Maison Mosman Pty Ltd v Mosman Municipal Council

Category: Principal judgment

Parties: Maison Mosman Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
A Gadiel (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicants)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2024/93154

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a modification application appeal filed directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to DA 8.2022.81.1 at 64-66 Spit Road, Mosman (Lot 1 DP 551009 and Lot 361 DP 526291). The modification application seeks to modify the mix and configuration of apartments, consolidate the retail floor area, reconfigure the car parking, amend the façade and incorporate solar panels.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 30 January 2025. I presided over the conciliation conference.

3. The respondent has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the applicant amending DA 8.2022.81.2 in accordance with the documents listed below (amended application):

4. Architectural drawings prepared by PBD Architects:

| Drawing | Rev | Title | Date | | DA000 | 02 | Cover Page | 21 February 2025 | | DA001 | 02 | Project Information | 21 February 2025 | | DA002 | 02 | Demolition Plan | 21 February 2025 | | DA003 | 02 | Site Analysis | 21 February 2025 | | DA004 | 02 | Site Plan | 21 February 2025 | | DA100 | 02 | Basement 3 | 21 February 2025 | | DA101 | 02 | Basement 2 | 21 February 2025 | | DA102 | 02 | Basement 1 | 21 February 2025 | | DA103 | 02 | Ground Floor Plan | 21 February 2025 | | D104 | 02 | Level 1 | 21 February 2025 | | DA105 | 02 | Level 2 | 21 February 2025 | | DA106 | 02 | Level 3 | 21 February 2025 | | DA107 | 02 | Level 4 | 21 February 2025 | | DA108 | 02 | Roof Plan | 21 February 2025 | | DA200 | 02 | Elevation Sheet 1 | 21 February 2025 | | DA201 | 02 | Elevation Sheet 2 | 21 February 2025 | | DA202 | 02 | Streetscape Elevation | 21 February 2025 | | DA300 | 02 | Section Sheet 1 | 21 February 2025 | | DA301 | 02 | Section Sheet 2 | 21 February 2025 | | DA302 | 02 | Section Sheet 3 | 21 February 2025 | | DA303 | 02 | Section Sheet 4 | 21 February 2025 | | DA400 | 02 | Finishes Schedule | 21 February 2025 | | DA410 | 02 | 3D Image | 21 February 2025 | | DA411 | 02 | 3D Image | 21 February 2025 | | DA412 | 02 | 3D Image | 21 February 2025 | | DA413 | 02 | 3D Image | 21 February 2025 | | DA414 | 02 | 3D Image | 21 February 2025 | | DA500 | 02 | GFA Diagram | 21 February 2025 | | D520 | 02 | Height Limit Diagram | 21 February 2025 | | DA530 | 02 | Cross Ventilation Diagram | 21 February 2025 | | DA531 | 02 | Cross Ventilation Diagram | 21 February 2025 | | DA550 | 02 | Unit Mix Diagram | 21 February 2025 | | DA600 | 02 | Solar Access Diagram | 21 February 2025 | | DA610 | 02 | Shadow Diagram | 21 February 2025 | | DA611 | 02 | Shadow Diagram | 21 February 2025 | | DA700 | 02 | Pre/Post Adaptation Plan – Type 1 | 21 February 2025 | | DA701 | 02 | Pre/Post Adaptation Plan – Type 2 | 21 February 2025 | | DA702 | 02 | Pre/Post Adaptation Plan – Type 3 | 21 February 2025 | | DA703 | 02 | Pre/Post Adaptation Plan – Type 4 | 21 February 2025 |

2. Landscape architectural drawings prepared by Studio IZ:

| Drawing | Rev | Title | Date | | LA-000 | E | Cover Sheet | 12 February 2025 | | LA-001 | E | Legend & Plant Schedule | 12 February 2025 | | LA-101 | E | Ground Floor General Arrangement Plan | 12 February 2025 | | LA-102 | E | Ground Floor Planting Plan | 12 February 2025 | | LA-201 | E | Level 1 Landscape Plan | 12 February 2025 | | LA-202 | E | Level 2 – Landscape Plan | 12 February 2025 | | LA-203 | E | Level 3 – Landscape Plan | 12 February 2025 | | LA-203 | E | Level 4 – Landscape Plan (Roof Garden) | 12 February 2025 | | LA-600 | E | Typical Landscape Details | 12 February 2025 | | LA-700 | E | Specification Notes | 12 February 2025 |

3. Civil drawings prepared by Adams Structural and Civil Engineering:

| Drawing | Rev | Title | Date | | C001 | 1 | Civil Notes and Details Sheet | 29 February 2024 | | C002 | 2 | Civil Details Sheet 1 | 4 April 2024 | | C005 | 1 | Basement Level 3 Drainage Plan | 29 February 2024 | | C010 | 1 | Basement Level 2 Drainage Plan | 29 February 2024 | | C015 | 1 | Basement Level 1 Drainage Plan | 29 February 2024 | | C020 | 2 | Ground Floor Drainage Plan | 1 March 2024 | | C021 | 2 | OSD Tank Part Plan and Details Sheet | 1 March 2024 | | C025 | 2 | Sediment and Erosion Plan | 4 April 2024 |

4. 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 granting the modification application and modifying the development consent. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

5. 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.

Jurisdictional Prerequisites

6. 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 and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

7. I am satisfied that owners consent accompanied the modification application (s 98 of the EPA Reg).

8. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement. I accept the parties’ agreement that the proposed modifications to the apartments, retail area, car parking area and façade are substantially the same as the original development for the reasons set out in the Statement of Environmental Effects prepared by Boston Blyth Fleming dated 28 January 2025 (SEE) (s 4.55(2)(a) of the EPA Act).

9. With respect to s 4.55(2)(c) and (d) of the EPA Act, the modification application was notified between 3 April 2024 and 18 April 2024. Four submissions were received, which have been considered. The original development application did not require any approvals or concurrence and therefore no other forms of consultation is required (s 4.55(2)(c) of the EPA Act).

10. Chapter 4 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the amended application. The nominated architect, Paul Buljevic (Registration no. 7769), did not design the original development but is now the nominated registered architect. There is no relevant design review panel to refer the amended application to (s 146 of the Housing SEPP). The documentation accompanying the amended application, including the Design Verification Statement and Design Report both prepared by PBD Architects and the SEE satisfy the requirements of s 147 of the Housing SEPP and s 102 of the EPA Reg.

11. The amended application is accompanied by an amended BASIX certificate (1277938M_05) that satisfies s 100 of the EPA Reg.

12. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal and supported by the jurisdictional statement. I have considered the reasons for the grant of consent, noting that the original consent was also an agreement between the parties and the reasons are limited to jurisdiction see: Aplus Architecture Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1039 (s 4.55(3) of the EPA Act).

Conclusion

13. 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.

14. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

15. 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.

Orders

16. The Court orders:

17. The modification application is granted

18. Development consent DA8.2022.81.1 granted by the Land and Environment Court on 2 February 2023 is modified as set out in Annexure A.

19. The terms of the consolidated development consent DA8.2022.81.1, as modified, are set out in Annexure B.

S Porter

Commissioner of the Court

Annexure A

Annexure B

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