Hong v Mosman Municipal Council

Hong v Mosman Municipal Council - [2023] NSWLEC 1149 - NSWLEC 2022 case summary — Zoe

[8]

Policy

The stated objectives of cl 6.7 of MLEP (concerned with earthworks) are as follows: (a) to ensure earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, (b) to allow earthworks of a minor nature without requiring separate development consent.
A series of matters are listed at cl 6.7(3) which a consent authority must consider prior to granting consent for earthworks, as follows: (a) the likely disruption of, and detrimental effect, if any, on - (i) existing drainage patterns and soil stability in the locality, and (ii) the natural features of, and vegetation on, the land and adjoining land, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of fill material and the destination of excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impact on, a watercourse, drinking water catchment or environmentally sensitive area, (h) appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
Part 5.14 of MDCP is concerned with excavation and site management. Council pointed me to objective O1, as follows: "To have the integrity of the physical environment preserved and enhanced by ensuring minimal site disturbance and the geotechnical stability of landfill and excavations."
Council highlighted the following two planning controls under this objective: "P2 - Site excavation must be designed and located with an aim to minimise cut and fill requirements (especially on sites that have steep slopes). There must be minimal site disturbance. … P7 - Existing natural features including trees and rock features should be retained and incorporated as landscape features on the site in order to maintain the natural character of the landscape."
The character statement provisions of Middle Harbour/Pearl Bay Townscape controls of particular note included those relating to "sandstone cliff faces and outcrops" as "important character elements". The related controls are reproduced below in full: "Building form and design: (a) Maintain the architectural diversity of the area. (b) Limit bulky mega dwelling houses with horizontal emphasis across allotments. (c) Facades of large dwelling houses are not dominating when viewed from Middle Harbour and neighbouring properties, and relate to the existing streetscape and topography. (d) Encourage generous side setbacks. (e) Avoid excessive excavation across entire allotments. Fences: (f) Encourage (and maintain) low open style front and side fences of brick, stone and timber. (g) Maintain the blend with the natural environment on lots adjoining Quakers Hat Park by discouraging fencing between them. Landscaping: (o) Maintain light tree cover and the leafy character of the area. (p) Maintain foreshore bushland. Materials and finishes: (h) Encourage use of colours which are sympathetic to their surrounds and consistent with the colour of the landscape and natural features. Streetscape: (i) Encourage improved streetscape amenity by locating power lines underground for new development in Bay Street, Beauty Point Road, Carrington Avenue and Pearl Bay Avenue. (j) Encourage improved access in Mitchell Lane through lane widening. (k) Encourage developments to present a house front to the street. (l) Maintain sandstone rock faces and stone retaining walls. Views: (m) Maintain public views to Middle Harbour. (n) Public views between buildings from public walkways and streets and those identified on the townscape map should be maintained."

[10]

Visual impact and natural landform impact

Mr Layman argued two main points: (1) that there are unusually strong provisions in MLEP and MDCP which support reducing the extent of rock outcrop excavation proposed with the development (e.g. provision P7 under Part 5.14 of MDCP, as nominated at [14]), and (2) there was no compelling reason not to offset the western façade of the building by a relatively minor amount to reduce the extent of rock outcrop excavation.
I also note that during the site inspection, in particular while we traversed along the public walkway south of the site and we were in those foreshore environs generally, Mr Layman had sought to demonstrate that the proposed rock outcrop excavation would have an adverse visual impact.
In regard to the visual impact concern, Mr Long argued the extent of excavation constituted a minor incursion only, having regard to the visual extent of the outcrop, and by far the major portion would be left intact.
I favour the position argued by Mr Long in regard to visual impact. It was clear to me, from the site inspection, that there would be hardly any perception of the proposed excavation of the rock outcrop when viewed from public places. When viewing from Middle Harbour, the small extent of the rock excavation would be "lost" in a visual sense, in the rising landform above, and in the texture of the built form and landscape which surrounds. It was clear from our view along the public walkway that there was very little in the way of a closer view available to the rock outcrop excavation area.
I note that provisions of MLEP and MDCP would be reasonably read as promoting the retention of sandstone cliff faces and outcrops, such as that existing on the site and its surrounds, as locally important character elements of themselves. But it seems to me to be that generally this is occurring with the proposal. That is to say, the rock outcrop would remain on the site as a natural character element with only a relatively small reduction in its extent and scale. Because of this finding, I see no reason to follow Mr Layman's suggestion that there is no compelling reason not to reduce the extent of excavation by a reduction in the building length.

