MacJohn v Mosman Municipal Council

Cases Cited: Bettar v Sydney City Council [2014] NSWLEC 1106
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582
Saffioti v Kiama Municipal Council [2019] NSWLEC 57
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited: Mosman Residential Development Control Plan 2012

Category: Principal judgment

Parties: Steven Lenard MacJohn (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
R McCulloch (Solicitor)(Respondent)
Solicitors:
Ters Legal (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2025/292205

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application 8.2025.94.1 seeking consent for the construction of a roof top terrace including 1.1m and 1.6m high obscure glass barriers, Hebel walls, planter boxes, synthetic turf, and external stairs connecting the roof top terrace to the level below (Proposed Development) at 250 Raglan Street, Mosman legally described as Lot B in DP 108872 (the Site).

2. The Site is located on the northern side of Raglan Street, approximately 90m from The Esplanade at Balmoral Beach and is located within the Balmoral Townscape as defined by Part 7.4(1) of the Mosman Residential Development Control Plan 2012 (MRDCP).

3. The Site is on land zoned R3 – Medium Density Residential pursuant to the Mosman Local Environmental Plan 2012 (MLEP) and currently has an existing dwelling constructed in accordance with DA 8.2017.16.1. The Respondent’s Statement of Facts and Contentions (SOFAC) filed 27 August 2025 (Ex 1) at 5.1 provides that “on 14 September 2017, a Land and Environment Court appeal was upheld relating to Development Application 8.2017.16.1 for the demolition of the existing dwelling house and the construction of a three-storey dwelling house including basement, ground floor and first floor, swimming pool and landscaping”.

4. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 11 November 2025. I presided over the conciliation conference and as the parties were unable to reach an agreement the conciliation conference was terminated, and the hearing took place on 12 November 2025. The parties agreed that the evidence given during the site view on 11 November 2025 is evidence for the hearing.

5. During the site view on 11 November 2025, the Court heard from a number of neighbours who expressed their concerns which largely reflect the contentions raised by the Council in the SOFAC (Ex 1) and dealt with by the expert town planners.

6. The Court had the benefit of visiting 1/248 Raglan Street (upper level from which I could see clearly into the rear private open spaces and into the rear living area of 5 Esther St) and 2/248 (lower level) Raglan Street, 1/252 Raglan Street adjacent to the Site firstly from the bathroom (frosted louvre windows looking to the existing ground floor balcony of the Site which extends from the bedroom) and then from the bedroom (with high level side window and almost floor to ceiling front window with uninterrupted views to Balmoral Beach). The site view continued from the rear yard of 2/252 Raglan Street before walking around to the rear neighbour at 5 Esther St. The view proceeded by a walk down the Esplanade along Balmoral Beach noting the ‘throat’ of the intersection being the limitation of the public view back to the Site.

7. Finally, the parties and the Court inspected the roof by accessing it by climbing up a ladder situated on the rear existing balcony. The Respondent’s expert town planner described the view as “world class”. The Applicant had prepared a number of mock panels of 1.1m and 1.6m height to simulate the impacts of the proposed screens and planter boxes depicted in the architectural drawings in Ex A, Tab 1.

8. The Applicant explained the reason for the roof top terrace is to provide private open space which has solar access during the winter months and it was agreed that the rear yard which has a pool and outdoor dining area has no solar access during the winter months as demonstrated in the shadow diagrams (Ex A, Tab 1).

9. A Joint Expert Report was prepared by Town Planners Scott Barwick for the Applicant and Peter Wells for the Respondent filed 3 November 2025 (JER) (Ex 3) responding to the contentions set out in the SOFAC relating to the following:

10. Impacts on surrounding properties;

11. Streetscape Impacts;

12. Public interest; and

13. Further information including an assessment of acoustic impacts.

14. The Applicant made an application to the Respondent to amend the Proposed Development after the JER was filed. The Court notes that the Respondent council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application 8.2025.94.1 made on 12 November 2025 to rely on the documents and plans specified as follows:

