COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of modification application MA 8.2021.436.2 (Proposed Modification) seeking design amendments to DA 8.2021.436.1 which granted consent for demolition, construction of a new dwelling house with swimming pool, pergola and landscaping (the Consent) at 4 Wyargine Street Mosman legally described as Lot 46 in DP666727 (the Site).
The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 24 and 25 January 2024. I have presided over the conciliation conference.
Following provision of further information, the undertaking of joint reporting by the town planning expert witnesses retained by the parties, minor amendments comprising corrections to the cut and fill plan, and agreed conditions of consent, all contentions raised in the Statement of Facts and Contentions filed in these proceedings on 28 August 2023 have been resolved. The matter resolved on day two during the conciliation conference phase, as a result of amendments to the architectural plans to reduce the extent of the additional excavation and floor space ratio (FSR) in the Proposed Modification, and conditions including in respect of installation of Nulok solar tiles (revised condition 2A) and potential hydrological impacts of the excavation (condition 24).
At the conciliation conference, the parties reached 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 approving the modification to the development consent subject to conditions.
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. 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.
The parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to approve the Proposed Modification.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.56 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement to which I have had regard in preparing this judgment.
The Modification Application was lodged pursuant to s 4.56 of the EPA Act following the decision of Luigi Rosselli Pty Limited v Mosman Municipal Council [2022] NSWLEC 1502. The provisions under s 4.56(1) of the EPA Act provides as follows
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has notified the application in accordance with -
(i) the regulations, if the regulations so require, and
(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
(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
The Proposed Modification is described as follows:
1. amendment of condition 1 of the Consent to refer to modified plans and documentation;
2. deletion of condition 2A of the Consent and replacement with a new Condition 2A to read as follows:
"Amended Plans - Solar Tiles (Garage)
2A. The Construction Certificate plans shall detail the inclusion of Nulok Solar tiles to the garage roof. Details must be submitted to the satisfaction of the Accredited Certifier.";
1. addition of condition 24 to read as follows:
"Hydrological Investigation
24. Prior to the issuing of a Construction Certificate for the erection of the new dwelling a report shall be prepared by a suitably qualified hydrogeologist to the satisfaction of the Accredited Certifier. The report shall include details of site investigations at the location and depth of proposed excavation to determine subsurface hydrological conditions and shall include any recommendations to ensure that subsurface water is not diverted onto adjoining properties. Any recommendations of the report shall be implemented and a certificate of compliance with them issued by the hydrological engineer prior to the issuing of an Occupation Certificate for the dwelling".; and
1. minor amendments to the internal layout and external finishes including additional excavation to allow for internal connectivity between the approved house and private open space at the rear.
A revised BASIX Certificate pursuant to the State Environmental Planning Policy - Building Sustainability Index (BASIX) 2004 has been prepared to accompany the Modification Application in accordance with the requirements of s 100(3) of the Environmental Planning and Assessment Regulation 2021 and filed with the Court at Tab 10 of the Class 1 Application.
The Court can be satisfied that for the reasons set out in Part 1.0 of the Modification Application Town Planning Statement prepared by GSA Planning filed at Tab 3 of the Class 1 Application filed on 7 August 2023 (Town Planning Statement). I set out the summary of reasons below, which result in achieving the requisite state of satisfaction 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 because it:
1. retains the approved building height.
1. In relation to cl 4.3 - Height of Buildings of the Mosman Local Environmental Plan 2012 (MLEP), the Consent approved a building height of 9.35m, which exceeded the building height control;
1. retains the same number of car spaces;
2. retains the approved setbacks;
3. primarily relates to changes to the internal layout, excavation and external elevations including finishes and shutter styles;
4. maintains the well-articulated façade, built form and overall appearance as approved;
5. will not significantly change the external appearance of the building, increase the bulk and scale, alter the building type or increase overshadowing to neighbouring properties.
