Ahearne v Mosman Municipal Council

Is the contravention of the FSR development standard justified? (Contention 2)

1. The Applicant relies on a written request pursuant to cl 4.6 of the MLEP to justify the contravention of the FSR development standard of 0.5:1 pursuant to cll 4.4 and 4.4A of the MLEP prepared by Boston Blyth and Fleming Town Planners dated 5 September 2022 (Written Request) (Ex G).
2. The experts have agreed that the Written Request is well founded (JER p 11) however, the issue of whether an applicant's written request has adequately addressed the matters required by cl 4.6(3) of the MLEP is a jurisdictional prerequisite in any proceedings where a proposed development contravenes a development standard. The Court must consider the Written Request and be satisfied that the Written Request adequately addresses the matters required by cl 4.6 of the MLEP which I set out below: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
3. I note that there is an analysis of a previous cl 4.6 written request dated March 2022 at folio 203 of the Bundle (Ex 3) however I do not give this much weight, if any, as the Written Request is the relevant document in evidence for consideration by the Court pursuant to cl 4.6 of the MLEP.
4. As the Site is C4 Environmental Living zone and the lot size of the Site is less than 700m², the FSR development standard is 0.5:1. The actual lot size of the Site is 423.1m² and can correctly be considered an under sized lot however, the Respondent submits that such a characteristic limits development potential of the Site (Respondent Written Submissions at 1.11).
5. It is agreed by the town planning experts that the existing dwelling exceeds the FSR permitted under the MLEP. Based upon the current C4 Environmental Living Zoning (now applying to the entirety of the Site), the experts agree that the existing FSR is 0.517:1. The experts also agree that the Proposed Development has an FSR of 0.567:1, with the extent of the FSR non-compliance increased from 3.4% to 13.4%. (JER, at 2.1.2, Ex 2)
6. The Applicant submits that the FSR exceedance is minor to the extent that the proposed physical increase is measured as an additional floor space area of 20m² to the dwelling. Although I agree that the proposed increase is not a significant or large increase to the floor space area of the dwelling, I accept the Respondent's submission that as the exceedance is greater than 10% it should not be categorised as a minor exceedance. The Court was referred to the Planning Circular PS20-002, issued by the Department of Planning and Environment on 5 May 2020 where the Secretary of the Department provided written notice that concurrence (cl 4.6(5) MLEP) can be assumed subject except when the contravention is by more than 10%. The rationale for this limitation is detailed in the Planning Circular as follows: "The purpose of the restriction on assumed concurrence for variations of numerical and nonnumerical standards applying to delegates is to ensure that variations of this nature are considered by the council or its independent hearing and assessment panel and that they are subject to greater public scrutiny than decisions made by council staff under delegation. In all other circumstances, delegates of a consent authority may assume the Secretary's concurrence in accordance with the attached written notice."
7. The Court has power to uphold a cl 4.6 request without the concurrence of the secretary and the matters in cl 4.6(5) are relevant considerations.
8. I acknowledge that the Applicant's submission that the increase to the FSR is "minor" is limited to the reference to the 20m² additional floor space and not in the sense used in the Planning Circular (Transcript 21 September 2022, p 19 at par 10). The total FSR exceedance is 13.4% however, I note that the existing FSR exceedance is already at 3.4% and the proposed increase is a further 10%. For the purpose of my determination, I consider the total FSR exceedance to be the relevant percentage.
9. As a jurisdictional prerequisite, in order for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) of the MLEP requires that the Court, in exercising the functions of the consent authority, be satisfied that: 1. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); 2. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)); and 3. The proposed development will be in the public interest because it is consistent with the objectives of the zone and with the objectives of the standard in question (cl 4.6(4)(a)(ii)). (Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action"))
10. The onus is on the Applicant making the request to satisfy the consent authority that the Written Request seeking to justify the contravention of the development standard is well-founded (Wehbe v Pittwater Council [2007] NSWLEC 827 at [38] ("Wehbe"))

Has the Written Request demonstrated that compliance with the FSR development standard is unreasonable and unnecessary in the circumstances of this case? (cl 4.6(3)(a) MLEP)

