepared prior to the onsite view and contained in a bundle of documents prepared by the Respondent and marked Exhibit 2 (Tab 4).

19. The Court was also taken to the neighbouring property at 8 The Grove where the proximity of the proposed development is said to adversely affect the privacy currently enjoyed by its residents due to the height of the level 2 outdoor terrace and potential impact of the development on existing mature landscape screening to the northern boundary of the subject site. Notes to this effect are agreed between the parties, and are appended to the list of objectors heard on the day (Exhibit 6).

Expert evidence

20. The Court was assisted in its consideration of the matters in dispute by experts in the following disciplines:

1. Planning: Ms Rebecca Englund, on behalf of the Respondent, and Mr Vaughan Milligan, on behalf of the Applicant who conferred in the preparation of a joint expert report marked Exhibit 3.

2. Landscape and Aboriculture: Ms Catriona Mackenzie, on behalf of the Respondent, and Mr Mark Curtis (landscape) on behalf of the Applicant, and Mr Hugh Millington (aboriculture) on behalf of the Applicant who conferred in the preparation of a joint expert report marked Exhibit 4.

3. Engineering: Mr Matthew Poon on behalf of the Respondent, and Mr Robert Eltobaggi on behalf of the Applicant who conferred in the preparation of a joint expert report marked Exhibit 5.

The contentions

21. The Amended Statement of Facts and Contentions, filed with the Court on 20 September 2023 (Exhibit 1) identify certain contentions, however the issues appear to centre primarily on how the proposal presents to the street, and to neighbouring properties.

The height standard is exceeded

22. The Respondent contends the development application, as amended, remains unacceptable and should be refused due to the excessive height of the development proposed.

23. The height of building standard applicable to the site is 8.5m according to cl 4.3(2) of the MLEP (the height standard). The proposed development has a maximum height of 10.59m at the eastern-most overhang of the level 2 roof, when measured from a point vertically below. Lesser exceedances are evident in the balustrade surrounding the Level 2 terrace, and a portion of the clerestory roof over the uppermost level.

24. As the proposal exceeds the height standard, the Applicant relies on a written request prepared in accordance with cl 4.6 of the MLEP, authored by Mr Vaughan Milligan dated April 2024 (the height request) (Exhibit G).

25. In general terms, the height request states the height exceedance is partly a consequence of the site’s slope to the north-east and previous excavation on the site.

26. Building height is defined in the dictionary of the MLEP in the following terms:

building height (or height of building) means—

(a)  in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b)  in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

27. The existing ground level from where the height is measured is the existing topography beneath the existing building, including prior excavation, as understood by the Court in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582.

28. The height request adopts what is described as the first and fourth way, of the five non-exhaustive ways set out in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, to assert that compliance with the height standard is unreasonable or unnecessary (cl 4.6(3)(a))

Whether unreasonable or unnecessary

29. The first ‘Wehbe way’ seeks to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding the non-compliance with the height standard.

30. The objectives at cl 4.3(1)(a) of the MLEP that are said to be achieved are in the following terms:

(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,

31. The objectives of the standards are said to be achieved in the following ways:

1. Firstly, properties in the vicinity of the site, like the site itself, enjoy local views towards Balmoral and Sydney Harbour that are maintained by locating the proposal in a similar position to the existing dwelling.

2. Secondly, the bulk and scale of the proposal is similar to that of the existing dwelling, and is located at a distance from the shoreline so as not to be readily discernible. External finishes are in earthy tones that complement the landscape treatment that will screen and appropriately transition from the lower to upper Balmoral slope.

3. Thirdly, the proposal is for a two-to-three storey dwelling in an area characterised by such development. As such, its height, bulk and scale, number of storeys and roof form are compatible with the desired future character of the area.

4. Fourthly, the adverse effects of bulk and scale of the proposal are minimised by setting back the uppermost level from the eastern setback, when compared with the existing dwelling. Doing so has the effect of minimising the visibility of the uppermost level. Furthermore, the proposal complies with the floor space ratio development standard, provides adequate spatial separation from neighbouring properties, considers the location of window openings to minimise overlooking and suitably balances landscaping with built form.

