Land and Environment Court New South Wales Medium Neutral Citation: Gordon v Mosman Council [2020] NSWLEC 1535 Hearing dates: Conciliation conference on 30 October 2020 Date of orders: 04 November 2020 Decision date: 04 November 2020 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application to rely upon the amended architectural plans and landscape plans referred to in condition 1 of Annexure A. (2) The appeal is upheld. (3) Development application No. DA8.2019.113.1 for alterations and additions to an existing rear deck and construction of a swimming pool at 5 Oswald Street, Mosman is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012 State Environmental Planning Policy 55— Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Texts Cited: Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: Luke Gordon (Applicant) Mosman Council (Respondent) Representation: Counsel: T Sattler (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Sattler & Associates Pty Ltd (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2020/59352 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 - Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 being an appeal against the actual refusal of a development application No. DA8.2019.113 seeking approval for the construction of a swimming pool (the Proposed Development) at 5 Oswald Street, Mosman NSW legally described as Lot 8 Section D DP 2509 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 30 October 2020. I have presided over the conciliation conference. 3. 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 granting leave to amend the development application, the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. 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 listed these in an agreed written statement as follows: "A The Appeal is brought pursuant to s8.7 and was made within time. B The development application was lodged with the consent of the owners of the subject land. C The proposed development is alterations and additions to an existing rear deck and construction of a swimming pool. The proposed development is permissible with consent under MLEP [Mosman Local Environmental Plan 2012]. D For the purposes of Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land, consideration has been given to whether the subject site on which the development is to occur is contaminated. The site has been and continues to be used for a residential use. The parties are satisfied that the subject site does not require further consideration under clause 7 of the SEPP 55. E SEPP (Building Sustainability Index: BASIX) 2004 [State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004] . The SEPP does not apply to the land as the pool volume will be less than 40,000L. F SEPP (Vegetation in Non-Rural Areas) 2017 – applies to the land however in this instance the proposal will not see any loss of any substantial vegetation (as evidenced by the development application plans) and so the application is therefore considered to be consistent with the aims of the SEPP. G Development on the site is otherwise controlled by the MLEP. The proposal does not alter the development parameters that arise for assessment under the MLEP being lot size, height, land use or floor space ratio. H The site is zoned R2 Low Density Residential under MLEP. The development remains permissible in the zone. I The application (as amended) is consistent with the objectives and controls (where relevant) in the MRDCP, and any other applicable environmental planning instrument." 1. 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. I adopt the reasons given by the parties and in addition, I have reached this state of satisfaction having read and considered the Statement of Facts and Contentions filed 6 May 2020 and note that no submissions were received in response to the notification of the development application and I accept that the amended development application provides an overall general improvement to the amenity of adjoining neighbours. 2. I have also read and considered the Statement of Environment Effects (SEE) prepared by Vaughan Milligan Development Consulting Pty Ltd dated August 2019 and filed with the Class 1 Application on 24 February 2020. 3. In relation to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I am satisfied that consideration has been given to whether the Site is contaminated and I accept the conclusion in section 7 at Part 7.1 on page 11 of the SEE which provides: "Given the history or residential use of the land, the site is not considered to be subject to contamination and further investigation is not required at this stage." 1. In relation to State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, I am satisfied with and accept the conclusion in section 7 at Part 7.3 on page 11 of the SEE which provides: "In this instance, the proposal will not see any loss of any substantial vegetation and is therefore considered to be consistent with the aims of the SEPP." 1. 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. 2. The Court orders that: 1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans and landscape plans referred to in condition 1 of Annexure A. 2. The appeal is upheld. 3. Development application No. DA8.2019.113.1 for alterations and additions to an existing rear deck and construction of a swimming pool at 5 Oswald Street, Mosman is approved subject to the conditions in Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (245194, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2020