The Applicant uploaded the documents set out in paragraph 2(i) above onto the NSW Planning Portal by 5 August 2022.
2. The Applicant filed the amended development application with the Court on 5 August 2022.
[2]
Orders
The Court orders that:
1. The Applicant shall pay the Respondent's costs thrown away by reason of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $20,144.00 within 28 days of the making of this order.
2. The written request pursuant to clause 4.6 of Mosman Local Environmental Plan 2012 seeking a variation to the height standard in clause 4.3 of Mosman Local Environmental Plan 2012 prepared by Longitude Planning dated 20 June 2022 is upheld.
3. The Appeal is upheld.
4. Development consent is granted to Development Application No. DA8.2021.434.1 for the construction of a mixed use development comprising retail space, 28 dwellings, a public car park and stratum/strata subdivision at 7-11 Spit Road, Mosman subject to the conditions in Annexure A.
……………………
T Horton
Commissioner of the Court
[3]
Platform Project Services v Mosman Municipal Council [2022] NSWLEC 1516 | Case summary | Zoe
Annexure A
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: 21 September 2022
Parties
Applicant/Plaintiff:
Platform Project Services
Respondent/Defendant:
Mosman Municipal Council
Cases Cited (1)
Judgment
COMMISSIONER: A mixed use development comprising ground floor retail tenancy, 28 dwellings, basement carparking and stratum/strata subdivision is proposed on land formerly owned by Transport for NSW at 7-11 Spit Road, Mosman.
To that end, the Applicant in these proceedings, Platform Project Services, lodged Development Application DA8.2021.434.1 (the DA) with Mosman Municipal Council on 15 December 2021. The DA was notified from 21 December 2021, until 17 January 2022.
The Applicant lodged an appeal against the deemed refusal of the DA under s 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 proceedings on 4 February 2022.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 June 2022, and at which I presided.
At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application.
I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted further adjournments so that additional amendments agreed between the parties could be made to the proposal.
This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 5 August 2022.
The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.
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. The parties' decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [42], and as follows:
The site is located in the B2 Local Centre zone according to the Mosman Local Environmental Plan 2021 (MLEP), in which development for the uses proposed is permitted with consent.
The objectives of the B2 zone are:
To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
To encourage employment opportunities in accessible locations.
To maximise public transport patronage and encourage walking and cycling.
To enhance the viability, vitality and amenity of the local centres.
To maintain active uses at street level with a predominance of retail use.
To allow the amalgamation and redevelopment of land in Spit Junction.
To encourage residential development as part of the mixed use of sites.
A height standard of 15m applies to the site, according to cl 4.3 of the MLEP. The proposed development exceeds the height standard and so the DA relies upon a written request prepared by Longitude Planning in accordance with cl 4.6 of the MLEP.
The objectives of the height standard for the B2 zone at cl 4.3 are:
(b) for development on land in Zone B1 Neighbourhood Centre, Zone B2 Local Centre or Zone B6 Enterprise Corridor -
(i) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form and will produce a cohesive streetscape, and
(ii) to provide opportunities for buildings of a greater height than existing development in suitable locations to achieve the Council's residential strategy and provide opportunities for economic growth
The written request observes that the site has been excavated prior to lodgement of the DA and so the ground level for the purposes of determining the height of building standard has been extrapolated in the manner set out in Bettar v Council of the City of Sydney [2014] NSWLEC 1070.
On this basis, the exceedance is expressed in the written request as a maximum of 570mm at the topmost level of the lift overrun and screen to rooftop services.
The written request asserts that compliance with the standard is unnecessary or unreasonable in the circumstances of this case as the objectives of the height standard are achieved, notwithstanding the non-compliance with the numerical standard because:
1. The desired future character of the area envisages a 15m height containing 5 storeys and a floor space ratio of 3:1, and is the only site in the Mosman Municipal Council local government area so designated.
2. Given a similar height, or identical heights are permitted on adjoining and nearby sites, the proposal will be compatible with the desired future character expressed in future development in the vicinity of the site, will provide a cohesive streetscape despite the exceedance, while also achieving the greater height than existing development, consistent with the second objective at cl 4.3.
The written request also asserts that requiring compliance would thwart the achievement of the objectives of the height standard as the actions of the Council over time consistently equate the 15m height limit with development of five storeys, which appears to misalign with the requirements of the Apartment Design Guide (ADG) which establishes certain heights for ground floor retail development.
I am satisfied that the proposal is consistent with the objectives of the height standard in cl 4.3, despite the exceedance, which I consider to be minor. In forming this opinion of satisfaction, I accept the site is subject to a combination of height and floor-space ratio (FSR) standards that is unique in the immediate area, and which has the effect of promoting development of greater height than existing development in the area. This is achieved by a proposal that complies with the FSR applicable to the site, and largely within the height standard, despite a fall in the land to the north east where an exceedance occurs.
An accessible ground floor retail tenancy is an identified use within the objective that also encourages employment opportunities, and contributes to the predominance of retail uses.
The proposal is located at a bus stop for the 'B-line' service, accommodates bicycle and motorcycle parking, and end of trip facilities to encourage the same.
The proximity of the development to existing amenities in Spit Road and Military Road will enhance the viability and vitality of the local area, and basement parking reserved for public use may likewise contribute to this objective.
The residential development comprises a mix of 1-, 2- and 3-bedroom apartments above ground floor retail tenancy which achieves the mixed use development sought by the objectives.
Accordingly, I am satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the MLEP, and also that the development is in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the B2 zone in which the development is proposed to be carried out.
Clause 4.6(4)(b) of the MLEP requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard.
That said, s 39(6) of the LEC Act gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although consideration ought to be given to the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.
I have considered whether the contravention of the height standard raises any matter of significance for State or regional environmental planning, and whether there is a public benefit of maintaining the development standard. I conclude that no matter of significance arises, and I consider there to be a public benefit served by upholding the written request for the reasons set out above.
I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the height standard for reasons contained in the written request, that may be summarised as follows:
1. The slope of the land in the vicinity of the site imposes constraints in providing universal access to the ground floor tenancy while also accommodating the number of storeys envisaged by the control.
2. Relatedly, the exceedance occurs at the north east and eastern portion of the development, due in part to the slope of land along the Clifford Street and Spit Road frontage.
3. The height exceedance does not flow from a desire for, or achieving of, additional FSR beyond the 3:1 permitted on the site.
4. While the height of the proposal results in an impact on views from an existing building at 34 Spit Road, I accept the impact is one that largely results from the envelope envisaged by the controls applicable to the site. That said, the view impact assessment depicts a view to the horizon line of the harbour and Pacific Ocean that is substantially retained.
5. Likewise, the impact on solar access to existing dwellings at 11-17 Clifford Street retains the degree of direct solar access required by the Mosman Development Control Plan 2012 (MDCP).
6. Finally, I accept that the proposal is consistent with the objective for development in the B2 zone set out at [12], because: