Zubani v Mosman Municipal Council

[2022] NSWLEC 1381

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zubani v Mosman Municipal Council [2022] NSWLEC 1381

Hearing dates:

11-12 July 2022

Date of orders:

19 July 2022

Decision date:

19 July 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Orders of the Court are:

(1) The Applicant’s written request dated 12 July 2022 under clause 4.6 of the Mosman Local Environmental Plan 2012 for contravention of the maximum building height development standard imposed by clause 4.3 of the Mosman Local Environmental Plan 2012 is upheld.

(2) The Applicant’s written request dated 12 July 2022 under clause 4.6 of the Mosman Local Environmental Plan 2012 for contravention of the building wall height development standard imposed by clause 4.3A of the Mosman Local Environmental Plan 2012 is upheld.

(3) The appeal is upheld.

(4) Development Application DA 8.2021.136.1 for alterations and additions to an existing dwelling house, including a second floor addition, swimming pool and landscaping works on land at Lot 2 DP 811493, known as 6 Curlew Camp Road, Mosman is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – impact on views – bulk and scale - privacy

Legislation Cited:

Land and Environment Court Act 1979, s 34AA

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

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

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

David Zubani (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2022/74487

Judgment

1. COMMISSIONER: Development Application 8.2021.136.1 was lodged with Mosman Council on 24 April 2021 seeking consent for alternations and additions to the dwelling house, swimming pool and landscaping as approved under an earlier development consent, No 8.2017.110/1.

2. The Council refused consent on 21 September 2021 and the owner of the site is appealing that determination.

3. The matter was heard pursuant to the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act) and, as a result of the conciliation phase, amended plans were prepared in response to the Council’s contentions. The Council advises that those plans, address all of the contentions in the case and it does not oppose consent being granted.

4. The parties agreed that the matter be disposed of in accordance with the provisions of s 34AA(2)(b)(ii) of the LEC Act on the basis of what has occurred at the conciliation conference.

5. The applicant lodged the amended plans on the NSW Planning Portal on 12 July 2022 and has provided a BASIX certificate consistent with those plans.

The site and locality

6. The site is legally identified as Lot 2, in Deposited Plan 811493 and is known as 6 Curlew Camp Road, Mosman.

7. It is located on the western side of Curlew Camp Road, between Illawarra Street and the cul-de-sac end of Curlew Camp Road. The site is irregular in shape, has a frontage of 16.04m to Curlew Camp Road and has an area of 912.6m². The land falls approximately 20.08m towards the street.

8. A one to two storey dwelling house and swimming pool currently stands on the site.

9. The surrounding area is characterised by two and three storey dwelling houses. Curlew Camp Road has dwellings only on the high side of the street and the dwellings are characteristically located on large, steeply sloping allotments and have relatively large front setbacks, the exception being the site where the dwelling extends closer to the street than other dwellings.

10. Parking within Curlew Camp Road is characteristically in the form of a double garage set well back from the street, being partially screened by vegetation or built form, and is usually accessed via an angled driveway behind a landscaped setting. The site is inconsistent with this character, currently having a large, paved parking area at the front of the site, surrounding by landscaping to the side and rear.

11. The approved development provides for a double garage underneath the existing dwelling facing the street, setback approximately 10m – 12m, in an enhanced landscape setting.

12. To the north-east of the site is 7 Curlew Camp Road. The adjoining property shares a side boundary with the site and contains a part two and part three storey dwelling. The dwelling on 7 Curlew Camp Road has a front setback adjacent to the site of approximately 16m to the frontmost balcony and 19m to the wall. The front yard of 7 Curlew Camp Road is developed with a large swimming pool and entertainment area that is elevated approximately 2m above the adjoining road paving at the common boundary with the site (reducing in height relative to the road paving to the north-east).

13. To the north-west of the site is 7 Illawarra Street. That dwelling is located adjacent to the rear portion of the side boundary of the site, to the north-west, and behind, the proposed works.

14. To the south of the site is 5 Curlew Camp Road. The adjoining property shares a side boundary with the site and contains a part two and part three storey dwelling sited at an angle to the common boundary, with a swimming pool located between the dwellings. The dwelling at 5 Curlew Camp Road has a front setback of approximately 12m.

15. To the west of the site is 47B Raglan Street. The property shares a rear boundary with the site and contains a part two and part three storey dwelling.