32. The height request also asserts that the height standard has been virtually abandoned when recent approvals in the immediate vicinity that likewise exceed the standard are taken into account.

Expert evidence on height exceedance

33. Ms Englund disputes the argument made in the height request that the proposal is compatible with the desired future character of the area because the proposal runs contrary to the planning controls relevant to the Balmoral Townscape (Part 7.4 of the Mosman Residential Development Control Plan 2012 (MDCP)) that seek to maintain architectural diversity of the area, and limit bulky mega dwelling houses with horizontal emphasis across allotments.

34. As I understand Ms Englund’s opinion, it is informed by three primary concerns:

1. Firstly, while the architectural plans filed with the appeal (Exhibit 8) render key elements of the façade in dark, recessive colours, the sculpted concrete ‘veil’ now proposed lends a strong horizontal emphasis to the development when viewed from The Grove. The singular choice now of white as a colour, also fails to modulate the façade or sufficiently break up the form to conform to the control at [33].

2. Secondly, a contributor to the bulk, according to Ms Englund, is the large size of the Ground floor plant room which has the effect of displacing bulk further up the site to where it ultimately exceeds both the height standard, and wall height standard. Furthermore, the size and location of the plant room necessitates excavation, contrary to planning control (e) of the Balmoral Townscape, which seeks to avoid excessive excavation across entire allotments, and of rock faces and stone walls and for which adequate geotechnical investigation is lacking.

3. Thirdly, the glass balustrade to the northern planter at level 2, which also exceeds the height standard, is an example of excessive glazing that is discouraged by planning control (i) in the Balmoral Townscape.

35. Ms Englund also contests the assertion made in the height request that the adverse effects of bulk and scale of the proposal are minimised, given the bulk of the elevated swimming pool is visible from The Grove, suspended as it is above the breezeway entry.

The plant room

36. Mr Milligan considers the plantroom well located given its central location and appropriately sized, given the notation on architectural plan DA-1001 confirms the plant room is now sized to accommodate air conditioning units, pool pump equipment, heat pump, hot water reticulation and electrical switch room. A notation indicating otherwise, suggesting air conditioning units are to be fixed to the external wall in the northern setback, is an error to be corrected.

37. While the plans do not currently indicate any means of gaining access to natural ventilation that would be expected of a plant room, Mr Milligan supposes louvred ventilation could be provided to the western wall of the plant room.

38. The Applicant submits that the existing levels in the vicinity of the plant room do not accommodate a plantroom in this location without additional excavation. The Cut and Fill plan (DA-7000) nominates an excavation depth of 2300mm in this area.

The Level 2 glass balustrade

39. The dispute on the balustrade is essentially centred on its location and height. The location of the balustrade is atop a planter bed wall that divides two planters, stepped in height. Because the planter is accessible from the level 2 terrace and is not, of itself, of sufficient height to act as a barrier, a person can climb on to the planter, and be exposed to fall risk if a barrier is not provided of a height that complies with the National Construction Code. It is for this reason the glass balustrade shown on Section CC of the architectural drawings is at 1600mm high.

40. However, the glass balustrade also provides an acoustic function, that is achieved if at a minimum of 1200mm in height.

41. Ms Englund’s view is that, if the glass balustrade is positioned on top of the planter wall closest to the Level 2 terrace, there is no climb or fall risk and so the balustrade can be a total height of 1200mm, which is 400mm less than that shown. Doing so would minimise the adverse effects of bulk and scale of the building. However, failing to do so does not minimise the adverse effects of the bulk and scale of the building when the element is an aspect of the exceedance that contributes to excessive glazing, contrary to the planning control (i) in the Balmoral Townscape.

Whether sufficient environmental planning grounds

42. The height request also advances environmental planning grounds it regards as sufficient to justify the contravention of the height standard. The grounds may be distilled as follows:

1. By stepping the built form with the slope of the land, and locating living spaces at the uppermost level, the proposal reflects the general arrangement of No 8 The Grove, and so reinforces the existing streetscape, and adopts a bulk and scale consistent with the prevailing development pattern while improving the internal amenity of development on the site, the proposal achieves that object of the EPA Act, at s 1.3(c) to promote the orderly and economic use of the land.

