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. Satisfaction of jurisdiction 1. In relation to the Mosman Local Environmental Plan 2012 (MLEP) the relevant considerations are: 1. The development is for the purposes of a residential flat building, which is permissible with consent in the R3 Medium Density Residential Zone (R3 Zone) and is consistent with the objectives of the R3 Zone. 2. The development complies with the applicable development standards, namely for the height of buildings (at cl 4.3 of the MLEP), number of storeys (cl 4.3A(2)), wall height (cl 4.3A(4)), floor space ratio (cl 4.4) and landscaped area (cl 6.6). 3. The site is not located within any area identified on the Acid Sulfate Soils Map as affected by acid sulfate soils (cl 6.1). The site doesn't contain a heritage item, nor is it located within a heritage conservation area (cl 5.10). 1. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) is a deemed State Environmental Planning Policy (SEPP) applying to the site. Part 1 of the SREP, which sets out the aims of the instrument, applies to the site. The proposed development is not inconsistent with the aims of the SREP. 2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and cl 7 requires consideration of any contamination and associated remediation. The site has been used for residential purposes and there is no history to suggest the site is contaminated. The parties agree no further assessment is required. 3. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a revised BASIX Certificate number 1027565M_03 dated 13 April 2021 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent. Disposal of proceedings in accordance with the parties' decision 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' agreement. 2. The Court orders: 1. The appeal is upheld. 2. Leave is granted to the applicant to amend development application 8.2019.1258.1 to rely on the following amended plans and material: Drawing Date Prepared by Survey plan 18-089P2 25 March 2020 JRK Surveys Site Plan 01 Rev H 20 April 2021 Innovate Architects Basement Floor Plan 02 Rev G 15 April 2021 Innovate Architects Ground Floor Plan 03 Rev G 15 April 2021 Innovate Architects First Floor Plan 04 Rev H 20 April 2021 Innovate Architects Elevations 05 Rev G 15 April 2021 Innovate Architects Sections 06 Rev H 20 April 2021 Innovate Architects Front Fence Elevation 14 Rev G 15 April 2021 Innovate Architects Finishes Schedule April 2021 Innovate Architects Basement Strata Plan Rev G 9 April 2021 Innovate Architects Ground Floor Strata Plan Rev G 9 April 2021 Innovate Architects First Floor Strata Plan Rev G 9 April 2021 Innovate Architects Landscape Site Plan L-01 Issue I 14 April 2021 Site Design + Studios Landscape Plan L-02 Issue I 14 April 2021 Site Design + Studios Landscape Planting Plan L-03 Issue I 14 April 2021 Site Design + Studios Civil Design Notes & Legends C01 Rev 4 14 April 2021 Greenview Consulting Ground Floor Drainage Plan C02 Rev 4 14 April 2021 Greenview Consulting Basement 1 Drainage Plan C03 Rev 4 14 April 2021 Greenview Consulting Roof Drainage Plan C04 Rev 4 14 April 2021 Greenview Consulting Site Stormwater Details Sheet C05 Rev 4 14 April 2021 Greenview Consulting Document Date Prepared by Traffic Report 26 March 2021 Varga Traffic Planning Pty Ltd Arboricultural Report 15 March 2021 Peter Richards BASIX Certificate number1027565M_03 13 April 2021 Efficient Living Pty Ltd 1. The applicant is to pay the respondent's costs pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 as agreed in the sum of $6,250.00 by 10 May 2021. 2. Development consent is granted to development application 8.2019.1258.1 for the demolition of existing structures and the erection of a residential flat building containing 6 units with basement parking for 13 cars, landscaping and strata subdivision at 7-9 Countess Street, Mosman subject to the conditions in Annexure A hereto. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (317770, 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: 20 May 2021