16. All dwellings in the vicinity of the site and the site itself share extensive views to Sirius Cove and the harbour.

The 2017 consent

17. Development Consent 8.2017.110.1 was granted on 15 November 2017 for alterations and additions to the existing dwelling on the site. The approved works included additional excavation at the lower ground level and rear additions to the dwelling, extensive internal works, provision of a double garage and replacement of the existing swimming pool. The approval involved landscape and civil works to the front yard and the portion of the rear yard immediately adjoining the dwelling.

18. At the lower ground level, approval was granted for excavation to the rear of the rumpus room to create a double garage to the north-eastern side of the dwelling and a room (of unidentified use) with a bathroom to the south-western side of the dwelling. A new lift was proposed to the rear of the garage.

19. At the ground floor, access to the dwelling was provided from the side external stairs to an entry foyer at the north-eastern side of the dwelling. This is a similar arrangement to the existing access to the dwelling.

20. The ground floor, front balcony was to be demolished.

21. At the first floor, the rear sunroom was to be demolished, the south-western portion of the dwelling extended to the rear by approximately 1.7m and a new bathroom provided to the north-eastern side, projecting partially into the area of the demolished sunroom.

22. Extensive changes were proposed to the rear yard adjoining the dwelling to create a courtyard at RL 17.93 adjoining the dwelling and a “L” shaped pool at a higher level (approximately RL 18.93) to replace the demolished pool currently adjoining the dwelling.

23. The addition of a new Level 2, at RL 21.275, with an angled skillion roof form, located at the rear of the dwelling, running the full width of the dwelling and having a depth of approximately 6m was approved. Forward of the main bedroom at this level, was a roof terrace with a width of approximately 5.2m, having privacy screens to either side. Forward of the ensuite at this level was a non-trafficable roof on the north-eastern side of the dwelling.

24. The approved additions have a maximum height of RL 24.49 at the front and RL 24.735 at the rear of the new Level 2. The dwelling as approved contained three storeys.

The proposal

25. The development application seeks to amend the 2017 consent however, the intent of the application is still to carry out alterations and additions to the existing dwelling and construct a new pool.

26. The proposal no longer seeks to excavate to the rear of the existing rumpus room, other than a small amount of excavation on the north western side of the lower ground level for the provision of internal stairs to the ground floor. Increased excavation is proposed to the rear of the dwelling to provide the new pool at the same level as the courtyard.

27. The proposed application seeks to substantially increase the extent of demolition of the existing dwelling compared to the approved development, demolishing all internal walls and the front wall at all levels, where the approved development retained many of the internal walls and the front wall at the lower ground and ground floor levels.

28. The following changes are proposed to the lower ground level of the approved development:

• The approved garage is increased in width by approximately 1m and relocated to the south-western side of the lower ground floor;

• Instead of being created by additional excavation behind the existing rumpus room, the new garage is to be created by a 4.05m deep extension to the front of the rumpus room, resulting in a variable front setback of 4m to approximately 9m;

• The driveway is relocated towards the south-western boundary and the garden on that side is significantly reduced in size;

• A new entry foyer and porch is proposed in the location of the approved garage on the north-eastern side of the lower ground floor; and

• A pedestrian path is proposed, created by additional excavation, to the new front porch and additional excavation is proposed adjoining the north eastern side boundary.

29. The following changes are proposed to the ground level of the approved development:

• The front wall is now proposed to be demolished and the floor extended an additional 1.55m towards the street;

• A terrace identified on the plans as a ‘garden’ is proposed forward of the dwelling on top of the proposed garage; and

• All internal walls are now to be removed.

30. The following changes are proposed to the first level of the approved development:

• The existing first floor front verandah is proposed to be extended by approximately 1.5m towards the street;

• The proposed lift is moved from being centrally located on the north eastern wall to the front eastern corner of the first floor;

• The existing sunroom at the rear is now to be largely retained, other than the angled wall to the south-west, which is to be demolished, and the dwelling extended towards the rear to create a WC aligned with the rear of the proposed kitchen (decreased in depth by 0.66m);

• The proposed pool is changed from an “L” shaped pool located approximately at RL 18.93, 1m above the rear courtyard adjoining the dwelling, to a rectangular pool located at the same level as the courtyard, increasing excavation in this area. To the rear of the proposed pool at the south-western side are proposed a series of steps and large “steps” (terraces) which replace part of the approved pool and courtyard. This results in some additional excavation and some reduction in excavation in this area;

• Landscaping works including planter beds, retaining walls, external steps, and paving.