1. In relation to cl 4.3A - Height of Buildings (Additional Provisions) of the MLEP, there is a small three-storey component of the dwelling due to the introduction of an internal stairwell and lift that is internal and not externally visible;
1. will not result in any additional view impacts; and
2. will not lead to any additional privacy impacts.
The proposed modifications result in an increase to the approved floor space ratio (FSR). The MLEP permits a maximum FSR of 0.478:1 on the Site (GFA 428.29m2) pursuant to cl 4.4 of the MLEP. The Consent approved a maximum FSR of 0.474:1 (GFA 424.6m2). The internal reconfiguration and amendments in the Proposed Modification result in an FSR of 0.51:1 (GFA 455.2m2).
The additional GFA will not impact the approved building envelope or be readily discernible when viewed from the street, beach or surrounding development and otherwise satisfies the objectives of the FSR standard as referred to in the Town Planning Statement filed with the Class 1 Application.
In relation to the proposed excavation and the provisions of cl 6.7 of the MLEP, the Proposed Modification proposes a net additional excavation volume of 121.8m2. The matters required to be considered for the purposes of cl 6.7 are addressed in the Supplementary Geotechnical Assessment.
The Council has notified the Modification Application in accordance with s4.56(1)(b) of the EPA Act, and the Mosman Community Participation Plan. The Council has notified each person who previously made a submission in accordance with s 4.56(1)(b)(c) of the EPA Act. The Court heard from objectors on site and the Respondent provided a copy of written submissions.
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. I adopt the reasons given by the parties.
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.
[2]
Notations:
The Court notes:
1. Mosman Municipal Council, as the relevant consent authority, has agreed under cl 113 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Modification Application No. 8.2021.436.2 in accordance with the documents listed below:
1. Amended architectural plans prepared by Luigi Rosselli Architects (LRA) listed as follows:
Issue Title Drawn by Dated
C S4.56-00 Cover Page LRA 25 January 2024
B S4.56-01 Site Analysis Plan LRA 25 January 2024
B S4.56-02 Site & Roof Plan LRA 25 January 2024
B S4.56-03 First Floor Plan LRA 25 January 2024
C S4.56-04 Ground Floor Plan LRA 25 January 2024
C S4.56-05 Lower Ground Floor Plan LRA 25 January 2024
C S4.56-06 North Elevation LRA 25 January 2024
B S4.56-07 South Elevation LRA 25 January 2024
A S4.56-08 Street & West Elevation LRA 14 February 2023
A S4.56-09 East Elevation LRA 14 February 2023
B S4.56-10 Section aa LRA 25 January 2024
A S4.56-11 Section bb & Beach Terrace Elevation LRA 14 February 2023
C S4.56-12 Section CC LRA 25 January 2024
C S4.56-13 Area Calculations LRA 25 January 2024
A S4.56-19 Schedule of External Finishes LRA 14 February 2023
D S4.56-22 Cut & Fill Plan LRA 15 January 2024
B S4.56-27 Longitudinal Section LRA 25 January 2024
C S4.56-28 Cut & Fill Sections LRA 25 January 2024
[3]
Supplementary Geotechnical Report prepared by Crozier Geotechnical Consultants dated 25 October 2023.
1. The Applicant provided the amended documents referred to in [19(1)] to the Court on 25 January 2024.
Leave was granted to the Applicant to file the amending application.