2. The proposal promotes good design and enhances residential amenity for the building’s occupants and the immediate area, by locating development where it will access sunlight, maintain views from the site and not unreasonably obstruct views across the site, consistent with the object at s 1.3(g) of the EPA Act.

3. The exceedance can be attributed to the prior excavation of the site within the footprint of the existing building, which has distorted the height plane when applied to the site.

43. Ms Englund’s evidence, summarised at [33], is that the proposal is not compatible with the desired future character of the area because the building form and design does not conform to the planning controls of the Balmoral Townscape at Part 7.4 of the MRDCP. On a careful read of the existing and emerging character of The Grove evident in recent development in the area, the proposal, in my view, maintains the architectural diversity of the area precisely by use of what is termed the ‘sculpted veil’ which appears to conform to the controls in three ways.

44. Firstly, to the extent diversity may be understood to invoke difference or variety, the curvilinear form of the sculpted veil is a form unlike any other in The Grove.

45. Secondly, the sculpted veil can be understood as not one but two forms; comprising a curved upstand that tapers down from the north elevation around to the east until it is read only as an extension to the Level 01 slab, and an opposing curved upstand that tapers down from the south elevation, around to the east on the Level 02 slab, until it too is read only as an extension of that slab. As such, by virtue of the two levels being opposing forms, and tapering as they do, I accept that a wholly horizontal emphasis is not the result, unlike the effect seen in recent development elsewhere in The Grove.

43. Thirdly, as the two opposing curved forms are not the enclosing external walls of each level, but are instead what may be termed a form of ‘loose carapace’ forward of rooms that are recessed at varying setbacks behind, the building form and design mediates some of the bulk of the proposed envelope such that it may be said to limit bulky mega dwelling houses. In particular, where the underside of the swimming pool is suspended over the entry breezeway, openings in this corner of the proposal permit a sightline beyond to the southern setback. As such, the form presents voids through which daylight passes, further mitigating the bulk of the proposal in apparent answer to the planning controls for the Balmoral Townscape.

44. It has also to be said that no aspect of these two opposing forms exceed the height standard. Rather, the glass balustrade and projecting roof form of the uppermost level do.

45. I regard the extent and setback of both elements to be such that the exceedance is unlikely to be read from a position on the footpath in The Grove, or much beyond. The extent of the exceedance by these aspects of the development are best depicted in architectural dwg DA-4002, re-produced below, being the corrected drawing from which Figure 2 in the height request is derived.

49. I also note that while the exceedance encroaches within the 3m setback required by s 4.2 of the MRDCP (control P8), the setback from The Grove is, once again, such that it complements existing setbacks in the street, permits side setbacks that allow deep soil planting and, in the case of the southern boundary, for an easement and overland flow of water and, at Level 2, for the northern setback to provide spatial relief measured at 3.6m from the boundary with No 8 The Grove (see DA-2005). Finally, the siting and stepping of the proposed building relates to the topography and preserves the Angophora Costata and the rock outcrop. These are all consistent with the objectives of Section 4.2 of the MRDCP and so I find it appropriate to apply the side setback controls, in which the exceedance occurs, flexibly pursuant to s 4.15(3A) of the EPA Act.

50. I also accept the geometry of the sculpted veil and angle of sightline to it from The Grove renders the swimming pool virtually imperceptible from the public domain. While the underside of the swimming structure is visible, it is integrated into the breezeway so that it reads as a sculptural form within the ceiling or soffit of that space.

51. Ms Englund also argues that the plant room on the Ground floor exaggerates the bulk as it occupies area that could otherwise be allocated to habitable or other spaces in the development. It seems to me that functions that may be suited to such an undercroft space, with limited access to the perimeter of the building for air and light, are already accommodated immediately to the east of this plantroom in the form of a laundry and bathroom.