Planning controls

31. The site is zoned C4 Environmental Living under Mosman Local Environmental Plan 2012 (LEP).

32. The proposal is permissible with consent in that zone.

33. LEP Clauses 4.3 Height of Buildings and 4.3A Height of Buildings (additional provisions) applies to the site. A maximum building height of 8.5m is permitted and, cl 4.3A(2) provides that the consent authority may refuse consent for the erection of a building on land to which the clause applies if the building has more than two storeys above ground level (existing). However, pursuant to cl 4.3A(3) consent for an additional storey in the foundation space of an existing building may be granted if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale. In addition, cl 4.3A(4) established a maximum wall height at any point of the building (other than at a chimney, gable end or dormer window) of 7.2m.

34. The height of the building and its walls, in certain locations exceeds the maximum building height and the maximum wall height. The applicant relies on the provisions of cl 4.6 of the LEP to vary those development standards.

35. Clause 4.4 of the LEP establishes a maximum floor space ratio (FSR) for the site which is based on site area. Applying the calculation in the clause the maximum FSR for the site permitted is 0.477:1. The proposed FSR is 0.423:1 and therefore, compliant with the development standard.

36. LEP clause 6.4 Scenic Protection applies to the site and is in the following form:

(1) The objectives of this clause are as follows—

(a) to recognise and protect the natural and visual environment of Mosman and Sydney Harbour,

(b) to reinforce the dominance of landscape over built form,

(c) to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments.

(2) This clause applies to land identified as “Scenic Protection Area” on the Scenic Protection Map.

(3) Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that—

(a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and

(b) the development will maintain the existing natural landscape and landform.

37. LEP cl 6.6 Landscaped areas also applies to the site and requires a minimum of 50% of the site to be landscaped. The proposal provides for 51.58% and therefore exceeds the minimum and is compliant with the provisions of the clause.

38. Mosman Residential Development Control Plan 2012 (DCP) applies to the site. Parts 4.2 Siting and Scale, 4.4 Landscaping. 5.1 Streetscape and Building Design, 5.2 Carport and Garage Design and 5.7 Privacy and Security are relevant to the contentions in the case.

39. State Environmental Planning Policy (Resilience and Hazards) 2021 and State Environmental Planning Policy (Biodiversity and Conservation) 2021 apply to the site however the provisions of neither are relevant to the contentions in the case. These policies commenced after the Council had assessed the original application however, similar provisions applied in earlier policies and the Council’s assessment of the relevant issues concluded the proposal would not adversely impact the waterways and ecology. Having regard to the matters for consideration detailed in the current policies and the Council’s original assessment of the relevant issues, I am satisfied that the provisions of each do not fetter the grant of consent.

The contentions

40. The contentions in the case were detailed in the Statement of Facts and Contentions filed on 28 April 2022. In particular, concern was raised in relation to the height, bulk and scale of the proposal and the impact of the works on views from adjoining properties.

The amended plans

41. The amended plans provide for a reduction in floor space of the proposed dwelling, amendments to privacy screens, increase in landscaping to the front setback area, insetting of the garage door, deletion of external bin store, narrowing of driveway, reduction in width of ground and first floor balconies, relocation of internal stairs and provision of a non-trafficable area at level 2 adjacent to the balcony to address privacy and provide a view corridor.

The evidence

42. Prior to the conciliation conference, a site view was undertaken. The view included observation of the proposal from three adjoining properties in the company of the owners of those residences. This allowed the parties and the Court to better understand the impacts of the proposal on view loss.

43. Objectors to the proposal also addressed the Court with their primary concerns being view loss, bulk and scale and the extent of vegetation and screen planting proposed.

44. A Joint Planning report was prepared by K Gordon for the Council and J Lovell for the applicant. That report considered the amendments made in regard to the contentions in the case and was filed with the Court on 12 July 2022.

45. They agree that the amendments made to the proposal will address all of the contentions in the case and provide for view sharing and protection of privacy commensurate with the locality.

46. Their agreement in regard to height, bulk and scale is as follows:

“The originally proposed extension of Level 2 towards the street, beyond that approved, has been removed and the extent of projection of the garage towards the street has been reduced by 1m. It is agreed that the amended proposal provides an acceptable height, bulk and scale as viewed from the street.

