Smith v Mosman Municipal Council [2023] NSWLEC 1156

Land and Environment Court New South Wales

Medium Neutral Citation: Smith v Mosman Municipal Council [2023] NSWLEC 1156 Hearing dates: Conciliation conference held on 1 February 2023 Date of orders: 04 April 2023 Decision date: 04 April 2023 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders: (1) The clause 4.6 written request prepared by Ingham Planning Pty Ltd dated February 2023 for the variation of the maximum height, wall height and floor space ratio development standards in clauses 4.3, 4.3A and 4.4 of the Mosman Local Environmental Plan 2012 are upheld. (2) The appeal is upheld. (3) Development consent is granted to development application No 8.2022.41.001 for alterations and additions to the existing residential flat building and dwelling house, construction of a basement carpark, swimming pools and landscaping on the land described as Lot 1 DP 922512 and Lot 1 DP 919852 and known as 20 – 22 Raglan Street, Mosman subject to the conditions set out in Annexure A. (4) The applicant is to pay Council's costs thrown away in the agreed sum of $13,000.00 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of this order. Catchwords: APPEAL – development application – alterations and additions to existing residential flat building and dwelling house – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10 Environmental Planning and Assessment Regulation 2021, ss 23, 27, 29, 38 and Sch 7 Dictionary Interpretation Act 1987, s 30A Land and Environment Court Act 1979, s 34 Mosman Local Environmental Plan 2012, cll 2.3, 4.3, 4.3A, 4.4, 4.6, 5.10, 6.4, 6.6, 6.7, Sch 5 State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Buildings, cll 28, 30 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 10, Pt 10.3, Div 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 State Environmental Planning Policy (Housing) 2021, s 47, Pt 3 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Category: Principal judgment Parties: Paul Smith (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: A Chryssochoides (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent)

Solicitors: Piper Alderman (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2022/250557 Publication restriction: Nil

Judgment 1. COMMISSIONER: This appeal concerns a development application (DA) by Paul Smith (Applicant) for alterations and additions to an existing residential flat building and dwelling house, construction of a basement carpark, swimming pools and landscaping (Proposed Development) on the land described as Lot 1 DP 922512 and Lot 1 DP 919852 and known as 20 – 22 Raglan Street, Mosman (Site). 2. The Site is located on the western side of Raglan St, Mosman. The two lots that comprise the Site contain a total area of 1,068 m2. The Site is irregular in shape and has a frontage to Raglan St of 30.48 m. The Site falls away some 6.5 m from the northeast (front) to the southwest (rear). 3. The DA was made to the Council on 3 March 2022 (Council reference 8.2022.41.1). It was publicly notified in accordance with the Council's Community Participation Plan between 8 and 22 March 2022 and the Council received 7 submissions. The main issues raised by the submissions concerned impacts relating to privacy, traffic, the extent of excavation proposed, drainage, noise, and construction. Concern was also expressed in relation to possible impacts on Charles Dansie Walk. Some of the objectors also gave evidence, and elaborated on their submissions, at the onsite hearing on 1 February 2023. 4. The DA was refused by the Council on 25 July 2022. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction. 5. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 6. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was on 1 February 2023. I presided over the conciliation conference, which commenced on site and then continued at the Council offices. 7. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting development consent to the development application in an amended form (Amended Application) subject to conditions. 8. The final signed agreement was lodged with the Court on 15 March 2023 and is supported by a Jurisdictional Statement provided by the parties on the same day. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 9. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow.

The statutory conditions on the grant of development consent

The conditions in the EPA Act and Regulation 1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act. 2. Section 4.15(1)(d) of the EPA Act requires the consent authority to take into consideration any submissions made in accordance with the Act or the regulations. In addition to the written submissions referred to in paragraph 3 above, oral evidence was given to the Court by some of the submitters on 1 February 2023 which elaborated on their written submissions. The parties agree, and I accept, that the matters raised by these submissions have been adequately addressed in the Amended Application and conditions of consent, where relevant. 3. Section 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) provides that a development application may be made by the owner of the land to which the development application relates or by any other person, with the consent of the owner of that land. The DA was made by the Applicant with the consent of the owners of the two lots that comprise the Site. 4. Section 27 of the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate for the development. The Proposed Development is BASIX affected development as defined in Schedule 7 Dictionary of the EPA Regulation. The DA is accompanied by BASIX Certificates issued by ESD Synergy (Certificates Nos. A446803, A446817, A446824 and A446698).

