Land and Environment Court New South Wales Medium Neutral Citation: The Trustee for Mosman Finance No. 32 Trust v Mosman Council [2024] NSWLEC 1519 Hearing dates: Conciliation conference on 8 May, 7 June, 18 June, 5 July, 19 July, 5 August and 13 August 2024 Date of orders: 27 August 2024 Decision date: 27 August 2024 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Modification Application DA 8.2022.200.3 and rely on the amended plans and documents listed at Condition 1 of Annexure A. (2) The appeal is upheld. (3) Development Consent DA 8.2022.200.3 is modified subject to the conditions of consent set out at Annexure A. (4) Development Consent DA 8.2022.200.3 (as modified) is subject to the consolidated conditions of consent set out at Annexure B. Catchwords: MODIFICATION APPLICATION – residential apartment development – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Biodiversity and Conservation) 2021, chs 2, 10 State Environmental Planning Policy (Resilience and Hazards) 2021 Mosman Local Environmental Plan 2012, cll 4.4, 4.6, 5.10, 6.1, 6.4, 6.7, Sch 5 Texts Cited: Mosman Community Participation Plan Category: Principal judgment Parties: The Trustee for Mosman Finance No. 32 Trust (Applicant) Mosman Council (Respondent) Representation: Counsel: T Sattler (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Sattler and Associates (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2024/53796 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by The Trustee for Mosman Finance No. 32 Trust (the Applicant) against the refusal of Modification Application MA 8.2022.200.3 (the MA) by Mosman Council (the Respondent). 2. At the date of its lodgement, the MA sought to modify Development Consent DA 8.2022.200.1 (the parent DA) which granted consent for the demolition of existing building and construction of a three-storey residential apartment building at 1A Hampden Street, Mosman (the site). 3. Consent for the parent DA was granted by the Court on 19 May 2023. 4. The MA which forms the subject of this appeal was lodged with the Respondent on 12 July 2023. 5. An earlier Modification Application (MA 8.2022.200.2) was lodged on 5 July 2023 and approved by the Respondent on 20 December 2023. 6. A subsequent Modification Application (MA 8.2022.200.4) was lodged on 22 February 2024 and approved by the Respondent on 28 February 2024. 7. The subject MA was refused by the Respondent on 20 November 2023. 8. The Applicant filed a Class 1 Application with the Court against the Respondent's refusal of the MA on 12 February 2024. 9. At the date of its lodgement, the MA sought approval for the following modifications to the parent DA: 1. Changes to the internal layout of the master bedroom suite at the rear of the ground floor unit and an extension by 1.133m to the south to align with the southern wall of the lift. 2. An eastward extension of 1.7m to accommodate an electrical and comms room. 3. A resultant increase in gross floor area and change to the use of approved rooms. 1. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on on 8 May, 7 June, 18 June, 5 July, 19 July, 5 August and 13 August 2024. I presided over the conciliation conference. 2. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting approval to an amended MA, subject to conditions. 3. 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 the function under s 4.55 of the EPA Act to modify the existing DA. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 5. In that regard, I am satisfied the MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 6. Pursuant to s 4.55(2)(a) of the EPA Act, I am satisfied the amended MA remains substantially the same as the parent DA. The amendments are relatively minor, there is no change to the proposed use, no change to the number of levels above or below ground, no change to the number of dwellings, and the general appearance of the building continues to present as three-storey residential apartment development. 7. The parties agree, and I am satisfied, that the MA was notified in accordance with the Mosman Community Participation Plan. The MA was notified from 20 July to 4 August 2023 and the Respondent received three submissions primarily raising concerns for visual privacy arising from fenestration to the western elevation of the building. 8. Of note, the MA has been amended during the conciliation conference to resolve each of the contentions initially pressed by the Respondent. The parties agree, and I am satisfied, the amendments adequately address the concerns raised by objectors. Additionally, the Applicant has provided amended landscape architectural plans to demonstrate that the works currently under construction are capable of resulting in an acceptable extent of landscape and deep soil. 9. Further, agreed conditions of consent require the Applicant to embellish certain specified landscape and public domain treatments in the Hamden Street road reservation to the satisfaction of the Respondent. 