Land and Environment Court New South Wales Medium Neutral Citation: Hall v Mosman Municipal Council [2021] NSWLEC 1368 Hearing dates: Conciliation conference on 8 and 9 June 2021 Date of orders: 24 June 2021 Decision date: 24 June 2021 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The applicant is granted leave to amend the development application and rely on the following architectural plans prepared by 'Design O C', dated 8 June 2021, revision C: (a) Drawing No. 01 - Site and location plan (b) Drawing No. 02 - Floor plan (c) Drawing No. 03 - Elevations (d) Drawing No. 04 - Street elevations (2) The applicant is granted leave to amend Development Application No. 8.2020.78.1 to include the partial demolition of the existing deck and structural works to support the remaining portion of the existing deck. (3) The Appeal is upheld. (4) Development Application No. 8.2020.78.1 for the partial demolition of the existing deck, structural works to support the remaining portion of the existing deck, erection of privacy screens and balustrading, landscaping and use of the amended existing deck on land legally described as Lot 17, Section C in Deposited Plan 3272 known as 28 Cowles Road, Mosman is approved subject to the conditions set out in Annexure "A". Catchwords: APPEAL – development application – rooftop deck above garage – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 and 8.10 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss 34 and 34AA Mosman Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Ari Hall (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2020/343014 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application (DA) for a rooftop deck in Mosman. The site comprises Lot 17 Section C DP 3272 and is known as 28 Cowles Road, Mosman (the Land). The land is located on the western side of Cowles Road between Lindsay Lane and Glover Street and is within the Glover and Nathan's Estate Conservation Area. 2. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court's jurisdiction. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 4. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 8 June 2021 and concluded on 9 June 2021. I presided over the conciliation conference. 5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was subsequently filed on 9 June 2021 and is supported by a Statement of Jurisdictional Prerequisites provided by the parties on the same date. The agreement involves the Court exercising the function under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to grant leave to the applicant to amend the DA and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 6. The amendments reduce the width of the deck from 5m to 3m with a usable area of approximately 18m2. There will be a 1.6m privacy screen on the southern edge of the deck. The planter boxes adjoining the southern privacy screen addressing Lindsay Lane will have dimensions of 600mm wide and 450mm deep and are to be constructed of lightweight composite material. The western planter boxes are removed and the western privacy screen is relocated to the edge of the garage structure. The eastern planter box is also removed. The existing decking between the edge of the southern planter boxes and the southern elevation of the garage is also removed. Trees having a mature height of between 4 and 5 metres are to be planted to the west of the garage and landscaping is to be carried out within the existing raised garden area on the western boundary, where the existing retaining wall is to be raised to 600mm and planted with a Murraya or Viburnum hedge. Finally, a section of the existing retaining wall adjacent to the northern boundary is to be removed and a new retaining wall constructed to allow for a new garden bed 600mm wide and 600mm deep also to be planted with a Murraya or Viburnum hedge. 7. I am satisfied that the proposed amendments to the DA are within the scope of the amendment power in cl 55 of the EPA Regulation. The essence of the development the subject of the DA remains the same. 8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 9. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The applicant is the owner of the Land and is able to make the DA in accordance with cl 49 of the EPA Regulation. 2. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act. 3. The proposed development, comprising a rooftop deck above an existing garage, is for the purpose of the existing dwelling house on the Land. The Land is within zone R2 Low Density Residential under the Mosman Local Environmental Plan 2012 (the LEP). Development for the purposes of a dwelling house (and consequently the rooftop deck) is permissible with development consent on land within that zone. 4. In determining the DA, I have had regard to the objectives of the R2 Low Density Residential zone in the LEP. An objective of that zone is to provide for the housing needs of the community within a low density residential environment and the proposed development is consistent with that objective. 5. The proposed development complies with the applicable development standard in the LEP relating to building height (cl 4.3). The height of the proposed development is 4.41 metres which is less than the applicable maximum building height of 8.5 metres. 6. I am satisfied that the impact of the proposed development on the heritage significance of the Glover and Nathan's Estate Conservation Area is acceptable: cl 5.10(4) of the LEP. 7. State Environmental Planning Policy No 55—Remediation of Land applies to the Land. The Land has been used for residential purpose for many years and there is no indication that any contaminant generating uses have been carried out on it. The continued use of the Land for residential purposes will not change and I am satisfied that the Land is suitable for the proposed ongoing residential use. 8. The proposed development is not subject to the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 9. The DA was notified in accordance with Council's Notifications Policy between 5 June and 22 July 2020. The Council received four submissions from the residents of nearby properties raising concerns about the approval of an unauthorised deck, overlooking of adjoining properties, noise impacts from the use of the deck and the appearance of the deck from nearby properties. At the commencement of the hearing oral evidence was given by Ms Belinda Peet, Mr Richard Tilelli and Mr John Wakefield. Their evidence was that the deck was unsightly and overlooked adjoining properties and that the proposed screening resulted in an unacceptable visual impact. These issues have been addressed by the amended design and conditions of consent. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The applicant is granted leave to amend the development application and rely on the following architectural plans prepared by 'Design O C', dated 8 June 2021, revision C: 1. Drawing No. 01 - Site and location plan 2. Drawing No. 02 - Floor plan 3. Drawing No. 03 - Elevations 4. Drawing No. 04 - Street elevations 1. The applicant is granted leave to amend Development Application No. 8.2020.78.1 to include the partial demolition of the existing deck and structural works to support the remaining portion of the existing deck. 2. The Appeal is upheld. 3. Development Application No. 8.2020.78.1 for the partial demolition of the existing deck, structural works to support the remaining portion of the existing deck, erection of privacy screens and balustrading, landscaping and use of the amended existing deck on land legally described as Lot 17, Section C in Deposited Plan 3272 known as 28 Cowles Road, Mosman is approved subject to the conditions set out in Annexure "A". ………………………… A Bradbury Acting Commissioner of the Court Annexure A (304588, pdf) Plans (270988, 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: 24 June 2021