Land and Environment Court New South Wales Medium Neutral Citation: Simpson v Mosman Municipal Council [2022] NSWLEC 1736 Hearing dates: 7 October 2022 Date of orders: 29 December 2022 Decision date: 29 December 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) Pursuant to s 39(2) of the Land and Environment Court Act 1979, exercising the function of Mosman Municipal Council as consent authority under s 113(4) of the Environmental Planning and Assessment Regulation 2021, approves the application for an amendment to modification application 8.2021.316.1 made on 7 October 2022 to rely on drawings A2.01 Rev E dated 14 September 2022 and A9 Rev A dated 12 September 2022. (2) The appeal is dismissed. (3) All exhibits are retained. Catchwords: DEVELOPMENT APPEAL – modification - excavation - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, ss 34, 39 Mosman Local Environmental Plan 2012, cl 4.4 Cases Cited: Simpson v Mosman Municipal Council [2022] NSWLEC 1241 Texts Cited: Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: Marc Simpson (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: L Sims (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2022/164695 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal to the Land and Environment Court seeking approval for the modification of Development Consent 8.2021.316.1 for demolition of the existing dwelling and construction of a dwelling house, swimming pool and associated earthworks and landscaping (the Proposed Modification) at 36 The Grove, Mosman legally described as Lot 65 in Deposited Plan 6648 (the Site). 2. This case is about additional excavation for a residential basement and whether that additional excavation is excessive or appropriate. 3. The existing approval includes a basement area and the Proposed Modification seeks to expand the basement by the addition of 48m2 to allow for storage, a plant room, a data and electrical room and to reconfigure the bin storage area and the garage. 4. The parties rely on a Joint Expert Report (JER) prepared by Mr Vaughan Milligan, Consultant Planner for the Applicant and Ms Kerry Gordon, Consultant Planner for the Respondent filed on 23 September 2022 (Ex 3). Mr Milligan and Ms Gordan also gave oral evidence under cross examination. 5. The Statement of Facts and Contentions (SOFAC) filed 25 July 2022 (Ex 1) sets out the relevant facts and there are 3 contentions relating to Floor Space Ratio (FSR), Excessive Excavation and Inadequate Information. 6. Leave from the Court was sought by the Applicant pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 to amend the Proposed Modification by drawings A2.01 Rev E dated 14 September 2022 and A9 Rev A dated 12 September 2022 (Amended Plans). The Respondent did not object and leave was granted by the Court exercising its jurisdiction under s 39 of the Land and Environment Court Act 1979 (LEC Act). 7. The experts agree that the Amended Plans suitably separate the storage room from the garage such that it can no longer be used for the parking of cars and that the whole area of the garage, at 36m2 is excluded from the calculation of the Gross Floor Area (GFA) and the FSR. The experts agree that the remaining areas of the basement constitute basement storage, basement garbage storage, basement services and access to parking and as such do not constitute GFA. As a result, the Amended Plans and the Proposed Modification, are compliant with the FSR control for the Site pursuant to cl 4.4A of the Mosman Local Environmental Plan 2012 (MLEP) and Contentions 1 and 3 are resolved. 8. The Respondent's case for the Court's determination is limited to Contention 2 which is that the Proposed Modification should be refused due to the excessive excavation proposed. There are 4 particulars to Contention 2 in the SOFAC which are dealt with by the experts in the JER. The Applicant has filed a SOFAC in reply on 23 August 2022 (Ex B) and submits that the modification seeks only to expand the basement area for functional and justifiable reasons and that the additional basement area will not only provide for the stated purposes but will also do so without contributing any visual amenity impacts on the streetscape and continues to respect the prevailing development pattern, which are elements taken into consideration during the original consent (Horton C in Simpson v Mosman Municipal Council [2022] NSWLEC 1241 (Simpson) pars [16](5) and [17](3)).The Applicant submits that the modification resolves the required storage issues under difficult topographical circumstances with reasonable additional excavation and further that the modification does not alter the bulk and scale of the development. 9. There is no agreement between the experts in relation to Contention 2. 