[4]
Orders:
The Court orders:
1. The appeal is upheld.
2. Development Consent No. 8.2021.436.1 is modified in the terms in Annexure A.
3. Development Consent No. 8.2021.436.1, as modified by the Court, is Annexure B.
[5]
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: 02 February 2024
[6]
(1) amendment of condition 1 of the Consent to refer to modified plans and documentation;
(2) deletion of condition 2A of the Consent and replacement with a new Condition 2A to read as follows:
"Amended Plans - Solar Tiles (Garage)
2A. The Construction Certificate plans shall detail the inclusion of Nulok Solar tiles to the garage roof. Details must be submitted to the satisfaction of the Accredited Certifier.";
[7]
"Hydrological Investigation
24. Prior to the issuing of a Construction Certificate for the erection of the new dwelling a report shall be prepared by a suitably qualified hydrogeologist to the satisfaction of the Accredited Certifier. The report shall include details of site investigations at the location and depth of proposed excavation to determine subsurface hydrological conditions and shall include any recommendations to ensure that subsurface water is not diverted onto adjoining properties. Any recommendations of the report shall be implemented and a certificate of compliance with them issued by the hydrological engineer prior to the issuing of an Occupation Certificate for the dwelling".; and
[8]
(4) minor amendments to the internal layout and external finishes including additional excavation to allow for internal connectivity between the approved house and private open space at the rear.
[9]
A revised BASIX Certificate pursuant to the State Environmental Planning Policy - Building Sustainability Index (BASIX) 2004 has been prepared to accompany the Modification Application in accordance with the requirements of s 100(3) of the Environmental Planning and Assessment Regulation 2021 and filed with the Court at Tab 10 of the Class 1 Application.
The Court can be satisfied that for the reasons set out in Part 1.0 of the Modification Application Town Planning Statement prepared by GSA Planning filed at Tab 3 of the Class 1 Application filed on 7 August 2023 (Town Planning Statement). I set out the summary of reasons below, which result in achieving the requisite state of satisfaction 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 because it:
[10]
(1) retains the approved building height.
(a) In relation to cl 4.3 - Height of Buildings of the Mosman Local Environmental Plan 2012 (MLEP), the Consent approved a building height of 9.35m, which exceeded the building height control;
(2) retains the same number of car spaces;
(3) retains the approved setbacks;
(4) primarily relates to changes to the internal layout, excavation and external elevations including finishes and shutter styles;
(5) maintains the well-articulated façade, built form and overall appearance as approved;
(6) will not significantly change the external appearance of the building, increase the bulk and scale, alter the building type or increase overshadowing to neighbouring properties.
(a) In relation to cl 4.3A - Height of Buildings (Additional Provisions) of the MLEP, there is a small three-storey component of the dwelling due to the introduction of an internal stairwell and lift that is internal and not externally visible;
(7) will not result in any additional view impacts; and
(8) will not lead to any additional privacy impacts.
[11]
The proposed modifications result in an increase to the approved floor space ratio (FSR). The MLEP permits a maximum FSR of 0.478:1 on the Site (GFA 428.29m2) pursuant to cl 4.4 of the MLEP. The Consent approved a maximum FSR of 0.474:1 (GFA 424.6m2). The internal reconfiguration and amendments in the Proposed Modification result in an FSR of 0.51:1 (GFA 455.2m2).
The additional GFA will not impact the approved building envelope or be readily discernible when viewed from the street, beach or surrounding development and otherwise satisfies the objectives of the FSR standard as referred to in the Town Planning Statement filed with the Class 1 Application.
In relation to the proposed excavation and the provisions of cl 6.7 of the MLEP, the Proposed Modification proposes a net additional excavation volume of 121.8m2. The matters required to be considered for the purposes of cl 6.7 are addressed in the Supplementary Geotechnical Assessment.
The Council has notified the Modification Application in accordance with s4.56(1)(b) of the EPA Act, and the Mosman Community Participation Plan. The Council has notified each person who previously made a submission in accordance with s 4.56(1)(b)(c) of the EPA Act. The Court heard from objectors on site and the Respondent provided a copy of written submissions.
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. I adopt the reasons given by the parties.
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.
[12]
(1) Mosman Municipal Council, as the relevant consent authority, has agreed under cl 113 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Modification Application No. 8.2021.436.2 in accordance with the documents listed below:
(a) Amended architectural plans prepared by Luigi Rosselli Architects (LRA) listed as follows: