Land and Environment Court New South Wales Medium Neutral Citation: Russo v Mosman Municipal Council [2024] NSWLEC 1591 Hearing dates: Conciliation conference on 19 and 20 September 2024 Date of orders: 25 September 2024 Decision date: 25 September 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant's written request under clause 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) seeking a contravention of the maximum height standard in clause 4.3 is upheld. (2) The Applicant's written request under clause 4.6 of the MLEP seeking a contravention of the maximum wall height standard in clause 4.3A is upheld. (3) The appeal is upheld. (4) Development application No. 8.2023.303.001 for the demolition of existing structures and the construction of a new dwelling house at 2 Hunter Road, Mosman, legally known as Lot 28 in DP 6314, is determined by grant of consent, subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – dwelling house development in C4 Environmental Living – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.6, 5.10, 6.1, 6.4, 6.6, 6.7 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 2, Pt 6, ss 6.6, 6.7, 6.8, 6.9, 6.65; Chs 7-12 (repealed) State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 State Environmental Planning Policy Amendment (Water Catchments) 2022 Category: Principal judgment Parties: Joseph Russo (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: R Coffey (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2024/85945 Publication restriction: Nil Judgment 1. COMMISSIONER: Behind Balmoral Beach is a park known as Hunter Park, named after colonial Governor John Hunter. Hunter Park is bounded by Hunter Road to the north and Park Lane to the west. 2. At the corner of Hunter Road and Park Lane is a site known as 2 Hunter Road that is occupied today by a single storey dwelling with a garage below, accessed from Park Lane. 3. Development application 8.2023.303.001 proposes the demolition of the existing dwelling to permit the construction of a new dwelling house, including double garage with turntable, 4 bedrooms and lounge room at ground floor level, and living room, dining, kitchen, butler's pantry, laundry and terrace and swimming pool at first floor level, and associated landscaping (the DA). 4. The DA was lodged with Mosman Municipal Council (the Respondent) by the Applicant in these proceedings on 19 December 2023. 5. On 6 March 2024, the Applicant filed an appeal in Class 1 of the Court's jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 6. The appeal was listed for mandatory conciliation on 19 September 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 7. At the conciliation conference, the parties reached agreement on the matters in contention, subject to the preparation of amended plans for which an adjournment was granted, and a signed agreement was submitted to the Court on 20 September 2024, in accordance with s 34(10) of the LEC Act. 8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 9. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 10. 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 4.16 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. 11. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 12. The site is located in the C4 Environmental Living zone, according to the Mosman Local Environmental Plan 2012 (MLEP), in which dwelling house development is permitted with consent, where consistent with the following objectives of the C4 zone: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • 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 and landscaping and to retain natural topographical features. • To ensure that development is of a height and scale that achieves the desired future character of the area. • 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. The height is exceeded 1. The height standard at cl 4.3 of the MLEP is 8.5m. As the proposal is for development with a maximum height of 8.65m, the Applicant relies upon a written request authored by Boston Blyth Fleming dated 20 September 2024, prepared in accordance with cl 4.6 of the MLEP. 2. The proposal also breaches the additional provisions at cl 4.3A of the MLEP which sets a wall height standard on the site of 7.2m, and a written request authored by Boston Blyth Fleming dated 20 September 2024 also accompanies the amended DA in this respect. 3. As the standards exceeded by the proposal are both in respect of height, and rely upon similar reasons to justify the contravention, I will consider the written requests in respect of the exceedances together. 4. The written requests assert that compliance with the standards at cll 4.3 and 4.3A is unreasonable or unnecessary because the objectives of those standards is achieved, notwithstanding the exceedances outlined above. 5. The relevant objectives of cl 4.3 of the MLEP 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 objectives of cl 4.3A of the MLEP are as follows: (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. In respect of the sharing of views, I accept the statement made by the written request, supported by view analysis modelling re-produced in the written requests, that the amendments to the DA maintain a view corridor over both the front and rear setbacks of the subject site from locations on the neighbouring property at No. 4 Hunter Road. I also accept that that part of the proposal that is the exceedance does not obstruct views from neighbouring properties. 2. I also accept the visual impact of the development as proposed is minimised by the retention of existing trees and the presentation of the development as a two-storey form in keeping with development in the area. As such, it is a form that is compatible with the desired future character of the area when the modulation, articulation, streetscape presentation and predominantly complying height is considered. 3. I also accept that the effects of bulk and scale have been minimised by the further lowering of the building on its site, by the splaying of the proposed building to the southwest corner to permit greater view sharing, and by the reduction in building bulk to the western setback to permit a greater degree of solar access to No. 4 Hunter Road. 4. The written requests advance three environmental planning grounds that I am satisfied are sufficient to justify the contravening of the height standards at cll 4.3 and 4.3A of the MLEP. In summary, these grounds are that the site has been previously excavated such that the height plane is distorted by such excavation; that the topography falls 2.4m across the site such that strict compliance is challenging; and because the proposal is consistent with the objects of the EPA Act at s 1.3(c) and (g). 