Zhang v Mosman Municipal Council

[2023] NSWLEC 1481

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Mosman Municipal Council [2023] NSWLEC 1481

Hearing dates:

Conciliation conference on 14 August 2023

Date of orders:

25 August 2023

Decision date:

25 August 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application 8.2022.301.1 for alterations and additions to an existing dwelling house to create a new dwelling house at 8 Middle Head Road, Mosman, subject to conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 8.7, 10.3

Environmental Planning and Assessment Regulation 2021, s 38

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

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, 7, 8, 9, 10, 11, 12, ss 2.10, 6.65

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

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

State Environmental Planning Policy Amendment (Water Catchments) 2022

Texts Cited:

Mosman Residential Development Control Plan 2012

NSW Rural Fire Service, Planning for Bushfire Protection, November 2019

Category:

Principal judgment

Parties:

Guoliang Zhang (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
R McCulloch (Solicitor) (Respondent)

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

File Number(s):

2023/84272

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The land between Middle Head Road, Mosman, and the Mosman Croquet Club is bisected by Croquet Lane. The Croquet Club is situated to the south of Croquet Lane, and a number of properties are situated to its north, with frontages to both Middle Head Road and Croquet Lane.

2. Eight properties in this vicinity front both Middle Head Road, and Croquet Lane, including a property the subject of these proceedings, at 8 Middle Head Road.

3. As it stands today, the subject site is currently occupied by remnant structures of a dwelling house for which development consent was granted in 2018 for alterations and additions to an existing dwelling house (‘2018 consent’). While demolition and excavation were commenced, development for which consent had been granted was not completed.

4. In 2019, development consent was granted to modify the 2018 consent.

5. On 29 November 2022, Development Application 8.2022.301.1 was lodged by the Applicant in these proceedings for alterations and additions to an existing dwelling house to create a new dwelling house at 8 Middle Head Road, Mosman.

6. On 7 February 2023, Mosman Municipal Council (the Respondent) refused the development application. The Applicant now brings this appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court’s jurisdiction.

7. The appeal was listed for mandatory conciliation on 14 August 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

8. At the conciliation conference, the parties agreed certain amendments that, if adopted by the Applicant, would address the contentions in the matter. I granted an adjournment to permit those amendments to be made.

9. On the basis of the amended plans and other documents, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties when the conciliation resumed on the second day. To this end, 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).

10. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 August 2023, and final documents were provided to the Court on 23 August 2023.

11. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

12. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [57].

13. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

14. The site is located within the R2 Low Density Residential 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 R2 zone:

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

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

•  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, landscaping and retention of natural topographical features.

•  To ensure that development is of a height and scale that seeks to achieve the desired future character.

•  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.

The height of building standard is exceeded

15. 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 10.12m to the ridgeline of roof when measured from a point vertically below.

16. The proposal exceeds the height standard and the Applicant relies on a written request prepared in accordance with cl 4.6 of the MLEP, authored by Planning Ingenuity dated 15 August 2023 (the height request).

17. The height request asserts that compliance with the height standard is unreasonable or unnecessary as the objectives of the height standard are achieved notwithstanding the non-compliance.

18. 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,

19. The height request asserts the objectives are achieved for reasons summarised as follows:

1. In respect of objective (i), there are no known significant public or private views affected by the proposed development and as the exceedance occurs centrally on the site, there is no impact beyond that of a complying envelope.

2. In respect of objective (ii), the site will not be discernible from the harbour and surrounding foreshores as the site is 650m from such locations.

3. In respect of objective (iii), the desired future character of the area with which the proposal must be compatible is not set out in the MLEP, but is instead understood by existing and recently approved developments, including the 2018 consent that was for development with a height greater than now proposed, but without the excavation now evident on the site. While the proposed development is lower in height than the development the subject of the 2018 consent when viewed from the street, the excavation results in a greater exceedance. Arising from this, the height request concludes that a development of lesser height when viewed in context from the street, as now proposed, must be no less compatible than the development the subject of the 2018 consent. That portion of the proposal that exceeds is limited to a pitched roof considered character elements by Part 4.2 (P2) of the Mosman Residential Development Control Plan 2012 (MRDCP).

4. In respect of objective (iv), adverse effects of bulk and scale are demonstrated to have been minimised by there being no significant additional overshadowing of adjoining properties when compared to a complying built form envelope, no additional privacy impacts, no adverse loss of views or outlook and, finally, no gross floor area benefit is derived.

20. Next, the height request advances environmental planning grounds it regards as sufficient to justify the contravention of the height standard. The eleven grounds may be distilled as follows:

1. The exceedance occurs in the location of a pitched roof that is contemplated by Part 4.2 of the MRDCP, sits comfortably in the streetscape, generates no additional floor space, and is only as a result of its position on the site over the past excavation.

2. When the exceedance is viewed from the public domain, the development will present as complying with the height standard due to the topography of the site. It will also appear lower than the development the subject of the 2018 consent and would fully comply if not for the excavation. When viewed from Croquet Lane, the proposal will largely appear as a single storey dwelling with pitched roof. When viewed from Middle Head Road, the proposal is of a height that is compatible with the scale of existing dwellings at 10 and 12 Middle Head Road.

