Land and Environment Court New South Wales Medium Neutral Citation: WBMA Pty Ltd ATF Badawi Family Trust v Mosman Municipal Council [2024] NSWLEC 1163 Hearing dates: 22 March 2024 Date of orders: 09 April 2024 Decision date: 09 April 2024 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No 8.2023.50.1 for demolition works and the construction of a new dwelling and swimming pool, at 9B Silex Road, Mosman, is refused. (3) The exhibits, other than Exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new dwelling and swimming pool – exceedance of the height of buildings development standard Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, ss 34, 34AA, 39 Environmental Planning and Assessment Regulation 2021, s 38 Mosman Local Environmental Plan 2012, cll 4.6, 4.3, 6.2 Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: WBMA Pty Ltd ATF Badawi Family Trust (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2023/253270 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No 8.2023.50.1 for demolition works and the construction of a new dwelling and swimming pool (the proposal), at 9B Silex Road, Mosman (the site), by Mosman Council (the Council). 2. The appeal was subject to conciliation on 21 March 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. 3. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. The proposal is amended 1. At the commencement of the hearing, the applicant sought the Court's leave to rely on an amended proposal. The amended plans and documents reduced the maximum height of the dwelling, changed the position of the driveway and changed the footprint and layout of the dwelling so that the footprint of the dwelling does not cover the natural watercourse through the site, other than a cantilevered terrace over it. 2. The Council did not oppose the granting of leave to the applicant to amend the application. 3. Pursuant to s 39(2) of the LEC Act, the Court, exercising the Council's function under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to consent to the amendment of the application, granted the applicant leave to amend the application. 4. The resident objectors were given a brief opportunity to view the amended architectural plans and gave evidence in relation to those amended plans during the hearing. Issues 1. The Council's contentions can be summarised as: * The height of the proposal is excessive and the written request to vary the maximum building height development standard does not satisfy the provisions of cl 4.6 of the Mosman Local Environmental Plan 2012 (LEP 2012). * The wall height and number of storeys is excessive and the written request to vary the maximum building height development standard does not satisfy the provisions of cl 4.6 of LEP 2012. * The siting of the dwelling is inappropriate and the scale of the dwelling is excessive, resulting in unacceptable impacts upon the surrounding urban environment and inconsistency with the desired character of the Clifton Gardens Townscape. * The amenity of adjoining properties will be adversely impacted by the proposal. * There is insufficient information to consider the impacts arising from the extent of site disturbance and earthworks. * The bushfire assessment report is inadequate. * The proposal is not supported by sufficient detail in relation to the design of the driveway and garage. 1. The Council submitted that the contentions raised in the Statement of Facts and Contentions (Ex 1) regarding the original application concerning floor space ratio (FSR), impact on the harbour views from adjoining properties and impact upon the natural environment have been satisfactorily resolved by the amended proposal. The site and its context 1. The site is a battle-axe allotment with an area of 1,124m2 including the access handle. The site has a fall of 14.23m from the north-western corner of the site to the north-eastern corner of the site. 2. A natural watercourse traverses the northern side of the site. 3. Surrounding development consists of multi-storey dwelling houses of varying architectural styles within a landscaped setting. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain the single dwelling character of the environmentally sensitive residential areas of Mosman. • To maintain the general dominance of landscape over built form, particularly on harbour foreshores. • To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. • To ensure that development is of a height and scale that seeks to achieve the desired future character. • To encourage residential development that maintains or enhances local amenity and, in particular, public and private views. • To minimise the adverse effects of bulk and scale of buildings. 1. The height of buildings development standard for the site, pursuant to cl 4.3 of LEP 2012, is 8.5m. The objectives of the standard are: (i) to share public and private views, and (ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and (iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and (iv) to minimise the adverse effects of bulk and scale of buildings, 1. The wall height development standard for the site, pursuant to cl 4.3A(4) of LEP 2012, is 7.2m. The objectives of the standard are: (a) to provide for view sharing, (b) to minimise the adverse effects of the bulk and scale of buildings, (c) to encourage 2-storey buildings consistent with the desired future character of the area. 1. The FSR development standard for the site is 0.462:1 and the proposal complies with the standard under cl 4.4 of LEP 2012. 