Zitianellis v Mosman Municipal Council

[2024] NSWLEC 1761

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zitianellis v Mosman Municipal Council [2024] NSWLEC 1761

Hearing dates:

Conciliation conference 14-15 November 2024

Date of orders:

27 November 2024

Decision date:

27 November 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application 8.2024.88.1 for demolition of existing structures and the erection of a new dwelling and swimming pool with associated landscaping works in relation to Lot 1 DP318648, being 5 Little Street, Mosman is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

Catchwords:

DEVELOPMENT APPEAL – new dwelling house – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 38

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

Mosman Local Environmental Plan 2012, cll 2.7, 4.3, 4.3A, 4.4A, 4.6, 5.10, 6.4, 6.6, 6.7

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

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

State Environmental Planning Policy (Sustainable Buildings) 2021

Category:

Principal judgment

Parties:

Barbara Zitianellis (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
C Irish (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McKees Lawyers (Applicant)
Pikes Verekers Lawyers (Respondent)

File Number(s):

2024/242409

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA.8.2024.88.1. The DA seeks development consent for the demolition of existing structures and construction of a new dwelling house including double garage with car lift to lower ground car parking, swimming pool, landscaping and drainage easement realignment at 5 Little Street, Mosman legally known as Lot 1 in DP 318648 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending development application DA.8.2024.88.1 in accordance with the documents listed below (amended DA):

