Land and Environment Court New South Wales Medium Neutral Citation: Wanless v Mosman Municipal Council [2024] NSWLEC 1480 Hearing dates: Conciliation conference on 5 August 2024 Date of orders: 09 August 2024 Decision date: 09 August 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The Appeal is upheld. (2) Development Application No.8.2023.141.1 for the construction of a spiral stair at 7 Glencarron Avenue, Mosman is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – alterations and additions – external stair – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 s 8.7 Land and Environment Court Act 1979 ss 34, 34AA Environmental Planning and Assessment Regulations 2021 s 38 Mosman Local Environmental Plan 2012 cl 6.4 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6, Div 2, ss 6.6, 6.7, 6.8, 6.9, 6.10 Texts Cited: Mosman Council Community Participation Plan 2020 Category: Principal judgment Parties: Amanda Nicole Wanless (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: A Sattler (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Sattler & Associates (Applicant) Pikes and Verekers (Respondent) File Number(s): 2024/44507 Publication restriction: Nil Judgment 1. COMMISSIONER: On 10 October 2023, Mosman Municipal Council (the respondent) granted consent to development application No.8.2023.141.1, which proposed construction of an external spiral staircase on the south elevation of an existing dwelling house at 7 Glencarron Avenue, Mosman. The consent included a condition of consent that required the relocation of the stairs away from the side setback to reduce view loss impacts. The applicant, Amanda Nicole Wanless, is appealing the inclusion of this condition of consent – condition 3 – and proposing to instead amend the application to reduce the visual impact of the stairs in their originally proposed location. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 August 2024. I presided over the conciliation conference. 4. 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 and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing. 5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Regs), the Council agreed to the applicant amending the development application. This amendment changed the balustrade of the staircase from glazing to metal railing to reduce the visual impact, making it more in keeping with existing fences and balustrades on this site. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified in a jurisdictional note. From this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified in accordance with the Mosman Council Community Participation Plan 2020 from 5 to 20 July 2023, during which time two submissions were received. The amended plans were informally renotified to both submitters, and one further submission was received as a result. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. 3. The subject site is zoned C4 Environmental Living under the Mosman Local Environmental Plan 2012 (MLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed stair is ancillary to the dwelling house, and the development is consistent with the objectives of this zone. 4. The proposed development has no impact on the height of buildings (MLEP cl 4.3) or the floor space ratio (cl 4.4). Further, pursuant to cl 5.10, the site is neither within a heritage conservation area nor listed as heritage item. The development will have no impact on Acid Sulfate soils as no excavation is proposed (MLEP cl 6.1). 5. MLEP cl 6.4 provides for matters of scenic protection. The parties submit and, based on the amended application and the information contained in the joint report of town planning experts, I accept, that the proposed structure will not be visible from Sydney Harbour and will not affect views from the harbour. I further accept that the design of the stairs has been amended to be as lightweight and visually unobtrusive as possible, and will adequately allow views of the harbour, foreshore, and ocean from dwellings to the west of the site on Glencarron Avenue. The development will have no impact on landform or natural landscape as it is positioned within an existing terrace. 6. Pursuant to the considerations of contamination under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, from the parties' submission, I accept that the proposed development is minor and does not alter the existing use nor disturb any land through excavation. From this, I am satisfied that the site will continue to be suitable for its intended purpose and the proposed development will have no impact on the requirements of this clause. 7. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the site as the land is mapped as being within the Sydney Harbour Catchment. The general development controls in Division 2 of this SEPP apply, however the parties submit and I accept that proposed development will have no impact on any of the matters listed in ss 6.6 – 6.10 and will not contribute to any negative impact on the catchment or waters of Sydney Harbour. Conclusion 1. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. That the Council has agreed pursuant to s 38 of the Environmental Planning & Assessment Regulation 2021 to the amendment of the development application to rely upon the amended architectural plans and documents listed as follows: Plan Plan No. Revision/ Plan date as amended Prepared by Issue No. General Plan, Site Location Area Schedule DA1.01 D 10.7.2024 Just Architects, architects General Plan, Site Plan DA1-02 D 10.7.2024 Just Architects, architects General Plan Lower Ground DA1-03 D 10.7.2024 Just Architects, architects General Plan Ground Floor Plan DA1-04 D 10.7.2024 Just Architects, architects First Floor Plan DA1-05 D 10.7.2024 Just Architects, architects Roof Plan DA1-06 D 10.7.2024 Just Architects, architects Landscaped Areas DA1-07 D 10.7.2024 Just Architects, architects Elevation Plans East & West DA2-01 D 10.7.2024 Just Architects, architects Elevation Plans North & South DA2-02 D 10.7.2024 Just Architects, architects Sections 1 & 2 DA3-01 D 10.7.2024 Just Architects, architects Sections 3 & 4 DA3-02 D 10.7.2024 Just Architects, architects 3D Images DA4-01 D 10.7.2024 Just Architects, architects Notification Plan DA4-02 D 10.7.2024 Just Architects, architects 1. The Court orders: 1. The Appeal is upheld. 2. Development Application No.8.2023.141.1 for the construction of a spiral stair at 7 Glencarron Avenue, Mosman is approved subject to the conditions in Annexure A. E Washington Commissioner of the Court Annexue 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: 09 August 2024