Rodgers v Mosman Municipal Council

Texts Cited: Mosman Residential Development Control Plan 2012

Category: Principal judgment

Parties: Donna Maria Rodgers (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
S Griffiths (Solicitor)(Applicant)
R McCulloch (Solicitor)(Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2025/83941

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the Applicant appeals against the deferred commencement conditions of Part A of development application No. 8.2024.137.1 (DA) granted by Mosman Municipal Council (Council) for alterations and additions to the existing dwelling, and construction of a new swimming pool on land identified as Lot 44 in Deposited Plan 1006046 and known as 16 Kiora Avenue, Mosman NSW 2088 (Site).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.

4. The Site is located within an area known as the Rosherville/Wy-ar-gine Townscape, which is described in the Mosman Residential Development Control Plan 2012. The area is characterised by steep topography sloping down to the Rosherville Reserve and Middle Harbour. Kiora Avenue is a split level road, which is divided by a sandstone retaining wall, and which forms a cul-de-sac at its northern end.

5. The Site is an irregularly shaped lot with a frontage of 22.075m to Kiora Avenue, a depth of between 25.88m (northern side) and 30.515m (southern side) with a rear boundary of 22.245m. The total area of the Site is 611.5m2.

6. The Site slopes steeply from west (rear) to the east (Kiora Avenue) with the change in level from the rear boundary to the front boundary being approximately 18m.

7. The Site currently comprises a detached dwelling over four levels (a garage, level 1, level 2, and a roof-top level).

8. The Site is located in an area consisting predominantly of residential developments with a variety of scale, style, and forms.

9. The proposal in the DA was as follows (Council’s Statement of Facts and Contentions (SOFAC) in Reply filed 14 April 2025):

“Roof and Garden Terrace:

1. Extend roof terrace slab to south and remove southeast corner of roof slab cantilever;
2. Rebuild existing access bridge, replace existing handrail, replace roof terrace;
3. Landscaping on upper terrace to West as per landscape plans;
4. Modify access stair and retaining wall;
5. New lift access;
6. New Powder room;
7. New pergola roof with solar panels, and
8. New raised planters

Level L2

1. Retain north side wall, but back NE corner;
2. Remove three (3) internal columns and replan interior;
3. New windows throughout;
4. Remove south wall and three (3) columns;
5. Remove existing inclinator, new addition to south side (stair and lift);
6. Remove/cut back southeastern corner of balcony slab;
7. Replace metal handrail with glass balustrade;
8. Modify retaining walls to enlarge paved courtyard;
9. Modify rear access stair and stepped planters on southern boundary;
10. New side access stair and stepped planters on southern boundary;
11. New drainage and update drainage voids.

Level L1

1. Retain northside wall, new window openings to wall;
2. Remove three (3) internal columns and replan interior;
3. New windows throughout;
4. New additional to south side (stair and lift);
5. Infill stair to south eastern corner of balcony;
6. New side access stair and stepped planters on southern boundary

Ground floor

1. Existing subfloor excavated to increase usable area;
2. New rumpus, guest bed, bathrooms and laundry;
3. Storage in subfloor at North side;
4. New windows throughout;
5. New addition to south side (stair and lift);
6. New pool with pool fence and paved terrace;
7. Landscaping to northeast corner of the site.
8. Level garden area adjacent to pool terrace;
9. Remove existing stairs
10. New side access stair and stepped planters on southern boundary; and
11. Remove trees as indicated.

Mezzanine

1. New stair and lift addition
2. New plant room and pool pump with AC; and
3. New side access stair on southern boundary.

Lower Ground Floor (Garage/Entry)

1. Demolish existing double garage, stairs and retaining walls and replace it with a new double garage, driveway and storage;
2. Remove existing inclinator and add new entry lobby and lift;
3. Cut back rock outcrops, new front retaining walls and planters;
4. Remove trees as indicated; and
5. New side access stair on southern boundary.

Amended Plans

The proposal, as amended on 28 October 2024, consists of the following changes and is also outlined in the addendum to the Statement of Environmental Effects.

Lower ground floor

1. Move garage door to align with entry gate;
2. Reduce garage depth;
3. Move entry door 1m for access from garage; and
4. Relocate palm trees from driveway zone.

