Land and Environment Court New South Wales Medium Neutral Citation: Heath v Mosman Municipal Council [2022] NSWLEC 1628 Hearing dates: Conciliation conference on 15 September 2022 Date of orders: 11 November 2022 Decision date: 11 November 2022 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: 1) Leave is granted to the Applicant to rely on the amended documentation listed in paragraph [15(1)]. 2) The Applicant's two clause 4.6 variation requests pursuant to: a) clause 4.3 ('building height') of the Mosman Local Environmental Plan 2012 seeking to justify contravention of the height of buildings standard; and b) clause 4.3A ('wall height') of the Mosman Local Environmental Plan 2012 seeking to justify contravention of the wall height; are upheld. 3) The appeal is upheld. 4) Development Consent is granted to Development Application No. 8.2021.463.1 for alterations and additions to an existing dwelling house, construction of a plunge pool and landscaping works at 35 Avenue Road, Mosman, subject to conditions contained in Annexure 'A'. Catchwords: DEVELOPMENT APPEAL – dwelling house – non-compliance with building height and wall height –conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.3, 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Mosman Local Environmental Plan 2012 cll 4.3, 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 Category: Principal judgment Parties: Tiffany Heath (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: N Eastman (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2022/153687 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA No 8.2021.463.1 (the DA) by Mosman Municipal Council (the Council). In exercising the functions of the 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 a 472 m2 parcel of land which is legally described as Lot 14 in DP 3025 and known as 35 Avenue Road, Mosman (the Site). The Site is located on the eastern, high side of Avenue Road at the cul-de-sac section. The Site is rectangular in shape with a street frontage of 14.69m. The Site is occupied by a part one and part two storey dwelling house. The DA as submitted to Council sought consent for alterations and additions to the existing dwelling house, construction of an inground swimming pool and landscaping works. 3. The Development Application was notified by the Respondent for a period of 21 days from 20 January to 3 February 2021. One submission was received and this submission has been considered by the Respondent and by the Court. 4. Amended plans were subsequently lodged by the Applicant on the NSW Planning Portal on 9 September 2022 (Amended DA). The key amendments included: 1. revision to the north-western roof form and dormer outreach; 2. provision of a 1.5m setback of the south facing dormer to the southern boundary in compliance with the relevant DCP control; and reduction of existing subfloor area space so as to achieve numerical compliance with the floor space ratio development standard. 1. 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 15 September 2022, and at which I presided. 2. Prior to 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 and granting development consent to the Amended DA subject to conditions. 3. A signed agreement and agreed conditions prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 13 September 2022. An amended set of conditions was subsequently filed with the Court on 9 November 2022. 4. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to the agreed conditions of development consent annexed to the s 34 agreement. 5. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [10] – [13] below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Mosman Local Environmental Plan 2012 (MLEP) are: 1. The proposed development is characterised as alterations and additions to a dwelling house which is permitted in the R3 Medium Density Residential zone under MLEP with the development consent of Council. 2. Under cl 4.3 Height of Buildings of the MLEP, the subject site has a maximum building height control of 8.5m. Measured from ground level (existing), the proposed development has a small area of non-compliance along the north-western hipped roof plane. Accordingly, a written cl 4.6 variation request of the building height development standard was submitted with the DA. 3. I am satisfied the cl 4.6 request for variation to the building height control is well founded, for the following reasons: 1. compliance with the development standard is unreasonable or unnecessary given that objectives (i)-(iv) of the standard are achieved notwithstanding the non-compliance: 1. 'to share public and private views' – I am satisfied that the design of the roof form reflects the sloping topography of the surrounding landscape, minimising any public and private view impacts on adjoining properties or public land, with no additional impacts that an otherwise compliant dwelling would present; 2. 'to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores' – I am satisfied that the area of non-compliance will not be visible from any nearby harbour foreshore areas and will not be prominently visible from the streetscape; 3. 'to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form' – I am satisfied that the proposed development will present as a two storey sloped roof dwelling, which is consistent with the desired future character and surrounding developments in terms of building height and roof form. 4. 'to minimise the adverse effects of bulk and scale of buildings' – I am satisfied that the scale of the building presents as a dwelling with a two-storey element over stepped floor level and elevated subfloor space, which is compatible with the general bulk and scale of the existing development in the locality. 1. I am satisfied there are sufficient environmental planning grounds to justify contravening the development standards, noting: 1. that the proposed development achieves the objects in s 1.3 of the EPA Act in that it will provide for improved amenity within a built form which is compatible with the streetscape of Avenue Road; an outcome which promotes the orderly and economic use of the land; and 2. the area of non-compliance can be attributed to the prior excavation of the Site within the footprint of the existing building, which distorts the height of buildings development standard plane when compared to the topography of the land. In accordance with the Court's findings in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 [at 74], this can be properly considered as an environmental planning ground within the meaning of cl 4.6 (3)(b) of MLEP. 1. noting that the proposed development remains consistent with the objectives of the particular development standard(s) and the zone in which the development is to be carried out, I am satisfied that that the proposed development is in the public interest. 1. Under cl 4.3A(4) of the MLEP, the subject site has a maximum wall height development standard of 7.2m. Measured from ground level (existing) to the underside of the eaves at the wall line, the proposed dwelling will have a maximum wall height of up to 8.276m. Accordingly, a written cl 4.6 variation request of the wall height development standard was submitted with the DA. 2. I am satisfied the cl 4.6 request for variation to the wall height control is well-founded, for the following reasons: 1. compliance with the development standard is unreasonable or unnecessary given that objectives (i)-(iv) of the standard are achieved notwithstanding the non-compliance: 1. 'to share public and private views' – I am satisfied that the area of non-compliance is isolated to the proposed dormer and balcony area within the north western hipped roof plane, which is designed to maintain view opportunities from surrounding properties. 2. 'to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores' – as per paragraph 3(a)(ii) above. 3. 'to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form' – the area of non-compliance will sit below the new ridge level and will maintain a compatible two storey bulk and scale which complements the surrounding development and desired future character of the locality; 4. 'to minimise the adverse effects of bulk and scale of buildings' – as per paragraph 3(a)(ii and iv). 1. I am satisfied there are sufficient environmental planning grounds to justify contravening the development standards, noting: 1. the proposed development achieves the objects in s 1.3 of the EPA Act in that it will provide for increased amenity in the form of a balcony, whilst maintaining a general bulk and scale consistent with the surrounding locality, thereby promoting the orderly and economic use of the land; and 2. the area of non-compliance can be attributed to the prior excavation of the Site within the footprint of the existing building, which distorts the wall height development standard plane when compared to the topography of the land. In accordance with the Court's findings in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 [at 74], this can be properly considered as an environmental planning ground within the meaning of cl 4.6 (3)(b) of the MLEP. 1. noting that the proposed development remains consistent with the objectives of the particular development standard(s) and the zone in which the development is to be carried out, I am satisfied that that the proposed development is in the public interest. 1. The Applicant is the owner of the land and has provided owners consent to lodgement of the DA. 1. Clause 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. I am satisfied from the evidence that the Site has historically been used for residential purposes and is not contaminated and does not adjoin land known to be contaminated. 2. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), an amended BASIX certificate has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the SEPP BASIX. 3. As the Site is located within the Sydney Harbour Catchment, the DA was originally lodged under the provisions of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, which was repealed and superseded by the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) on 1 March 2022. The Site is not within a zone prescribed by Ch 10, nor is it nominated within the Heritage Map, Wetlands Protection Are or Critical Habitat Map. Clauses 10.18-10.27 prescribe certain matters related to preserving and improving the health of and access to the Sydney Harbour and its foreshore which must be considered by a consent authority prior to determining a development application. From the evidence, I am satisfied that the proposed development has taken into account the general principles and environmental considerations under Ch 10 of the Biodiversity SEPP. 4. 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. 5. The Court notes that: 1. Mosman Municipal Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. 8.2021.463.1 in accordance with the documents listed below: Plan name Drawing Number Revision Date Prepared by Amended Architectural Plans Site Plan / Analysis Plan Construction Plan Concept Stormwater Plan 2222-00 D 5/9/2022 MCAD Design Basement Floor Plan 2222-01 D 3/8/2022 MCAD Design Ground Floor Plan 2222-02 D 3/8/2022 MCAD Design First Floor/Attic Plan 2222-03 D 3/8/2022 MCAD Design Elevations 2222-04 D 3/8/2022 MCAD Design Elevations 2222-05 D 3/8/2022 MCAD Design Demolition Plan 2222-06 D 3/8/2022 MCAD Design Landscape Calculations/Area Calculations Plan 2222-07 D 3/8/2022 MCAD Design Roof Plan Pool Section 2222-08 D 3/8/2022 MCAD Design Section AA 2222-09 D 3/8/2022 MCAD Design Sections CC, DD, EE 2222-10 D 3/8/2022 MCAD Design Supporting Documentation Document Name Date Clause 4.6 Request (Height of Buildings) prepared by VMDC September 2022 Clause 4.6 Request (Wall Height) prepared by VMDC September 2022 BASIX Certificate prepared by Sustain Build Projects 8 September 2022 1. The amended development application documents listed above were lodged on the NSW planning portal on 9 September 2022. 2. The amended development application was filed with the Court on 13 September 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to rely on the amended documentation listed above in paragraph 15(1). 2. The Applicant's two clause 4.6 variation requests pursuant to: 1. clause 4.3 ('building height') of the Mosman Local Environmental Plan seeking to justify contravention of the height of buildings standard; and 2. clause 4.3A ('wall height') of the Mosman Local Environmental Plan seeking to justify contravention of the wall height are upheld. 1. The appeal is upheld. 2. Development Consent is granted to Development Application No. 8.2021.463.1 for alterations and additions to an existing dwelling house, construction of a plunge pool and landscaping works at 35 Avenue Road, Mosman, subject to conditions contained in Annexure 'A'. L Sheridan Acting Commissioner of the Court ********** Annexure A 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: 11 November 2022