Land and Environment Court New South Wales Medium Neutral Citation: CMT Architects Australia Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1147 Hearing dates: 21 December 2020 and 15 March 2021 Date of orders: 23 March 2021 Decision date: 23 March 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) Leave is granted to the Applicant to amend the development application to rely on the plans referenced at condition 1 of Annexure 'A'. (2) The Applicant's written request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking a variation to the development standard for wall height is upheld. (3) The appeal is upheld. (4) Consent is granted to development application DA 8.2018.65.1 for the demolition of the existing dwelling and detached garage, and construction of a multi-dwelling housing development at 22 Park Avenue, Mosman, subject to conditions of consent at Annexure 'A'. (5) The exhibits, other than 1, 5, A, B and V are returned. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing development – wall height – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Mosman Local Environmental Plan 2012 Texts 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: CMT Architects Australia Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: S Berveling (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: CP White & Hetherington (Applicant) Pikes & Verekers (Respondent) File Number(s): 2019/330220 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA 8.2018.65.1 (DA). The DA sought consent for the demolition of the existing dwelling and detached garage, and construction of a multi-dwelling housing development (the proposal) at 22 Park Avenue, Mosman (the site) by Mosman Municipal Council (the Respondent). 2. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter commenced with an onsite viewing, limited in its number of participants, before thereafter being conducted by Microsoft Teams. 3. Leave was granted by the Court on 22 October 2020 for the Applicant to amend its development application and to rely on an amended proposal. Those amended plans form Exhibit A and were referred to during the first day of the hearing. 4. During the course of the hearing, the parties and their experts agreed that further minor amendments made to the proposal, which later were incorporated within a final set of plans to form Exhibit V, cumulatively work to resolve the majority of the Council's contentions, leaving wall height as the key area of disagreement between the parties. 5. The relevant applicable planning controls are as follows: 1. State Environmental Planning Policy 55—Remediation of Land 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 4. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 5. Mosman Local Environmental Plan 2012 (MLEP) 6. Mosman Residential Development Control Plan 2012 (MRDCP) 1. The proposal is a use permissible with consent within the R3 – Medium Density Residential zone under the MLEP. 2. The site is located within the Mosman Bay Townscape as identified in Section 7.4 (14) of MRDCP. 3. The parties agree the proposal complies with all principal development standards that apply to development of this nature, with the exception of wall height as set out in MLEP cl 4.3A(4). 4. On proposed wall height the parties disagree. The Respondent says the proposal is in contravention of the wall height standard, while the Applicant says the proposal complies. In either case, a Clause 4.6 written request to vary this development standard has been provided by the Applicant in support of the proposal, and the experts agree the written request is well founded. I return to this written request later in this judgment. 5. The site is located at 22 Park Avenue, Mosman and is formally known as Lot 2 in DP 302734, Lot B in DP 359443 and Lot D in DP 364088. 6. The combined allotments have a width of approximately 17.6m and depth of approximately 38.8m. The site area is 803.1 square metres. 7. A distinctive characteristic of the site is its significant topography, rising from the Park Avenue frontage north towards the rear of the site by approximately 21m. 8. A further defining characteristic of the immediate locality is the presence of dense, mature vegetation to the rear of the site and neighbouring properties in both directions along Park Avenue. 9. Consequently the streetscape, although comprised of varying building types and scales, is unified by the presence of this well-vegetated, elevated backdrop, which is contiguous across a number of adjacent properties. 10. The steep topography, in combination with the dense vegetation, also contribute to the existing overshadowing regime that - to some extent - affects the site and immediate neighbours along Park Avenue. 11. The proposal involves the removal of 22 existing trees, but retains the distinctive well-vegetated topography at the rear of the site and a number of identified significant trees. The issues 1. The contentions set out by the Respondent can be found at Exhibit 1. 2. During the hearing, the parties and their experts agreed that - with one exception - each of these contentions had been satisfactorily resolved by the amendments evident within the amended plans forming Exhibit A, and were either no longer pressed or no longer contested. 