Reference/ DWG No	Title/Description	Revision	Prepared by	Date
Architectural Plans:
A101	BASIX Requirements	F	Ursino Architects	11 November 2024
A201	Site Analysis	F	Ursino Architects	11 November 2024
A202	Site Plan 01	F	Ursino Architects	11 November 2024
A203	Site Plan, 02	F	Ursino Architects	11 November 2024
A301	First Floor Plan	F	Ursino Architects	11 November 2024
A302	Ground Floor Plan	F	Ursino Architects	11 November 2024
A303	Lower Ground Floor Plan	F	Ursino Architects	11 November 2024
A304	Rear Yard/Pool Plan	F	Ursino Architects	11 November 2024
A305	Pool Sections	F	Ursino Architects	11 November 2024
A306	Rear Roof Plan	F	Ursino Architects	11 November 2024
A307	Roof Plan	F	Ursino Architects	11 November 2024
A308	Driveway Plan	F	Ursino Architects	11 November 2024
A401	Section AA	F	Ursino Architects	11 November 2024
A402	Section BB	F	Ursino Architects	11 November 2024
A403	Section CC	F	Ursino Architects	11 November 2024
A501	North Elevation Rear	F	Ursino Architects	11 November 2024
A502	North Elevation	F	Ursino Architects	11 November 2024
A503	South Elevation	F	Ursino Architects	11 November 2024
A504	South Elevation Rear	F	Ursino Architects	11 November 2024
A505	West Elevation	F	Ursino Architects	11 November 2024
A506	East Elevation	F	Ursino Architects	11 November 2024
A507	East Elevation Rear	F	Ursino Architects	11 November 2024
A601.1	Calculations	G	Ursino Architects	14 November 2024
A602	Construction Management Plan	F	Ursino Architects	11 November 2024
A603	8.5m Building Height Blanket – Ground Levels Existing	F	Ursino Architects	11 November 2024
A604	8.5m Building Height Blanket – Above Ground Levels	F	Ursino Architects	11 November 2024
A605	7.2m Wall Height Standard	F	Ursino Architects	11 November 2024
A606	View Analysis- 2A Little Street	F	Ursino Architects	11 November 2024
A607	View Analysis- 2 Little Street	F	Ursino Architects	11 November 2024
A608	View Analysis- 4 Little Street	F	Ursino Architects	11 November 2024
A701	Shadow Diagrams -9am@June21	F	Ursino Architects	11 November 2024
A702	Shadow Diagrams -12pm@June21	F	Ursino Architects	11 November 2024
A703	Shadow Diagrams -3pm@June21	F	Ursino Architects	11 November 2024
A705	View from Sun – Winter 9am	F	Ursino Architects	11 November 2024
A706	View from Sun – Winter 9.30am	F	Ursino Architects	11 November 2024
A707	View from Sun – Winter 10am	F	Ursino Architects	11 November 2024
A708	View from Sun – Winter 10.30am	F	Ursino Architects	11 November 2024
A709	View from Sun – Winter 11am	F	Ursino Architects	11 November 2024
A710	View from Sun – Winter 11.30am	F	Ursino Architects	11 November 2024
A711	View from Sun – Winter 12pm	F	Ursino Architects	11 November 2024
A712	View from Sun – Winter 12.30pm	F	Ursino Architects	11 November 2024
A713	View from Sun – Winter 1pm	F	Ursino Architects	11 November 2024
A714	View from Sun – Winter 1.30pm	F	Ursino Architects	11 November 2024
A715	View from Sun – Winter 2.00pm	F	Ursino Architects	11 November 2024
A716	View from Sun – Winter 2.30pm	F	Ursino Architects	11 November 2024
A717	View from Sun – Winter 3.00pm	F	Ursino Architects	11 November 2024
A718	Courtyard Sections	F	Ursino Architects	11 November 2024
Landscape Plans
L00	Title Page	C	Durie Design	6 November 2024
L01	Site Plans	C	Durie Design	6 November 2024
L02	First Floor Landscape Plan	C	Durie Design	6 November 2024
L03	Lower Ground Landscape Plan	C	Durie Design	6 November 2024
L04	Rear Yard Landscape Plan	C	Durie Design	6 November 2024
L05	Rear Roof Plan	C	Durie Design	6 November 2024
L06	Roof Plan	C	Durie Design	6 November 2024
L07	Landscaped Area Calculation	C	Durie Design	6 November 2024
L08	Section A	C	Durie Design	6 November 2024
L09	Section B	C	Durie Design	6 November 2024
L10	Section C	C	Durie Design	6 November 2024
L11	Section D	C	Durie Design	6 November 2024
L12	Planting Schedule	C	Durie Design	6 November 2024
L13	Planting Details	C	Durie Design	6 November 2024
Flood Plans
F1	Tuflow Model Plan	D	Hydracor Consulting Engineers	14 October 2024
F2	Pre-Development 1% AEP Flood Depth and Level Plan	D	Hydracor Consulting Engineers	14 October 2024
F3	Pre-Development 1% AEP Flood Velocity Plan	D	Hydracor Consulting Engineers	14 October 2024
F4	Pre-Development 1% AEP Flood Hazard Plan	D	Hydracor Consulting Engineers	14 October 2024
F5	Pre-Development 1% AEP Flood Hazard Vulnerability Classification Plan	D	Hydracor Consulting Engineers	14 October 2024
F6	Post-Development 1% AEP Flood Depth and Level Plan	E	Hydracor Consulting Engineers	29 October 2024
F7	Post-Development 1% AEP Flood Velocity Plan	E	Hydracor Consulting Engineers	29 October 2024
F8	Post-Development 1% AEP Provisional Flood Hazard Plan	E	Hydracor Consulting Engineers	29 October 2024
F9	Post-Development 1% AEP Flood Hazard Vulnerability Classification Plan	E	Hydracor Consulting Engineers	29 October 2024
F10	Post-Development 1% AEP Flood Level Impact Plan	E	Hydracor Consulting Engineers	29 October 2024
Flood Mitigation Plan
FM1	Flood Mitigation Plan Sheet 1	D	Hydracor Consulting Engineers	29 October 2024
FM2	Flood Mitigation Plan Sheet 2	D	Hydracor Consulting Engineers	29 October 2024
FM3	Building Longsection Southern Face	D	Hydracor Consulting Engineers	29 October 2024
Stormwater Drainage Easement Realignment Plans
E1	Stormwater Drainage Easement Realignment Plan	C	Hydracor Consulting Engineers	15 October 2024
E2	Drains Schematic and Results Sheet 1 of 4	C	Hydracor Consulting Engineers	15 October 2024
E3	Drains Schematic and Results Sheet 2 of 4	C	Hydracor Consulting Engineers	15 October 2024
E4	Drains Schematic and Results Sheet 3 of 4	C	Hydracor Consulting Engineers	15 October 2024
E5	Drains Schematic and Results Sheet 4 of 4	C	Hydracor Consulting Engineers	15 October 2024
Report:
Name			Prepared by	Date
Flood Investigation Report			Hydracor Consulting Engineers	17 October 2024
Visual Impact Analysis			Urbaine Design Group	12 November 2024
Clause 4.6 variation – Height of Buildings			Boston Blyth Fleming Town Planners	14 November 2024
Clause 4.6 Variation – Height of Buildings (additional provisions)			Boston Blyth Fleming Town Planners	14 November 2024
Clause 4.6 Variation – FSR			Boston Blyth Fleming Town Planners	14 November 2024
BASIX Certificate No. 1745397S_02			Taylor Smith Consulting	15 November 2024

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14-15 November 2024. I presided over the conciliation conference.

4. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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.

Jurisdictional Prerequisites

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

7. I am satisfied that owners consent accompanied the DA. The parties have advised the Court that all easement related works occur on the site. The conditions of consent confirm that no works are proposed to the rear block/stone wall (condition 1A(d)).

8. The DA was lodged to the Respondent on 14 May 2024. The Respondent notified the DA between 14 May 2024 to 29 May 2024. Six unique submissions were received. At the commencement of the proceedings, several objectors also expressed their concerns orally. The Court and parties benefitted from hearing these concerns from the objector’s property.

