Fuda v Mosman Municipal Council

Category: Principal judgment

Parties: Kara Fuda (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
L Nupuri (Applicant)
R McCulloch (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers (Respondent)

File Number(s): 2025/135058

Publication restriction: Nil

JUDGMENT

1. Plunkett Road is elevated above Balmoral Beach with panoramic views over The Esplanade below to Sydney Harbour beyond.

2. Development is proposed on a site at 30 Plunkett Road, Mosman. More specifically, Modification Application 8.2023.305.3 seeks to amend Development Consent 8.2023.305.1 that granted consent for the demolition of an existing dwelling and the construction of a new dwelling and swimming pool (the original consent).

3. The modification application, lodged by the Applicant in these proceedings, Ms Kara Fuda, now seeks the following modifications to the original consent:

4. Changes to external stairs to the east;

5. Location and layout of plant room for buildability; and

6. Doors and joinery relocated.

7. The original consent was granted by Mosman Municipal Council on 21 August 2024, and the modification application was lodged on 21 February 2025.

8. The Council publicly notified the modification application from 3 March 2025 to 17 March 2025, in accordance with the Mosman Community Participation Plan.

9. As the modification application was not otherwise determined at the time, the Applicant appealed its deemed refusal on 9 April 2025, under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

10. The appeal was listed for mandatory conciliation on 22 September 2025 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act).

11. The conciliation commenced with an onsite view, after which the conciliation conference then reconvened at Court where without prejudice discussions were held. The Applicant agreed to amend the proposal, subject to a short adjournment to prepare amended plans.

12. Accordingly, the parties reached agreement on the matters in contention and a signed agreement was initially submitted to the Court on 23 September 2025, in accordance with s 34(10) of the LEC Act. A further complete agreement was submitted 29 September 2025.

13. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting consent to the modification application as amended.

14. In general terms, the agreement approves the development subject to the amended plans, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

15. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modification application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

16. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

17. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is “substantially the same” as the originally approved development.

18. The Original Consent approved the demolition of the existing dwelling and the construction of a new dwelling and swimming pool.

19. I am 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. The scope of the proposed modifications are, to my understanding, minor changes to excavation in the south-east corner of the lower ground floor to accommodate plant room and drainage cavity in a manner that varies from that originally designed and where I accept negligible environmental impact results. Associated with this change in excavation, a larger gym and study is proposed, and the addition of a bathroom and gym store.

20. Section 4.55(2)(d) of the EPA Act requires the Court to consider submissions arising from the notification of the Modification Application. While submissions were received in respect of the development the subject of the Original Consent, no submissions are recorded by the Council in respect of the Modification Application.

21. I note here that the site is located within the Vegetation buffer described by the NSW Rural Fire Service (RFS) Bushfire prone Land Map consistent with s 10.3 of the EPA Act. The modification of the consent now proposed does not, in my view, compromise the conclusions of the Bushfire Assessment Report prepared by Bushfire Consulting Services dated 2 April 2025, including the Bushfire Risk Assessment Certificate issued in accordance with s 4.14 of the EPA Act.

22. The parties also agree that the relevant provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) have been considered and are satisfactorily addressed.

23. The Modification Application is made by the owners of the site, who provide written consent.

24. The modification application is accompanied by an amended BASIX Certificate (Cert No 1422806S_03 dated 26 September 2025) issued by Certified Energy in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), and consistent with the provisions at s 100(3) of the EPA Regulation.

25. As the site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map, the provisions at Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) apply.

26. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

27. I am satisfied that the modifications now proposed do not compromise stormwater management the subject of the Original Consent and so I am satisfied that the sediment control and water capture in the post-development scenario achieves a neutral or beneficial effect on the water quality and water flow into the harbour, consistent with the Mosman Council Policy for Stormwater Management, and that those matters at ss 6.7, 6.8 and 6.9 of the Biodiversity SEPP are likewise satisfied.

Mosman Local Environmental Plan 2012

25. I have also taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act are of relevance to the development the subject of the application.