10. The parties agree, and I am satisfied, that the Mosman Local Environmental Plan 2012 (MLEP) is a relevant environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent, and that the amended MA maintains the objectives of the R3 zone. 11. The parties agree, and I am satisfied, that pursuant to cl 4.4 of the MLEP - Floor space ratio (FSR) - the parent DA was accompanied by a cl 4.6 written request varying the FSR development standard. 12. The amended MA further increases the FSR of the proposed building, however as the MA is made pursuant to s 4.55 of the EPA Act, a further cl 4.6 written request to vary the FSR development standard is not required. 13. In any case, I note that the increase in FSR associated with this MA is accommodated within the approved building envelope and does not alter the approved building bulk, form or scale in any material way. 14. The parties agree, and I am satisfied, that all other relevant principal development standards of the MLEP are maintained by the amended MA. 15. Pursuant to cl 5.10 of the MLEP - Heritage conservation - the parties agree, and I am satisfied, that the road reservation of Hampden Street and Warringah Road adjacent to site are listed local heritage items (I375, I376 and I474) as set out in Sch 5 of the MLEP. The MA generally proposes only internal works to the parent DA and will not result in any perceptible impact on the heritage significance of the adjacent road reserve of Hampden Street and the divided road section of Warringah Road. 16. Notwithstanding this, the Applicant has agreed to the imposition of Condition of Consent 30A, which requires certain specified embellishment works be undertaken within the unmade Hampden Street road reservation. Prior to undertaking the agreed works, an application for exemption pursuant to cl 5.10(3) of the MLEP will be made. 17. Pursuant to cl 6.1 of the MLEP - Acid sulfate soils - the parties agree, and I am satisfied, that the approved excavation associated with the parent DA has already been undertaken at the site and the MA seeks consent only for changes to the internal layout of the master bedroom suite. 18. Pursuant to cl 6.4 of the MLEP - Scenic protection - the parties agree, and I am satisfied, that a portion of the northern end of the site fronting Warringah Road is subject to cl 6.4 of MLEP. However, the amended MA will not impact upon the visual and scenic qualities of Mosman or Sydney and Middle Harbour. 19. Pursuant to cl 6.7 of the MLEP - Earthworks - the parties agree, and I am satisfied, that the matter set out at cl 6.7(3) were considered in the grant of consent accompanying the parent DA. The Applicant has since provided a letter from a registered surveyor, CMS Surveyors Pty Ltd, dated 30 May 2024 seeking to demonstrate that the existing excavation undertaken at the site is consistent with the parent DA. The Applicant further relies upon the Construction Certificate issued by Aramini & Leedham, dated 5 July 2023, as permitting the extent of excavation undertaken at the site. 20. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience). A Preliminary Site Investigation Report with Supplementary Sampling prepared by EI Australia dated 14 April 2022 formed part of the Class 1 Application for the parent DA. There is no additional excavation proposed as part of the amended MA. 21. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). An amended BASIX Certificate No. 1404064M dated 29 June 2023, has been provided by the Applicant and remains current. Conditions of consent are imposed to ensure compliance with the BASIX certificate. 22. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). Ch 2 of SEPP BC - Vegetation in non-rural areas - was considered at the time the parent DA was granted consent and the amend MA remains consistent with the relevant clauses of SEPP BC. 23. Ch 10 of SEPP BC - Sydney Harbour Catchment - was considered at the time the parent DA was granted consent and the amend MA remains consistent with the relevant clauses of SEPP BC. 24. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 25. The Court notes that: 1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the approval of the Respondent. 2. The Applicant has filed the amended MA with the Court on 13 August 2024. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Modification Application DA 8.2022.200.3 and rely on the amended plans and documents listed at Condition 1 of Annexure A. 2. The appeal is upheld. 3. Development Consent DA 8.2022.200.3 is modified subject to the conditions of consent set out at Annexure A. 4. Development Consent DA 8.2022.200.3 (as modified) is subject to the consolidated conditions of consent set out at Annexure B. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A Annexure B ********** 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: 27 August 2024