COMMISSIONER: This appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant Nicholas Redpath. The Applicant appeals the determination of their development application, in particular the imposition of deferred commencement conditions 1(a) and 1(b) in Part A of the consent issued by Mosman Municipal Council (the Respondent). Although the appeal is against conditions, the Consent ceases to have effect by operation of s 8.13(1) of the EPA Act. The development application, as amended, seeks consent for alterations and additions to the existing dwelling at 18 Lavoni Street, Mosman (Lot 32 in DP 6648).
A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 17 October 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties' agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.
The amendments to the development application can be broadly summarised as follows:
1. Provision of additional information, including a Geotechnical Report prepared by White Geotechnical.
2. Amendments to the setback, form and materials of the proposed upper-level addition.
3. Provision of an amended BASIX certificate.
As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:
1. The development application was lodged by DM Planning, as agent for the Applicant. The Applicant (as principal) has standing to commence the proceedings: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43].
2. The development application was notified in accordance with Mosman Council's Community Participation Plan 2020 (Participation Plan) between 28 September and 12 October 2022. One submission was received raising concerns in relation to the view impact arising from the proposed development. I am satisfied that the submission has been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. Consistent with the Participation Plan, the amended development application was not renotified as the Respondent formed the opinion that it resulted in a reduced environmental impact.
3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies. As required by s 4.6 of SEPP Resilience and Hazards, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects confirms that site is not identified as contaminated, or likely to be contaminated land. The parties confirm that a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.
4. The development application is accompanied by the BASIX certificate in compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
5. Pursuant to s 6.65 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), the former provisions, prior to 21 November 2022 continue to apply to the development application.
6. Chapter 10 of SEPP BC applies as the site is located within the Sydney Harbour Catchment. However, the site is not identified as being located within:
1. The Foreshores or Waterways area
2. A strategic foreshore site
3. As a heritage item, or
4. The wetlands protection area.
1. Accordingly, only Pt 10.1 of Ch 10 applies. I accept the agreed position of the parties that the amended development application is consistent with the aims of Ch 10, detailed at s 10.1 of SEPP BC.
2. Mosman Local Environmental Plan 2012 (LEP 2012) applies to the land. The land is zoned C4 Environmental Living. The proposed development, alterations and additions to a dwelling house, is permitted with consent in the zone. In determining the development application, I have had regard to the objectives of the zone which are:
• 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.
1. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2012.
2. The development application complies with the maximum height standard of 8.5m at cl 4.3 Height of Buildings in LEP 2012.
3. All land in the C4 Environmental Living zone is subject to cl 4.3A of LEP 2012. Under cl 4.3A of LEP 2012, a consent authority may refuse development consent for the erection of a building on land where the clause applies if the building has more than two storeys above ground level (existing). Further, a maximum wall height of 7.2m is permitted on the site: cl 4.3A of LEP 2012. The amended development application complies with the maximum wall height standard.
4. Pursuant to cl 4.4 Floor Space Ratio, a maximum floor space ratio of 0.497:1 is permitted. The amended development application complies with this standard.
5. The site is listed as a heritage item in Sch 5 of LEP 2012. The development application is accompanied by a Heritage Impact Assessment prepared by Weir Philips Heritage and Planning dated August 2022. Further, as part of the proceedings the amended development application was the subject of joint conferencing by the heritage experts. The joint report of the experts concludes that the amended development application will have an acceptable impact on the significance to the heritage item. As required by cl 5.10(4) in determining the development, I have considered the effect of the proposed development on the heritage significance of the item, and I am satisfied any impact is acceptable.
6. Clause 6.1 Acid Sulfate Soils in LEP 2012 requires the consent authority to consider the impacts of the development on land shown on the Acid Sulfate Soil Map. The site is not identified on the Acid Sulfate Soil Map.
7. Clause 6.4 Scenic Protection in LEP 2012 identifies that the site is location in an area categorised as 'scenic protection'. I am satisfied the proposed development incorporates measures to minimise any visual impact of the development to and from Sydney Harbour and will maintain the existing natural landscape and landform.
8. All land in C4 Environmental Living is subject to cl 6.6 Landscape area in LEP 2012. The site is subject to a minimum landscaped area of 40%. The amended development application complies with this standard.
9. Clause 6.7 Earthworks requires the consent authority to consider the matters at subcl (3) of the provision. The amended development application includes a Geotechnical Report prepared by White Geotechnical which considers excavation methods to limit effects on nearby residents and development. The Geotechnical Report considers the matters at cl 6.7(3) of LEP 2012. In determining the development application, I have considered the matters at cl 6.7(3) of LEP 2012 and I am satisfied that none warrant the refusal of the development application.
Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any, jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court notes that:
1. The Respondent, Mosman Municipal Council, as the relevant consent authority has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No 8.2022.225.1 comprising the following amended plans and documents:
1. Architectural Plans prepared by Design Studio Group:
Ref. Plan name Revision Date
DA 0.00 Cover Sheet E 25 September 2023
DA1.02 Proposed Site Plan D 21 September 2023
DA1.03 Proposed Area Plan B 14 September 2023
DA2.10 Proposed Garage Floor B 14 September 2023
DA2.11 Proposed Ground Floor B 14 September 2023
DA2.12 Proposed First Floor E 25 September 2023
DA2.51 Proposed Roof Plan C 19 September 2023
DA3.10 Proposed Elevations 1 E 25 September 2023
DA3.11 Proposed Elevations 2 D 21 September 2023
DA3.12 Proposed Elevations 3 B 14 September 2023
DA3.13 Proposed Elevations 4 C 19 September 2023
DA4.10 Proposed Sections 1 C 19 September 2023
DA4.11 Proposed Sections 2 E 25 September 2023
DA5.01 Shadow Diagrams 9AM B 14 September 2023
DA5.02 Shadow Diagrams 12PM B 14 September 2023
DA5.03 Shadow Diagrams 3PM B 14 September 2023
DA6.01 External Finishes B 14 September 2023
DA7.01 Isometric View - Fly Around E 25 September 2023
DA7.02 Height Plan Diagrams B 14 September 2023
DA8.01 Proposed Elevations 1 B&W - Building only E 25 September 2023
DA8.02 Proposed Elevations 2 B&W - Building only B 14 September 2023
[2]
Geotechnical Investigation Report prepared by White Geotechnical Group dated 19 July 2023.
2. BASIX Certificate A445741_02 prepared by Certified Energy 1 dated 16 October 2023.
1. The amended development application is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.
2. The Applicant has filed the amended development application with the Court.
The Court orders that:
1. The Applicant is granted leave to rely upon the Amended Development Application
2. The appeal is upheld.
3. Development Application No. 8.2022.225.1 for the alterations and additions to the existing dwelling at 18 Lavoni Street Mosman is determined by the grant of development consent subject to the conditions in Annexure A.
[3]
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Decision last updated: 24 October 2023