The originally proposed breaches of the height control have been reduced by the amended plans. The additional breaches related to the amendments now include the portion of roof and wall height to the front of Level 2 above the approved roof height (up to an additional 700mm) and the upper portion of a small component of the clear glazed balustrade to the Level 2 terrace (upper portion of the eastern half of the front balustrade).

It is agreed that the upper level roof and walls do not contribute to any significant impacts on the overall visual appearance of the building, or the amenity of surrounding properties.

The amended design of the Level 2 terrace and privacy measures ensure no additional view loss to the bedroom of 7 Curlew Camp Road and the breaching clear glass balustrade does not result in an adverse impact upon the height, bulk and scale of the development as viewed from the street.

It is agreed that the clause 4.6 requests in relation to wall and building height establish that the amended development satisfies the objectives of the control and zoning of the site. It is agreed that subject to the Court forming the opinion that the requests are well-founded, the amended proposal will satisfactorily address Contention 1.”

47. In regard to Streetscape and landscaping the experts conclude:

“The amended plans have increased the setback of the garage by 1m and the setback of the garage door by an additional 500mm compared to the originally filed plans. The driveway has been narrowed and change to a permeable grass cell driveway and the garbage store has been removed from the street frontage.

It is agreed that the portion of the front yard located between the driveway and the pedestrian entrance path will be planted with shrubs, reducing in height at the street frontage to provide an appropriate sight triangle for cars existing the street.

It is agreed that the landscape plan shall be amended (by condition) to achieve the changes in Paragraph 11 and to replace the Sweet Viburnum along the southern boundary adjacent to the swimming pool and adjoining paved area and along the northern boundary in the front yard with species that will have a maturity height no greater than the fence between 5 and 6 Curlew Camp Road and the pool fence on 7 Curlew Camp Road, respectively.

It is agreed that the transplantation of the Livistona australis from the front yard is unnecessary subject to the provision of a suitable native replacement canopy tree planted in the rear yard, to a minimum height of 8m, which will be conditioned.

It is agreed the above measures will result in an appropriate landscape setting and streetscape presentation for the development and satisfactorily address Contention 2.”

48. In relation to privacy, the experts consider:

“The amended plans indicate the first level floor is to be retained in the redevelopment which is consistent with the approved development. Additional structural information showing this floor can be retained when all internal walls below are to be demolished, has been provided.

The amended plans now also retain the northernmost portion of the ground floor eastern wall.

It is agreed that the amended plans and additional structural information reduce the extent of demolition proposed to be more consistent with the approval which was for alterations and additions to an existing dwelling.”

49. Finally, in terms of view impacts, they state:

“It is agreed that the amendment to the balcony and privacy screen on the northern side of the Level 2 terrace as described in Paragraph 18 ensure an appropriate level of privacy as well as retaining views to the upper level bedroom of 7 Curlew Camp Road to substantially the same degree as the currently approved alterations and additions to the dwelling and as such is acceptable.

It is agreed that the amendment to Bedroom 4 to increase the setback of the northern portion will result in the retention of views from the lower level living room and bedroom of 7 Curlew Camp Road to substantially the same degree as the currently approved alterations and additions to the dwelling and as such is acceptable.

It is agreed that the relocation of the post supporting the pergola over the Level 1 terrace towards the wall of the dwelling will result in the retention of views from the main living room of 7 Curlew Camp Road to substantially the same degree as the currently approved alterations and additions to the dwelling and as such is acceptable.

It is agreed that the changes to the landscape plans to reduce the height of trees planted in the front yard will result in the retention of views from 8 Curlew Camp Road to a similar degree as the currently approved alterations and additions to the dwelling and as such is acceptable.”

The development standards

50. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies, and if I am not satisfied that the provisions of the clause are met, consent cannot be granted. The Applicant relies on these provisions as the proposed development does not meet the development standards for building height and building wall height. Two written requests have been prepared on behalf of the applicant which seek to vary those development standards.

51. Whilst the Council does not press its contention in relation to the non-compliance with either development standard, the Court must be satisfied that the provisions of the clause are met.

52. Clause 4.6 of the LEP is in the following form:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence….

53. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the LEP and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

54. Preston CJ has provided guidance on the application of cl 4.6 of the LEP, most recently in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (‘Initial Action’). A number of preconditions are identified, the first, in cl 4.6(4)(a), is that the consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii).

55. These two matters are summarised at (15) and (23) of that decision as follows:

“15. The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters.

…

23. As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act.”

56. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (‘Wehbe’) Preston CJ sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are:

“(1)   the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

(2)   the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary;

(3)   the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;

(4)   the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consent departing from the standard;

(5)   the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.”

57. The written requests consider all of the relevant provisions. I accept the conclusions made in relation to environmental planning grounds, particularly those that apply to the fact that the proposed building would not be any higher than the building for which consent has been granted and the non-compliance is the result of the definition that relates to “existing ground” level as, if the ground level on either side of the existing buildings was deemed to be “ground level existing” the proposed development would comply with the building height control.

58. Accordingly, I am satisfied that the provisions of cl 4.6(4)(a)(i) of the LEP are met.

59. The objectives of the C4 Environmental Living zone are:

• 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.

60. The objectives of cl 4.3 Height of buildings of the LEP development standard are:

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

(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,

(b) for development on land in Zone B1 Neighbourhood Centre, Zone B2 Local Centre or Zone B6 Enterprise Corridor—

(i) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form and will produce a cohesive streetscape, and

(ii) to provide opportunities for buildings of a greater height than existing development in suitable locations to achieve the Council’s residential strategy and provide opportunities for economic growth.

61. There are no additional objectives in the additional provisions in cl 4.3A of the LEP.

62. Having regard to the objectives of the C4 zone and the Height of buildings development standard, I find that it is appropriate to contravene the development standards as to do so would be in the public interest because the development would be consistent with those objectives.

63. The retention of the basic structure of the existing dwelling house ensures the provision of a low-impact residential development in areas with special ecological, scientific or aesthetic values without adversely effecting those values. It retains the single dwelling character of the environmentally sensitive residential areas of Mosman and, subject to the conditions of consent relating to landscaping will maintain the general dominance of landscape over built form, particularly on harbour foreshores. The site is of sufficient size to provide for buildings, vehicular and pedestrian access and landscaping and to retain natural topographical features.

64. The development is of a height and scale that achieves the desired future character of the area and has been designed to maintain local amenity and, in particular, public and private views and allows the sharing of those views. The amended design minimises the adverse effects of bulk and scale of buildings and minimises the visual impact of the proposed building particularly when viewed from the harbour and surrounding foreshores and ensures that the dwelling is compatible with the desired future character of the area in terms of building height and roof form, whilst minimising the adverse effects of bulk and scale of buildings.

65. Accordingly, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met.

66. The concurrence of the Secretary is not required to vary this development standard.

67. For these reasons, I am satisfied that the written requests relating to the Building height development standards are well founded and should be upheld.

68. Pursuant to cl 4.6(5) of the LEP, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

69. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the development standards.

Conclusion and findings

70. The conciliation conference was held on site so that allowed the various scenarios for amending the plans to be tested. The amendments made reduce the bulk and scale of the proposal and improve access to views from adjoining properties. The agreed conditions of consent delete high privacy hedges initially proposed that concerned objectors and neighbours whilst ensuring a balanced approach to landscaping of the site consistent with the objectives of the zone.

71. Having regard to the discussions in the conference, the agreed evidence of the expert planners and submissions from the parties’ legal teams, I am satisfied that consent should be granted.

72. The Orders of the Court are:

1. The Applicant’s written request dated 12 July 2022 under clause 4.6 of the Mosman Local Environmental Plan 2012 for contravention of the maximum Building height development standard imposed by clause 4.3 of the Mosman Local Environmental Plan 2012 is upheld.

2. The Applicant’s written request dated 12 July 2022 under clause 4.6 of the Mosman Local Environmental Plan 201 for contravention of the building wall heigh development standard imposed by clause 4.3A of the Mosman Local Environmental Plan 2012 is upheld.

3. The appeal is upheld.

4. Development Application DA 8.2021.136.1 for alterations and additions to an existing dwelling house, including a second floor addition, swimming pool and landscaping works on land at Lot 2 DP 811493, known as 6 Curlew Camp Road, Mosman is approved subject to the conditions in Annexure A.

……………………….

Sue Morris

Acting Commissioner of the Court

Annexure A.pdf

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Decision last updated: 19 July 2022