Zitianellis v Mosman Municipal Council

[2020] NSWLEC 1288

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zitianellis v Mosman Municipal Council [2020] NSWLEC 1288

Hearing dates:

Conciliation conference on 30 June 2020

Date of orders:

06 July 2020

Decision date:

06 July 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)    The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

(2)    The appeal is upheld.

(3)    Development Application 8.2019.150.1 for the demolition of existing dwelling and swimming pool and the construction of a new two storey dwelling with basement parking and a swimming pool at 3 Pursell Avenue, Mosman is approved subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Mosman Local Environmental Plan 2012

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Barbara Zitianellis (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/136756

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of a dwelling house and swimming pool and the construction of a dwelling house with basement garage, swimming pool and landscaping works at 3 Pursell Avenue, Mosman. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). However, subsequent to the lodging of the appeal, the development application was determined by way of a deferred commencement consent. The applicant remains dissatisfied with that determination, and although the nature of the appeal has therefore changed, the appeal right remains that pursuant to s 8.7 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference commenced on 30 June 2020. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application increases the setback of the pool and patio area to the western boundary and increases the area for landscaping. The agreed conditions of consent limit the mature height of landscaping in certain areas, to allow for a sightline for those exiting the adjacent battle-axe driveway and to protect views to the north.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Mosman Local Environmental Plan 2012 (“MLEP 2012”).

• The proposed development complies with the applicable development standards in the MLEP 2012 for height, maximum wall height, floor space ratio and landscaped area.

• The development application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. The site has been used for residential purposes and there is no history to suggest that the site is contaminated.

• The Council has indicated, and I accept, that the notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

2. The appeal is upheld.

3. Development Application 8.2019.150.1 for the demolition of existing dwelling and swimming pool and the construction of a new two storey dwelling with basement parking and a swimming pool at 3 Pursell Avenue, Mosman is approved subject to the conditions set out in Annexure “A”.

…………………………..

J Gray

Commissioner of the Court

Annexure A (363592, pdf)

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Decision last updated: 06 July 2020