Land and Environment Court New South Wales Medium Neutral Citation: Kennedy v Mosman Municipal Council [2021] NSWLEC 1379 Hearing dates: Conciliation conference on 7 and 8 June 2021 Date of orders: 29 June 2021 Decision date: 29 June 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal be allowed in part and refused in part. (2) Development consent to development application 8.2019.17.1 for alterations and additions to a dwelling house (Consent) at 5 Amaroo Crescent, Mosman be modified as follows: (a) Condition 2: The Construction Certificate plans shall detail the garage to have an internal floor to ceiling height of 2.4m. The roof over the garage shall be reduced to RL26.52. The section of roof over the entry, forward of the garage door may be of a height no greater than RL 26.80. Amended (8.2019.17.2 and not altered by appeal proceedings 2020/362670) (b) Condition 5: Delete. Replace with: The Construction Certificate plans shall be modified to: (a) Detail the new living area on the ground floor plan to be set back a minimum of 1.5m from the southern property boundary. This shall be reflected in the planter in condition 4. (b) Detail the balcony to the new living room on the ground floor plan (including the roof over) to be set back at a minimum of 1.5m from the southern property boundary, for the first 1m as measured from the western façade (window W14), then be set back at a minimum of 2.5m from the southern property boundary for the remainder of the balcony edge. This detail is to include a privacy screen for the southern edge of the ground floor balcony extending from the western façade (window W14) to comprise vertical blades which are a maximum of 25 % open, fixed at a 45 degree to the west. (c) Provide for a skylight portal above the new living area on the Ground Floor plan extending into the terrace setback area on the First Floor plan, with the design of the skylight to be in compliance with the requirements of the NSW Rural Fire Service Planning for Bushfire Protection November 2019. Amended (appeal proceedings 2020/362670). (3) Condition 6: Deleted. Replace with: No further works are to be undertaken in relation to the skylight well until a Building Information Certificate (BIC) has been issued by Council for the work. A BIC Application shall be submitted to Council for the work within 28 days of the date of approval of Modification 8.2019.17.2. Amended and replaced (appeal proceedings 2020/362670). (4) The Consent as modified is consolidated in the terms in Annexure A. (5) The application to modify the Consent to delete condition 7 and 8 be refused. Catchwords: DEVELOPMENT APPEAL – residential – appeal against conditions of consent or terms of approval of modification application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.18, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Mosman Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Andrew Joseph Kennedy (First Applicant) Claudia Edwina Kennedy (Second Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: M Seymour (Applicants) T Ward (Solicitor) (Respondent) Solicitors: Wight and Strickland (Applicants) Pikes and Verekers Lawyers (Respondent) File Number(s): 2020/362670 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against conditions of consent or terms of approval of modification application of residential Development Application No. 8.20196.17.1 for alteration and additions to the existing dwelling seeking deletion of conditions 2, 5 and 8 and modification to condition 4 where the modification as determined, modified the terms of condition 4 as sought and modified conditions 2 and 5 and maintained condition 8 in addition to an amended condition 6 and replacement of condition 7 requiring that the proposed fireplace was not to comprise a solid fuel/wood burning appliance (the Proposed Modification) in relation to the property at 5 Amaroo Crescent Mosman identified as Lot 1 in DP 507758 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 and 8 June 2021. I have presided over the conciliation conference. 3. 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. This decision involved the Court upholding the appeal in part and refusing the appeal in part and modifying the development consent to the development application subject to conditions. 4. 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 4.55(2) of the EPA Act to modify the consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a document titled Statement of Jurisdictional Matters filed 8 June 2021. These jurisdiction prerequisites are set out in the terms of s 4.55(2) of the EPA Act to modify a consent. 6. The parties explained in the Statement of Jurisdictional Matters how the jurisdictional prerequisites have been satisfied as follows: 1. The Modification Application was made with the consent in writing of Andrew and Claudia Kennedy, the owners of 5 Amaroo Crescent, Mosman, being land to which the modification application relates; 2. The proposed works, as proposed to be modified only relate to the Site; 3. The development to which the consent as modified would relate, being for alterations and additions to a dwelling house – with the approved modifications relating primarily to the southern wall of the "new living area" and the associated deck area, will be substantially the same development as that for which consent was originally granted, being for alterations and additions to a dwelling house; 4. The application for modification of the development consent does not require amendment; 5. The modifications will not prevent compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 6. The proposed development is for alterations and addition to a dwelling house, which is a permissible land use in the R2 Low Density Residential Zone, pursuant to the Mosman Local Environmental Plan 2012 (MLEP); 7. The respondent is the relevant consent authority and has capacity to enter into the s 34 agreement; 8. The Development Application was notified in accordance with s 4.18 of the EPA Act and Council's notification policy. Submissions were received, and considered by, Council. Objectors were also heard on site at the commencement of the s 34 conciliation conference. 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties. 2. 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' decision. 3. The Court orders: 1. The appeal be allowed in part and refused in part. 2. Development consent to development application 8.2019.17.1 for alterations and additions to a dwelling house (Consent) at 5 Amaroo Crescent, Mosman be modified as follows: 1. Condition 2: The Construction Certificate plans shall detail the garage to have an internal floor to ceiling height of 2.4m. The roof over the garage shall be reduced to RL26.52. The section of roof over the entry, forward of the garage door may be of a height no greater than RL 26.80. Amended (8.2019.17.2 and not altered by appeal proceedings 2020/362670) 1. Condition 5: Delete. Replace with: The Construction Certificate plans shall be modified to: (a) Detail the new living area on the ground floor plan to be set back a minimum of 1.5m from the southern property boundary. This shall be reflected in the planter in condition 4. (b) Detail the balcony to the new living room on the ground floor plan (including the roof over) to be set back at a minimum of 1.5m from the southern property boundary, for the first 1m as measured from the western façade (window W14), then be set back at a minimum of 2.5m from the southern property boundary for the remainder of the balcony edge. This detail is to include a privacy screen for the southern edge of the ground floor balcony extending from the western façade (window W14) to comprise vertical blades which are a maximum of 25 % open, fixed at a 45 degree to the west. (c) Provide for a skylight portal above the new living area on the Ground Floor plan extending into the terrace setback area on the First Floor plan, with the design of the skylight to be in compliance with the requirements of the NSW Rural Fire Service Planning for Bushfire Protection November 2019. Amended (appeal proceedings 2020/362670). 1. Condition 6: Deleted. Replace with: No further works are to be undertaken in relation to the skylight well until a Building Information Certificate (BIC) has been issued by Council for the work. A BIC Application shall be submitted to Council for the work within 28 days of the date of approval of Modification 8.2019.17.2. Amended and replaced (appeal proceedings 2020/362670). 1. The Consent as modified is consolidated in the terms in Annexure A. 2. The application to modify the Consent to delete condition 7 and 8 be refused. ………………………. E Espinosa Commissioner of the Court Annexure A (286428, 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: 29 June 2021