1. The Written Request relies on the first of the methods detailed in Webhe, namely that compliance with the FSR development standard is unreasonable and unnecessary in the circumstances of the case because the Proposed Development is consistent with the objectives of the FSR development standard notwithstanding its contravention.
2. Mr Nash has provided his expert opinion evidence in the JER as I have set out above at par [12] and my satisfaction that contention 1 has been resolved.
3. The Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters (Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130). I have considered the Written Request and have separately formed the same opinion that the Proposed Development is consistent with the objectives of the FSR Development Standard.
4. The objectives of the FSR development standard are those identified in cl 4.4 of the MLEP which are as follows: "(i) to ensure that buildings are compatible with the desired future character of the area in terms of the building bulk and scale, and (ii) to provide a suitable balance between landscaping and build form, and (iii) to minimise the effects of bulk and scale of the buildings, (iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off."
5. In relation to the first objective, the Written Request refers to the relevant desired future character is reflected in the planning controls applicable to the Balmoral Townscape, which sets out relevant criteria in terms of building form and design (bulk and scale). Those controls are on p 8 of the Written Request. Matters relating to streetscape are also extracted on p 9 of the Written Request. The proposed additional floor space is located to the rear of the property and well below the 8.5 metre prescribed building height. The additional non-compliant floor space will not be readily discernible in a streetscape context or when viewed from Middle Harbour. Finally, at p 9, the Written Request notes and I agree that "notwithstanding the FSR non-compliant build form elements, the proposal is consistent with this objective."
6. In relation to the second objective, the additional non-compliant floor space is located wholly over the established footprint and can either be considered to be not relevant or to the extent that the objective is relevant the Proposed Development is consistent with it.
7. As the fourth objective is not applicable, the third objective is considered in detail in the Written Request and makes observations regarding the potential effects of bulk and scale to relate to streetscape, foreshore scenic protection, visual massing, privacy, overshadowing and view loss outcomes at p 10 to 23. These observations include the four-step view loss analysis in accordance with pt 4.3 of the MRDCP which is the most relevant issue in the context of this objective.
8. The evidence set out in the Written Request addresses the loss of view from the main bedroom and home office and the provision of a view corridor from the rear living room picture window (depicted in figure 2, p 15 and figure 3, p 16). The view impact is described as minor in the context of the totality of views retained and regained from living rooms and entertaining areas on the property: see P5. The view impacted from the main bedroom window is immediately across a side boundary and is one that is not protected by the relevant DCP planning control P5 (p 22). The objection concludes (p 22) that the potential view impacts have been minimised to the appropriate distribution and landscaping on the Site. I come back to view impacts briefly in Contention 3 below.
9. I am therefore satisfied that the Written Request adequately demonstrates that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case because the Proposed Development is consistent with the objectives of the FSR Development Standard (MLEP cl 4.6(3)(a) and cl 4.6(4)(a)(i)).

Has the Written Request demonstrated that there are sufficient environmental planning grounds to justify contravening the FSR development standard? (cl 4.6(3)(b) MLEP)

