Drake Investments Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1263

Land and Environment Court New South Wales

Medium Neutral Citation: Drake Investments Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1263 Hearing dates: Conciliation conference on 9 and 27 April 2021 Date of orders: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [15] Catchwords: DEVELOPMENT APPLICATION – residential flat building (2 storeys) – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 5.10, 6.1, 6.6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Drake Investments Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: J Reid (Applicant) R McCulloch (Solicitor) (Respondent)

Solicitors: OneGroup Legal Pty Ltd (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2020/337606 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Mosman Municipal Council (Council) of Development Application 8.2019.128.1 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to two allotments of land at 7 - 9 Countess Street, Mosman and identified as Lot 23 SEC1 DP 2864 (No. 7 Countess Street) and Lot 24 SEC1 DP 1343 (No. 9 Countess Street) (the site). The site has a total area of 1032.2m2. 3. The DA was submitted to the Council on 5 September 2019 and notified between 10 and 23 September 2019, resulting in 15 public submissions. On 4 April 2020 the Applicant submitted amended plans, prepared by Innovate Architects, Issue C dated March 2020 (the amended plans) that were notified between 15 and 28 April 2020. Thirteen public submissions were received in response to the second notification. 4. The DA as amended in April 2020 sought consent for demolition of the two existing dwelling houses on the site, the construction of a two storey residential flat building containing 6 dwellings over one basement parking level, landscaping works and strata subdivision of the dwellings. 5. On 24 June 2020 the DA was refused under authority delegated by Council and on 27 November 2020 the Applicant lodged this Class 1 Appeal with the Court. On 27 January the Council filed its Statement of Facts and Contentions (SOFC). 6. The Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), held on 9 and 27 April 2021. The proceedings commenced with a site view attended by me and representatives of the parties. No oral submissions were taken on site, although copies of the public written submissions were provided to the Court prior to the conference. 7. At the conclusion of the s 34 conference on 9 April 2021 the parties had reached an agreement in principle, subject to further amendments to the plans in order to address matters raised in the SOFC, by Council during the s 34 conference and in the public submissions. At the adjourned s 34 conference on 27 April 2021 the parties advised they had reached an agreement as provided to the Court earlier that day along with the final amended architectural and landscape plans (the final plans) and a revised BASIX Certificate. A final copy of the conditions of consent forming Annexure A of the agreement was filed later that day. 8. The main changes between the amended plans refused by Council and the final plans the subject of the s 34 agreement are: 1. Units 3 and 6 at the rear of the building were each reduced in area and number of bedrooms from 3 to 2. This permitted an increased setback from the rear boundary in the south-east corner of the site (from 8.29m to 11.28m) and an increase in the landscaped area. 2. Design changes were made to the street façade colours and materials, and to the roof form at the front of the building. Skylights to the rooves over the front upper level terraces were also introduced. 3. Additional privacy measures were introduced in the form of obscure glazing to some windows and horizontal screens on the edges of the rear upper level terraces. 1. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings and agreed that there are no jurisdictional constraints to the Court exercising its function under s 34(3) of the LEC Act.