The conditions in the LEP

Zoning 1. The Land is within Zone R3 – Medium Density Residential under the Mosman Local Environmental Plan 2012 (LEP). The Proposed Development is permitted with development consent on land within that zone.

Zone objectives 1. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone R3 – Medium Density Residential are: To provide for the housing needs of the community within a medium density residential environment To provide a variety of housing types within a medium density residential environment To enable other land uses that provide facilities or services to meet the day to day needs of residentials To provide for housing that is compatible with the desired future character of the area in terms of bulk height and scale; and To encourage residential development that has regard to local amenity and, in particular, public and private views. To minimise the adverse effects of bulk and scale of buildings. 1. The parties agree that the DA meets the zone objectives and, in determining the DA, I have had regard to those objectives.

Building height 1. Clause 4.3 of the LEP provides that the height of any building must not exceed the maximum height shown on the Height of Buildings Map which forms part of the LEP. The Site is identified as l2 on the Height of Buildings Map which provides a maximum allowable height of 8.5m. 2. While the proposed Development does not change the overall height of either of the existing buildings, the rear extension to each proposes an additional built form that breaches the height of buildings development standard. 3. To justify the departure from the height of building standard, the Applicant has submitted a revised written request pursuant to cl 4.6 of the LEP as part of the Amended Application and I am satisfied that the revised written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). 4. The parties further agree, and I accept, that: 1. The written request adequately justifies the contravention of the development standard by demonstrating that compliance with the building height development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard, as required by cl 4.6(3)(a) & (b) of the LEP; and 2. Despite the exceedance of the wall height development standard, the granting of consent to the Proposed Development will be in the public interest because it is consistent both with the objectives of the building height development standard and also the objectives for development within the R3 Medium Density Residential zone. 1. On this basis, the Court is satisfied that the departure from the height development standard contained in cl 4.3 of the LEP is justified in the circumstances of the case.

Wall height 1. Clause 4.3A of the LEP provides a maximum allowable wall height of 7.2m for the Proposed Development. The Proposed Development exceeds this maximum by between 3.2m and 5.18m in the case of the residential flat building and 0.95m and 2.38m in the case of the dwelling house. 2. To justify the departure from the wall height standard, the Applicant has submitted a revised written request pursuant to cl 4.6 of the LEP as part of the Amended Application and I am satisfied that the revised written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). 3. The parties further agree, and I accept, that: 1. The written request adequately justifies the contravention of the wall height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard, as required by cl 4.6(3)(a) & (b) of the LEP; and 2. Despite the exceedance of the wall height development standard, the granting of consent to the Proposed Development will be in the public interest because it is consistent both with the objectives of the wall height development standard and also the objectives for development within the R3 Medium Density Residential zone. 1. On this basis, the Court is satisfied that the departure from the wall height development standard contained in cl 4.3A of the LEP is justified in the circumstances of the case.

Floor Space Ratio (FSR) 1. Clause 4.4 of the LEP provides that the maximum FSR for a building on any land must not exceed the FSR shown on the Floor Space Ratio Map. 2. The Land is subject to a FSR development standard of 0.6:1 as identified on the Floor Space Ratio Map under the LEP. The Amended Application proposes a FSR of 0.93:1; however, the FSR for the existing site already exceeds the control at 0.73:1. As the proposed additional gross floor area is predominantly contained within the existing building envelope, the parties agree that bulk and scale impacts are controlled. 3. To justify the departure from the FSR development standard, the Applicant has submitted a revised written request pursuant to cl 4.6 of the LEP as part of the Amended Application and I am satisfied that the revised written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). 4. The parties further agree, and I accept, that: 1. The written request adequately justifies the contravention of the FSR development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard, as required by cl 4.6(3)(a) & (b) of the LEP; and 2. Despite the exceedance of the FSR development standard, the granting of consent to the Proposed Development will be in the public interest because it is consistent both with the objectives of the FSR development standard and also the objectives for development within the R3 Medium Density Residential zone. 1. On this basis, the Court is satisfied that the departure from the FSR development standard contained in cl 4.4 of the LEP is justified in the circumstances of the case.