9. In reaching agreement, the parties have considered the concerns raised by objectors. The parties have detailed in paragraph 9 of the jurisdictional statement the issues addressed by the amended plans, summarised below:

• The proposed dwelling has been reduced in both height and length.

• The proposed dwelling has an increased side setback on parts of both side elevations.

• The solar panels are proposed to be flush with the roof.

• The amount of view sharing has increased as a result of the above changes (demonstrated through a further view sharing report).

• Privacy measures have been incorporated to various rooms and balconies/terraces, including increased setbacks, landscaping, glazed/obscured windows and screening.

• The proposed easement and flood mitigation works have been agreed as suitable by both parties’ experts and will improve the current flow of stormwater to the rear. Amended landscape plans provide increased privacy to the rear dwelling.

• There are no works proposed to the existing rear stone boundary wall.

Mosman Local Environmental Plan 2012

10. The site is zoned C4 Environmental Living under the Mosman Local Environmental Plan 2012 (MLEP). The proposed development for a dwelling house is permitted with consent and I have had regard to the objectives of the zone.

11. The parties agree and I accept that the following applicable MLEP preconditions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 8.5m. The proposed dwelling has a maximum height of 10.4m (though the height breach ranges from 0.46m to 1.9m) and seeks flexibility pursuant to cl 4.6. The amended DA is accompanied by a clause 4.6 written request (height) prepared by Boston Blyth Flemming Town Planners dated 14 November 2024 (height written request). The parties agree and I accept that the height written request satisfactorily addresses the provisions of cl 4.6.

3. Clause 4.3A wall height applies to the site and prescribes a maximum building height of 7.2m. The proposed dwelling has a maximum wall height of 8.95m and seeks flexibility pursuant to cl 4.6. The amended DA is accompanied by a clause 4.6 written request (wall height) prepared by Boston Blyth Flemming Town Planners dated 14 November 2024 (wall height written request) which outlines similar grounds for flexibility as the height written request. The parties agree and I accept that the wall height written request satisfactorily addresses the provisions of cl 4.6.

4. Clause 4.4A floor space ratio (FSR) applies to the amended DA, which permits a maximum FSR of 0.46:1 (being located in Area 1). The proposed dwelling has a FSR of 0.506:1. The amended DA is accompanied by a clause 4.6 written request (FSR) prepared by Boston Blyth Flemming Town Planners dated 14 November 2024 (FSR written request). The parties agree and I accept that the FSR written request satisfactorily addresses the provisions of cl 4.6.

5. The subject site is located in the vicinity of a heritage item at 12 Mandolong Road, Mosman. The parties agree and based on the Statement of Environmental Effects prepared by Boston Blyth Fleming Town Planners dated May 2024 (SEE), I accept that cl 5.10 heritage conservation has been adequately considered.

6. Clause 6.4 scenic protection applies to the site. Based on the information in the SEE and paragraph 7 of the jurisdictional statement, I accept the parties’ agreement that the clause has been satisfied.

7. Clause 6.6 landscaped areas applies to the proposed development. The parties agree that based on the landscaping plans and conditions of consent, the clause has been adequately considered and met.

8. Clause 6.7 earthworks applies to the amended DA. The amended DA meets the provisions as supported by the Preliminary Geotechnical Assessment prepared by EI Australia dated 15 April 2024, suite of flooding reports and stormwater management plans, the joint expert report of the stormwater engineers, paragraph 7 of the jurisdictional statement and conditions of consent at Annexure A, I accept the parties’ agreement that the provisions have been adequately considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located within the Sydney Harbour Catchment.

13. The amended DA is accompanied by flooding reports and stormwater plans that adequately minimise stormwater impacts from the amended DA to surrounding properties and water catchments, including amendments on site to the existing easement. The stormwater experts agree in the joint expert report that the works will improve the existing stormwater management system. As set at paragraph 5 of the jurisdictional statement, the parties agree that the provisions of ch 6 have been satisfied. The stormwater plans and other related conditions form part of the conditions of consent at Annexure A and further conditions within Annexure A will appropriately regulate ongoing stormwater management. I accept that the proposed development is unlikely to have an adverse environmental impact.

14. With consideration of the above and the jurisdictional statement, the parties agree, and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The DA is accompanied by a SEE which states that the site has a history of residential use for many years. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Sustainability) 2022

16. The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate (1745397S_02) that meets the provisions of the SEPP.

Conclusion

17. 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.

18. 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.

19. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

20. The Court orders:

1. The appeal is upheld.

2. Development Application 8.2024.88.1 for demolition of existing structures and the erection of a new dwelling and swimming pool with associated landscaping works in relation to Lot 1 DP318648, being 5 Little Street, Mosman is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

S Porter

Commissioner of the Court

Amended Annexure A 

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Amendments

24 December 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Amended Annexure A”.

Decision last updated: 24 December 2024