Land and Environment Court New South Wales Medium Neutral Citation: Schonell v Mosman Municipal Council [2018] NSWLEC 1605 Hearing dates: Conciliation conference on 6 – 7 November 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Class 1 Before: Smithson C Decision: See [15] below Catchwords: MODIFICATION APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012 Category: Principal judgment Parties: Stefan Schonell (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: M Staunton (Applicant) Solicitors: Sattler & Associates Pty Ltd (Applicant) R McCulloch, Pikes & Verekers Lawyers (Respondent) File Number(s): 2018/122118 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Stefan Schonell (the Applicant) lodged under s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Mosman Municipal Council (the Council) of a modification application to modify Development Consent No. 8.2015.220.1 (the application) pursuant to s 4.55(1A) of the EPA Act. 2. The application proposed alterations at all levels of a three level dwelling house under construction at 3A Avenue Road, Mosman (the site). The modifications in contention between the parties in summary involved a widening of the double garage door opening by some 3 metres, a lack of a northern splay to that opening, increased excavation including to accommodate pool equipment, addition of a cinema, increased terrace area, reduced setback of a line of windows at the first level, increased building depth and changes to proposed landscaping and external finishes. 3. The Council was concerned at the impact of the modifications to the bulk, scale and height of the dwelling and whether or not the extent of the modifications would result in the development being 'substantially the same development' as that the subject of the consent or 'of 'minimal environmental impact' as required by s 4.55(1A) of the EPA Act. 4. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation which commenced onsite. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) to dispose of the proceedings in accordance with the parties' decision. 6. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 7. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 8. In this regard, in documents provided to the Court, I was satisfied that the application had been notified in accordance with the requirements of s4.55(1A)(c) of the EPA Act and that the parties had considered the submissions lodged, citing those submissions:s4.55(1A)(d) of the EPA Act. 9. Further, and to assist the Court, the parties submitted, as Annexure C to their agreement, a Statement of Reasons (SoR) outlining the basis for their agreement and the jurisdictional matters for the Court's consideration having regard to the original contentions raised by the Council which largely concerned visual bulk impacts. 10. I have reviewed the SoR and provide a summary as a context for and basis of the orders made. In broad terms, the modifications proposed, and consequently the plans accompanying the application, were amended as a result of conciliation and in response to both a site view and provision of additional documentation. 11. In this regard, changes to the openings on level 1 were no longer proposed and the garage opening was reduced in width to accommodate manoeuvring whilst addressing visual bulk concerns. Also to address visual bulk concerns, the upturn above the roof slab over the garage was reduced in height, other internal changes undertaken to reduce bulk, non-trafficable areas designated, advanced trees planted in a planter along with lower level landscaping, and part of the facing materials changed from black brick to sandstone. The terrace area above the garage was also reduced in size with additional landscaping provided to separate the reduced terrace from the planter. 12. Based on the site view and documentation provided it was agreed that the additional excavation undertaken was required to stabilise a rock face on the common boundary to the rear which had slumped. The stabilising works had resulted in additional slabs and the lengthening of the building but the site visit confirmed the additional works were not visible external to the site and did not materially alter the approved bulk and scale of the development nor the number of levels or overall height. 13. Furthermore, the objectives and relevant controls of the Mosman Local Environmental Plan 2012 (the LEP) were met in terms of cll 4.3 and 4.3A (height) and cl 6.6 (landscaped area) as were the zone objectives in the R3 zone in which the dwelling house has been approved. Whilst the FSR exceeded the FSR under cl 4.4 of the LEP, such a variation is permissible for a modification application and it was demonstrated that the objectives of the FSR standard would be met. 14. On the basis of the amendments made to the modification application, and for the reasons outlined in the SoR, I am satisfied as were the parties that: (a) the proposed modifications are now of minimal environmental impact: (b) the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified; (c) all of the remaining contentions initially raised by the Council have been resolved; and (d) approval of the modifications would not be contrary to the public interest. 1. The Court orders that: 1. The Applicant is granted leave to amend the modification application to rely upon the amended architectural plans and landscape plans referred to in condition 1 of Annexure "A". 2. The Appeal is upheld. 3. Modification Application for modification of Development Consent No. 8.2015.220.1 for demolition, construction of a three storey dwelling house with basement car parking pool and landscaping work at 3A Avenue Road, Mosman is approved subject to the conditions in Annexure "A". 4. As a consequence of Order (3), Development Consent DA N200/16 is now subject to the consolidated, modified conditions of development consent set out in Annexure "B". ………………………. Jenny Smithson Commissioner of the Court Annexure A (88.4 KB, pdf) Annexure B (258 KB, 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: 23 November 2018