5. I note here that the Respondent is satisfied that the written requests adequately address the matters required to be demonstrated by cl 4.6(3) of the MLEP, and the Respondent does not contend that the contravention of the development standards raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the MLEP. 6. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standards under cll 4.3 and 4.3A is justified. Accordingly, I find no grounds on which the Court should not uphold the written requests. Other provisions of the MLEP 1. The proposal complies with the Floor Space Ratio standard at cl 4.4 of the MLEP. 2. The site is not identified as an item of heritage significance, and is not within a heritage conservation area that would invoke the provisions of cl 5.10 of the MLEP. 3. While the relevant Acid Sulfate Soils Map at cl 6.1(2) of the MLEP identifies the site as susceptible to Acid Sulfate Soils (ASS), the Acid Sulfate Soil Assessment prepared by Waratah Environmental Consulting, borehole investigation on the site and analysis of samples indicate no presence of ASS on the site. 4. For reasons set out at [20], I am satisfied that the proposed development has taken measures to minimise the visual impact of the development to and from Sydney Harbour and that the proposal maintains the existing landform to the perimeter of the site, in accordance with cl 6.4 of the MLEP. 5. The proposal provides 35.5% of the site as landscaped area, which complies with the minimum landscaped area of 35% of the site at cl 6.6 of the MLEP. 6. I have considered those matters at cl 6.7(2) of the MLEP and, on the basis of the following, I conclude those matters in respect of earthworks are adequately addressed: 1. Geotechnical Assessment Report prepared by ESWNMAN dated 24 November 2023, 2. Landscape Plans prepared by Spirit Level, 3. Stormwater Drainage Plans prepared by Partridge, and agreed conditions of consent requiring the update of the same, and 4. Aboriginal Heritage Due Diligence Assessment prepared by Latitude Heritage dated 3 September 2024 State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) 1. Chapter 2 of the Biodiversity SEPP applies to the site. The proposal is supported by an Arboriculture Impact Assessment prepared by NewLeaf Arboriculture dated 30 November 2023, noting the retention of the Jacaranda to the northeast of the site. 2. As the development application was lodged after the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022, the savings and transitional provisions at s 6.65 of the Biodiversity SEPP do not apply. The effect of this is that Chapters 7-12 are repealed. 3. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. The parties agree the site is not mapped as a zone within the Foreshores and Waterways Area, is not a strategic foreshore site, a heritage item or land within a wetlands protection area. 4. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised. 5. I accept the method of on-site water retention, siltration treatment and stormwater disposal will result in water quality that is as close as possible to neutral or beneficial and is minimised, in accordance with s 6.6 of the Biodiversity SEPP. 6. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post-development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion. 7. I am satisfied the site is not flood affected with the terms at s 6.8 of the Biodiversity SEPP, will not affect recreation or public access in terms set out at s 6.9 of the Biodiversity SEPP. State Environmental Planning Policy (Resilience and Hazards) 2021 1. I have considered whether the land is contaminated and conclude it is not, and that it is suitable for the development proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) 1. The application is accompanied by a BASIX certificate (Cert No. 1377916S dated 29 November 2023) prepared by House Energy Certified in accordance with BASIX SEPP 2004 and the EPA Regulation. 2. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of the Sustainable Buildings SEPP. Conclusion 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. 3. The Court notes that: 1. Mosman Municipal Council, as the relevant consent authority has, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, consented to the Applicant amending development application No. 8.2023.303.001 in accordance with the following plans and documents: Documents 1. Schedule of Amendments prepared by Robert Parisi Architecture dated 20 September 2024 Revised Architectural Plans prepared by Robert Parisi Architecture: Drawing No. Description Rev. Date DA.003 Demolition Plan I 20.09.2024 DA.004 Site Plan I 20.09.2024 DA.005 Basement Plan I 20.09.2024 DA.006 Ground Floor Plan I 20.09.2024 DA.007 First Floor Plan I 20.09.2024 DA.008 Roof Plan I 20.09.2024 DA.009 Elevations West & East I 20.09.2024 2. DA.010 Elevations North & South I 20.09.2024 DA.011 Section A I 20.09.2024 DA.012 Section B I 20.09.2024 DA.013 Section C I 20.09.2024 DA0.14 Street Fences Elevations I 20.09.2024 DA.204 Window Schedule I 20.09.2024 DA.205 Door & Skylight Schedule I 20.09.2024 DA.213 Schedule of Finishes I 20.09.2024 DA.214 Screening Detail I 20.09.2024 DA.215 Screening Detail Western Elevation Only I 20.09.2024 Revised Landscaping Plan prepared by Spirit Level: 3. Drawing No. Description Rev. Date L101 Landscape Plan C 02.09.2024 4. Aboriginal Heritage Due Diligence Assessment prepared by Latitude Heritage dated 3 September 2024 5. Revised Clause 4.6 Written Request (Building Height) prepared by Boston Blyth Fleming dated 20 September 2024. 6. Revised Clause 4.6 Written Request (Wall Height) prepared by Boston Blyth Fleming dated 20 September 2024. 1. The Applicant filed those amended plans and other documents at [(1)] on 20 September 2024. Orders 1. The Court orders that: 1. The Applicant's written request under clause 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) seeking a contravention of the maximum height standard in clause 4.3 is upheld. 2. The Applicant's written request under clause 4.6 of the MLEP seeking a contravention of the maximum wall height standard in clause 4.3A is upheld. 3. The appeal is upheld. 4. Development application No. 8.2023.303.001 for the demolition of existing structures and the construction of a new dwelling house at 2 Hunter Road, Mosman, legally known as Lot 28 in DP 6314, is determined by grant of consent, subject to the conditions set out in Annexure 'A'. ………………….. T Horton Commissioner of the Court Annexure A (274546, pdf) ********** 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: 25 September 2024