Land and Environment Court New South Wales Medium Neutral Citation: Fox v Mosman Council [2022] NSWLEC 1688 Hearing dates: Conciliation conference 1, 2 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application number 8.2022.135.1 for demolition of the existing dwelling house and construction of a new dwelling house with swimming pool and landscape works at 7A Kardinia Road, Mosman (Lot 52 DP 1169120) is determined by grating consent, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION: Demolition and new dwelling – alterations and additions – amended plans – agreement between the parties – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021 s 38 Land and Environment Court Act 1979 ss 34, 34AA Mosman Local Environmental Plan 2012 cll 2.7, 4.3, 4.3A, 4.4, 4.6, 6.4, 6.6, 6.7 State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 10.2, 10.3, 10.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827 Category: Principal judgment Parties: Edward William Beresford Fox (Applicant) Mosman Council (Respondent) Representation: Counsel: N Eastman (Applicant) R McCullough (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Pikes Verekers Solicitors (Respondent) File Number(s): 2022/233477 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant, Edward Fox, appeals pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of their development application by Mosman Council. The development application seeks consent for demolition of the existing dwelling house and construction of a new dwelling house with swimming pool and landscape works. The development application is proposed at 7A Kardinia Road, Mosman (Lot 52 DP 1169120). 2. The appeal was listed for conciliation on 1 December 2022 pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). At the conciliation conference agreement was reached between the parties on the basis of amended plans and documents. The Court notes that Mosman Council as consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) has provided consent to amend the development application to rely on the plans and documents listed at condition 1 of Annexure A. The amended plans have been lodged on the NSW Planning Portal. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Development Application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached following a conciliation conference. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act. I have formed this state of satisfaction for the following reasons: 1. The development application has been lodged with the consent of the owner of the land; 2. The development application was notified by Mosman Council between 16 June and 1 July 2022 in accordance with the Mosman Community Participation Plan. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation the development is BASIX affected development. The development application is accompanied by the required BASIX certificate. 4. The site is identified as being within the Sydney Harbour Catchment on the relevant map referred to in s 10.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). In determining the development application, I have considered the planning principles in s 10.10 of SEPP B&C as relevant to the application and I am satisfied that the proposed development is consistent with the relevant principles. Further I have taken into consideration those matters of relevance within Div 2 of Pt 10.3 of SEPP B&C and I am satisfied that none warrant the refusal of the application. 5. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) prior to the grant of consent I am required to consider whether the land is contaminated. The Statement of Environmental Effects which accompanies the development application states that the site has a lengthy history of residential use and concludes that it is not likely that the site is contaminated. I am satisfied on the basis of the longstanding residential use of the site it is unlikely to be contaminated and is suitable for the proposed use. 6. Mosman Local Environmental Plan 2012 (LEP 2012) is the relevant environmental planning instrument which applies to the land. Pursuant to LEP 2012 the site is zoned C4 Environmental Living. Development for the purposes of residential dwellings is permissible in the zone. Demolition is permissible: cl 2.7 of LEP 2012. In determining the development application, I have given consideration to the zone objectives. 7. Clause 4.3 of LEP 2012 prescribes a maximum height of 8.5m. The proposed development complies with this standard. 8. Clause 4.3A(2) requires building on the land to have a maximum height of two storeys. The proposed development is part 2, part 3- storey and does not comply with this provision. Further, sub cl (4) of cl 4.3A requires that a building must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres. The development application seeks to vary these provisions utilising cl 4.6 of LEP 2012. The Applicant has prepared a written request seeking to vary these development standards. I have read the written request prepared by ABC Planning Pty Ltd dated December 2022 and in accordance with cl 4.6 of LEP 2012, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the standard are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2012): Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827. I am satisfied that the development is consistent with the achievement of the objectives of the standard listed at cl 4.3A(1A) of LEP 2012 for the reasons detailed in the written request. 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2012). In particular, I am satisfied that the variation to the standard is consistent with the height of the existing building and assists the proposed dwelling to achieve contextual fit in the locality. 3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.3A of LEP 2012 and the objectives of the C4 Environmental Living zone. 4. Pursuant to cl 4.6(5) of LEP 2012, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 5. I find that the states of satisfaction required by cl 4.6 of LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the development standards. 1. Pursuant to cl 4.4 of LEP 2012, the land is subject to a maximum floor space ratio (FSR) standard of 0.5:1. The development application complies with the FSR standard. 2. The site is adjacent to the heritage item 'Aneesha' which is listed in LEP 2012 as an item of local significance. A heritage impact statement has been prepared by the Applicant and I am satisfied that the development will not have a detrimental impact on the significance of the item. 3. Clause 6.4 of LEP 2012 applies as the site is identified on the scenic protection map. Part of the statement of environmental impacts accompanying the development application details the compliance of the development application against the matters at cl 6.4(3) of LEP 2012. In determining the development application, I am satisfied that measures will be taken to minimise the he visual impact of the development to and from Sydney Harbour and that the development will maintain the existing natural landscape and landform. 4. Pursuant to cl 6.6 of LEP 2012 the site requires a minimum landscaped area of 35%. The development application complies with this requirement providing 39% of the site as landscaped area. 5. Pursuant to cl 6.7 of LEP 2012, development consent is required for the proposed earthworks. As required by cl 6.7: Earthworks of LEP 2012 in determining the development application I have given consideration to the matters listed at subcl (3). In giving consideration to these matters, I have been informed by the geotechnical report prepared by the Applicant and the proposed development consent conditions. I am satisfied that none of the factors listed at subcl (3) warrant the refusal of the application. 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' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development application number 8.2022.135.1 for demolition of the existing dwelling house and construction of a new dwelling house with swimming pool and landscape works at 7A Kardinia Road, Mosman (Lot 52 DP 1169120) is determined by grating consent, subject to the conditions in Annexure A. D Dickson 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: 13 December 2022