Ganley v Mosman Municipal Council

Land and Environment Court (NSW)|2021-01-28

Judgment

This is an appeal under s. 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Mosman Municipal Council (Council) of an application to modify a development consent (the modification application). Under Council's system, this modification application has a reference number 8.2014.76.3, and it seeks to modify development consent number 8.2014.76 (the original consent).

Site

I rely on Council's Statement of Facts and Contentions (SOFAC) filed 13 July 2020 and a "Jurisdictional Note", agreed by the parties, received by email 28 January 2021 for much of the factual material in this and the following section.
The site is at 27 Hunter Road, Mosman, legally identified as Lot 51 in DP 6314. It is located on the northern side and towards the end of the cul-de-sac of Hunter Road.
The site has an area of 490.2m2 and is rectangular in shape with a street frontage of 20.05m to Hunter Road. The site falls 10.92m to the south at an average gradient of 44.6%.
Vehicular access to the site is via a combined entry/exit driveway located 3m from the eastern boundary, to Hunter Road. Pedestrian access is available via a pathway extending to/from Hunter Road.
Surrounding development consists of dwelling houses of varying heights and styles, and Queenwood School.

Proposal

On 17 December 2014, the original consent was granted for "substantial demolition, alterations to the existing dwelling house, retaining some existing walls for construction of a three storey dwelling house and double garage" (Statement of Facts and Contentions filed 13 July 2020 (SOFAC), p 8).
The changes proposed in the modification include additional basement storage at the garage level, a new plant room and re-configured bedrooms and en-suites at the first and second floor levels, alterations to the balcony and roof and alterations to the landscaping. Certain original wall elements that were proposed to be retained in the original consent would no longer be retained.

Statutory considerations

The site is zoned R2 Low Density Residential pursuant to Mosman Local Environmental Plan 2012 (MLEP). Mosman Residential Development Control Plan 2012 also applies.
Of most pertinence here are the relevant provisions of ss 4.55(2) and (3) of the EPA Act which I reproduce relevantly now and cross reference as necessary later: (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 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. Subsections (1) and (1A) do not apply to such a modification. (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.

Proceedings

Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, issued 1 July 2020, under the Microsoft Teams platform.
As the modification application is for the purposes of a detached single dwelling, proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).
The SOFAC indicated that the modification application should be refused on the following grounds (which I introduce briefly here but expand upon, relevantly, below):

not "substantially the same development"
excessive gross floor area (GFA)
insufficient landscaped area
failure to comply with zone objectives
public interest concerns.

Town planning experts were engaged by each of the parties. A Betros represented the Applicants and P Wells represented Council.
In the preparation of their joint expert report filed 22 December 2020 (JER), a set of amended plans were considered by the planning experts. The experts indicated that, with these amendments, the contentions raised by Council were adequately addressed. The Applicants are also seeking leave to rely upon the amended plans considered by the experts.
At the conciliation conference a submission was made by S Griffiths of Bartier Perry, representing the owner of 35 Mandalong Road Mosman, adjacent to the site to the west, or rear. Mr Griffiths made reference to Bartier Perry's previous submissions objecting to the modification application which I had before me at Tabs 12 and 13 in Council's bundle of documents which had been provided in accordance with the Court's Practice Note for Class 1 Residential Development Appeals (the Council Bundle).
According to Mr Griffiths' written and oral submissions, the proposal was not properly described as "substantially the same development". Further the proposal as modified was seen to unreasonably affect the views currently available from 35 Mandalong Road, including land and water interface views. A photographic image indicating view loss from an area near the pool at 35 Mandalong Road, which shaded-in an approximate representation of the proposed building (the photomontage), was presented by Mr Griffiths. It was argued that as no "proper" view analysis had been undertaken the Court was unable to understand the view impact.
Mr Griffiths then left the conciliation conference and the without prejudice discussions commenced. The planning experts were asked whether they retained the position expressed in their joint report, including having heard the recent objecting submission. That is, that the contentions raised by Council had been resolved by the amending plans. This position was confirmed by the experts, albeit subject to some points of detail raised by Mr Wells which I will come to below.
Notwithstanding the agreement by the town planning experts, that the contentions raised by Council had been resolved, Mr Patterson advised there were no instructions to enter into an agreement under s 34(3)(a) of the LEC Act.
After further conciliation and after I had questioned the experts in regard to the issues raised in the contentions (including the objections and landscape matters which resulted in a need for further amendments to landscape plans) the conciliation conference was terminated on 12 February 2021. The parties requested that s 34AA(2)(b)(ii) be evoked. That is, with consent of the parties, I agreed to dispose of the proceedings on the basis of what has occurred at the conciliation conference; with this judgement representing my conclusions in that regard. I will mention that before the termination of the conference, Mr Patterson for Council had asked the experts whether the responses that they had given to the questions I had asked were the same responses that they would have given as sworn evidence in a hearing. Both the experts answered in the affirmative.