[11]

Geotechnical considerations

There were objecting submissions from neighbours made as to the adequacy of the applicant's geotechnical information. Of particular note were a series of geotechnical points made in a submission by Mills Oakley (included in Ex 5), a law firm very experienced in this Court and representing a neighbouring property owner. The submission criticised a geotechnical report accompanying the application (prepared by Crozier Geotechnical Consultants, dated March 2020, and tendered as Ex C (Crozier Report)). Mills Oakley argued that the Crozier Report "fails to provide a level of information that is required in order to satisfy the consent authority of the matters under clause 6.7(3) of (MLEP)". Various points of detail were raised by Mills Oakley in regard to the Crozier Report.
In regard to these geotechnical considerations (i.e. including the considerations at cl 6.7 of MLEP and Part 5.14 of MDCP), I note that Council raised no concerns in its nominated contentions (Ex 1). In without prejudice conditions, Council relied on the Crozier Report, imposing a set of conditions requiring the recommendations of the report to be accommodated. I note conditions 9, 10, 11, 13, 24 and 41 (Annexure A) are all related to the topic in one way or another. Conditions 9, 13 and 24 involve further geotechnical confirmation. Conditions 10 and 11 are concerned with dilapidation reports. Condition 41 links up the Crozier Report. I also note Mr Long's comments on the considerable distance offsets of the proposed building to the property boundary. As required, I have considered the matters at cl 6.7(3) of MLEP and believe appropriate arrangements are in place, with Annexure A conditions, in regard to matters related to excavation and geotechnical considerations. Other lay submissions
As indicated above, the remaining lay objecting submissions can be categorised into three groups: (1) view loss, (2) privacy impacts and (3) local character incompatibility, including in relation to tree protection. I address the objections on view loss in my consideration of the wall height development standard breach. While I also touch on privacy impacts in that consideration, I will confirm that I took the experts to the various points of concern raised in regard to privacy in objecting submissions and am satisfied with the response received by these experts that adequate arrangements were in place or would be in place with proposed conditions (e.g. proposed Conditions 8A(a) and (b).
In regard to local character compatibility including tree protection. This issue also might capture the overall bulk and scale of the development, which I have given some consideration to evaluating the wall height standard breach, finding favourably for the applicant. In coming to this conclusion I have given detailed consideration to the character statement and controls relating to the Middle Harbour/Pearl Bay Townscape. I can see no reason why the built form and landscaping schema cannot make for an appropriate addition to the setting. In regard to landscaping and tree protection, I note again that in Court and to some degree of detail, I worked through with the experts the various points of concern raised. This resulted in a number of further agreed alterations to the landscape plan. The Revision C drawings, based on the evidence of the experts but also in my own reading, now provide that appropriate balance between retaining and sometimes enhancing Middle Harbour views, while also providing for a valuable local landscape contribution. I am not concerned about the tree protection concerns raised in the Mills Oakley submission. Council is satisfied on this point and I am mindful of the need for discernment in regard to objecting submissions a matter I considered most recently in GFM Investment Group Pty Ltd in its capacity as Trustee for GFM Home Trust Subtrust No. 7 v Inner West Council [2023] NSWLEC 1112 at [41].

[12]

Building wall height development standard contravention

Clause 4.3A of MLEP applies to the site. It is titled "Height of buildings (additional provisions)", Subclause (4) provides as follows: A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres.
Clause 4.3A(5) of MLEP defines wall height, relevantly, as follows: wall height means the vertical distance between the ground level (existing) to - (a) the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest. …
There is no dispute that a portion of the proposed development would contravene the 7.2m control by up to some 990mm.
The Applicant is seeking an exception for the contravention of development standards under cl 4.6(2) of the MLEP which provides relevantly as follows: (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument...
The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)- (5): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [14]). The first opinion is in regard to a written request from the applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
The applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. This written request, dated 22 November 2022 and prepared by Mr Long was tendered as Ex A (Written Request).