10. The modification application seeks approval to increase the size of the approved basement which has a depth of 16.6m and a variable width of 4.2m (plant/storage and lift/stair core) and 6.1m (garage) with an area of 83m2. The modification would result in a basement of a depth of 16.6m and a variable width of 7.0m – 9.4m (plant/storage and lift/stair core) and 6.2m (garage) with an area of 131m2, an increase of 48m2 or 58%. (SOFAC, Ex 1) The approved excavation volume is 1200m3 and the additional excavation sought is estimated to be an additional 170m3 or 15%. (JER, par 3.18, Ex 3) 11. I now consider the evidence and set out my findings in relation to each of the 4 particulars of Contention 2 of the SOFAC. Is the extent of excavation excessive and inappropriate for the Site having regard to its constraints related to topography? (Contention 2, Particular (a)) 1. The first particular of Contention 2 provides that the extent of excavation proposed for the development is excessive and inappropriate for the Site having regard to its constraints related to topography. 2. The SOFAC describes the Site on p 6 as follows: "The Site is rectangular in shape with a frontage and rear boundary dimension of 16.765m, side boundary dimensions of 55.245m and a site area of 926.1m2. The Site falls moderately steeply by approximately 15m from the rear to the street, with a cross-fall at the street frontage from north to south of approximately 3.5m. The Site has a cliff line running north to south through the rear quarter of the site, which has a height of up to 3m." 1. I accept Ms Gordon's evidence at par 3.43 of the JER that "given the site has a topography that falls fairly steeply in two directions, the control and objective, to minimize cut and fill, needs to be considered in two directions, unlike many other properties in Mosman which have less steep cross falls." 2. I will now address the controls in Parts 4.2 Siting and Scale and 5.14 Excavation and Site Management of the Mosman Residential Development Control Plan 2012 (MRDCP) which are particulars (b) and (c) of Contention 2. Is the Proposed Modification inconsistent with Objective O9 and Planning Control P21 of Part 4.2 Siting and Scale of MRDCP? (Contention 2, Particular (b)) 1. The MRDCP provides objectives and controls in relation to siting and scale of development (Part 4.2 MRDCP). The relevant objective and control are reproduced below as follows: "O9. To have buildings which are sited to relate to the topography with minimal cut and fill, preserve existing significant trees, vegetation, rock outcrops, water course, natural features and promote new vegetation links. P21. Buildings should be sited having regard to topographical features. The building footprint should be designed to minimise cut and fill. Refer to excavation and site management controls of this Plan for more details." 1. Mr Milligan considers this at par 3.14 to 3.20 of the JER. 2. I accept Ms Gordon's evidence that "the provision simply seeks the design to minimize cut and this can be achieved by limiting excavation in a westward direction as well as in a northward direction as the site slopes up in both of these directions." (par 3.44, JER, Ex 3) 3. I find that the Proposed Modification is not consistent with the objective O9 to the extent that I find that the proposed excavation is not minimal cut and fill because the proposal is to expand the basement area. The control at P21 refers to the excavation and site management controls which are at Part 5.14 of the MRDCP and which I now address. Is the Proposed Modification inconsistent with Objective O1 and Planning Control P2 of Part 5.14 Excavation and Site Management of MRDCP? (Contention 2, Particular (c)) 1. The MRDCP provides objectives and controls in relation to excavation and site management which is expressly incorporated by reference by control P21 of Part 4.2 set out above. The relevant objective and control of Part 5.14 of the MRDCP are reproduced below as follows: "O1. To have the integrity of the physical environment preserved and enhanced by ensuring minimal site disturbance and the geotechnical stability of landfill and excavations. P2. Site excavation must be designed and located with an aim to minimise cut and fill requirements (especially on sites that have steep slopes). There must be minimal site disturbance." 1. The Applicant relies on the Geotechnical Assessment prepared by Crozier Geotechnical Consultants dated 17 May 2022 and filed with the Class 1 Application on 7 June 2022 (Ex A). The Geotechnical Assessment includes the following comment: "The proposed changes to the original design do not significantly alter the geotechnical aspects of the proposed development or the site from those on which the original report was based. As such we see no geotechnical reason for these changes not to be approved, provided all works are undertaken as per the recommendations of our report and any future geotechnical direction as a result of the post garage demolition inspection." 1. Mr Milligan considers Part 5.14 of the MRDCP at par 3.21 to 3.32 of the JER and provides his opinion at par 3.23 that on the basis of the confirmation by the geotechnical consultant that the works will not adversely affect the Site's ability. He believes that the provisions of Part 5.14 O1 and P2 have been satisfied. 