15. Architectural plans prepared by Antonio Caminiti Architect (Ex A, Tab 1) Drawing No:

2502.4.01 Rev 02 Site Plan dated 11 November 2025

2502.4.02 Rev 02 First Floor Plan dated 11 November 2025

2502.4.03 Rev 02 Roof Terrace Plan dated 11 November 2025

2502.4.04 Rev 03 Roof Terrace - Landscape Plan dated 12 November 2025

2502.4.05 Rev 02 Roof Terrace – Stormwater Plan dated 11 November 2025

2502.4.06 Rev 02 Finishes Materials dated 11 November 2025

2502.4.07 Rev 03 Furniture Plan dated 12 November 2025

2502.6.01 Rev 02 Elevations – South East Elevation (Raglan Street) dated 11 November 2025

2502.6.02 Rev 02 Elevations – South West Elevation dated 11 November 2025

2502.6.03 Rev 02 Elevations – North West Elevation dated 11 November 2025

2502.6.04 Rev 02 Elevations – North East Elevation dated 11 November 2025

2502.5.01 Rev 02 Sections – Section 1 and 2 dated 11 November 2025

2502.9.3 Rev 02 Additional Information – Perspective Shadow Sheet 1 dated 11 November 2025

2502.9.4 Rev 02 Additional Information – Perspective Shadow Sheet 2 dated 11 November 2025

2502.9.5 Rev 02 Additional Information – Perspective Shadow Sheet 3 dated 11 November 2025

2502.9.6 Rev 02 Additional Information – Perspective Shadow Sheet 4 dated 11 November 2025

2502.7.01 Rev 02 Shadow Diagrams – 21 June 0900 dated 11 November 2025

2502.7.02 Rev 02 Shadow Diagrams – 21 June 1200 dated 11 November 2025

2502.7.03 Rev 02 Shadow Diagrams – 21 June 1500 dated 11 November 2025

2. Written Request pursuant to cl 4.6 of the MLEP prepared by SJB Planning dated 11 November 2025 to justify the contravention of the height of building (HOB) development standard (Ex A, Tab 2);

3. Acoustic report prepared by Day Design Pty Ltd dated 12 November 2025 (Ex A, Tab 3).

4. The impacts are sought to be managed by the Applicant by the self-imposed limitation of a maximum number of 8 people allowed on the roof at any one time. During the Site view there were 9 people on the roof. In an effort to accommodate the limitation of the number of people, the Applicant has reduced the size of the proposed new roof top terrace from 95m2 to 56.90m2 and has included fixed outdoor furnishings shown in the Furniture Plan Drawing 2502.4.07 Rev 3 dated 12 November 2025, which prevents the space from being used as an unencumbered area facilitating a greater number of people. The parties have also agreed to a number of conditions of consent (Ex 6) for the purposes of ensuring the use of the rooftop terrace does not impact the residential amenity of surrounding properties (condition 36 Positive Covenant) or minimising impact associated with the use of the rooftop terrace on surrounding properties (condition 38 Rooftop terrace use, condition 39 Maximum number of persons on rooftop terrace at any one time, condition 40 Limited times of day for use of rooftop terrace, condition 41 Shouting prohibited on rooftop terrace, condition 42 Amplified music, condition 43 No lighting, condition 44 Minimise visual impacts).

5. Notwithstanding the amendments to the Proposed Development and the terms of the agreed Draft/Proposed Conditions of Consent filed 12 November 2025 (Ex 6) the Respondent’s case is that the Proposed Development should be refused because it:

6. has unacceptable impacts on surrounding properties, also referred to as private impacts (Contention 1): and

7. has unacceptable streetscape impacts, also referred to as public impacts (Contention 2).

8. The Applicant’s case is that apart from satisfaction of the jurisdictional prerequisite of cl 4.6 of the MLEP due to the contravention of the HOB development standard arising from the provision of privacy screens to protect the visual privacy of users of the roof top terrace and the surrounding dwellings, this case is about controls in the MDCP. The principal purpose of a DCP is to provide guidance on the matters listed in s 3.42 of the EPA Act and that the provisions of a DCP are not statutory requirements: s 3.42, EPA Act. Any provision of a DCP that is inconsistent with a provision of an instrument has no effect: s 3.43(5)(b), EPA Act. The Applicant relies on s 4.15(3A) of the EPA Act which allows the flexible application of any DCP provisions that set standards that are not met if the objectives of those standards are achieved by reasonable alternative solutions: Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [27] and [28].

9. I will deal with the Applicant’s justification of the contravention of the maximum height of building development standard and then will address the two issues, the first being the impacts on visual privacy and acoustic privacy (the private impacts), and the second issue being whether the Proposed Development is compatible with the desired future character of the locality (the public impact).

Is the contravention of the maximum height of building development standard justified?

15. The Proposed Development contravenes the 8.5m maximum HOB development standard pursuant to cl 4.3 of the MLEP (Contention 2, particulars (g)-(i)).

16. The Applicant relies on a Written Request pursuant to cl 4.6 of the MLEP prepared by SJB Planning dated 11 November 2025 to justify the contravention of the height of building (HOB) development standard (Ex A, Tab 2). The extent of the contravention is set out in two tables on pp 3 and 4 of the Written Request in accordance with the two common methods of extrapolating building heights as established in Bettar v Sydney City Council [2014] NSWLEC 1106 (Bettar method) and Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 (Merman method). The tables note the following HOB contraventions:

17. Bettar method:

(a) Rear stair balustrade and privacy screen at 9.68m (RL15.54) or 13.9% exceedance, (b) Middle portion of dwelling to balustrade at 9.84m (RL15.36 or 15.8% exceedance.