52. The plantroom is only made possible by excavating in this location and, I accept Mr Milligan’s evidence that the plantroom has been positioned here precisely because it is central to the spaces the plant and equipment is likely to serve. There are no other spaces proposed that would be appropriate to accommodate the plant and equipment, and it is preferable that plant and equipment which can be a source of noise and disturbance, is accommodated within the building. As such, and with the understanding this is the basis on which the plant room has been located, and requires such excavation, I am of the view the plant room both has a necessary function in the development, and does not contribute to the overall bulk.

53. The plantroom, in the location proposed, has a singular function that is not replicated elsewhere in the development as might, for instance, an additional living room or other space with a function that merely duplicates entertainment enjoyed in other rooms. Such an alternative use, if proposed, would not carry the same weight, in my view, when the degree of excavation proposed is considered and the floor space that would be contributed, likely beyond that permitted by cl 4.4A of the MLEP.

54. Finally, the height request asserts that the proposal is in the public interest because it is consistent with the objectives, not only of the height standard, but also of the C4 zone at [16]. The reasons for such consistency include the proposal’s permissibility within an area identified for its ecological, scientific or aesthetic value, with a bulk and scale akin to development evident in the area, that effectively replaces an existing dwelling in the same location on the site, within a suitable landscaped setting that does not rely upon the removal of significant vegetation or other natural features. While the height exceeds that permitted, the exceedance is predominantly due to the slope in topography with the result being a two-to-three storey form consistent with that evident in the street, and which does not impose adverse effects as a consequence of its bulk or scale.

55. While the Level 2 balustrade could well be relocated and reduced in height, it serves an acoustic purpose and is a means of providing visual privacy between Nos 6 and 8 The Grove. When the written and oral submission made by the owner of No 8 The Grove is considered, I find the higher screen acceptable in the privacy it affords between properties and doesn’t reach, in my mind, the threshold of excessive glazing cited at [34(3)]. I also note the proposed condition of consent at Condition 93 that the balustrade is to be treated with an opaque film to prevent overlooking of the neighbouring dwelling at 8 The Grove and can only be removed once the approved landscape plantings form a dense hedge to a height of 1.5m above the FFL of the terrace.

56. I consider the deep setback of the uppermost floor from The Grove, the roof of which exceeds the height plane, has the effect of minimising the bulk and scale of the proposal, and any effects resulting therefrom.

57. In forming this state of satisfaction, I consider the elevation shown on architectural DWG DA-4006, as corrected, supports the argument advanced in the height request that the sloping topography contributes to the exceedance that has been minimised by the setback of the uppermost level and stepped building envelope to result in an exceedance that is not unreasonable in the circumstances of this case, on this site, and when viewed in context with development in the street.

58. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the applicable zones for the reasons given in the request.

59. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find no grounds on which the Court should not uphold the height request.

The Wall height standard is exceeded

60. A maximum wall height of 7.2m applies to the site by virtue of additional provisions at cl 4.3A of the MLEP.

61. The proposed development exceeds the maximum wall height, and the Applicant relies on a written request prepared in accordance with cl 4.6 of the MLEP, authored by Mr Vaughan Milligan dated April 2024 (the wall height request) (Exhibit F).

62. The wall height request measures the exceedance at 1.95m above the maximum height of 7.2m, which is said to be a consequence of the sloping topography of the site, and the contemporary parapet proposed as part of the new dwelling.

63. The wall height request adopts the first Wehbe way, to assert that compliance with the wall height standard is unreasonable or unnecessary (cl 4.6(3)(a)) because the proposed development achieves the objectives of the relevant standard notwithstanding the noncompliance with the standard.

64. The objectives of the standard at cl 4.3A are in the following terms:

(a)  to provide for view sharing,

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

(c)  to encourage 2-storey buildings consistent with the desired future character of the area.

65. The reasons as to how the proposed development achieves the objectives above, set out in the wall height request, are stated in similar terms to those objectives at cl 4.3 of the MLEP.

66. As such, the proposal is said to provide view sharing in the same way summarised at [31(1)], minimises the effects of bulk and scale as stated at [31(2)] and [31(4)], and encourages two-storey buildings consistent with the desired future character in terms similar to shoe at [31(3)].

