Land and Environment Court New South Wales Medium Neutral Citation: Potter & Wilson Architects Pty Limited v Mosman Council [2020] NSWLEC 1681 Hearing dates: Conciliation conference on 8 December 2020, final agreement filed 8 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the applicant to amend development application 8.2020.42.1 to rely on the following amended plans: (a) 005 Site Plan (Rev E), 2 July 2020 by Potter and Wilson (b) 101 Ground floor plan (Rev G), 23 October 2020 by Potter and Wilson (c) 110 New Landscape Plan (Rev F), 7 December 2020 by Potter and Wilson (d) 202 East elevation – Sheet 2 (Rev G), 23 October 2020 by Potter and Wilson (e) 204 West elevation – Sheet 2 (Rev G), 23 October 2020 by Potter and Wilson (f) 205 Morella Rd elevation – (Rev G), 23 October 2020 by Potter and Wilson (g) 300 Section 1 – Sheet 1 (Rev G), 23 October 2020 by Potter and Wilson (h) Landscape Area Calculation Plan LACP001, 8 December 2020 by Potter and Wilson and Craig and Rhodes (2) The appeal is upheld. (3) Development consent is granted to development application 8.2020.42.1 for alterations and additions to a dwelling house and a new garage and driveway to Morella Road at 5 Clifton Street, Mosman, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Cases Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: Potter and Wilson Architects Pty Ltd (Applicant) Mosman Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: McCabe Curwood Pty Ltd (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2020/216041 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application 8.2020.42.1 (DA). The DA sought consent for alterations and additions to a dwelling house and new garage and driveway (the proposal) at 5 Clifton Street, Mosman (the site) by Mosman Council (the Council). 2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 December 2020. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. 5. The amended proposal reduces the height of the garage and otherwise increases landscape area across the site to achieve compliance with all development standards contained within the Mosman Local Environmental Plan 2012 (MLEP). Additionally, the amended proposal achieves consistency with the relevant controls of the Mosman Residential Development Control Plan 2012, particularly Part 5.2 dealing with garage design. 6. 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. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I am satisfied the amended proposal is permissible with consent and consistent with the principal development standards set out in Part 4 of the MLEP, specifically cl 4.3 relating to height of buildings and cl 4.4 relating to floor space ratio. 8. Additionally, I am satisfied the amended proposal is consistent with cl 6.4 of the MLEP, minimising visual impacts to and from Sydney Harbour since the height of the garage has been lowered and includes a vegetated roof. 9. Similarly, I am satisfied the amended proposal is consistent with cl 6.6 of the MLEP, meeting the necessary minimum percentage landscape area since the amended proposal creates additional compensatory landscape area elsewhere within the site. 10. I am satisfied State Environmental Planning Policy No 55—Remediation of Land has been properly considered, in particular cl 7(1). Given the site's previous residential use, the land is unlikely to be contaminated or to require remediation. 11. I am satisfied a BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 12. I am satisfied Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP Sydney Harbour) has been properly considered. The site is not zoned or identified under Parts 2-6 of SREP Sydney Harbour. I am also satisfied the amended proposal is consistent with the aims of SREP Sydney Harbour, particularly cl 2(1)(c), which seeks the achievement of a high quality, sustainable urban environment. 13. Accordingly, I am satisfied it is appropriate to make the orders agreed by the parties and now dispose of the matter under s 34(3)(a) and (b) of the LEC Act. Orders 1. The Court orders that: 1. Leave is granted to the applicant to amend development application 8.2020.42.1 to rely on the following amended plans: 1. 005 Site Plan (Rev E), 2 July 2020 by Potter and Wilson 2. 101 Ground floor plan (Rev G), 23 October 2020 by Potter and Wilson 3. 110 New Landscape Plan (Rev F), 7 December 2020 by Potter and Wilson 4. 202 East elevation – Sheet 2 (Rev G), 23 October 2020 by Potter and Wilson 5. 204 West elevation – Sheet 2 (Rev G), 23 October 2020 by Potter and Wilson 6. 205 Morella Rd elevation – (Rev G), 23 October 2020 by Potter and Wilson 7. 300 Section 1 – Sheet 1 (Rev G), 23 October 2020 by Potter and Wilson 8. Landscape Area Calculation Plan LACP001, 8 December 2020 by Potter and Wilson and Craig and Rhodes 1. The appeal is upheld. 2. Development consent is granted to development application 8.2020.42.1 for alterations and additions to a dwelling house and a new garage and driveway to Morella Road at 5 Clifton Street, Mosman, subject to the conditions in Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (232005, 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: 23 December 2020