1. The three environmental planning grounds relied upon by the Applicant are summarised at [23] of the Applicant's written outline of submissions and these environmental planning grounds are detailed in the Written Request. The Written Request identifies the following three environmental planning grounds (Ex G, p 28): 1. Ground 1: The additional floor space provides for the orderly and economic use and development of an undersized allotment, and 2. Ground 2: Enhanced view sharing, and 3. Ground 3: Objectives of the Act (Transcript 20 September 2022, p 23)
2. The focus is on the aspect of the development which exceeds the standard and not the development as a whole and the grounds must justify the contravention, not just simply promote the benefits of carrying out the development as a whole (STM 123 No 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 at [82] ("the STM case")).
3. Ground 1 notes that the undersized nature of the allotment, when considering the quantum of FSR proposed, is well below that considered reasonable for a minimum sized allotment under the Mosman planning controls. In addition, the proposed development maintains a compliant 30% landscaped area in strict accordance with cl 6.6 MLEP. Ultimately, the author of the written objection concludes: - (i) "Under such circumstances, approval of the variation will facilitate the provision of a reasonable quantum of floor space on this undersized allotment, which does not defeat the objectives of the FSR standard, and which promotes the orderly and economic use and development of the particular site (objective 1.3(c) of the act A)."
4. Ground 2, which notes the enhanced view sharing outcome for No 41 Mandolong Road, has been addressed above and given the central role of view sharing in the MRDCP, is a sufficient planning ground to justify the variation to cl 4.4 floor space ratio development standard.
5. The cl 4.6 objection notes that the existing development at No 41 Mandalong Road has the ability to provide for an additional 55.51m² of floor space potentially in the form of upper-level additions. From this, view across No 43 Mandalong Road towards the harbour and its immediate environs would be obtained.
6. Ground 3 deals with the objectives of the Act being met by the proposed development.
7. There is no definition of environmental planning grounds in the EPA Act or the MLEP.
8. The Applicant makes submissions in relation to the building envelope and refers to the Written Request at p 29 which provides as follows: "I also note that the non-compliant floor space sits well below the 8.5 metre overall building height and 7.2 metre wall height standards and are compliant with the applicable setback provisions. That is, the additional non-compliant floor space is located within an otherwise compliant building envelope notwithstanding the undersized nature of the allotment."
9. The Respondent notes that the height of buildings and FSR development standards under the MLEP provide maximum heights and maximum FSR and these do not present as entitlements to achieve the maximum development potential able to be approved (Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191, Moore J at [24]-[26]). "Building envelopes 24. The LEP prescribes standards for the maximum floor space ratio; minimum subdivision lot size; and height of the development that is capable of being permitted for the site. This has the effect of defining a building envelope capable of being granted development consent without the requirement for any dispensation pursuant to cl 4.6 of the LEP for non-compliance with any development standard. It is to be observed, however, that such a building envelope is a maximum and not an entitlement. 25. Consideration of the extent to which development will be permitted within such a maximum building envelope is tempered by other considerations arising from matters such as the objectives of the zone; any issues arising out of specific provisions in the LEP relating to, for example, heritage matters; and the fine-grained controls set out in the DCP. 26. There is no entitlement to achieve the maximum development potentially able to be approved having regard to the development standards in the LEP. In this regard, comments made in the cl 4.6 request, and in the oral evidence concerning it on behalf of the Applicant, require subsequent examination."
10. I agree with and accept the Respondent's submission that development standards and building envelopes provide for maximums and that there is no entitlement to achieve those maximums. Nevertheless, I am not satisfied that the Applicant, in the Written Request, is seeking an entitlement to achieve those maximums, rather, there is a contextual description and analysis of the Site as an undersized allotment in an area where other controls may otherwise apply.
11. In relation to grounds 1 and 3, the Respondent notes that the Court has previously held that outcomes of a proposal do not equate to justifications for a breach and are not a sufficient environmental planning ground.
12. In relation to ground 2, the Respondent notes that the Written Request states the following on p 30: "Approval of the application which includes the removal of the 5 Tuckeroo trees adjacent to the rear boundary of No 43 Mandalong Road…"
13. Similarly, the Respondent notes that 1. the Applicant's solicitor in his closing oral submissions referred to the "total package" being offered by the applicant; and 2. the acceptability of this overall outcome is addressed by the Respondent's town planning expert who states in the JER that "the removal of the five Tuckeroo trees in the rear yard of No 43 will be a positive outcome…"
14. The Respondent submits that when assessing the Written Request, the Court is required to determine whether the grounds advanced justify the exceedance, as opposed to what may be overall benefits and/or outcomes of the proposal.
15. The Respondent referred the Court to a recent decision of Acting Commissioner Clay in the STM case. Although this decision is a useful summary, I am not bound by that decision and to determine this matter I have relied on the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action") where Preston CJ deals with environmental planning grounds at [23] and [24] as follows: "[23] As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. [24] The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]."
16. The Written Request includes conclusions at p 29 in relation to Ground 1, namely that the additional floor space provides for the orderly and economic use and development of an undersized allotment. Firstly, I am satisfied and note that the parties agree that the Site can be categorised as an undersized allotment. Secondly, I am satisfied that the Written Request focuses on the element of the development that contravenes the FSR development standard and that the Written Request does not rely on the overall benefits and/or outcomes of the proposal. The conclusion on p 29 reads as follows: "the design and siting of the additional floor space minimises the adverse effects associated with bulk and scale of buildings (objective 1(a)(iii) of FSR standard) with the proposal not resulting in any unreasonable adverse effects as detailed within this variation request document." Further, the additional floor space does not require any additional excavation or site disturbance with the established landscape and stormwater drainage regimes maintained (objective 1(a)(iv) of FSR standard. … Approval of the variation will facilitate the provision of a reasonable quantum of floor space on this undersized allotment which does not defeat the objectives of the FSR standard and which promotes the orderly and economic use and development of this particular site (objective 1.3(c) of the [EPA] Act"
17. In the decision of Initial Action, it is relevant to note that Preston CJ said at par [25] as follows: "[25] The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38]."
18. Having read and carefully considered the Written Request together with the submissions of the parties, I conclude that I have considered the Written Request from the Applicant that seeks to justify the contravention of the development standard by demonstrating that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) MLEP) and I am satisfied that the Applicant's Written Request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(b) (cl 4.6(4)(a)(i) MLEP).