Heritage Conservation 1. Clause 5.10(4) of the LEP provides that, before granting development consent in respect of a heritage item, the consent authority must consider the effect of the proposed development on the heritage significance of the item concerned. 2. No 22 Raglan Street is identified as a heritage item under Sch 5 of the LEP and the Site is located within the vicinity of other heritage items. 3. The parties agree, and I accept, that the Amended Application, and the imposition of conditions of consent requiring the preparation of a schedule of conservation works and an archival recording, form an appropriate response to the heritage significance of the item at No 22 Raglan Street.

Scenic Protection 1. Clause 6.4 of the LEP precludes a consent authority from granting development consent for development on land to which the clause applies unless it is satisfied that: 1. measures will be taken, including in relation to the location and design of the Proposed Development, to minimise the visual impact of the development to and from Sydney Harbour; and 2. the development will maintain the existing natural landscape and landform. 1. The Land is identified as a scenic protection area on the Scenic Protection Map under the LEP and cl 6.4 therefore applies to the DA. 2. The parties agree, and I accept, that the Amended Application will minimise the visual impact and improve the overall appearance of the existing buildings to and from Sydney Harbour; further, the updated landscaping design will improve the existing natural landscape and landform. 3. The Court therefore finds that the Proposed Development satisfies cl 6.4 of the LEP.

Landscaped Areas 1. Clause 6.6(3) of the LEP provides that the consent authority may refuse to grant development consent to development involving the erection of a building unless at least the minimum landscaped area specified in the clause is provided for the development. Different landscaped area requirements are specified by cl 6.6(3) for dwelling houses and apartments. No 20 Raglan Street is required to have a total landscaped area of 50% and No 22 Raglan Street is required to have 35%. 2. The total amount of landscaped area required under the LEP is 534.35m2. According to the Statement of Environmental Effects prepared by Ingham Planning dated February 2022, which accompanied the DA, the total proposed landscape area for the Proposed Development is 228m2. 3. While the total proposed landscaped area is less than the required amount under the LEP, the parties agree that the Amended Application achieves an increase in landscaped area across the site which enhances the immediate area and improves access to ground level open spaces for the occupants. 4. I accept the parties' joint position that the Proposed Development's failure to provide the total landscaped area required by cl 6.6 of the LEP does not warrant the refusal of the DA.

Earthworks 1. Clause 6.7(3) of the LEP requires the consent authority to consider a range of factors before granting development consent for earthworks. 2. The parties agree that the proposed excavation is acceptable, and appropriate conditions of consent have been imposed to ensure all construction certificate application plans for excavation and earth works are endorsed by a qualified practising Geotechnical Engineer. 3. On this basis, the Court is satisfied that the requirements of cl 6.7 of the LEP have been met.

The conditions in State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) 1. The Hazards SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated. Section 4.6(2) of the Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4). 2. The Proposed Development does not involve a change of use. The parties also agree that the Site has been used for residential purposes for many years and that there is no history to suggest that it is contaminated. I am satisfied that a preliminary site investigation is therefore not required and that the Site is suitable for its proposed continued use for residential purposes.

The conditions in the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour SREP) 1. The Sydney Harbour SREP was repealed on 1 March 2022. Its operative provisions were transferred to Chapter 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP). Sub-section 30A(2) of the Interpretation Act 1987 (NSW) provides: 'The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.' 2. Chapter 10 of the Biodiversity & Conservation SEPP was repealed on 21 November 2022; however, its provisions continue to apply to the DA by virtue of the savings provision in s 6.65 of the Biodiversity & Conservation SEPP. 3. The Site is within an area mapped as being within the Sydney Harbour Catchment and the Foreshores and Waterways Area and therefore the Biodiversity & Conservation SEPP applies to the Proposed Development. 4. The parties agree, and I accept, that the location of the Site means that the Proposed Development will not impact on views to or from Sydney Harbour and that the other heads of consideration in Div 2 of Pt10.3 do not otherwise arise.

The conditions in the State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Buildings (SEPP 65) 1. The proposed development includes a residential apartment development. SEPP 65 requires consideration and demonstration of the design quality of the development. There are three components to this: 1. Clause 28(2) of SEPP 65 requires: In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration)— (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide. 1. Clause 30(2) of SEPP 65 requires: Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to— (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. 1. Section 29 of the EPA Regulation provides that a development application that relates to residential apartment development must be accompanied by a statement by a qualified designer. The statement by the qualified designer must (s 29(2) of the EPA Regulation): (a) verify that the qualified designer designed, or directed the design of, the development, and (b) explain how the development addresses— (i) the design quality principles, and (ii) the objectives in Parts 3 and 4 of the Apartment Design Guide. 1. The DA was not referred to a design review panel. The Applicant has provided the design verification statement required by s 29 of the EPA Regulation. The design verification statement was prepared by Paul Buljevic, a registered architect, and: 1. verifies that he directed the design of the Proposed Development; 2. explains how the Proposed Development addresses: 1. the design quality principles; and 2. the objectives in Parts 3 and 4 of the Apartment Design Guide. 1. I am satisfied that the Proposed Development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria.

The conditions in the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) 1. Part 3 of the SEPP Housing applies to part of the Site, 20 Raglan St, as a low-rental residential building within the Greater Sydney Region. 2. Section 47(2) of the SEPP (Housing) requires the consent authority to be satisfied of various matters listed in that section where the proposed development relates to a low-rental residential building. Where a reduction of affordable housing is likely or will occur, contributions may be payable as determined by that section. 3. The parties agree, and I accept, that the Proposed Development will result in the reduction of three affordable housing dwellings in the area, and this reduction, will be mitigated by the imposition of an affordable housing condition of consent requiring the payment of a monetary contribution.

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 by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. The Council as the relevant consent authority has approved, under cl 38 of the EPA Regulation, the amendment of the DA in accordance with the plans and documents listed in the following table: Drawing Date Prepared By Basement Plan, DA100, Issue C 23.02.23 PBD Architects Lower Ground Floor Plan, DA101, Issue C 23.02.23 PBD Architects Ground Floor Plan, DA102, Issue C 23.02.23 PBD Architects First Floor Plan, DA103, Issue C 23.02.23 PBD Architects Second Floor Plan, DA104, Issue C 23.02.23 PBD Architects Attic Floor Plan, DA105, Issue C 23.02.23 PBD Architects Roof Plan, DA106, Issue C 23.02.23 PBD Architects Elevation ­ Sheet 01, DA200, Issue C 23.02.23 PBD Architects Elevation ­ Sheet 01, DA201, Issue C 23.02.23 PBD Architects Elevation ­ Sheet 03, DA202, Issue C 23.02.23 PBD Architects Section A, DA300, Issue C 23.02.23 PBD Architects Section B, DA301, Issue C 23.02.23 PBD Architects Section C, DA302, Issue C 23.02.23 PBD Architects Section D, DA303, Issue C 23.02.23 PBD Architects Lower Ground Floor Landscape Plan, Drawing No. 22­1401, L­01, Issue D 14.02.23 Site Design + Studios Ground Floor Landscape Plan, Drawing No. 22­1401, L­02, Issue D 14.02.23 Site Design + Studios First Floor Landscape Plan, Drawing No. 22­1401, L­03, Issue D 14.02.23 Site Design + Studios Planting Details, Drawing No. 22­1401, L­04, Issue D 14.02.23 Site Design + Studios Drainage Layout, Job No. Sy222­003, C401, Rev G 17.02.23 van der Meer Consulting Drainage Details, Job No. Sy222­003, C402, Rev B 09.02.23 van der Meer Consulting Post­Development Catchment Plan, Job No. Sy222­003, C422, Rev C 09.02.23 van der Meer Consulting

Document Date Prepared By Request to Breach the Height Control February 2023 Ingham Planning Request to Wall Height Control February 2023 Ingham Planning Request to Breach the Floor Space Ratio Control February 2023 Ingham Planning Supplementary Heritage Impact Statement 19 January 2023 Weir Phillips Heritage and Planning Car Lift Traffic Review 9 February 2023 MLA Transport Planning

1. The applicant filed the Amended Application with the Court on 15 March 2023. 1. The Court orders that: 1. The clause 4.6 written request prepared by Ingham Planning Pty Ltd dated February 2023 for the variation of the maximum height, wall height and floor space ratio development standards in clauses 4.3, 4.3A and 4.4 of the Mosman Local Environmental Plan 2012 are upheld. 2. The appeal is upheld. 3. Development consent is granted to development application No. 8.2022.00000041.001 for alterations and additions to the existing residential flat building and dwelling house, construction of a basement carpark, swimming pools and landscaping on the land described as Lot 1 DP 922512 and Lot 1 DP 919852 and known as 20 – 22 Raglan Street, Mosman subject to the conditions set out in Annexure A. 4. The applicant is to pay Council's costs thrown away in the agreed sum of $13,000.00 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of this order.

A Bradbury

Acting Commissioner of the Court

Annexure 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: 04 April 2023