Ell v Mosman Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Mosman Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.3A, 4.6, 6.3, 6.4
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pts 6.2, 6.3, ss 6.6, 6.7, 6.8 6.9, 6.10, 6.28
State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11, 2.12, 2.13, 4.6

Cases Cited: Inner West Council v XYZ Services Pty Limited [2025] NSWLEC 68
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited: Mosman Residential Development Control Plan 2012, Mosman Council

Category: Principal judgment

Parties: Robert Ell (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
A Galasso SC (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2025/115147

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Robert Ell (applicant) brings this appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the refusal of Development Application No. 8.2024.293.1 (DA) under the delegation of the Mosman Local Planning Panel. Mosman Municipal Council (Council) is the respondent in the proceedings.

2. The DA, as amended, seeks consent for the demolition of the existing dwelling and the construction of a new dwelling house and swimming pool at 29 Shellbank Avenue, Mosman (site).

Conciliation and agreement between the parties

3. The Court arranged mandatory conciliation between the parties under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 16 and 17 September 2025. I presided over the conciliation conference.

4. The parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the amended DA subject to conditions.

5. 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.

6. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]). Ultimately, I find that there are none. But there are certain statutory questions which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' jurisdictional statement of 17 September 2025 (JS).

Jurisdiction

7. In regard to relevant questions relating to the availability of power to make a decision in accordance with the parties’ agreement, I find as follows:

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Chapter 2 relates to coastal management. Relatedly, part of the site is identified as being within the "Coastal use area" and "Coastal Environment Area". The parties advise that ss 2.10 and 2.11 do not apply as the site is within the Foreshores and Waterways Area within the meaning of Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021. Sections 2.12 and 2.13 provide that a consent authority must not grant development consent to development in coastal zones generally unless it is satisfied that the proposed development is not likely to cause increased risk of coastal hazard, and has taken into consideration the relevant provisions of any certified coastal management program. First, I am advised that no certified coastal management program applies to the site. Second, I am satisfied that the proposal is not likely to cause increased risk of coastal hazards on the land at the site, or other land, based on the advice of the parties to this effect, which references supportive documentation accompanying the DA (JS par 27).

9. Pursuant to Ch 4 and s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I accept the agreed position of the parties that the site has historically been used for residential purposes, and there is no evidence of activity to suggest potential contamination. The parties advise that the Court can be satisfied that the land is not contaminated and that the land is suitable for the proposed use. I find in accordance with this advice and s 4.6(1) does not constrain the grant of consent to the DA.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

10. Chapter 6 relates to water catchments, with the site located within the Sydney Harbour Catchment and the Foreshores and Waterways Area, relevantly. The following findings are relevant in relation to enabling power to grant consent.

11. With respect to Pt 6.2 and development in regulated catchments, I note as follows: mindful of ss 6.6 (in relation to water quality and quantity), 6.7 (aquatic ecology), 6.8 (flooding), 6.9 (recreation and public access) and 6.10 (total catchment management), the parties advise that consideration has been given to relevant matters and that, based on technical material referenced in the JS, the Court can be satisfied that the proposal is satisfactory with respect to the relevant queries (JS pars par 36 items (a)-(e)). I accept this advice and am satisfied with respect to the queries at ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2). I also accept that consultation with respect to s 6.10 is not triggered in this instance given the lack of adverse environmental impact.

12. With respect to Pt 6.3 and foreshores and waterway areas, I note as follows: the parties have considered the relevant matters at s 6.28(1) and see the proposal as positive with respect to each of the nominated matters. The parties also explain in the JS (par 37) that the Court can be satisfied that the DA would retain the current and future demand, functions and character of the harbour and will maintain visual qualities of the foreshore and waterways area. I accept this advice and am satisfied, relevantly, with the matters listed at s 6.28(2).

Mosman Local Environmental Plan 2012 (MLEP)

13. The Site is located within the C4 Environmental Living zone under MLEP, within which dwelling house development is permitted with consent. The parties advise they have had regard to the zone objectives as required under cl 2.3(2) and see the proposal as consistent with them. I also note that demolition is permissible with consent under cl 2.7.

14. Clause 6.4 applies as the land is identified as within a scenic protection area in MLEP mapping. The parties’ agreed advice, mindful of the final amended design of the proposal, is that (JS par 51):

“…The location and design of the dwelling is consistent with existing development on the Site and surrounding properties. The proposed development will not result in adverse visual impacts. The proposed development is otherwise consistent with the existing development in terms of maintenance of natural landscape and landform.”

15. I accept this advice and am satisfied with respect to the matters raised at cl 6.4(3) that measures are being taken to minimise visual impact of the development to and from the Sydney Harbour and that the development will maintain the existing natural landscape and landform.

Contravention of development standards

16. The proposal involves contraventions of development standards with respect to cll 4.3 (with respect to height of buildings) and 4.3A (with respect to wall height). There is also an arguable contravention of cl 6.3 (with respect to foreshore building line). The applicant relies on cl 4.6 (exceptions to development standards), which provide that, subject to certain findings of a consent authority (or the Court in this instance) with respect to cl 4.6(3), consent may be granted even though the development would contravene a development standard.

17. In accordance with the Environmental Planning and Assessment Regulation 2021 (NSW), the DA, as amended, is accompanied by documentation setting out the grounds upon which the applicant seeks to demonstrate the requirements of cl 4.6(3) MLEP have been met with respect to each of these matters. That is to say, the amended application (as indicated in the notation at [28] below and detailed in Annexure B to this judgement), includes revised documentation relevant to these development standard contraventions. As I refer to each in my findings below, I reference the material as follows:

18. Clause 4.6 Variation Request (Height of Building) prepared by Planning Ingenuity 17 September 2025 – at Tab 2 to amended DA (Planning Ingenuity HoB)

19. Clause 4.6 Variation Request (Wall Height) prepared by Planning Ingenuity – at Tab 3 to amended DA (Planning Ingenuity WH)

20. Clause 4.6 Variation Request (Foreshore Building Line) prepared by Planning Ingenuity – at Tab 4 to amended DA (Planning Ingenuity FBL).

21. Council indicates that on the basis of the development application as amended, the applicant has demonstrated that compliance with each of the relevant standards is unreasonable and unnecessary and there are sufficient environmental planning grounds to justify the contravention of the development standard. It will be seen that I agree with the Council in each respect as I make my own findings with respect to this as follows.

22. Clause 4.3 of MLEP indicates a maximum building height control of 8.5m. A maximum wall height of 11.577m is proposed. With respect to the height of buildings contravention, I find that the applicant has demonstrated that:

23. Compliance with the development standard is unreasonable and unnecessary in the circumstances. This is through the Planning Ingenuity documentation working through each of the objectives of cl 4.3 and demonstrating they are relevantly satisfied (Planning Ingenuity HoB pp 13-14). That is, I accept the submitted opinions in Planning Ingenuity HoB with respect to each of the relevant objectives. The applicant has demonstrated that there is no need for strict compliance with the standard because the objectives of the clause have been achieved in any event. It will be seen that this approach (the first Wehbe “way” under the findings of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 at [42]-[43]) is followed in each of the documents prepared by Planning Ingenuity with respect to the development standard contraventions.

24. There are sufficient environmental planning grounds to justify the contravention. This is through the Planning Ingenuity documentation’s demonstration that the building height breach is largely a result of previously excavated ground level on the site. That is the previous benching which has occurred provides something of an anomaly when the overall topography in the area is considered. For me a second important planning ground, raised in the documentation, relates to local development characteristics in this particular locality (noting the “Locality Context Photos” at Annexure A to the documentation, suggesting the proposal would not be seen as out of context).

25. Clause 4.3A of MLEP indicates a wall height control of 7.2m. While there is considerable variance a maximum wall height of 11.577m is indicated. With respect to the wall height contravention, I find that the applicant has demonstrated that:

26. Compliance with the development standard is unreasonable and unnecessary in the circumstances. This is through the Planning Ingenuity documentation working through the objectives of cl 4.3A and demonstrating they are relevantly satisfied (Planning Ingenuity WH pp 7-10). That is, I accept the submitted opinions in Planning Ingenuity WH with respect to each of the objectives. The applicant has demonstrated that there is no need for strict compliance with the standard because the objectives of the clause have been achieved in any event.

27. There are sufficient environmental planning grounds to justify the contravention. The Planning Ingenuity WH documentation satisfies me essentially on the same two grounds indicated above. That is that: (1) the previous site benching exaggerates the proposed wall height and (2) the proposal would not be inconsistent with development characteristic of this particular locality in this respect.

28. Clause 6.3 of MLEP relates to development in the foreshore area. MLEP indicates a foreshore line running parallel to the northern or waterway boundary to the site. The proposal involves building work within this foreshore area, which may be perceived as contravening cl 6.3(2). I note otherwise findings of Preston CJ that foreshore building lines of similar form to this do constitute a development standard (Inner West Council v XYZ Services Pty Limited [2025] NSWLEC 68 at [35]). With respect to this, I find that the applicant has demonstrated that:

29. Compliance with the development standard is unreasonable and unnecessary in the circumstances. This is through the Planning Ingenuity documentation working through the objectives of cl 6.3 and demonstrating they are relevantly satisfied (Planning Ingenuity FBL p 15). That is, I accept the submitted opinions in Planning Ingenuity FBL with respect to each of the clause objectives. The applicant has demonstrated that there is no need for strict compliance with the standard because the objectives of the clause have been achieved in any event.

30. There are sufficient environmental planning grounds to justify the contravention. The Planning Ingenuity FBL documentation satisfies me of this through its explanation that the proposal replaces a building that already encroaches and goes no further forward than the existing and that the proposal provides for a significant increase in landscaped area within the foreshore.

31. The parties advise there are no other development standard breaches and that the floor space ratio development standard is met.

Other provisions of s 4.15(1) of the EPA Act

23. I note the parties advise that they have given consideration to the various provisions of the Mosman Residential Development Control Plan 2012 and are satisfied that the DA, as now amended, either complies with the relevant controls or that sufficient justification has been provided in relation to any non-compliances.

24. I also note the parties advise the proposal was notified in accordance with requirements and one objecting submission was received in regard to the proposal, which has been provided to the Court (included behind Tab 5 of Council’s Bundle of Documents filed on 9 September 2025). Council advises that it has considered the submission. Relevant to this objecting submission, I also note that the planning experts reviewed the contention relating to view loss and found, jointly, that the view implications of the proposal were not unreasonable (Joint Expert Town Planning Report filed 8 August 2025 p 3).

Conclusion

25. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. It follows that I am required to dispose of the proceedings in accordance with the parties’ decision.

26. 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.

27. 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

28. The Court notes:

29. The Respondent, Mosman Municipal Council, as the relevant consent authority, agrees, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application 8.2024.293.1 to include the documents set out in Annexure B.

30. The Applicant provided the amending Development Application to the Court on 17 September 2025.

Orders

29. The Court orders that:

30. The Applicant is granted leave to amend Development Application No. 8.2024.293.1 in accordance with the plans and documents in Annexure B.

31. The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the height of building development standard, prepared by Planning Ingenuity, is upheld.

32. The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the wall height development standard, prepared by Planning Ingenuity, is upheld.

33. The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012, to vary the foreshore building line development standard, prepared by Planning Ingenuity, is upheld.

34. The appeal is upheld.

35. Development Application No. 8.2024.293.1, as amended, for the demolition of existing structures and construction of a new dwelling including garage, tree removal, landscaping, swimming pool and associated works at 29 Shellbank Avenue, Mosman, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

……………………

P Walsh

Commissioner of the Court

Annexure A (263 KB, pdf)

Annexure B (108 KB, pdf)

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