El Hazouri v Mosman Municipal Council

Representation: Counsel:
G McKee (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)
Solicitors:
McKee Legal Solutions (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2025/5331

Publication restriction: Nil

Judgment

1. COMMISSIONER: Development consent was granted to DA 8.2019.164.1 by the Land and Environment Court on 27 April 2021 for the demolition of existing structures and construction of a four-storey dwelling at 20 Stanton Road, Mosman: Hazouri v Mosman Municipal Council [2021] NSWLEC 1196.

2. Modification Application No. 8.2019.164.2 now seeks to modify the consent to DA 8.2019.164.1 pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which enables the Court to modify a consent granted by it. These proceedings relate to this modification application.

3. The parties advise that the modification application as filed with the Court seeks to amend the consent as follows (Statement of Jurisdictional Prerequisites provided to the Court on 27 August 2025 (SJP) par 8):

“Ground Floor: Increased depth of lounge room and amenities, relocate lift core and stairs, modify layout of bathroom and add sauna.

Level 01: Increase depth of bedrooms introducing two new ensuites, expansion of ensuite for Bed 1, expansion of laundry, relocate lift core and stairs.

Level 02: Increase floor area of study, increase depth of master bedroom and walk-in-robe, relocate lift core and stairs

Level 03: Realign garage façade and walls, reshape and increase floor area of living/dining room, alter terrace size and shape, relocate lift core and stairs, relocate powder, change entry pathway and expand foyer

Roof: Alter roof profiles including increased projection to the south east.

Amend Condition 1 (to reflect amended plans).”

4. After discussions between the parties, certain changes to the particulars have been proposed by the applicant. An application to amend the modification application pursuant to s.113(1) of the Environmental Planning and Assessment Regulation 2021 has been made by the applicant which has been approved by Council (see notation at [15]. The changes are indicated to include (SJP par 9):

“Ground Floor: Reduced the area of dining room, lounge and sauna.

Level 01: Reduced the area of Bed 1 ensuite and laundry and amended privacy screens

Level 02: Reduced the area of ensuite and laundry and amended privacy screens

Level 03: Reduced the area of dining and living room and amended privacy screens

Roof: The roof design has been amended to be consistent with the Consent design with the exception of the section of roof over the increased floor plate at Level 03.”

Conciliation and agreement reached between the parties

5. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conference was held on 24 June 2025. I was appointed to preside. After more time was given, the parties have advised the Court that an agreement has been reached in regard to the modification application. This agreement, based on certain agreed amendments, provides for the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving the modification application.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined matters of relevance in these proceedings in the SJP, which in part I rely on below.

Jurisdiction

7. The parties agree that it is within the Court’s power to uphold the appeal and approved the modification to the development consent as now amended. The matters requiring attention before such power is enabled are addressed below. The focus is ss 4.55(2) and (3) of the EPA Act, which I reproduce below, relevantly:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

…

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

8. Having regard to s 4.55(2)(a) of the EPA Act, the parties advise of their agreed position that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. The parties’ reasoning behind this decision as put in the SJP (par 13):

“• The proposal remains an application seeking the construction of a dwelling house on the subject allotment,

• The previously approved building height outcomes are maintained as is compliance with the FSR standard notwithstanding the increase in GFA proposed,

• The height, bulk and scale of the building and its appearance, envelope and volume as perceived from adjoining properties and the public domain are not materially altered,

• The modifications maintain the previously approved residential amenity outcomes in terms of views, privacy, visual bulk and overshadowing,

• The development continues to provide appropriately for carparking, landscaping and stormwater disposal.”

9. I accept this argument and am satisfied with respect to s 4.55(2)(a).

10. With respect to s 4.55(2)(b) of the EPA Act, the parties advise and I accept that none of the conditions proposed to be modified by way of the modification application were imposed as a requirement of a concurrence to the Consent, or in accordance with any general terms of approval.

11. With respect to s 4.55(2)(c) of the EPA Act, the parties advise that the proposal was notified in accordance with requirements and three submissions were received. The parties agree that the matters raised by the submitters have been both taken into consideration and appropriately addressed through the amended plans and agreed conditions of consent (SJP par 41).

12. The rest of the statutory considerations in s 4.55(3) of the EPA Act involve further considerations of those matters in s 4.15(1) of the EPA Act and reasons given by the consent authority for the grant of the consent that is sought to be modified. In the SJP, the parties provide a working through of the relevant provisions of environmental planning instruments and how requirements are addressed. I note these points in relation to the consideration of such matters by, in particular, Council as the consent authority. But there is no requirement for a finding of the Court with respect to them in this judgement. This is for two reasons. First, is that mindful of McMillan v Taylor [2023] NSWCA 183; (2023) 11 NSWLR 634 (at [62]-[65]), the question to be attended to in actioning s 34 agreements is whether there is a jurisdictional constraint to the Court’s exercise of power in accordance with the parties’ agreement, and these requirements for “consideration” are not to be thought of as jurisdictional constraints. Second, is that in North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468; [1998] NSWSC 163 (Michael Standley) (at pp 480-481), the Court of Appeal found that (now) s 4.55 of the EPA Act is a “free-standing provision”, released from statutory restrictions that apply under s 4.2(1)(b) of the EPA Act. As made clear in Michael Standley (at 481C), this does not mean the provisions of relevant environmental planning instruments are to be ignored, only that they do not by their construction provide a statutory bar; a relevant question for judgements relating to s 34 agreement matters.

Conclusion

13. In accordance with the above, I am satisfied that the jurisdictional pre-requisites have been met, and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

15. The Court notes that

16. Mosman Municipal Council as the relevant consent authority has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the modification application number 8.2020.164.2 in accordance with the plans and documents listed below:

| 1 Plan No. | Revision No. | Plan Title | Drawn By | Dated | | A0000 | F | Cover Sheet | Texco Design | 18/07/2025 | | A0001 | F | Project Summary | Texco Design | 18/07/2025 | | A0002 | F | Perspective 01 | Texco Design | 18/07/2025 | | A0010 | F | Context Plan | Texco Design | 18/07/2025 | | A0012 | F | Approved Demolition Plan | Texco Design | 18/07/2025 | | A0013 | F | Site Analysis | Texco Design | 18/07/2025 | | A0014 | F | Site Plan | Texco Design | 18/07/2025 | | A0015 | F | Front Setback Analysis | Texco Design | 18/07/2025 | | A0016 | F | Excavation Diagram | Texco Design | 18/07/2025 | | A0100-M | F | Ground Floor Modification Plan | Texco Design | 18/07/2025 | | A0101-M | F | Level 01 Modification Plan | Texco Design | 18/07/2025 | | A0102-M | F | Level 02 Modification Plan | Texco Design | 18/07/2025 | | A0103-M | F | Level 03 Modification Plan | Texco Design | 18/07/2025 | | A0104-M | F | Roof Modification Plan | Texco Design | 18/07/2025 | | A0100 | F | Ground Floor Proposed Plan | Texco Design | 18/07/2025 | | A0101 | F | Level 01 Proposed Plan | Texco Design | 18/07/2025 | | A0102 | F | Level 02 Proposed Plan | Texco Design | 18/07/2025 | | A0103 | F | Level 03 Proposed Plan | Texco Design | 18/07/2025 | | A0104 | F | Roof Proposed Plan | Texco Design | 18/07/2025 | | A0200 | F | North Elevations (Stanton Rd) | Texco Design | 18/07/2025 | | A0201 | F | South Elevation (Side) | Texco Design | 18/07/2025 | | A0202 | F | East Elevation (Side) | Texco Design | 18/07/2025 | | A0203 | F | West Elevation (Side) | Texco Design | 18/07/2025 | | A0204 | F | Front Fence Elevation | Texco Design | 18/07/2025 | | A205 | F | Screen Detail | Texco Design | 18/07/2025 | | A0300 | F | Sections A | Texco Design | 18/07/2025 | | A0301 | F | Sections B | Texco Design | 18/07/2025 | | A0302 | F | Sections C | Texco Design | 18/07/2025 | | A0401 | F | GFA Diagrams | Texco Design | 18/07/2025 | | A0402 | F | Sight Line Comparison Diagram | Texco Design | 18/07/2025 | | A0403 | F | Shadow Diagram – Winter Solstice 9AM | Texco Design | 18/07/2025 | | A0404 | F | Shadow Diagram – Winter Solstice 10AM | Texco Design | 18/07/2025 | | A0405 | F | Shadow Diagram – Winter Solstice11AM | Texco Design | 18/07/2025 | | A0406 | F | Shadow Diagram – Winter Solstice 12PM | Texco Design | 18/07/2025 | | A0407 | F | Shadow Diagram – Winter Solstice 1PM | Texco Design | 18/07/2025 | | A0408 | F | Shadow Diagram – Winter Solstice 2PM | Texco Design | 18/07/2025 | | A0409 | F | Shadow Diagram – Winter Solstice 3PM | Texco Design | 18/07/2025 | | A0500 | F | External Finishes and Materials | Texco Design | 18/07/2025 | | A0550 | F | 7.2 Height Plan Approved DA – SW&SE | Texco Design | 18/07/2025 | | A0551 | F | 7.2 Height Plan Proposed -SW & SE | Texco Design | 18/07/2025 | | A0552 | F | 8.5 Height Plan Approved DA – SW & SE | Texco Design | 18/07/2025 | | A0553 | F | 8.5 Height Plan Proposed – SW & SE | Texco Design | 18/07/2025 | | A0600 | F | Door Schedule | Texco Design | 18/07/2025 | | A0610 | F | Window Schedule | Texco Design | 18/07/2025 | | L100 G | G | Landscape Concept Plan | Spirit Level Designs Pty Ltd | 08/07/2025 |

| Document Title | Version No. | Prepared by | Dated | | Traffic Assessment | | Genesis Traffic | 18/07/2025 | | View Impact Assessment | A | Bonus + Associates | 15/07/2025 | | Geotechnical Investigation & Slope Risk Assessment | | Morrow Geotechnics Pty Ltd | 30/06/2025 | | BASIX Certificate No. 1046258S_04 | | ECO Certificates Pty Ltd | 19/08/2025 |

Orders

16. The Court orders that:

17. The Applicant is granted leave to file the Amended Modification Application No. 8.2020.164.1 referred to at [15].

18. The Appeal is upheld.

19. Development Consent No. 8.2020.164.1 is modified in the terms in Annexure 'A'.

20. Development Consent 8.2020.164.1 as modified by the Court is Annexure 'B'.

P Walsh

Commissioner of the Court

Annexure A (292 KB, pdf)

Annexure B (411 KB, pdf)

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