Gross floor area

The Site has a total area of 490.2m2 and is subject to a maximum floor space ratio of 0.5:1. The original consent accommodates an FSR of 0.51:1 (SOFAC, p 9).
Council originally contended there had been a GFA increase of "up to" 195m2 with the modification application (SOFAC, p 10). However, it was indicated that the concern was subject to further clarification on "type of plant within plant rooms and use of subfloor areas" (ibid). In the JER (p 7) Mr Wells indicated this contention was no longer pressed as a consequence of the amending plans. In oral evidence, Mr Wells confirmed that information had been supplied in regard to the types of mechanical services intended for the plant room and he was satisfied that the indicated area should be excluded from GFA calculations. He also indicated that, due to the configuration of the subfloor areas, and physical limitations to potential use, these areas also should not be included as GFA.
While Mr Betros and Mr Wells still differed somewhat as to the floor space ratio of the modified development (0.55:1 and 0.64:1, respectively), Mr Wells explained this difference as largely a result of whether the area of a downstairs lobby should be included, the extent of stairs and lifts which should be counted, and whether wall thickness should be included. The modification was not seen to add substantial floor area to these parts of the building. The experts agreed that the GFA and floor space ratio is acceptable on the basis that it is generally contained within the approved building envelope (JER, pars 17, 19 and 24-36).

Consideration

Most noteworthy for me here is that the building massing of the modified development generally sits within the approved building envelope. I accept the agreed evidence of the experts that the modification application would be acceptable in regard to gross floor area.

Landscaped area

Council originally contended that the modification application reduced the landscaped area to below the minimum requirement of 30% of the site.
The amending plans increase the landscaped area, particularly south of the pool area and along the eastern boundary setback. The experts now agree that the modification application before the Court provides for some 31% of site area as landscaped area (JER, pars 37-41). Revised landscape plans were also provided to fine tune this landscape treatment in the eastern setback area.

Consideration

It is clear from a review of the plans, and the oral evidence, that with the amending plans the proposal would meet Council's numerical controls in regard to landscaped area. With the further work in regard to the treatment of the landscaping in the eastern setback, including revised plans, the proposed landscaping arrangements are satisfactory.

View loss

View loss was not raised as a contention by Council. Nevertheless, I give consideration to the issue, mindful of submissions on behalf of the owner of 35 Mandalong Road.
The planning experts were in attendance (virtually) when these submissions were made by Mr Griffiths. I asked the experts for their comments on the submissions, including whether the photomontage provided by Mr Griffiths reasonably represented the likely impact.
The experts agreed that the photomontage provided a reasonable representation of what might be experienced from that viewer position. However, it was also indicated that there would be no significant change to the building height or massing, as might be viewed from 35 Mandalong Road as a consequence of the modification application compared to that already approved. That is to say, virtually the same impact from that position would occur with development in accordance with the current approval. Further, Mr Betros drew attention to the viewer position itself, as adopted for the photomontage. That is that it was at a lower level on the property where views would be expected to be more difficult to protect. Further photographic evidence was referenced (Council Bundle, folio 115), taken from what appeared to be an outdoor dining area at 35 Mandalong Road, showing the quality of the view which would remain available from this outdoor dining area location under the original consent or with the proposed modifications.
I have also noted the fact that the pre-existing dwelling was of a similar roof ridge height to the roof height now proposed, although not of exactly the same profile with respect to view loss potential (Council Bundle, folio 68). This suggests that the current view from the lower level near the pool, as represented in Mr Griffiths' photo (ie without the addition of the shading outlining the proposed building as a montage element) is improved compared to what existed prior to the demolition of the pre-existing dwelling.
It was also noted that the minimum setback of the dwelling to the western boundary would decrease from 1.75m to 1.55m with the proposed modification. Mr Wells indicated he had examined the implications of this change, including in regard to view loss and concluded that this was non-consequential. The more eastern elements of the building, rather than the rear or western elements, where the building setback change was proposed, caused the maximum view impact. That is to say, this particular change would fall within the view loss "shadow" of other building elements in alignment with the original consent, anyway.

Consideration

I accept the advice of the experts that the modification application would not provide significant or unreasonable additional view loss from 35 Mandalong Road, the most seriously affected property. Overall, I conclude from the above that, substantively, that is to say beyond the fact of the proposal as constituting amendments to an original consent, what is now proposed is satisfactory on view loss terms.