67. The environmental planning grounds advanced by the wall height request are identical to those set out at [42(1)]-[42(2)], and the basis on which the wall height request asserts consistency with the C4 zone objectives is achieved are identical to those at [54].

68. The wall height request places weight on the sloping topography and contemporary parapet adopted in the proposal. I understand reference to the parapet to refer to what is, in essence, a flat roof that, if sloping or pitched, might not exceed the height plane, or to not exceed to the same extent. However, a pitched roof is also more likely to obstruct views that are, according to the objective at cl 4.3A(1A)(a) to be shared. I accept the flat roof and parapet, when seen in context with the sloping topography, are reasons for the exceedance, and are also represent elements that serve to minimise the adverse effects of bulk and scale that would otherwise arise if a different form of roof was adopted.

69. In forming my opinion of satisfaction that compliance with the wall height standard at cl 4.3A of the WLEP is unreasonable or unnecessary, I consider architectural drawings DA-4004 and DA-4005 to support the statements as to topography and the parapet made in the wall height request.

70. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the applicable zones for the reasons given in the request.

71. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find no grounds on which the Court should not uphold the height request.

Floor space ratio

72. The Respondent contends that the floor space ratio (FSR) proposed exceeds that permitted by the relevant standard at cl 4.4A of the MLEP.

73. The Applicant believes the development complies with the FSR standard when proper regard is had to the Dictionary of the MLEP.

74. The point of difference between the parties is whether, firstly, the corridor, or hallway, between the garage and the proposed lift is required to be included or excluded from the FSR calculation and secondly, whether the area in the garage is excessive and likewise contributes to floor space.

75. Mr Milligan’s opinion is that the area should be excluded from the calculation because the corridor connecting the garage to the lift is consistent with the exclusionary provisions of the Dictionary that read as follows:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes—

…

but excludes—

…

(g)  car parking to meet any requirements of the consent authority (including access to that car parking), and

76. Ms Englund cites the decision of Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass) to assert that any area beyond 36m² in the garage should also be included in the calculation of floor space and the FSR.

77. This is because the Respondent, at Section 5.10 of the MRDCP (Table – Car parking rates) sets a maximum of 36m² for a garage, while an area of 58.39m² is proposed. A note explaining the requirement is as follows:

For the purposes of calculating gross floor area only carparking to meet the requirements of Council (including access to that car parking) is excluded from the calculation.

78. When the requisite area is assumed in the calculation of FSR, Ms Englund believes the FSR is expressed as 0.52:1.

79. The Applicant relies upon a written request, prepared by Mr Milligan dated April 2024 (Exhibit H) in the event that the FSR is found to exceed the standard of 0.5:1.

80. I record here, for reasons similar to those at [39] of the Malass decision, that the additional area in the garage should not be excluded from the FSR calculation. When the area in excess of 36m² is added to the area of the proposed, as appears in the table at DA-4000, the total GFA is 351.97m². An FSR of 0.5:1 permits 341.7m² of GFA on the site.

81. The FSR request states that the inclusion of GFA not otherwise included results in a FSR of 0.515:1, which exceeds that permitted by 3.64%.

82. The FSR Request asserts compliance with the FSR standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance.

83. The relevant objectives of the standard are found at cl 4.4 of the MLEP as follows:

(a)  for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living—

(i)  to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and

(ii)  to provide a suitable balance between landscaping and built form, and

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

(iv)  to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,

84. The reasons set out in the FSR request are as follows:

1. The proposed dwelling represents a minor increase of 11.54m² from the dwelling already located on the site. When the basement level, which is predominantly below ground, is excluded, the FSR for that part of the building that is visible above ground is 0.479:1, and so complies.

2. The new dwelling is a significant improvement from the existing dwelling in terms of its modulation, articulation, privacy, solar access and the like, and is in keeping with the bulk, scale and desired future character of the locality.

3. The balance between landscape and built form is improved, which I understand to be reference to the compliant landscape area.