2. The relevant provisions for natural watercourses are under cl 6.2 of LEP 2012. Clause 6.2 relates to the extension of the watercourse into Clifton Gardens Reserve which is shown on the Natural Resources Watercourse Map (subcl 6.2(2) of LEP 2012). The watercourse through the site is not shown on the map. 3. The Mosman Residential Development Control Plan 2012 (DCP 2012) applies to the site. Section 4.2 Siting and scale relevantly includes the following: "The siting and scale of a building – its height, floor space ratio, setback from site boundaries and relationship in size to adjoining buildings – set the dominant character of any development. Controls for these elements are important to facilitate an acceptable siting and scale of development that maintains a satisfactory relationship with neighbouring properties and the wider street context. Buildings should be designed "from the ground up" with ground floors located at or near ground level." 1. The relevant objectives and planning controls for Section 4.2 are: "O6. To have adequate side setbacks to provide spatial relief between buildings, encourage view sharing, and minimise overshadowing of neighbouring properties. P8. Development must have a minimum side boundary setback of: (b) two storey (or up to 7.2m wall height): 1.5m Only storeys predominantly above ground level (existing) are to be included in the calculation of number of storeys, i.e. any basement level is not included. P10. For new buildings the side boundary setback should be equal for all levels of the building. P11. Building bulk should be distributed to minimise overshadowing to neighbours, streets and public open space. Building forms should enable a sharing of views with surrounding residences and permit views from public streets and open space. P12. Council may require an additional side setback to ensure adequate daylight and sunlight access to adjacent buildings or to minimise view loss. In particular, an additional side setback from the southern boundary for eastwest oriented lots, especially for first floor additions, may be required. … 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 courses, 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. P22. Buildings should be sited to preserve existing significant trees, vegetation, rock outcrops, water courses and natural features and promote new planting. P23. Where a property adjoins bushland or natural water courses and creeks a minimum setback of 5m applies. …" 1. Part 5 Site Planning and Design of DCP 2012, Section 5.1 Streetscape and building design, includes the following relevant objectives and planning controls: "O1. To have development of a scale and appearance which is in keeping with the street and desired future townscape area character. O2. To have building bulk controlled by incorporating facades that are well articulated. … P1. New development should incorporate articulated facades to avoid a bulky appearance and to create proportions consistent within the streetscape. The use of elements such as recesses, modulation and setbacks in building walls, and varied materials is encouraged so as to avoid expansive uniform elevations. Pergolas, verandahs, decks and planter boxes are also appropriate provided they are suitably dimensioned and do not contribute to building bulk. P2. Applicants must demonstrate that buildings are designed "from the ground up" with ground floors located at or near ground level and incorporating reasonable ceiling heights. The use of extensive void areas under or within a building is discouraged. … P8. Flat roofs, when well designed, may be acceptable and allow for the retention of views from neighbouring properties and public views. Where flat roofs are selected, particular attention should be given to the detailing of the wall/roof junction. Parapet walls are discouraged where they contribute to the bulk of the building or have adverse amenity effects e.g. view loss, overshadowing. …" 1. Section 5.2 Carport and garage design of DCP 2012 is a relevant consideration regarding the elevated driveway proposal. 2. Section 5.7 Privacy and security of DCP 2012 includes the following relevant objectives and planning controls: "O1. To have adequate visual privacy levels for residents and neighbours. P1. For new dwellings and additions, habitable room windows with a direct sightline to the habitable room windows or private open space in an adjacent dwelling within 9m should be either: (a) offset from the edge of one window to the edge of the other by a distance equivalent to the width of the existing window; or (b) have sill heights of 1.6m above floor level; or (c) have permanently fixed translucent glazing in any part of the window below 1.6m above floor level. P2. Above ground balconies, terraces, decks, verandahs, and outdoor spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate overlooking. When overlooking would be likely, permanent screening will be required to mitigate overlooking. …" 1. The Council submitted that the proposal complies with the planning controls for solar access, at Section 5.8 of DCP 2012, however identified the objective 02 is, "to have the degree of overshadowing of neighbouring properties minimised". 