Substantially the same development

There were three key points raised in the SOFAC relating to this issue. The first two contended the modification application was not substantially the same because of changes in regard to gross floor area and landscaped area. That is, the two issues considered above. The third point related to the fact that the modification application includes the "removal of walls previously approved as being retained" (SOFAC, p 10): "The retention of these walls was integral to the characterisation of the development that was the subject of the development consent as (inter alia) "alterations and additions to the existing dwelling house". The demolition of walls approved as being retained would change the characterisation of the development that was the subject of the development consent to a "new dwelling' which is not substantially the same development."
Mr Griffiths put similar arguments in his objecting submissions on behalf of the owners of 35 Mandalong Road on this issue. In a written submission, Mr Griffiths suggested that "fundamental to Council's original decision to grant consent was that the proposal was for alterations and additions to the existing dwelling rather than for the construction of a new dwelling" (Council bundle at folio 121-122).

Consideration

Section 4.55(2)(a) of the EPA Act is the source of the modification power of pertinence here [10].
The Applicants for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8), and on 28 January 2021 written submissions were filed on behalf of the Applicants in that regard (the Applicants' written submissions).
The Applicant took me to Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Agricultural Equity), where Justice Pepper at [173], helpfully outlined legal principles governing the exercise of the Court's modification powers (related to ss 96(2) and 102 of the then EPA Act but which apply equally in regard to now s 4.55(2)).
The most particular point of interest for me here is the implications of the description in the development consent to "alterations and additions to the existing dwelling house" when construction of a new dwelling is that for which consent is sought. As indicated above, a previous intention to retain pre-existing wall elements of the previous dwelling cannot now occur, with those walls no longer existing.
The following points in the Applicants' written submissions were the most significant to me: 1. A determination of whether or not the modified development is substantially the same as that approved should not be limited to the description of the development in the notice of determination. One should look for "substance not form" in an examination of this kind. In support reference was made to the findings of Chief Justice Preston in Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 (Gordon & Valich) at [19]: "The misdescription in the development application of the development as being the amendment of the existing development consent does not necessarily mean that the development application is incompetent. The fact that somebody describes development in a particular way does not necessarily lead to invalidity; one looks to substance not form. The important point is to understand what is the particular development that is being proposed and that can be understood by looking at the particular plans accompanying the development application." 1. At least in consideration of the Court's planning principle in regard to "alterations and additions" (Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187 (Coorey) at [52] and [56-62], the reference to the proposal as alterations and additions in the notice of determination would not represent a reasonable description in any event. That is to say the extent of departure from the pre-existing building would go considerably beyond that suggested as constituting alterations and additions in Coorey, in both qualitative and quantitative terms. 2. The walls which were intended to be retained had no particular planning-related function or brought no benefit in planning terms. The walls were of no heritage significance and were built into the hillside, partly underground (Council Bundle, folio 68) and would not have been particularly apparent.
In both quantitative and qualitative terms, it is clear that the proposal is "essentially (and) materially" the same as the original consent (Agricultural Equity [173(e)]). The differences, or different understandings, in regard to GFA and landscaped area were two of the original reasons Council did not believe the development was substantially the same. On the oral and written advice of the experts and having regard to my conclusions above, I am satisfied that neither GFA nor landscaped area differences would mean the modification application now proposed is other than substantially the same development for the purposes of s 4.55(2)(a).
Further it can be seen from a review of the plans that the form of residential development proposed in the modification application is essentially the same as the original consent in regard to height and massing.
I do not place significant weight on the reference in the determination notice of the original consent, to the then proposal as "alterations and additions", or in the requirement to retain certain pre-existing wall elements, as outlined above. The retention, or otherwise, of these wall elements is of no significance or "substance" (Gordon & Valich [19]) to what is proposed overall.

Other statutory prerequisites

A positive finding in regard to the question raised at s 4.55(2)(a) of the EPA Act (ie "substantially the same development") leads me to consideration of further jurisdictional prerequisites at ss 4.55(2)(b)-(d) and s 4.55(3) (see [10]). In regard to these I accept the following agreed advice of the parties (Jurisdictional Note, p 2): 1. With respect to s 4.55(2)(b) - Modifications are not sought to any condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval; 2. With respect to s 4.55(2)(c) - The Respondent has notified the modification application in accordance with s. 4.55(2) of the EPA Act and submissions have been received (Council Bundle, folios 113-125). A further oral submission was made on behalf of the owner of 35 Mandalong Road and is referenced above.
Section 4.55(3) of the EPA Act requires the consent authority to take into consideration those matters referred to in s 4.15(1) of the EPA Act of relevance to the application. Below I take these matters into consideration relevantly while also considering the objecting submissions, mindful of s 4.55(2)(d). Again I am mindful of the agreed Jurisdictional Note provided by the parties in undertaking my considerations.