3. As stated at [19(4)], the exceedance does not result in adverse impacts on adjoining properties or the public domain.

4. The proposal is consistent with the objectives for development in the R2 zone, and the relevant objects of the EPA Act.

21. The Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R2 zone at [14].

22. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP.

23. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

24. 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.

25. 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

26. Clause 4.3A of the MLEP limits wall height to a maximum of 7.2m. The proposal is for development with a maximum wall height of 8.32m to the underside of the eaves of the first floor level on the northern elevation.

27. The Applicant relies on a written request prepared in accordance with cl 4.6 of the MLEP by Planning Ingenuity dated 15 August 2023 to justify the contravention (wall height request).

28. As the wall height standard at cl 4.3A is described in the MLEP as additional provisions to the height of buildings standard, the grounds on which the wall height request is founded are virtually identical to those set out at [15]-[25].

29. The objectives of cl 4.3A(1A) are as follows:

(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.

30. The wall height request sets out reasons that are virtually identical to those at [19] to argue that compliance with the wall height standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non compliance.

31. However, in respect of objective (c), which describes the desired future character in terms of storeys, the wall height request describes surrounding development as two-to-three storeys in height, and identifies proposed works to the basement level to be outside the footprint of those levels located over such that the development is not three storeys at any point.

32. The environmental planning grounds advanced by the wall height request are likewise similar to those at [20], but also cites the agreement of the heritage experts that the massing and roof form is in keeping with the local context.

33. The Respondent is satisfied that the wall height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the wall height standard and the objectives for development in the R2 zone at [14].

34. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP.

35. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the wall height development standard under cl 4.3 is justified.

36. I am satisfied under cl 4.6(4) that the wall 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.

37. 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 wall height request.

The Mosman Local Environment Plan 2012

38. A floor space ratio (FSR) standard of 0.5:1 applies to the site. Architectural drawing DA-530 contains calculations of gross floor area expressed as an FSR of 0.453:1, which complies with the FSR standard at cl 4.4(2) of the MLEP.

39. While the site is not identified in the MLEP for its heritage significance, the site is located within the Bradleys Head Heritage Conservation Area (Bradleys Head HCA), listed in Schedule 5 of the MLEP.

40. The adjoining site at 12 Middle Head Road is identified for its local heritage significance, and additional items of heritage significance are located within the visual catchment of the site.

41. A Statement of Heritage Impact accompanies the development application that concludes, with agreement of the experts, the proposed development does not diminish the heritage significance of the Bradleys Head HCA, nor of heritage items in the vicinity of the site, in accordance with cl 5.10 of the MLEP.

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

43. Neither is the site identified within the Scenic Protection Area by the relevant map at cl 6.4(2) of the MLEP.

44. Given the extent of excavation undertaken under the 2018 consent, the scope of earthworks now proposed is minor. Excavation is proposed in an area confined to the basement, and below the proposed garage. I have considered those matters at cl 6.7(3) of the MLEP and conclude the proposal is acceptable. I arrive at this conclusion after careful consideration of the terms of Condition 2 of the agreed conditions of consent, requiring updated stormwater drainage plans in the vicinity of basement retaining walls, consistent with the Geotechnical Report prepared by Geofirst Pty Ltd, the retention of certain levels adjacent to the eastern boundary, and the limited excavation now proposed.

Bush Fire Prone Land

45. Pursuant to s 10.3 of the EPA Act, the site is mapped within the vegetation buffer on the NSW Rural Fire Services’ (RFS) Designated Bush Fire Prone Land Map.

46. Pursuant to s 4.14 of the EPA Act, development consent is preluded unless the consent authority is satisfied that the development conforms to the requirements of the Planning for Bushfire Protection 2019 (PFBP), published by the RFS, or a certificate is provided by a person qualified in bushfire risk assessment stating that the development conforms to the requirements of PFBP. A Bushfire Assessment Report accompanies the development application, prepared by Bushfire Consulting Services dated 25 October 2022 (Bushfire Report), that includes recommendations relating to an appropriate asset protection zone across the site in perpetuity, as well as landscaping and construction standards. The Bushfire Report includes a certificate pursuant to s 4.14(1)(b) of the EPA Act, and the development application as amended is also supported by a revised certificate.

47. Additionally, a Bushfire Statement of Compliance, prepared by Bushfire Consulting Services Pty Ltd dated 23 August 2023 also provides an assessment against the requirements of the PFBP and the RFS Standards for Asset Protection Zones, and certifies that the Landscape Plans identified in Condition 1 of the agreed conditions of consent are consistent with the relevant requirements.