2. Mr Milligan's evidence is that "the design and proposed basement are inclusive of the additional storage and equipment is justified and sufficient for the reasonable expectations of a modern family dwelling, with the capability to provide for the current and future technology requirements for the dwelling." (JER, par 3.25). He considers the existing storage facilities and the needs of the residents for current and future technology requirements in order to justify the size and extent of the additional basement expansion. At par 3.32 of the JER, he provides his opinion that as the proposed works do not result in any external change to the configuration of the approved dwelling and the retention of the approved building's height, scale, setbacks and landscaped area, his assessment is that the proposed excavation is the most appropriate method to provide for the required additional plant and communication technology storage area. 3. I note that Mr Milligan's conclusion is based on the needs of the residents rather than applying the controls to minimise cut and fill. He is not applying the right test, namely consistency with the objectives and controls that relate to excavation. These controls require a design and location to minimise cut and fill. 4. I am not satisfied that the design and location of the Proposed Modification is consistent with these objectives and controls because of the sheer extend and size of the proposed excavation. To reach this conclusion, I have considered the evidence of Ms Gordan that "excavation over two storeys in height is not a typical occurrence in Mosman, other than where it relates to stair and lift access" (JER at par 3.51) and I accept her evidence that 'the proposal for a two storeys deep excavation cannot meet the controls or objectives of Parts 4.2 and 5.14 of MRDCP as it clearly does not minimize excavation and site disturbance." (JER at par 3.52) 5. The JER includes an image marked up by Ms Gordon with a red outline area intended to show the area of proposed excavation up to approximately 6.8m. I reproduce that image below: Fig 1 – Fig 11 of JER, Ex 3 1. Ms Gordon was asked how she assessed the depth of excavation and she referred to the survey plan dated 19 October 2020 which was part of the original development application and explained that the red outline includes the area which is greater than the height of one storey and up to two storeys. (Tcpt 7 October 2022, p 20 (45)) 2. Mr Milligan was asked whether he agreed that the red outline area represents two storeys. He agreed that portions of the data/electrical room are two storeys but not the rain tank area. He agreed that portions of the red outline area are two storeys but does not agree to the extent of the red outline area. 3. In cross examination, Ms Gordon was asked about her assessment of the two storeys deep excavation and although Ms Gordon agreed that the MRDCP does not prescribe a numerical limit for depth of excavation, she confirms her opinion that the MRDCP expressly requires excavation to be minimised and that in her opinion the Proposed Modification does not minimise excavation. Ms Gordon was then asked as to her reasoning as to why the two storeys basement is either inappropriate or inconsistent with the MRDCP controls in Parts 4.2 and 5.14. Ms Gordon's reason, which I adopt is as follows: "My reason is not only does the basement go to two storeys in certain areas, it also covers a large footprint and the area of the basement in total is excessive. It's particularly excessive in its depth in that it goes to two storeys and that it goes to an additional storey below the already excavated carparking area of the existing dwelling. So if you look at the area of the basement it's the size of a four bedroom apartment and I don't see how that can be suggested to be minimising excavation and I don't know how you could assess that as being a reasonable merit impact upon the site. So that's how I got to that position that the two storey area was excessive." 1. I conclude that the Proposed Modification does not warrant approval because the design and location of the proposed excavation does not minimise the cut to the land of the Site and is therefore inconsistent with the objectives and controls of the MRDCP. Consideration of the reasons for approval include reduction of the size of the basement and excavation (Contention 2, Particular (d)) 1. The final particular of Contention 2 refers the Court to the reasons for approval of the original consent and the Respondent contends that the Proposed Modification is inconsistent with those reasons. 2. The SOFAC sets out the history of the Development Consent par 2 (pp 2 to 6, Ex 1). The contentions relating to the Development Appeal raised concerns with the contravention of the FSR development standard and the failure to minimise excavation. That contention is reproduced in the SOFAC at p 5. During the appeal and prior to the s 34 Agreement between the parties, the basement plans were amended by the Applicant and the Court upheld the appeal in accordance with the s 34 Agreement on 9 May 2022. I note this only as a fact and not as a reason of the consent authority because the consent authority was the Court. 3. Consideration by the consent authority of the reasons given by the consent authority for the grant of the consent that is sought to be modified is a statutory requirement as set out in s 4.55(3) of the EPA Act as follows with emphasis added: s 4.55(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. The original consent was granted pursuant to s 34(3) of the LEC Act and set out in the decision of Horton C in Simpson. The judgment of Horton C and the conditions of consent are in the Respondent's Bundle of Documents (Ex 2). The provisions of s 34(3) of the LEC Act specify that if agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner must dispose of the proceedings in accordance with the decision, and must set out in writing the terms of the decision. 2. Commissioner Horton refers to the requirements of s 34(3) of the LEC Act in his judgment (Simpson at [7]) and limits the terms of the decision to the jurisdictional prerequisites and for the avoidance of any doubt at [30] Horton C states as follows: "30. 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." 1. I do note that the Conditions of Consent annexed to the decision in Simpson includes the following at condition 2: "All areas nominated for the use of plant equipment, rainwater storage and services as detailed on the approved plans are to be used for such purposes and are not to be converted into storage or other uses." 1. In the context of particular (d) to Contention 2, Ms Gordon includes in the JER general comments in terms of what has happened in the process to assist the Court in understanding the history of the process. However, Ms Gordan confirmed in cross examination that other than that, these comments do not serve any other purpose. (Tcpt 7 October 2022, p 14 (13)) 2. The Applicant submits that the factual history is irrelevant and does not constitute reasons called up by s 4.55(3) of the EPA Act. The Applicant further submits that Council's reasons for refusing the original development application are not relevant because consent was granted to an amended proposal. I accept this submission by the Applicant. The only reasons for granting Development Consent are those set out in the decision of Horton C and there is no consideration of the excavation and accordingly does not assist the Court. 3. Mr Milligan also notes that in the SOFAC "there are no details provided to identify what is a "reasonable" amount of excavation for the site and at what point does the extent of excavation become "unreasonable". (JER par 3.8) 4. Mr Milligan's opinion is that the further excavation sought is not excessive or in contravention of s 4.55(3) of the EPA Act and goes on to say at par 3.12 that: "the particularised merits of the approved development as discussed in the Judgement, being the extent of the landscape planting in the front setback relative to the adjacent properties to the south and the retention of the natural rock outcrops into the rear of the property remain unchanged with the modified application." 1. I find that for the purpose of the requirement of s 4.55(3) of the EPA Act, that is, the requirement that the Court consider the reasons for granting consent, the reasons for granting consent are as set out in the decision of Horton C. The decision of Horton C does not provide any assistance to the Court for the purpose of assessing the Proposed Modification, and Contention 2 as particularised in the SOFAC, because Horton C was not required to and did not make any merit assessment of the issues that were originally in dispute between the parties. Storage and plant space is critical? 1. There is a further issue raised in the JER which the Applicant seeks to address. The further issue relates to the question of whether the storage and plant space is critical. 2. Mr Milligan said in the course of preparing Construction Certificate plans (par 3.3 JER): "In the preparation of the Construction Certificate documentation to follow-on from the original approval, it is apparent that extent of the approved basement storage and plant equipment area is not sufficient to provide for the owner's current and future requirements for storage and plant and technology requirements and the application consequently seeks to modify the form of the approved basement." 