2. Merman method:

(a) Rear stair balustrade and privacy screen at 11.089m (RL15.54) or 30.35% exceedance, (b) Middle portion of dwelling to balustrade at 10.47m (RL14.86 or 23.2% exceedance.

17. Clause 4.6(3) of the MLEP provides that development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

18. The Written Request relies on the first test described in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) to demonstrate that compliance with the development standard is unreasonable or unnecessary, namely that the objectives of the development standard are achieved notwithstanding the non-compliance. The Written Request demonstrates how each of the objectives of the maximum HOB development standard are achieved at pp 5 to 8.

19. There are four objectives of the HOB development standard listed in cl 4.3(1)(a) of the MLEP of which some are separately contended in the SOFAC, such as compatibility with the desired future character of the are in terms of building height and roof form. In relation to DFC the Written Request provides at p 6 as follows:

“The proposed development is of an appropriate height and scale within the context of the street, and the Balmoral Townscape. The site is on a significantly sloped street and the proposed roof terrace will not introduce a discernible imbalance to streetscape in relation to roof heights. The height of the building including the rooftop terrace will remain at a lower level that (sic) 248 Raglan Street and higher than 252 Raglan Street due to the topography maintaining the character of the built form stepping with the topography. The proposal does not alter the existing roof form being a flat roof nor the maximum wall or wall height. The proposed terrace maintains the existing street frontage height as the terrace and screens are setback from the street wall.”

20. Having considered the evidence before the Court and having made my own observations, I find that the Proposed Development will remain compatible with the DFC for the reasons quoted above from p 6 of the Written Request.

21. Another objective of the HOB development standard which is separately contended is “to minimise the adverse effects of bulk and scale of buildings”: cl 4.2(1)(a)(iv), MLEP. The Respondent submits that the sections and elevations show an existing approved contravention of the HOB and that the Proposed Development will exacerbate that breach and that the dwelling will be a much bulkier building than as approved and constructed, especially as viewed from the rear of adjoining properties at 3, 5 and 7 Esther Street. The Written Request acknowledges at p 9 that “the terrace adds moderate height … at the rear of the dwelling … but remains visually lightweight and in scale with surrounding development …”. This observation is readily evident in the North West Elevation Drawing 2502.6.03 Rev 2 dated 11 November 2025 which shows the additional height of the privacy screens at the rear of the dwelling described as “Metal framed glass privacy screen Obscure glazing to recommended height”. I reproduce an extract of the North West Elevation below at Fig 1.

Fig 1: Extract of North West Elevation Drawing 2502.6.03 Rev 2 dated 11 November 2025 (Ex A, Tab 1)

22. Further, at p 7, the Written Request adequately sets out and addresses each of the elements of potential adverse impacts of excessive bulk and scale such as loss of views, loss of solar access, out of scale with surrounding development and visual intrusiveness.

23. The Written Request provides sufficient environmental planning grounds to justify the contravention of the HOB development standard at p 8 as follows:

“The site has limited contiguous open space that receives good winter solar access. The environmental planning ground supporting the contravention of the building height control on a residential site is for the amenity benefits of the dwelling in circumstances where adverse impacts have been avoided.

24. During cross examination Mr Wells was shown the shadow diagrams (Ex A, Tab 1) and he accepted that the rooftop provided unimpeded winter solar access which provided exceptional amenity. He also conceded that although not the entirety of the existing private open space in and adjacent to the swimming pool was in shade during the winter, the majority of that area was in shade.

25. I accept that during the summer period, it is more likely that occupants would use the existing private open space in and adjacent to the swimming pool and less likely to use the rooftop terrace which will be exposed to the full sun.

26. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the HOB development standard in cl 4.3 of the MLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP.

First issue – impacts on visual privacy and acoustic privacy (Private impacts)

27. Contention 1 of the SOFAC filed 27 August 2025 (Ex 1) lists a number of impacts on surrounding properties however as at the conclusion of the hearing, only visual and acoustic privacy remain unresolved.

28. Regarding visual privacy, MRDCP Part 5.7 O1 P2 and P3 (Particular (c)): Objective is “to have adequate visual privacy levels for residents and neighbours. P1 seeks to avoid direct overlooking into rooms and private landscaped areas of adjoining properties. P3 reads, relevantly “Due to their potential to affect privacy and views, roof top terraces are not permitted unless it can be demonstrated that there is no loss of privacy or view impact.