3. The remaining contention relates to the proposed wall height, and the town planning experts disagree on whether the proposal complies with the numerical wall height development standard of 7.2m. The extent of disagreement relates to whether the steeply-pitched gambrel roof form should be classified as a roof or a wall. 4. The Court was assisted by experts in town planning and urban design, who conferred to prepare joint reports as follows: 1. Mr Peter Wells for the Respondent, Mr Michael Gheorghiu for the Applicant and Mr Geoffrey Bonus for the Applicant, prepared a joint town planning and urban design report marked Exhibit 3. 2. Mr Christopher Saunders for the Respondent and Mr Michael Logan for the Applicant, prepared a joint traffic report marked Exhibit 4. 1. The joint traffic report shows the traffic experts have no remaining areas of disagreement. Consequently, these experts were not called to provide oral evidence during the hearing. 2. The town planning and urban design experts provided oral evidence on two particular topics - wall height and overshadowing. 3. On the topic of wall height, the Respondent's expert, Mr Wells, adopted a position that because of the steepness of pitch of the proposed gambrel roof it is more akin to a wall than a roof and should be classified as such. 4. If considered a wall, then its height would exceed the wall height development standard of 7.2m set out in cl 4.3A(4) of the MLEP. 5. If considered a wall, the maximum exceedance of the development standard would be approximately 1,150mm. 6. In opposition, the Applicant's experts adopt a position that the gambrel roof is able to be classified as a roof and therefore the proposal comfortably meets the wall height development standard. 7. Despite this disagreement, the parties' experts each accept that should the gambrel roof be classified as a wall, creating a numeric exceedance of the wall height development standard, then the Applicant's Clause 4.6 written request is well founded and adequately justifies the contravention of the development standard in the circumstances of this matter. 8. Significantly, there is no dispute that the proposal is entirely sited within the 8.5m maximum height of building development standard set out in cl 4.3 of the MLEP. 9. On the topic of overshadowing, the experts agree the proposal would create some change to the overshadowing regime currently experienced by the neighbouring property at 20 Park Avenue, which is in part already overshadowed by existing topography, vegetation and the existing dwelling at 22 Park Avenue. 10. At page 14 the town planning and urban design joint report notes 20 Park Avenue currently receives less than 3 hours of solar access during the worst case, mid-winter on 21 June. 11. Section 5.8(O2)(P5) MRDCP sets out that where less than 3 hours of sunlight is currently available on 21 June, any proposal should not result in a further reduction of solar access. 12. Although the proposal does further overshadow 20 Park Avenue at 9:00am on 21 June, the underlying objective of the MRDCP clause is achieved for a number of reasons. 13. Solar access will be improved to 20 Park Avenue between 11:45am and 1:30pm at mid-winter on 21 June, and the extent of this improvement in solar access exceeds the corresponding reduction at 9:00am on the same date. 14. Solar access will be significantly improved to 20 Park Avenue between 9:00am and 11:45am during the equinox on 21 March and 21 September. 15. At page 15 of the joint report the experts calculate the proposal will result in a net additional 16.23% solar access received by 20 Park Avenue during the equinox on 21 March and 21 September, and that on balance the minor additional overshadowing created by the proposal at 9:00am on June 21 is acceptable. Findings 1. I have decided to approve the proposed development subject to conditions of consent, and will make the orders sought by the Applicant. 2. In reaching their agreement, the traffic experts referred to a number of further amended plans which the Court has not yet granted leave to rely upon. The nature of these amendments was minor in nature and related to details and levels associated with the garage entry and terraces above. 3. Upon being made aware of this inconsistency, the Applicant sought to reopen these proceedings, and on 15 March 2021 the fully coordinated final set of plans were tendered as Exhibit V. 4. Hence, the orders of the Court will include the necessary granting of further leave to rely upon these final amended plans. 5. The Respondent was directed by the Court to amend the draft conditions of consent so far as to correctly reference the final amended plans. These final amended draft conditions of consent were filed with the Court on 15 March 2021. 6. During the first day of the hearing, the Applicant made clear there was no objection to the Respondent's proposed draft conditions of consent and consequently these form the final conditions of consent referred to in the orders. 7. In this matter, the Court is exercising the functions of the consent authority under s 4.16 of the EPA Act to grant consent to the development application. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the proposal is permissible with consent within the R3 – Medium Density Residential zone and is consistent with each of the relevant principal development standards set out in the MLEP, with the exception of cl 4.3A(4) which specifies a maximum wall height of 7.2m. 10. Evidence of owner's consent has been provided with the development application. 11. Clause 4.6(3) of the MLEP requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 12. Clause 4.6(4) of the MLEP requires the consent authority to be satisfied the applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 13. Additionally, cl 4.6(4)(b) of the MLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 14. The town planning experts agree that if classified as a wall, when measured from existing ground level, the proposal will exceed the maximum wall height standard of 7.2m by 1,150mm. This represents a 15.9% contravention of the standard. 15. When considered as a proportion of the southwestern elevation, the contravention represents 1.5% of the total proposed wall area and is situated towards the rear of the property and is therefore less visible from key vantage points within the public domain. 16. The Applicant has provided a cl 4.6 written request seeking to justify this contravention. 17. I am satisfied the cl 4.6 written request, prepared by Mr Michael Gheorghiu of Tudor Planning and Design and dated 7 December 2020, demonstrates the objectives set out in cl 4.3(1)(a) of the MLEP have been met despite the numeric non-compliance. While these objectives relate to the maximum height of building standard, I accept they apply equally to the wall height standard at cl 4.3A(4). 18. The objectives include minimising adverse impacts of bulk and scale of buildings, minimising visual impacts when viewed from the harbour, sharing private and public views, and ensuring buildings are compatible with the desired future character of the area. 19. I am satisfied the proposal will not materially obstruct any public or private views from the immediate vicinity, is not able to be viewed from the harbour because of the underlying topography and vegetation, and - as a consequence of the proposed building form configuration - does not create adverse amenity impacts on adjoining properties as a result of the proposed bulk and scale. For these reasons, I accept the objectives of the wall height development standard are met despite the contravention. 20. Similarly, and consistent with cl 4.6(4) of the MLEP, I am satisfied the cl 4.6 written request adequately addresses the objectives of the R3 – Medium Density Residential zoning, providing for the housing needs of the community within a medium density residential environment. The proposal provides for three new dwellings replacing the single existing dwelling. 21. Having accepted the proposal is consistent with the objectives for development in the particular land use zone, I consider the development will be in the public interest. 22. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I accept the proposed variation to the relevant wall height development standard. 23. I am satisfied that State Environmental Planning Policy No 55—Remediation of Land applies to the proposal and has been properly considered. The Applicant has prepared a Preliminary Site Investigation report marked as Exhibit S. I have considered whether the land is contaminated and am satisfied, on the basis evidence before me, that given the site's previous residential use, the land is unlikely to be contaminated nor to require remediation. 24. I am satisfied a BASIX Certificate, tendered as Exhibit N, has been prepared in support of the proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent will be imposed to ensure compliance with the BASIX Certificate. 25. I am satisfied the site is not identified within the Foreshores and Waterways Area map and therefore not subject to the detailed development control provisions of Deemed SEPP – Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. 26. I am satisfied the aims of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 are achieved since the proposal is consistent with the relevant provisions of MRDCP and the proposal includes the retention of significant trees. 27. Having regard to the information and evidence before me, I am satisfied the proposal is appropriate and there are no jurisdictional matters that would prevent the granting of consent. Accordingly, I am satisfied it is appropriate to make orders granting development consent and now dispose of the matter. Orders 1. The orders of the Court are: 1. Leave is granted to the Applicant to amend the development application to rely on the plans referenced at condition 1 of Annexure 'A'. 2. The Applicant's written request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 seeking a variation to the development standard for wall height is upheld. 3. The appeal is upheld. 4. Consent is granted to development application DA 8.2018.65.1 for the demolition of the existing dwelling and detached garage, and construction of a multi-dwelling housing development at 22 Park Avenue, Mosman, subject to conditions of consent at Annexure 'A'. 5. The exhibits, other than 1, 5, A, B and V are returned. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (329631, pdf) Plans (16215723, 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 March 2021