2. The Clifton Gardens Townscape description and character of DCP 2012 at Part 7 includes the following: "Description of area and character The Clifton Gardens Townscape area comprises a ridge flanked by slopes in the south eastern corner of Mosman. Clifton Gardens is set high above the harbour with vistas southward over Taylors Bay. The aspect, water views and topography of this area combine to create a "headland" feeling. A steep descent provides access to the jetty and baths at Clifton Gardens Reserve. The street pattern is essentially north/south and east/west in orientation with some variations in response to steep conditions along Iluka and Morella Roads. The architecture in this area is different from many other parts of Mosman, having been developed in the main, later than other parts of Mosman. The architecture is distinctively post-Victorian, with high quality buildings diverse in style yet harmonious in character, generally older in the more elevated areas and newer in the areas nearer the harbour. Architectural styles dating from the Inter-war years and later are varied, but may be predominantly characterised as that of an English Garden suburb with substantial two storey dwelling houses featuring Arts and Crafts elements including exposed brick, timbered gables, bay windows, dormer windows, and roofs of coloured tiles or slate. A number of Californian bungalows, Inter-war Mediterranean and early modern dwelling houses provide architectural diversity." 1. The planning controls for Clifton Gardens Townscape relevantly include the following: "Building form and design: … (b) Roofs on sloping sites may be flat, pitched or fall with the slope of the land. Flat roofs, when well designed, may be acceptable and allow for the retention of views from neighbouring properties. Streetscape: … (k) Bulky 'mega-houses' with horizontal emphasis across allotments are discouraged. …" Public submissions 1. Three resident objectors gave evidence onsite. Two of those objectors viewed the amended plans and gave evidence in court regarding the amended plans. Their concerns can be summarised as: * The amenity impacts of the proposal would be mitigated if the building envelope complied with the height of buildings and wall height development standards and applicable controls as the site is unconstrained. * The elevated driveway adjacent to 9A Silex Road results in unacceptable visual and noise impacts on 9A Silex Road. There should be an acoustic wall along the outside edge of the driveway. It is an imposing structure and will be visible from the living room and bedrooms of 9A Silex Road. * There should be a privacy screen on the lower level of the proposal to screen views towards 9A Silex Road. * The amended plans add windows to the proposal which will permit overlooking of the windows near the terrace of 9 Silex Road. * The extent of excavation is excessive. * The proposal is inconsistent with the desired future character of the Clifton Gardens Townscape. * The perspectives do not conform to the Court's requirements. Expert evidence 1. The applicant relied on the expert evidence of David Waghorn (planning) and Aki Akel (stormwater). The Council relied on the expert evidence of Rebecca Englund (planning) and Matthew Poon (stormwater). 2. The planning experts agreed on the following regarding the height of the dwelling: * The maximum height above existing ground level is 9.18m which is the parapet on the uppermost level on the eastern elevation. The portion of the building envelope that exceeds the standard does not result in amenity impacts on adjoining properties. * The water view from a standing position at 9 Silex Road will be retained. * The overshadowing arising from the non-compliant elements within the footprint of the driveway is maintained, however, Ms Englund noted that the elevated driveway is non-compliant with the wall height development standard. * The breach of the height of buildings standard does not result in visual privacy impacts. 1. The planning experts agreed on the following regarding the wall height of the dwelling: * The maximum wall height is 9.18m. * 3 hours of sunlight will be maintained to the north facing windows of 9A Silex Road, however, the elevated driveway will result in additional overshadowing on the northern façade from approximately 1pm on the winter solstice. 1. The planning experts disagreed on the appropriateness of the setback of the elevated driveway from the shared boundary with 9A Silex Road. They agreed that the setback of the driveway is non-compliant with the 3m minimum setback required by the DCP 2012, as the setback is 900mm to 1.5m from the shared boundary. According to Ms Englund, the insufficient setback of the elevated driveway does not allow sufficient space for adequate screening of the driveway from 9A Silex Road. Mr Waghorn noted that 9A has a nil setback to the shared boundary. He also noted that the demolition of the existing garage and replacement with the proposed driveway will result in an improved view from the front living room of 9 Silex Road. 2. In Ms Englund's view, a more skilful design solution for the garage would position the garage close to the entrance to the site and provide access in and out of the garage in a forward direction with a turntable, instead of the large hardstand proposed. The driveway and garage should be adequately setback from the shared boundary with 9A Silex Road to allow for planting to screen the elevated garage and/or driveway. 3. The planning experts agreed that the proposed excavation is in the vicinity of 700m3. According to Mr Waghorn, the excavation will not be perceptible once the dwelling is completed because it is within the dwelling's footprint. According to Ms Englund, the excavation proposed is excessive, is evidence that the dwelling is not "designed from the ground up" as required by DCP 2012 and the floor to ceiling heights could be further reduced. In Ms Englund's opinion, the bulk and scale of the proposal is excessive and does not respond to the fall of the land, as it has large voids on the western side of the dwelling, causing the middle level to be "pushed forward" resulting in a contravention of the wall height development standard. In her view, the dwelling is an example of a "mega-house" with a strong horizontal emphasis across the site which is discouraged by the Clifton Gardens Townscape controls. 