Jurisdictional considerations, Mosman Local Environmental Plan 2012
- The site is not identified as an item of heritage significance, and is not located within a heritage conservation area identified in Sch 5 of the MLEP. However, the site is located in the vicinity of several heritage items, and in the vicinity of the Shadforth Street Conservation Area. While not a matter of contest between the parties, I note cl 5.10(5) of the MLEP provides for circumstances where development is proposed in the vicinity of a heritage item. A Heritage Impact Statement, prepare by Weir Phillips dated February 2024 (SHI) (Exhibit B, Tab 5), undertakes an assessment of the proposed development on heritage items in the vicinity, and concludes the proposal is consistent with the evolving modern setting of the area, without imposing any adverse impact on heritage items or nearby conservation areas.
- According to the Acid Sulfate Soils Map at cl 6.1(2) of the MLEP, the site is not affected by Acid Sulfate Soils.
- The site is identified within the Scenic Protection Area by the relevant map at cl 6.4(2) of the MLEP, however I am satisfied that the lower built form when compared to neighbouring buildings, retention of existing trees and perimeter landscape planting has the effect of minimising the visual impact of the development to and from Sydney Harbour, and the development will maintain the existing natural landscape and landform.
- As the site has an area of 752.5m², cl 6.6(3)(b)(i) of the MLEP requires 50% of the site area to be landscaped area to preclude refusal. The architectural plans (Exhibit B, Tab 1) provide calculations indicating a landscaped area of 30% of the site is proposed. The parties agree the addition of two native canopy trees with a minimum height of 8m achieves the quantum and quality of landscaping proposed considered appropriate for the R3 zone, and is consistent with the objectives of cl 6.6 of the MLEP, being as follows:
(a) to have the landscape and townscape area character of Mosman's residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development,
(b) to have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores, while recognising the difficulty of achieving this on small lots where there are existing buildings such as semi-detached dwellings,
(c) to have adequate and usable ground level open space for recreation, landscaping and containing urban run-off.
- I have considered the Geotechnical Investigation Report prepared by EI Australia dated 17 November 2022 (Exhibit A, Tab 8), Structural statement prepared by SCP engineers and development consultants dated 30 January 2024 (Structural Statement) (Exhibit B, Tab 11), Landscape Plans prepared by Paul Scrivener (Exhibit B, Tab 9), and Stormwater Drainage Plans prepared by IStruct Consulting Engineers (Stormwater Plans) (Exhibit B, Tab 10). I have considered those matters at cl 6.7(3) of the MLEP and conclude the proposed excavation is reasonable because rock anchors are not required under neighbouring properties, and because a pile and capping beam is proposed to be installed prior to excavation.
- I note here that the site falls to the rear of the site, away from Raglan Street and in the direction of properties fronting Shadforth Street to the west.
- The Applicant submits that the development the subject of the DA does not propose works on adjoining land, but rather proposes a 1m wide easement for the disposal of stormwater over adjoining land, subject to the easement that is the subject of a deferred commencement condition.
- The purpose of depicting that pathway is to permit the Court to assess the impacts of those off-site works, in a manner consistent with that found in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349, where there is no implied limitation on the exercise of considering matters of relevance to the development the subject of the development application, whether or not the development consent sought is subject to a deferred commencement condition (Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [37]).
- The land on which development is proposed to be carried out is not the adjoining land, and does not involve stages as in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 ('Al Maha') at [157], and does not propose conditions of consent for the undertaking of such works, which further distinguishes this case from that of Al Maha.
- Instead, the propose a deferred commencement condition to require an easement to drain stormwater over adjoining lot(s) to be obtained within 365 days of the grant of consent.
- The Stormwater Plans depict the necessary components of the stormwater drainage system proposed on the site, and the parties agree that a pathway for drainage to Shadforth Street can be achievable through Nos 17, 19 and 21. Shadforth Street, free of structures or impact on existing trees. To this end, plans and other images are relied on by the Applicant (Exhibits D), and a Stormwater plan, identified as Drawing D03 (Exhibit E), depicts one possible pathway to drain stormwater through the side setback of No 21 Shadforth Street.