29. Of the properties listed at particular (a) of the SOFAC, the only property for which agreement on visual impact was not reached is 1/252 Raglan. Mr Wells’s evidence is that the amended plans do not entirely resolve the visual privacy concerns but also conceded in cross examination that a large part of the privacy impact concern is the “perception of privacy” in relation to the property at 252 Raglan Street.

30. I am satisfied that there is no direct overlooking into the rooms or private landscaped areas of adjoining properties from the roof top terrace. However, even if at its highest, if there is a residual perception of visual privacy impact from the roof top terrace in relation to the dwelling at 1/252 Raglan Street, I find that the objective is adequately met by the design of the roof top terrace by its placement and the set backs, its reduced size including fixed outdoor furniture and the provision of planter boxes and privacy screens in order to allow the flexible application of the planning controls for P2 and P3.

31. Regarding acoustic privacy, in response to particular (f), I accept the Applicant’s submission that MDCP Part 5.7 O1 P3 applies only to visual privacy, not acoustic privacy. No contention is raised in relation to P6 or P7, being the relevant acoustic privacy controls. In any event, in response to particular (g), the Proposed Development limits the number of people at any one to a maximum of 8 and Mr Wells also accepted in cross examination that if the recommendations of the Acoustic report were strictly implemented the Proposed Development would have acceptable acoustic impacts. I have already noted the conditions of consent in that regard above and any residual concern of Mr Wells regarding future compliance with the conditions is not a relevant consideration when undertaking a merit determination of whether to grant a development consent: Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [35].

32. Accordingly, I find that the acoustic impacts of the Proposed Development are acceptable.

33. Therefore, I conclude that the impacts of the Proposed Development on surrounding properties have been adequately addressed by being avoided or minimised to the extent that any residual impact, or the perception of any impact, is acceptable.

Second issue – desired future character (precedent) (Public impacts)

34. The Applicant submits that the streetscape impact is minimal or so negligible that it does not warrant the refusal of consent. I agree and set out my reasons below.

35. Contention 2 particular (b) of the SOFAC provides that the Proposed Development does not meet key built form controls which inform the desired future character (DFC) for dwellings as per the MLEP and the MRDCP. The first built form control cited is from the MLEP and is the HOB development standard. This has been dealt with satisfactorily above and I have found that the contravention of the HOB development standard has been justified pursuant to cl 4.6 of the MLEP.

36. The second built form control cited is from the MDCP and is Part 5.7 (Privacy and Security) which explicitly states that roof top terraces are not permitted – unless it can be demonstrated that there is no loss of privacy or view impact – due to their potential to affect privacy and views. I have dealt with this above in relation to visual privacy finding that the impacts, if any, are acceptable.

37. The last particular (c) of Contention 2 in the SOFAC relates to DFC and lists reasons why the Respondent has “consistently applied its controls to refuse roof top terraces throughout Mosman over the years”. The reasons listed in the SOFAC are a repeat of the earlier contentions regarding visual and acoustic privacy, views, overshadowing, light spill, glare. The Application does not seek consent for ‘sun-shading devices such as umbrellas, marquees, or other structures.’ The Written Request addressed compatibility with the DFC, being one of the objectives of the HOB development standard in cl 4.3(1)(a)(iii), MLEP as set out above at [19].

38. During cross examination, Ex E photos taken by Mr Barwick. Mr Wells was shown the photos taken by Mr Barwick (Ex E) and Mr Wells accepted that the Proposed Development and silhouettes were minimal and negligible. I accept that although people occupying the rooftop terrace will be visible from the “throat” of the road, I agree and Mr Wells accepts that people’s attention will be drawn more to the water at Balmoral Beach and Middle Harbour generally than up Raglan Street towards the Site.

39. The MLEP provides for the recognition and protection of the natural and visual environment of Mosman and Sydney Harbour and requires satisfaction that measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and that the development will maintain the existing natural landscape and landform: cl 6.4 MLEP (Contention 2(d)-(e)). Mr Wells agrees that although Balmoral is in Middle Harbour which is part of Sydney Harbour, there is no evidence of any impact from the sand and for that reason I am satisfied that the Proposed Development does not have any visual impact to and from Sydney Harbour.

40. Accordingly, I find that although the Proposed Development will be visible from the public domain, for the reasons given above, I conclude that the impact on the streetscape is minimal or so negligible so as to not warrant a refusal to the Proposed Development.

Orders:

41. The Court orders:

42. The appeal is upheld.

43. Development consent is granted to development application 8.2025.94.1 seeking consent for the construction of a roof top terrace for a dwelling house at 250 Raglan Street, Mosman legally described as Lot B in DP 108872 subject to the conditions of consent in Annexure A).

E Espinosa

Commissioner of the Court

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Annexure A (231 KB, pdf)