4. According to Mr Waghorn, the building footprint is located in the only possible location on the site for the dwelling given the constraints of the site, including the position of the watercourse. Contravention of the height of buildings development standard 1. The proposal has a maximum height of 9.18m. The height of buildings development standard for the site is 8.5m. The exceedance of the standard is confined to part of the eastern edge of the roof of the upper most level of the proposal. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex F). 3. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action"). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. 1. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]). The applicant's written request to contravene the height of buildings development standard 1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and" (b) "that there are sufficient environmental planning grounds to justify contravening the development standard" 1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). 2. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]: * the objectives of the development standard are achieved notwithstanding non-compliance with the standard; * the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; * the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; * the development standard has been abandoned by the council; * the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers). 1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]). 2. The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the proposal is consistent with the standard and zone objectives, there are no additional significant adverse impacts arising from the variation, and the proposal is compatible with the scale of surrounding residential dwellings. According to the written request, the exceedance of the standard is a result of the steep slope of the site. 3. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 4. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the height of buildings development standard as a justified response to the steep slope of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone 1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]). 2. I accept the agreement of the planning experts that the reduction in the height of the amended proposal, compared to the original proposal, retains the water views from a standing position at 9 Silex Road. I accept Ms Englund's evidence that the exceedance of the standard does not result in additional overshadowing of adjoining properties. I am satisfied that the exceedance of the standard does not result in amenity impacts on adjoining properties. 3. I am satisfied that the proposal is consistent with the objectives of the height of buildings development standard and the R2 zone objectives, for the reasons set out in the applicant's written request (Ex F). Contravention of the wall height development standard 1. The proposal has a maximum wall height of 9.18m. The wall height development standard for the site is 7.2m. 2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex G). The applicant's written request to contravene the height of buildings development standard 1. The applicant's written request justifies the contravention of the wall height development standard on the bases that compliance is unreasonable or unnecessary because the proposal is consistent with the standard and zone objectives, there are no additional significant adverse impacts arising from the variation, and the proposal is compatible with the scale of surrounding residential dwellings. According to the written request, the exceedance of the standard is a result of the steep slope of the site. 2. I am not satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I do not accept that the topography of the site necessitates the form and elevation of the driveway. I accept and agree with Ms Englund's evidence regarding the elevated driveway. The elevated driveway exceeds the wall height development standard and has a significant and unacceptable visual impact on the adjoining dwelling at 9A Silex Road. 3. I am not satisfied that compliance with the standard is unreasonable or unnecessary in the circumstances. This matter is determinative of the appeal. Conclusion 1. This site requires a very sensitive design to adequately respond to the considerable constraints of the steep topography of the site; the proximity of the substantial dwellings on adjoining properties as a function of being battle-axe allotments that fan around the dead-end at the top of the access handle in close proximity to each other; and the position of the watercourse through the site. Overall, the positioning of the dwelling on the site, including height and building envelope proposed, are broadly acceptable and appropriately respond to the constraints and opportunities of this site. The significant visual bulk of the elevated driveway and the substantial extent of excavation, however, need to be addressed to achieve a proposal that adequately responds to the topography of the site and minimises its amenity impact on adjoining neighbours. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No 8.2023.50.1 for demolition works and the construction of a new dwelling and swimming pool, at 9B Silex Road, Mosman, is refused. 3. The exhibits, other than Exhibits 1 and A, are returned. ____________ Susan O'Neill 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: 09 April 2024