Is the proposed development in the public interest because it is consistent with the objectives of the zone and with the objectives of the standard in question?

1. In relation to the public interest, Preston CJ in Initial Action said at par [26] and [27] as follows: "[26] The second opinion of satisfaction, in cl 4.6(4)(a)(ii), is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii). [27] The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii)."
2. I have considered the consistency of the Proposed Development with the objectives of the C4 Environmental Living Zone in relation to Contention 1 above at par [12].
3. The consistency of the Proposed Development with the objectives of the FSR development standard is addressed in the Written Request at p 8. The relevant objectives of the FSR development standard are at cl 4.4 (1) of the MLEP as follows: 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living - (i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and (ii) to provide a suitable balance between landscaping and built form, and (iii) to minimise the adverse effects of bulk and scale of buildings, (iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off
4. The Site is located within the Balmoral Townscape which includes a number of planning controls reflecting the desired future character (DFC) of the area in terms of bulk and scale. The achieving the DFC is also an objective of the C4 zone but limited to height and scale. The Balmoral Townscape controls include building form and design, streetscape and views. The Written Request responds to these in detail from pp 8 to 24 including a view impact assessment in accordance with pt 4.3 of the MRDCP. I come back to view loss below as it relates to Contention 3).
5. The Written Request concludes at p 24 that "the non-compliant building in terms of FSR will achieve the objectives of the standard to at least an equal degree as would be the case with a development that complied with the FSR standard."
6. I am satisfied that the Proposed Development would be in the public interest because it is consistent with the objectives of the FSR development standard and with the objectives for development within the zone in which the development is proposed to be carried out
7. The Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cll 4.4 and 4.4A of the MLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

View loss impacts assessment pursuant to the view sharing provisions of Part 4.3, MRDCP (Contention 3)

1. The MRDCP includes specific view sharing provisions at pt 4.3 and as such the planning principle in Tenacity has no role to play. Planning principles are not legally binding and they do not prevail over councils' plans and policies. Planning principles assist when making a planning decision, including: 1. where there is a void in policy 2. where policies expressed in qualitative terms allow for more than one interpretation 3. where policies lack clarity.
2. The experts agree that the views currently available from the adjoining residence at No 41 Mandolong Road are as follows (JER, p 4): 1. Living/dining room/kitchen: No scenic view available to the north-east over the side boundary to Middle Harbour as obscured by Tuckeroo trees located adjacent to the rear boundary of No 43 Mandolong Road. 2. Kitchen: Standing view to the south-east over rear boundary and Queenwood School to Balmoral Beach including land/water interface 3. Main bedroom and home office: Standing view to the north-east over side boundary and the roof of the single storey portion of the dwelling on No 43 Mandalong Road to Middle Harbour, including land/water interface, bushland at Dobroyd Heard, Grotto Point and Sydney Harbour National Park and district views of Balgowlah Heights 4. Private open space (adjoining living room): No scenic view available to the north-east over the side boundary due to Tuckeroo trees located adjacent to the rear boundary on No 43 Mandolong Road and 5. Private open space adjacent to the rear boundary: Standing and seated view available across the rear boundary to the south-east towards Balmoral Beach including land/water interface.
3. The experts agree that the proposed first floor addition at the rear of 43 Mandolong will: 1. result in the loss of the view of Middle Harbour and bushland at Dobroyd Head from within the main bedroom/home office at No 41 Mandolong Road. 2. Not impact the view of Balmoral Beach from the kitchen and the private open space adjacent to the rear boundary.
4. The experts agree that the removal of the 5 Tuckeroo trees adjacent to the rear boundary of No 43 Mandolong Road will significantly improve the amenity and outlook of the rear principal living area of No 41 Mandolong Road by re-opening the view corridor to the north-east to Middle Harbour and Dobroyd Heard and Grotto Point previously enjoyed prior to the planting of the trees (JER, p 6).
5. Mr Nash's expert opinion is that "in terms of the Applicants formal offer in the SOFAC in Reply to remove the five Tuckeroo trees from the rear yard of No 43 thereby enabling the re-opening the view of Middle Harbour north-east from the principal living room of No. 41 and a partial view from the adjoining outdoor private open space will be consistent with the view sharing objectives and controls under pt 4.3 of the MRDCP. In KN's view the balance between the re-opening of water views of Middle Harbour from the principal living room outweighs the loss of the water views from the main bedroom/home office." (JER, p 12).
6. The Applicant's cl 4.3 Written Request deals with the view sharing provisions of pt 4.3 of the MRDCP and Mr Boston notes that 'this is a position agreed between the experts" (JER, p 12).
7. The conclusion as to view sharing in the Written Request reads as follows on p 23: "I have formed the considered opinion that both a public and private view sharing outcome has been achieved in accordance with the section 4.3 MRDCP view sharing provisions. Under such circumstances, I am satisfied that potential view impacts have been minimised through the appropriate distribution of floor space and landscaping on this site."
8. I find, for the reasons given by the experts in the Written Request and the JER, that the Proposed Development is consistent with the view sharing objectives and controls under pt 4.3 of the MRDCP.

Merit assessment s 4.15 EPA

1. The final Contention 4 relates to a merit assessment regarding amenity, overshadowing and natural light. There are no matters not agreed between the experts in relation to amenity contention 4. The experts agree as follows (JER, p 13): "The experts agree that north-easterly facing Window 1 to the Living/Dining room at 41 Mandolong Road will receive at least 3 hours of direct sunlight between 9 am to 3 pm, mid-winter, thereby complying with Planning Control P4 at Section 5.8 Solar Access in the Mosman DCP 2012. The experts note that whilst the proposal will remove direct sunlight from the Main Bedroom/Home Office window W2 between 9.00 - 10.30 am that a reasonable level of solar access is maintained to this window between 10.30 am and approximately 2.15 pm on 21 June."
2. At p 14 of the JER the experts further agree that "the re-opening of the views of Middle Harbour from the principal living room of No 41 will have a greater benefit to the amenity and outlook for No 21 than the loss of views from the main bedroom/home office. And be consistent with the view sharing outcomes under the Mosman DCP."
3. I find that Contention 4 is resolved.

Conclusion and findings

1. For the reasons given in this judgment I conclude that the Proposed Development warrants a grant of development consent subject to the conditions of consent at annexure A.
2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings that have not already been satisfied above are cl 6.4 Scenic Protection and s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.
3. I have read the Statement of Environmental Effects filed with the Class 1 Application dated March 2022 (Ex E) and am satisfied that these provisions are complied with and that there is no jurisdictional impediment to the Court to grant consent to the Proposed Development.

Notations:

1. The Court notes that: 1. the Respondent council agrees, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the Development Application amendment as follows: 1. DA07 and DA08 Landscape Plans (Ex L) 2. Cl 4.6 Written Request dated 20 September 2022 3. Shadow Diagrams 1. The amending documents have been uploaded onto NSW Planning Portal and has been filed with the Court on 20 and 21 September 2022

Orders:

1. The Court orders: 1. The appeal is upheld. 2. Development application no 8.2022.98.1 seeking development consent for alterations and additions to a dwelling house (the Proposed Development) at 43 Mandolong Road Mosman, legally described as Lot 1 in Deposited Plan 117082 is determined by granting consent to the application subject to the conditions in Annexure A). 3. All Exhibits are retained.

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: 12 January 2023