4. Views and solar access for neighbouring properties are maintained.

5. The proposal utilises some of the existing excavation to accommodate new floor area.

85. The FSR Request also sets out environmental planning grounds it considers sufficient to justify the contravention as follows:

1. The sloping topography necessitates the addition of an internal passenger lift to navigate the levels on the site, and access to that lift via a corridor.

2. This is achieved within a built form that is consistent with the prevailing development pattern in the area. The proposal is not other than orderly and economic use of the land, and does not obstruct views but will maintain those existing views.

3. Finally, the departure from the FSR standard is minor and absent adverse impacts.

86. I accept and am satisfied that the proposed development is consistent with the objectives of the FSR standard for the reasons set out in the FSR Request, and that the environmental planning ground are sufficient to justify the contravening of the FSR standard.

87. In forming this state of satisfaction, I have considered the steeply sloping topography that combines, in this particular location in The Grove, with sites that are more shallow than those further north. The combination of these factors reduces the site area that is amenable to construction without excavation, given the steep slope, but also the existing trees and rock outcrops that are, in this case, retained. The excavation for the garage and other floor space at that level, utilises, in part, the footprint of prior excavation and so limits the excavation within a constrained site.

88. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the applicable zones for the reasons given in the request.

89. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find no grounds on which the Court should not uphold the height request.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

90. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by an arboricultural report prepared by Hugh Millington dated 27 March 2024 that identifies a Palm Tree for removal. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

91. As the development application was lodged after the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022, the savings and transitional provisions at s 6.65 of the Biodiversity SEPP do not apply. The effect of this is that Chapters 7-12 are repealed.

92. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. The parties agree the site is not within the Foreshores and Waterways Area, is not a strategic foreshore site, a heritage item or land within a wetlands protection area.

93. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

94. I accept the statements made by the Civil engineer for the Applicant, Mr Eltobbagi of Quantum Engineers in a letter dated 3 April 2024 (Exhibit J) which states conformity with s 6.6 of the Biodiversity SEPP is achieved by providing sediment control and water capture in the post-development scenario in a manner that achieves a neutral or beneficial effect on the water quality and water flow into the harbour, consistent with the Mosman Council Policy for Stormwater Management. Furthermore, the basement is proposed to be tanked to minimise the disturbance to the level or quality of the water table.

95. For similar reasons I have also considered those matter at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion.

Jurisdictional considerations, Mosman Local Environmental Plan 2012

96. The site is not identified as an item of heritage significance, and is not located within a heritage conservation area identified in Sch 5 of the MLEP. However, the site is located opposite an item of heritage significance, at the corner of The Grove and Mandalong Road, known as 22 Mandalong Road. While not a matter of contest between the parties, I note cl 5.10(5) provides for circumstances where development is proposed in the vicinity of a heritage item.

96. According to the Acid Sulfate Soils Map at cl 6.1(2) of the MLEP, the site is not affected by Acid Sulfate Soils.

97. The site is identified within the Scenic Protection Area by the relevant map at cl 6.4(2) of the MLEP. I am satisfied that the setback of the uppermost level, and perimeter landscape plantings has the effect of minimising the visual impact of the development to and from Sydney Harbour, and the development will maintain the existing natural landscape and landform, including the mature Angophora Costata and natural rock outcrop to the rear of the site.

98. As the site has an area of 683.3m², cl 6.6(3)(a)(iv) of the MLEP requires 40% of the site area to be landscaped area. The architectural plans (Exhibit A, DA-4001) provide calculations that vary, based on the extent of the extent of undercroft space that is reasonable to assume in calculations. On the basis of the agreement of the Landscape experts (par 11) in respect of landscaped area, I accept that the threshold of 40% landscaped area is achieved.

99. Notwithstanding prior excavation undertaken on the site, further earthworks are proposed as depicted on the Cut and Fill Plan at architectural drawing DA-7000, to a maximum depth of 6870mm in the south west corner of the excavation footprint. The excavation encroaches into the 3m side setback control stated at [49], to the south of the site.

100. A note on the Cut and Fill Plan also identifies that existing retaining walls to the southern boundary of the site are to be removed to allow that topography to be reinstated. Ms Englund is concerned insufficient detail is known as to what lies behind the retaining wall.

