Robertson v Mosman Municipal Council

Category: Principal judgment

Parties: Guy Robertson (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2025/55844

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 8.2024.104.1 for alterations and additions to the existing dwelling (the proposal), at 3A Sirius Cove Road, Mosman (the site), by Mosman Municipal Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 31 July 2025. I presided over the conciliation conference. 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. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are:

| Drawing No. | Drawing Title | Revision No. | Date | | A 00 | Cover Page | B | 3.7.25 | | A 01 | Site & Roof Plan | B | 3.7.25 | | A 02 | Ground Plan | B | 3.7.25 | | A 03 | First Floor Plan | B | 3.7.25 | | A 10 | Elevations | B | 3.7.25 | | A 11 | Elevations | B | 3.7.25 | | A 20 | Sections | B | 3.7.25 | | A 100 | Site Analysis | B | 3.7.25 | | A 101 | Shadows Plan | B | 3.7.25 | | A 102 | Shadows Plan | B | 3.7.25 | | A 103 | Shadows Plan | B | 3.7.25 | | A 104 | Shadows 3D views | B | 3.7.25 | | A 105 | Shadows 3D views | B | 3.7.25 | | A 106 | External Finishes | B | 3.7.25 | | A 107 | 3D Views | B | 3.7.25 | | A 01 | Landscape Plan | A | 3.7.25 |

1. Clause 4.6 Floor Space Ratio by Vaughan Milligan consultant planners dated July 2025

2. Letter from Aaron Jarvis of Beaches Group – Planting Viability

3. Amended Basix Certificate No.A1744151_02 dated 30 July 2025

4. Embodied Emissions report by Efficient Living dated 25 July 2025

5. The amended application seeks approval for alterations and additions to the existing dwelling to create a study. The main elements of work will be raising the existing roof height and extending the floor plan of an existing storage area as shown in the architectural plans.

Pre-conditions to the grant of consent

6. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

7. I accept the Council’s assessment that the proposal satisfies the applicable provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The site is located within the 'Foreshores and Waterways Area' and the 'Sydney Harbour Catchment' for the purposes of Ch 6 of the Biodiversity and Conservation SEPP. Parts 6.2 and 6.3 of the Biodiversity and Conservation SEPP provide that a consent authority must consider additional matters before determining whether to grant consent to development in the Foreshores and Waterways Area and Sydney Harbour Catchment. The Council’s assessment concludes the following:

8. The application will have no impact on any publicly accessible area of Sydney Harbour or the enjoyment of the Sydney Harbour as a public resource, to be protected for the public good.

9. There will be no adverse impact on the environment.

10. The visual qualities of the Foreshores and Waterways Area and its islands, foreshores and tributaries will be protected and maintained.

11. The site is zoned C4 Environmental Living under Mosman Local Environmental Plan 2012 (LEP 2012) and dwelling houses are permissible in the zone with consent. The objectives of the zone 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.

9. The height of buildings development standard under cl 4.3 of LEP 2012 is 8.5 meters (m). The proposal complied with the development standard with a proposed height of 6.85m. The proposal maximum wall height of 6.61m complies with the additional provisions for building height under cl 4.3A(4) of LEP 2012 which requires a maximum wall height of 7.2m.

10. Clause 6.4 Scenic Protection of LEP 2012 applies to the site. I am satisfied that the amended proposal will minimise the visual impact of the development to and from Sydney Harbour and maintain the existing natural landscape and landform. The proposal will otherwise not require the removal of any existing plantings within the site and the additional proposed landscaping will assist with softening and screening the built form.

Contravention of the floor space ratio development standard

11. The proposal has a total floor space ratio (FSR) of 0.55:1. The FSR development standard for the site is 0.5:1 under cl 4.4 of LEP 2012. The applicant provided a written request seeking to justify the contravention of the FSR development standard pursuant to cl 4.6 of LEP 2012.

12. Clause 4.6(3) of LEP 2012 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied 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.

The applicant’s written request to contravene the FSR development standard

13. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

14. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action at [17]-[21]:

15. the objectives of the development standard are achieved, notwithstanding non-compliance with the standard;

16. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

17. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

18. the development standard has been abandoned by the council; and

19. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

20. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

21. The applicant’s written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary for the following reasons:

22. The proposed works will result in an improved privacy outcome for the neighbouring property to the east at No 26 Lennox Street.

23. The absence or avoidance of impacts resulting from the proposal to the surrounding properties and streetscape.

24. The proposal is compatible with the existing bulk and scale of the built form in the context of the site.

25. The small increase in the departure from the development standard and absence of consequential impacts.

26. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

27. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the FSR development standard as a justified response to the opportunities and constraints of the existing dwelling and the site conditions and the improved visual privacy outcome for the neighbouring property. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Conclusion

19. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 31 July 2025 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.

Orders

20. The orders of the Court are:

21. The appeal is upheld.

22. Development Application No. 8.2024.104.1 for alterations and additions to the existing dwelling at 3A Sirius Cove Road, Mosman is determined by the grant of consent, subject to the conditions in Annexure A.

S O’Neill

Commissioner of the Court

Annexure A (243 KB, pdf)

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