Mosman Local Environmental Plan 2012

The proposal is permissible with development consent in the R2 - Low Density Residential Zone.
Council advises that it is satisfied that the Modification Application, as amended, adequately addresses the relevant provisions of MLEP. I note as follows: 1. In regard to cl 2.3, I have given consideration to the R2 Zone objectives. 2. In regard to building height and wall height (cll 4.3 and 4.3A), the modification proposes a minor reduction in the relative level of the lift shaft (from RL 30.855 to RL 30.755) and balcony roof (from RL 29.96 to RL 29.91. The modification application does not raise concerns in regard to building height. I also note and accept the conclusions in Council's assessment report dated December 2014 (Council Bundle, Tab 2, folio 17) that the building bulk and scale (proposed in the original consent) is reasonable. 3. In regard to floor space ratio (cl 4.4) and as outlined above, the experts agree that the modification is acceptable on the basis that GFA is generally contained within the approved building envelope: pars 17, 19 and 24-36 of the Town Planning JER filed 22 December 2020). I agree with the experts' conclusion. 4. In regard to scenic protection (cl 6.4), I am satisfied that measures have been taken to minimise the visual impact of the development from Sydney Harbour, with the landscaping amendments. 5. In regard to landscaped areas (cl 6.6), I refer to my comments above and the agreed position of the experts on this issue. A condition of consent is proposed to ensure the area to the east of the building will be able to be included as landscaped area.

Other environmental planning instruments

The parties referred me to the Council assessment report (Council's Bundle behind Tab 6) and particularly the commentary at folios 108-109. I accept and rely on this material, and note relevantly: 1. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP) applies to the whole of Mosman, but the Site is not identified in the SREP as either: within the Foreshores and Waterways Area, a strategic foreshore site or heritage item, or wetlands protection area. I have given due consideration to the requirements of the SREP in the assessment of the modification application. 2. In regard to State Environmental Planning Policy No 19 - Bushland in Urban Areas (SEPP 19), the north-western corner of the subject site adjoins land which is zoned RE1 Public Recreation under the MLEP. Mindful of cl 9 of SEPP 19 I have taken into account: a) the need to retain any bushland on the site, b) the effect of the proposal on the bushland zoned for public open space purpose, including in regard to the erosion of soils, siltation of streams and waterways, and the spread of weeds and exotic plants within the bushland, and c) other matters relevant to the protection and preservation of the bushland zoned for public open space purposes. In this instance, there are no concerns in regard to these matters as the proposal does not involve works within the bushland area, nor are works proposed that would impact on the bushland. 3. Mindful of cl 7(1)(a) of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), I have considered whether the land is contaminated. I accept that the site has been historically used for residential purposes and that there is no history to suggest that the site is contaminated. The application does not require further consideration under cll 7(1)(b) and (c) of SEPP 55.
Section 4.55(3) of the EPA Act also requires the consent authority to take into consideration the "reasons given by the consent authority for the grant of consent that is sought to be modified". I accept the advice of the parties that, in this case, the consent was granted in 2014 and modified in 2015. At that time there was no requirement for a Council to provide reasons for the grant of a consent, and none were provided.

Other considerations

I have noted Council's contention relating to the public interest (SOFAC, p 11) which refers to the objections contained in public submissions. I have given consideration to each of the submissions provided to the Court, including the oral submissions referenced above from Mr Griffiths. I believe the amended application and proposed conditions adequately respond to the concerns raised. I reference in particular Condition 45A relating to ensuring non-reflective roof surfacing in response to an issue raised in public submissions.
While I note Council's contention, there is of course no jurisdictional obligation to require compliance with zone objectives. The statutory requirement at cl 2.3(2) of MLEP is that a consent authority have regard to the zone objectives, which I have done.

Conclusions

The expert evidence and submissions have satisfied me that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. All further jurisdictional and merits factors have also been adequately addressed. It is appropriate that the modification application be approved in accordance with consent conditions referenced in the Orders below.

Orders

The Court orders that: 1. The Applicants are granted leave to amend the modification application to rely on the further amending plans as listed at the end of Condition 1 of Annexure "B". 2. The appeal is upheld. 3. Development Consent No. 8.2014.76 for substantial demolition, alterations and additions to the existing dwelling house, retaining some existing walls for construction of a three storey dwelling house and double garage at 27 Hunter Road Mosman is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure "B". 4. Development Consent 8.2014.76 is subject to the consolidated, modified conditions of consent set out in Annexure "A".

Commissioner of the Court Annexure A (278215, pdf) Annexure B (192945, pdf) Architectural Plans (14538286, pdf) Landscape Plans (2103637, pdf)

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 March 2021

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (4)