101. The Geotechnical Investigation Report prepared by GCA dated 22 February 2022 (Exhibit N) records the location and findings of 3 boreholes drilled on site, to a maximum depth of 2200mm, and additionally recommends:

1. Further test pit investigation upon the demolition of all structures,

2. Stability of adjacent structures is to be maintained, either by nominated batter slopes or by excavation retention supports such as piles or shoring,

3. Further confirmation of subsurface conditions and bearing capacities,

4. Inspections at identified ‘hold points’ throughout construction stage.

103. I have considered those matters at cl 6.7(3) of the MLEP and conclude the proposed excavation is reasonable when the steep topography and nature of development in the area is considered.

State Environmental Planning Policy (Resilience and Hazards) 2021

104. I have considered whether the land is contaminated and conclude it is not, and that it is suitable for the development proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

105. The application is accompanied by a BASIX certificate (Cert No. 1357610S_02 dated 11 April 2024) prepared by Gradwell Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

106. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Condition of consent are disputed

107. As required by the Court, parties tendered without prejudice conditions of consent during the hearing. However, both parties also sought directions to file and serve amended conditions of consent, and the Court made those directions as stated at [10].

108. The dispute between the parties as to conditions of consent are largely confined to amendments sought by the Respondent to plans before the Court.

109. Condition 9 seeks the deletion or reduction in size of the plant room so as not to necessitate additional excavation. Absent a layout demonstrating the minimum required area for the plantroom, and for those reasons set out at [52]-[53] of this decision, I decline to adopt the Respondent’s Condition 9a in this regard.

110. For the reasons stated at [55], I also decline to adopt the Respondent’s condition at Condition 9c.

111. The Respondent seeks amendments to the landscape design in the northern setback to achieve a height of between 4-6m. The Applicant submits such an outcome would be irresponsible in a setback of 1500mm, as it would preclude solar access to the ground floor bedroom.

112. The ground floor bedroom has the advantage of large glazed doors to the east that appears to receive more sunlight in the morning period than is likely to be received in the north facing window at any time of the day in winter. This is because of the setback determined by the Applicant is less than 3m, and within close proximity to No 8 The Grove which overshadows the window about which the Applicant makes submissions.

113. Any concern held by the Applicant as to access to the northern boundary from a change in landscape planting can be ameliorated, in my view, by a combination of species selection and maintenance.

114. Adopting the Respondent’s proposed condition would go some way to addressing the concerns held by the owner of No 8 The Grove as to privacy and amenity afforded to that property by a green outlook to this boundary.

115. Not unrelatedly, the Applicant seeks to strike that part of Condition 87 in Annexure A that requires the project landscape architect to provide photographic evidence of the completed landscape, verifying conformity with the landscape design for which consent is granted, and which is also the subject of Condition 76. As I regard the requirement sought by the Respondent to be other than onerous, and directly related to a matter in contest in these proceedings, I adopt the Respondent’s proposed wording of the Condition.

Orders

116. The Court orders that:

1. The appeal is upheld.

2. Development application 8.2022.361.1 seeking consent for demolition of the existing dwelling on the site, and construction of a new dwelling house, swimming pool, landscaping and site works, including the re-location of an existing inter-allotment drainage easement, is determined by the grant of consent, subject to conditions of consent at Annexure A.

3. All exhibits are returned except for Exhibits A, B, C, J and 6.

T Horton

Commissioner of the Court

Annexure A

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Amendments

11 June 2024 - Pursuant to the ‘slip rule’, being rule 36.17 of the Uniform Civil Procedure Rules 2005, Conditions of consent at Annexure A are varied as follows:

Condition 22A. Stormwater runoff generated from the development shall be directed to the kerb inlet pit located along The Grove generally in accordance with the Stormwater Management Plans prepared by QUANTUM Engineers Job No.180359_SW REV I dated 27th March 2024.

Construction Plans & Details shall be prepared and Certified by a suitably qualified civil engineer that the above has been met, and is to be included with the Construction Certificate

Decision last updated: 11 June 2024