State Environmental Planning Policy (Resilience and Hazards) 2021

48. On the basis of the historical use of the land, the subject of the development, and the continuance of that use, documented in the Statement of Heritage Impact cited at [41], 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

49. The application is accompanied by a BASIX certificate (Cert No. 2023/25089, dated 16 August 2023) prepared by Frys Energywise in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

50. 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 Naturally Trees dated 26 May 2021 (Exhibit A, Tabs 9 and 27) that identifies a Palm Tree for removal. Section 2.10 of the Biodiversity SEPP allows the issuing of a permit for the removal of vegetation in a heritage conservation area where it is considered to be minor and where the heritage significance of the conservation area is not adversely affected by such removal.

50. 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 Chs 7-12 are repealed.

51. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. However, the site does not appear to be within the Foreshores and Waterways Area and is not a strategic foreshore site, a heritage item or land within the wetlands protection area.

52. The site sits over 700m from the Harbour and the Statement of Environmental Effects prepared by Planning Ingenuity dated 19 September 2022 states the proposal will not have an adverse impact on views to or from the harbour and is compatible with the scale of development and the surrounding built and natural environment. The jurisdictional statement agreed between the parties states that the Respondent has reviewed the documents comprising the Development Application and Amended Application and is satisfied that the proposed development is consistent with Ch 6 of the Biodiversity SEPP.

Conclusion

54. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

55. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

56. The Court notes that:

1. Mosman Municipal Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application 8.2022.301.1 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Cover Page	DA-001	I	14/08/2023	Wen Architects
Site Plan	DA-020	I	14/08/2023	Wen Architects
Demolition Plan	DA-030	I	14/08/2023	Wen Architects
Cut and Fill Plan	DA-040	I	14/08/2023	Wen Architects
Basement Plan	DA-100	I	14/08/2023	Wen Architects
Ground Floor Plan	DA-110	I	14/08/2023	Wen Architects
First Floor Plan	DA-120	I	14/08/2023	Wen Architects
Roof Plan	DA-130	I	14/08/2023	Wen Architects
Roof Plan – Survey Underlay	DA-140	I	14/08/2023	Wen Architects
North Elevation	DA-210	I	14/08/2023	Wen Architects
South Elevation	DA-220	I	14/08/2023	Wen Architects
South Elevation	DA-225	I	14/08/2023	Wen Architects
East Elevation	DA-230	I	14/08/2023	Wen Architects
West Elevation	DA-240	I	14/08/2023	Wen Architects
Section 1	DA-310	I	14/08/2023	Wen Architects
Section 2	DA-320	I	14/08/2023	Wen Architects
Section 3	DA-330	I	14/08/2023	Wen Architects
Section 4	DA-340	I	14/08/2023	Wen Architects
Section 5	DA-350	I	14/08/2023	Wen Architects
Section at Highest Ridge	DA-360	I	14/08/2023	Wen Architects
Window & Door Schedule	DA-400	I	14/08/2023	Wen Architects
Sediment Control Plan	DA-520	I	14/08/2023	Wen Architects
External Finish Schedule	DA-600	I	14/08/2023	Wen Architects
Fence Detail	DA-700	I	14/08/2023	Wen Architects
Amended Landscape Plans
Site Plans	L-01	D	22/08/2023	Site Design Studios
Detailed Landscape Plan 1	L-02	D	22/08/2023	Site Design Studios
Detailed Landscape Plan 2	L-03	D	22/08/2023	Site Design Studios
Landscape Area Calculation Plan	L-04	D	22/08/2023	Site Design Studios
Section A	L-05	D	22/08/2023	Site Design Studios
Section B	L-06	D	22/08/2023	Site Design Studios
Section C	L-07	D	22/08/2023	Site Design Studios
Section D	L-08	D	22/08/2023	Site Design Studios
Section E	L-09	D	22/08/2023	Site Design Studios
Section F	L-10	D	22/08/2023	Site Design Studios
Section G	L-11	D	22/08/2023	Site Design Studios
Elevation H	L-12	D	22/08/2023	Site Design Studios
Elevation I	L-13	D	22/08/2023	Site Design Studios
Planting Details	L-14	D	22/08/2023	Site Design Studios
Specification	L-15	D	22/08/2023	Site Design Studios
Tree Canopy Calculation Plan	L-16	D	22/08/2023	Site Design Studios
Reports
Amended BASIX Certificate A330263_07 dated 16 August 2023 prepared by Frys Energywise
Clause 4.6 Request (building height) dated 15 August 2023 prepared by Planning Ingenuity
Clause 4.6 Request (wall height) dated 15 August 2023 prepared by Planning Ingenuity
Geotechnical Report dated 4 August 2023 prepared by GeoFirst
Amended Arborist Report dated 8 August 2023 prepared by Naturally Trees Arboricultural Consulting
Bushfire Statement of Compliance of Landscape Plan/Design dated 23 August 2023 prepared by Bushfire Consulting Services P/L

2. The amended plans and other documents listed above were filed with the Court on 15 August 2023 and 23 August 2023.

Orders

57. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application 8.2022.301.1 for alterations and additions to an existing dwelling house to create a new dwelling house at 8 Middle Head Road, Mosman, subject to conditions of consent at Annexure A.

T Horton

Commissioner of the Court

84272.23 Horton C Annexure A

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Decision last updated: 25 August 2023