26. The site is with an area designated by the Mosman Local Environmental Plan 2012 (MLEP) as C4 Environmental Living, in which development for the purpose of dwelling house development is permitted with consent, where that development is in consistent with objectives for development in the C4 zone that are as follows:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access and landscaping and to retain natural topographical features.

• To ensure that development is of a height and scale that achieves the desired future character of the area.

• To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

• To minimise the adverse effects of bulk and scale of buildings.

27. The extent of excavation now proposed gives rise to additional floor space of that exceeds the floor space ratio development standard of 0.5:1 permitted on the site, according to the relevant map at cl 4.4 of the MLEP. However, as the Court has commonly held, the power to grant consent to a modification application is a complete source of power to modify a consent. As such, cl 4.6 does not apply (SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65, at [31]).

28. The site is within a Scenic Protection Area within terms set out at cl 6.4 of the MLEP. As the proposed modifications are largely confined to the lower ground floor area and eastern elevation of the proposed development, I am satisfied that the modification now proposed minimises the visual impact of the development the subject of the modification application to and from Sydney Harbour and that the amendment to the external stair now proposed in the eastern setback maintains the natural landscape and landform.

29. The landscaped area at cl 6.6(3)(a)(v) requires 45% of the site area to be landscaped area. The amended plans depict a landscaped area of that exceeds the area required and so complies.

30. I have also considered the effect of the amended proposal on the existing drainage patterns and natural features of the site and conclude that the amended arrangement of the drainage cavity shown on the lower ground floor plan will permit the free flow of subsurface drainage. I am also assisted in considering the material proposed to be excavated and the likely effect of the development on the adjoining properties by the Additional Geotechnical Comment prepared by Douglas Partners in respect of the basement extent and stability dated 13 August 2025, noting that the excavation now proposed is reduced, and further setback from the adjoining property to the east. Having considered those matters at cl 6.7(3) of the MLEP, I consider the earthworks adequately resolved.

Conclusion

31. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

32. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

33. The Court notes that Mosman Municipal Council, as the relevant consent authority, under s 113 of the EPA Regulation, approves the amending of Modification Application 8.2023.305.3 by the following amended plans and terms of those conditions of consent agreed between the parties:

| Amended Architectural Plans (up to Rev H) prepared by EMBECE 000 – Cover Sheet (Rev G) 100 ­­– Proposed Site and Roof Plan (Rev F) 110 – Proposed Lower Ground Plan (Rev G) 111 – Proposed Ground Plan (Rev G) 112 – Proposed Upper Ground Plan (Rev G) 200 – Proposed South and East Elevation (Rev G) 201 – Proposed North and West Elevation (Rev G) 300 – Proposed Building Sections (Rev H) 301 – Eastern Boundary Condition – Proposed External Stairs (Rev A) 302 – Proposed Short Detail Section – Eastern Stairs and Cavity Opening 804 – Compliance Diagrams – Landscape Area (Rev G) 805 – Compliance Diagrams – GFA Calculations (Rev F) 806 – Compliance Diagrams – Excavation Plan (Rev E) | 22 September 2025 | | Schedule of Amendments prepared by EMBECE | 22 September 2025 | | Additional Geotechnical Comment regarding the extent of basement excavation and excavation strategy prepared by Douglas Partners | 13 August 2025 | | Structural Statement prepared by SDA Structures | 13 August 2025 | | (Updated) BASIX Certificate No. 1422806S_03 prepared by Certified Energy | 26 September 2025 |

34. The amended plans and other documents listed above were filed with the Court on 23 and 29 September 2025.

Orders

35. The Court orders that:

36. The appeal is upheld.

37. Development Consent 8.2023.305.1 is modified in the terms set out in Annexure A.

38. Development Consent 8.2023.305.3 as modified by the Court is set out in Annexure B.

T Horton

Commissioner of the Court

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Annexure A (212 KB, pdf)

Annexure B (434 KB, pdf)

Amendments

02 October 2025

Amended to include Annexure A and B as PDFs at bottom of judgment.