[13]

Whether compliance unreasonable or unnecessary

Mindful of cl 4.6(3)(a) of MLEP, the Written Request initially seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The Written Request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of the standard. The objectives of cl 4.3A are as follows. (a) to provide for view sharing, (b) to minimise the adverse effects of the bulk and scale of buildings, (c) to encourage 2-storey buildings consistent with the desired future character of the area.
With the amending plans and alterations to proposed landscaping, the views of concern were essentially from the elevated properties to the south and south-west of the site. The owners of the neighbouring property to the south, 5A Shellbank Avenue, provided written and oral submissions objecting to the proposal on view loss grounds which included input from specialist planners and photomontages. The key concern of these owners was a loss of view from the home office area at a lower level of the building. I note the advice of the owners that they spent most of their time in this space during the working week. The owners of the neighbouring property to the south-west, 7 Shellbank Avenue, also provided oral submissions and written submissions through Mills Oakley, (all included within Ex 5).
The Written Request argues that the amendments have reduced the number of properties with view effect and that the remaining view losses are minor and entirely compatible with the principles of view sharing. The Written Request made the point that the Middle Harbour view losses from these properties was not, in the main, related to the contravening part of the building, which was towards the eastern side of the building.
Importantly, I had the opportunity to view the site and gain an appreciation of the proposed built form from the properties raising concerns about view loss, and hear from the neighbours directly. It was my impression that view losses would be relatively minor and generally aligned with the principles of view sharing. The Written Request provided the correct interpretation of the setting and satisfied me in regard to the achievement of Objective (a).
In regard to Objective (b), the Written Request argues that the adverse effects of bulk and scale are minimised by the siting of the building, including its boundary setbacks and its "low set position on this heavily landscaped site". The written request refers to related issues of solar access and privacy, the latter of which was a concern raised by neighbours. It indicates compliance with relevant MDCP criteria. I also queried the experts on various points in regard to visual privacy as a measure of testing the claims in the Written Request. I found the experts generally in agreement that privacy concerns would be readily addressed. These points satisfy me that Objective (b) is achieved notwithstanding the contravention.
In regard to Objective (c), the Written Request suggests the proposal is set low in the site which is in contrast to the numerous three storey developments in the site environs. It notes the pitched roof and eaves are less than the 8.5m height. The Written Request argues that the lack of impacts associated with the proposal means it is consistent with the desired future character of the area.
Firstly, I would note that the objective of "(encouraging) 2-storey buildings" is achieved through the relevant provision in MLEP. On the evidence before me, something expanded upon below, I also accept the advice in the Written Request that the proposal brings low impacts and is consistent with the desired future character of the area.
These findings mean I am satisfied that the Written Request has adequately demonstrated that the development achieves the objectives of the standard. Therefore it would be unreasonable and unnecessary to require strict numerical compliance.

[15]

Public interest

I now turn to the test at cl 4.6(4)(a)(ii) of MLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the wall height standard and the objectives for development within the C4 zone. I agree with and rely on the Written Request's demonstration that the proposed development is consistent with the objectives of the wall height standard as considered above.
The term "consistent" has been considered in many judgments of the Court. Here, I generally rely on the summary prepared by Tuor C in Moskovich v Waverley Council [2016] NSWLEC 1015 at [53]: "…The term consistent … has been interpreted to mean "compatible" or "capable of existing together in harmony" (Dem Gillespies v Warringah Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190) or "not being antipathetic" (Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21) Whichever interpretation is adopted the test of "consistency" is less onerous than that of "achievement."
The zone objectives 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.
With the exception of the topic in contention relating to the extent of rock excavation, the experts giving sworn evidence before the Court were in agreement that the proposal's impacts were low. It is also clear to me that this is the case on the evidence and from the site inspection. I am satisfied that the proposal is consistent with the first zone objective. Similarly, given the lack of impacts of any substance, the site would not have an adverse effect on special ecological, scientific or aesthetic values of relevance. I am satisfied that the proposal is consistent with the second zone objective.
The proposal provides for a single dwelling and as such is clearly consistent with the third zone objective. I am satisfied that, with the proposed landscaping, and given the landscaping backdrop to the local area more generally, the proposal is consistent with the fourth zone objective of maintaining the general dominance of landscape over built form. The site is relatively large and of sufficient area to respond responsibly to its physical setting (retain natural topographical features including the substance of the existing rock outcrop) while providing for buildings, vehicular and pedestrian access, and landscaping. I am satisfied that the proposal is consistent with the fifth zone objective.
I can consider the final three objectives together. I am satisfied that the proposal: (1) is of a height and scale that aligns with the desired future character as established generally through the applicable planning controls, (2) reasonably maintains local amenity and public and private views as considered elsewhere in the judgement, and (3) is consistent with the objective of minimising adverse effects of bulk and scale as a consequence of its form and architecture.
Based on my findings above, the proposed development will be in the public interest because it is consistent with the objectives of the wall height standard and the objectives for development within the C4 zone of MLEP.
On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of MLEP are met in regard to the wall height contravention.

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Cases Cited (8)