1. Then at par 3.28 of the JER, Mr Milligan says that: "The property owners have provided evidence of their particular work commitments which require an airtight server area be provided with suitable area for Electronic Security Systems and IT Cyber Security Systems with CCTV and Access Control/Intruder Detection Systems with encrypted card access. The size of the Data and Electrical room is consistent with the needs of both the work security requirements for the property owners and family data communications systems." (Annexure D to the JER, Ex 3) 1. Ms Gordan suggests at par 3.56 of the JER that "the already approved excavated space at the rear of the studio/gym at the Ground Floor Level would be an appropriate location for some of the storage and plant such as the air-conditioning plant, the data and electrical plant and potentially the rainwater tanks. This would ensure that the Applicant's "critical" storage and plant needs are met without unreasonable and excessive excavation of the site." 2. Respondent submits that it is a fantasy that the need for the modification came about at the time of the Construction Certificate preparation and that these facilities were always contemplated by the Applicant as the original proposed plans included a "DATA/COMMS ROOM". The Respondent refers the Court to the SOFAC Fig 1 and pars 2.6 and 2.7 which I reproduce below: "2.6 Prior to lodgement of a new application the applicant sought advice from Council in relation to the size of the proposed basement. The applicant was provided with the following advice on 2/8/2021 by Council's Manager Development Services: There have been some good revisions made to the scheme which is very pleasing. The reduction in the size of the garage level is also a positive however there is more work that could be done at the basement level to reduce the extent of excavation and the likelihood of some of this area being included in Council's calculation of floorspace. In the first instance, all the area north of grid line C and between the wall west of the lift and west of the western wall section of the garage is excavation that could be eliminated. Secondly, the area north of the rainwater tanks and between the stair lobby and western wall of the garage is an area that would as currently configured be pulled into the floor space calculation. This area is clearly capable of being used for parking and is an exceedance of the usual 36m2 allowance. It would be pulled into the FSR count and would tip the scheme over. I am less concerned with the wall and overall height exceedances given the topographical constraints and local context but am concerned with the extent of excavation, parking area in excess of requirements and this being pulled into the floorspace calculation. 2.7 In response to this advice the applicant provided the following comments: I have had a talk with Marc and Janie about them and created a revision of the Basement based on your comments to keep the FSR within policy and minimise excavation. I explained the reasoning and they are happy with my changes. Please see attached the amended Basement Plan. Could you please have a look over it and let me know your thoughts. I have been able to reduce a lot of the area/excavation to the North of the Basement. 1. I removed the Data/Comms area and moved the wall down towards the lift. The storage cupboard can accomodate [sic] the data and comms. 2. Moved the pool equipment above the rain tanks and brought the wall of the bin area down in a Southern direction 3. The result is a very clean lined rectangular shape basement/excavation. The excavation has been reduced to the North and become more economical in its shape, especially cutting the rock, waterproofing and not having water trapped in any corners." [Emphasis added] 1. I find that the reasons for the Proposed Modification are particular to the current residents and not necessarily reflective of the "reasonable expectations of a modern family dwelling, with the capability to provide for the current and future technology requirements for the dwelling modern dwellings" as earlier asserted by Mr Milligan. A Development Consent runs with the land and an assessment of the Proposed Modification is to be in accordance with the planning principles, objectives and controls. Conclusion 1. I conclude that the Appeal should be dismissed because the proposed excavation is excessive and the Proposed Modification is not consistent with Parts 4.2 and 5.14 of the MRDCP. 2. The Court notes that: 1. the Applicant seeks leave from the Court pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to amend the modification application as filed with the Court on 30 September 2022 namely, drawings A2.01 Rev E dated 14 September 2022 and A9 Rev A dated 12 September 2022. Orders: 1. The Court orders: 1. Pursuant to s 39(2) of the Land and Environment Court Act 1979, exercising the function of Mosman Municipal Council as consent authority under s 113(4) of the Environmental Planning and Assessment Regulation 2021, approves the application for an amendment to modification application 8.2021.316.1 made on 7 October 2022 to rely on drawings A2.01 Rev E dated 14 September 2022 and A9 Rev A dated 12 September 2022. 2. The appeal is dismissed. 3. All exhibits are retained. E Espinosa Commissioner of the Court ********** 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 December 2022