Mezzanine

1. Reduce plant room and adjust walls to suit pool”

2. Part A of the Notice of Determination of the DA contained Deferred Commencement Conditions (DCC). The Applicant was dissatisfied with all of the DCC.

3. The DCC are summarised as follows:

(a) Roof top pergola, lift and power room (at RL 39.2) must be deleted. (b) Feature garden planter height (at L 39.2) shall be limited to a maximum of 500mm. (c) Swimming pool, swimming pool terrace (at RL 29.65): the swimming pool length shall be reduced to be in line with the external northern wall of the garage and the pool terrace shall be deleted. (d) Mezzanine floor (at RL 26.75): the vegetated rock outcrops north of the reduced pool and directly below the deleted pool terrace shall be retained. (e) Garage: the storage and bin store on the northern side of the double garage shall be deleted. (f) Excavation – Front Setback area: the area north of the garage, and between the street front boundary and the external glass-line wall of Level 1 shall be retained (to reduce excessive excavation). (g) Floor space compliance: The W.C. on the roof terrace together with other floor space shall be deleted from the proposal. (h) Amendments to the proposed windows: amendments required to the architectural plans to identify those windows required to be fixed with translucent glass. (i) Vehicular crossing: to be reduced to 4.5m in width. (Incorrectly marked as (f) on the Notice of Determination)

11. The Court arranged a conciliation conference between the parties under s 34(1) of the LEC Act, which was held on 14 and 15 July 2025. I presided over the conciliation conference.

12. 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. This decision involved the Court upholding the appeal and granting development consent to the DA subject to the conditions in Annexure A.

13. 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 the statutory power or function under s 4.16(1) of the EPA Act to uphold the appeal and grant consent to the DA, subject to Annexure A.

Jurisdictional Considerations

14. 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 they have been satisfied as set out below.

15. On 6 August 2024 the Applicant lodged the DA with Council.

16. Pursuant to s 4.5 of the EPA Act, Council is the authorised consent authority to assess the DA.

17. On 20 November 2024 Council determined the DA by granting deferred commencement consent. The Notice of Determination includes Part A which outlines DCC, these have been discussed at [10].

18. On 3 March 2025 the Applicant filed a Class 1 appeal in this Court in accordance with the time provisions in s 8.10(1)(a) of the EPA Act.

19. The Applicant is the owner of the Site, and the authorised person to lodge the DA with Council and file the appeal in these proceedings.

20. Matters pursuant to s 4.15(1)(a) of the EPA Act have been considered as set out below.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. Parts 2.2 and 2.3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) have been considered by the parties as there are a number of trees within and adjoining the Site.

18. In accordance with s 2.10 of the BC SEPP the parties agree that the Amended DA is acceptable subject to Annexure A which requires replacement tree plantings and the retention and protection of several other trees within and adjoining the Site.

19. Having considered relevant matters under s 6.6 of the BC SEPP, the parties agree that the Amended DA will have a neutral effect on the quality of water entering waterways and that the Amended DA is acceptable subject to Annexure A.

20. The parties agree that the requirements of Pts 2.2, 2.3 and 6.6 of the BC SEPP are satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Pursuant to Ch 4, s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) the consent authority must not grant development consent unless it has considered whether the subject land is contaminated and subject to its status of contamination, is satisfied that the land is or will be made suitable for the development. There is no known history of potentially contaminating uses or events, and the parties are satisfied the Site is suitable to accommodate the proposed DA subject to Annexure A.

State Environmental Planning Policy (Sustainable Buildings) 2022

22. Pursuant to the State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) the DA is a BASIX affected development containing a BASIX affected building. The DA was accompanied by a BASIX certificate (Certificate number A1755763 dated 15 July 2024) which the Council considers to be satisfactory, and the Amended DA does not warrant the provision of an amended BASIX certificate.

Mosman Local Environmental Plan 2012

23. The parties agree that the Amended DA is generally consistent with the aims of cl 1.2 of the Mosman Local Environmental Plan 2012 (MLEP 2012).

24. Clause 2.3(2) of the MLEP 2012 required the consent authority to have regard to the objectives of the zone when determining a development application. The Site is zoned C4 Environmental Living Zone (C4 Zone), and the parties agree that the Amended DA is consistent with the C4 Zone objectives pursuant to cl 2.3 and the Land Use Table. The objectives of the C4 Zone are as follows:

25. To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

26. To ensure that residential development does not have an adverse effect on those values.

27. To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

28. To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

29. To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access and landscaping and to retain natural topographical features.

30. To ensure that development is of a height and scale that achieves the desired future character of the area.

31. To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

32. To minimise the adverse effects of bulk and scale of buildings.

33. Dwelling houses are permissible with consent within the C4 Zone.

34. Pursuant to cl 4.3(2) of the MLEP 2012 and the Height of Building Map, a height development standard of 8.5m applies to the Site. The parties agree that the Amended DA complies with this height development standard.

35. Pursuant to cl 4.3A(2) of the MLEP 2012, the consent authority may refuse consent for the erection of a building that has more than two storeys above ground level (existing). This provision is to be read in conjunction with cl 4.3A(3) of the MLEP 2012 which provides that the consent authority may grant consent to an additional storey in the ‘foundation space’ of an existing building if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale. The parties agree that cl 4.3A(3) of the MLEP 2012 applies to the proposed ground floor level of the Amended DA, and that the height and bulk of the Amended DA is of an appropriate form and scale.

36. Pursuant to cl 4.3A(4) of the MLEP 2012, a wall height development standard of 7.2m applies to the Site. The parties agree that the Amended DA complies with the wall height development standard.

37. Pursuant to cl 4.4A(a) of the MLEP 2012, a floor space ratio development standard of 0.5:1 applies to the Site (FSR Development Standard). Pursuant to cl 4.6(3) of the MLEP 2012, and based on the Applicant’s amended written request to vary the FSR Development Standard, the parties agree that it has been demonstrated that:

38. Compliance with the FSR Development Standard is unreasonable or unnecessary in the circumstances; and

39. There are sufficient environmental planning grounds to justify the contravention of the FSR Development Standard.

40. I note Mr Michael Neustein’s Amended Clause 4.6 Variation Statement dated 16 July 2025 confirms that:

“The existing dwelling has a GFA of 138.8m2 or 0.39:1 and the proposed additions increase the exiting GFA by 8.4.m2 resulting in a total FSR of 0.52:1 or 323.2m2. This is a nominal 5.7% breach of the standard (17.45m2).”

31. Pursuant to cl 5.10, Sch 5, and the Heritage Map in the MLEP 2012, the Site is not identified as a heritage item of local significance or set within a heritage conservation area. The Site does adjoin the split-level carriageway of the road reserve of Kiora Avenue, which is listed as an item of local heritage significance (I391). However, the parties agree that the Amended DA does not have a negative impact on the sandstone dividing wall within Kiora Avenue which is a locally listed heritage item.

32. The Amended DA does not involve development of the type which will impact on acid sulfate soils as set out in cl 6.1(2) of the MLEP 2012.

33. Pursuant to cl 6.4 and the Scenic Protection Map in the MLEP 2012, the Site is identified as being within a Scenic Protection Area (Rosherville/Wy-ar-gine Townscape). In this regard, cl 6.4(3) states that:

34. Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied:

(a) 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 (b) the development will maintain the existing natural landscape and landform.

34. The parties agree that the DA has been amended to minimise the visual impact of the development to and from Sydney Harbour and that, where possible, the amended DA will maintain existing natural landscape and/or landform.

35. Pursuant to cl 6.6(3)(iii) of the MLEP 2012, the consent authority may refuse to grant development consent to developments involving the erection of a building unless at least 35% of the site area is provided as landscaped area. The parties agree that the landscaped area in the Amended DA comprises 43% of the Site area.

36. The Amended DA includes earthworks, as defined in the dictionary in the MLEP 2012, and pursuant to cl 6.7(3) of the MLEP 2012, the consent authority must consider the matters under subcll (a)-(h) prior to the grant of any DA. The parties have considered the individual geotechnical expert report of Philip Davies filed on 16 May 2025, and the matters in cl 6.7(3)(a)-(h) of the MLEP 2012. The parties are satisfied that the Amended DA has addressed those matters of consideration, by imposing conditions in Annexure A (in particular conditions 11, 12-15, 25, 39, and 57).

37. The parties agree that the impacts of the Amended DA, including the environmental impacts on both the natural and built environments, and social and economic impacts in the locality, are acceptable.

38. The parties agree that the Site is suitable to accommodate the Amended DA.

39. In relation to s 4.15(1)(d) of the EPA Act, Council notified and exhibited the DA from 13 August 2024 to 28 August 2024. Council received two written submissions in response to the notification. At the commencement of the s 34AA conciliation and hearing one objector attended and gave oral submissions. I perused the submissions and listened to the objector who gave oral submissions on 14 July 2025. Council has considered the issues raised in the submissions and is satisfied that, to the extent necessary, the submissions have been addressed by the Amended DA. The parties also agree that the Amended DA reduces impacts compared to the DA prior to the latest amendments, and thus the Amended DA does not require further notification to be undertaken.

40. In relation to s 4.15(1)(e) of the EPA Act, the parties agree that the Amended DA is consistent with the public interest.

41. The parties agree that the Amended DA subject to Annexure A satisfies the contentions raised by the Applicant’s SOFAC filed 28 March 2025, and the Council’s SOFAC in Reply filed 14 April 2025.

42. The parties also agree that the conditions in Annexure A comply with s 4.17(1) of the EPA Act and the relevant planning principles.

43. For the reasons set out above, 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.

44. I am not required to consider the merit issues in this matter, and I have not done so.

45. 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.

Notations

46. The Court notes that the Respondent has agreed to the Applicant amending the Class 1 Application pursuant to s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW), to rely on the following additional and amended materials:

| Document Description | Prepared By | Date | | Architectural plans: | | | | Dwg. No. DA00, Rev D – Proposed Site/Roof Plan, Site Analysis and Materials Schedule | Hampton Architecture | July 2025 | | Dwg. No. DA03, Rev C – Proposed Plan Lower Ground Floor-Garage and Mezzanine Level | Hampton Architecture | July 2025 | | Dwg. No. DA04, Rev D – Proposed Plan GF Rumpus/Pool and L1 Bedrooms | Hampton Architecture | July 2025 | | Dwg. No. DA05, Rev C – Existing Elevations | Hampton Architecture | July 2025 | | Dwg. No. DA06, Rev C – Proposed Plan Level 2-Living and Roof Terrace | Hampton Architecture | July 2025 | | Dwg. No. DA07, Rev E – Proposed Elevations | Hampton Architecture | July 2025 | | Dwg. No. DA08, Rev D – Existing / Proposed Sections | Hampton Architecture | July 2025 | | Dwg. No. DA09, Rev D – Area Calculations | Hampton Architecture | July 2025 |

| Document Description | Prepared By | Date | | Landscape plans: | | | | Dwg No. C006, Rev C – Tree Plan | Bates Landscape | 15 July 2025 | | Dwg No. C007, Rev C – Tree Schedule | Bates Landscape | 15 July 2025 | | Dwg No. C008, Rev C – Landscaped Area Calc. | Bates Landscape | 15 July 2025 | | Dwg No. C009, Rev C – GF Landscape Plan | Bates Landscape | 15 July 2025 | | Dwg No. C010, Rev C – Landscape Section Detail L1 | Bates Landscape | 15 July 2025 | | Dwg No. C011, Rev C – Landscape Section Detail L2 | Bates Landscape | 15 July 2025 | | Dwg No. C012, Rev C – Landscape Planter Detail | Bates Landscape | 15 July 2025 | | Written Request to Vary FSR Development Standard | City Planning Works | 15 July 2025 |

Orders

47. The Court orders:

48. The request to vary the floor space ratio development standard in cl 4.4 of the Mosman Local Environmental Plan 2012 is upheld.

49. The appeal is upheld.

50. Development application number 8.2024.137.1, as amended, for alterations and additions to the existing dwelling, and construction of a new swimming pool, and landscaping on land identified as Lot 44 in Deposited Plan 1006046 and known as 16 Kiora Avenue Mosman NSW 2088 is determined by the grant of development consent subject to Annexure A.

M Peatman

Acting Commissioner of the Court

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Annexure A (248 KB, pdf)

Amendments

29 August 2025

Annexure A updated to correct version