Salmon v Mosman Municipal Council

Land and Environment Court (NSW)|2023-06-06

Judgment

COMMISSIONER: On 22 December 2022, this Court delivered judgment in Salmon v Mosman Municipal Council [2022] NSWLEC 1722 ("Salmon Case") in respect of an appeal brought in Class 1 of the Court's jurisdiction following the refusal by Mosman Municipal Council (the Council) of Development Application No. 008.2021.00000196.001 seeking consent for alterations and additions to a dwelling house and swimming pool at 5A Hopetoun Avenue, Mosman (the original DA). The Salmon Case granted consent to the original DA (original consent).
On 9 March 2023, the Applicant in these proceedings filed an appeal under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), in respect of Modification Application No. 008.2021.00000196.002 (modification application).
The modification application seeks to modify the original consent in the following terms:

Enclose the area under the approved pool to form a new pool plantroom;
Remove the existing garage door and add a new wire mesh panel lift garage door in line with the approved swimming pool;
Relocate the approved lift shaft to be external to the existing dwelling envelope;
Add a new cleaners/gardeners WC within the existing storeroom;
Amend pedestrian access steps
Construct new bin store adjacent to the driveway.
Minor internal modifications, including relocate the existing kitchen and approved study.

The site and its context

The site is located on the southern side of Hopetoun Avenue looking north over properties opposite, towards Clontarf, with a slope from the rear of the site to the Hopetoun Avenue frontage of around 8.7m.
The site is legally described as Lot A in Deposited Plan 337972.
To the east of the site, No. 3A Hopetoun Avenue is a part two, and part three storey dwelling with basement car parking.

The Court may modify a consent granted by it

As stated earlier, in the circumstances of this case, the Applicant filed its appeal in respect of the modification application directly with the Court, pursuant to s 4.55(8) of the EPA Act, which provides: (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
The provisions of the section referred to above as extending to enable the Court to modify a consent granted by it, excluding those provisions to be exercised by the consent authority and not the Court, are those at s 4.55(2), (3) and (4) of the EPA Act. Those provisions are, relevantly: … (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and … (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. …
At the outset I record that, absent a contradictor in these proceedings, the Court considered the reasons it gave in the Salmon Case at [1] for the grant of consent, in accordance with s 4.55(3) of the EPA Act.
Particular attention is given in the Salmon Case, at [96]-[97], to the presentation of the development to Hopetoun Avenue. To this end, an excerpt of the photomontage prepared in support of the original DA by the architect on behalf of the Applicant, is re-produced in the judgment at [97].
The modification application proposes to locate a bin store in the location of the planter bed featured in the photomontage. Furthermore, a cabinet housing a water meter, said to be existing, is also evident in plans accompanying the modification application, but is not depicted in the photomontage.
The Court observed that the combined effect of the existing water meter cabinet, and the bin store now proposed, would be to delete the landscape planting shown in the planter bed fronting Hopetoun Avenue, identified in the judgment as an aspect of the development that contributes to a landscape presentation, rather than as an extension of the dwelling above.
Likewise, the landscape presentation to Hopetoun Avenue is identified at [102] of the Salmon Case in the following terms: "As to whether the development will maintain the existing natural landscape and landform, required by the operative and relevant provisions of the Scenic Protection Area, at cl 6.4(3)(b), I again consider the integration of landscape planting in tiered planter beds, and setbacks, to permit the reading of the steeply sloping underlying topography to achieve this. These are all measures, in my view, that may also be said to minimise the visual impact of the development from Sydney Harbour."
Responsive to the Court's observation, the Applicant proposed the relocation of the bin store to be within the footprint of the basement plant room now proposed, that would conceal a view of the bin store from the public domain and retain the landscape planting, the subject of the original consent.
The Court directed that a condition to this effect be prepared, supported by a detail plan, to be annexed to conditions of consent to be filed with the Court.
On 8 May 2023, the Applicant complied with the Court's directions. The detail plan cited by Condition 3(c), and annexed at Appendix 1 of the proposed conditions of consent is re-reproduced below:

Whether the development is substantially the same development as the development for which consent was originally granted

A stream of authorities has held that the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414; (1984) 45 LGRA 217 at [42], North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (Michael Standley) at [474], Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [13] and Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto Projects) at [27]).
The means by which consent may be modified is facultative and beneficial, as shown in Michael Standley, at [475], and the comparison required by s 4.55(2)(a) is between the development as modified and the development as originally approved.
This comparative exercise is not to be undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted): Moto Projects, at [56].
I have formed the necessary state of satisfaction that the development to which the consent as proposed to be modified relates is substantially the same as the development for which the consent was originally granted by the Court for the reasons that follow: 1. To the extent the proposal exceeds the height permitted under the height of building standard at cl 4.3 of the Mosman Local Environmental Plan 2012 (MLEP), and also exceeds the floor space ratio permitted under cl 4.4 of the MLEP, these exceedances are a characteristic of the dwelling the subject of the original consent. The height standard is breached by 300mm as a result of the relocated lift shaft which also, as a consequence of its relocation, exceeds the FSR standard increases by a further 0.0006:1. However, as shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], the provisions dealing with modification applications contained in the EPA Act are a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the MLEP does not apply to modification applications. 2. The lift shaft also exceeds the maximum wall height provision of 7.2m at cl 4.3A of the MLEP. However, I accept there is a pre-existing breach that is not exceeded by the lift shaft. I also accept the statement in the Statement of Environmental Effects (Exhibit A, Tab 1) that the relocated lift will not be visible from the public domain, and does not give rise to privacy, overshadowing or bulk and scale impacts on No. 3A Hopetoun Avenue. 3. Internal changes to the use and layout of certain rooms on the basement, ground and first floors are of no visual consequence when viewed from beyond the boundary of the subject site.
On the basis of the detail plan and the terms of Condition 3(c) at [18], I accept that external changes to the presentation of the property fronting Hopetoun Avenue retain the landscape quality of the original consent with only minor changes to incorporate acoustic louvres in a location setback from the street. When the modifications to the frontage of the property are understood as a whole, I consider the contribution made by the proposal to the Rosherville/Wy-ar-gine Townscape, described at Section 7.4(18) of the Mosman Residential Development Control Plan remains appropriate and acceptable.

No public submissions made in respect of modification application

The Council notified the modification application between 6-24 April 2023.
The Applicant relies on email communication on behalf of the Council dated 28 April 2023 (Exhibit G) confirming no submissions were received in response to the notification.

Consideration of the matters referred to in section 4.15(1) as are of relevance

The modification application is lodged with the written consent of the owner (Exhibit H).
At the time the original DA was lodged, the site was located within the R2 Low Density Residential zone according to the Mosman Local Environmental Plan 2012 (MLEP) in which dwelling house development was permissible.
However, the MLEP was subsequently amended and the site is now located within the C4 Environmental Living zone, in which the objectives 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.
To the west of the site, No. 5 Hopetoun Avenue is a two-storey dwelling identified for its heritage significance at a local level (item I114) in Sch 5 of the MLEP. I consider the effect of the modification application on the heritage significance of No. 5 Hopetoun Avenue to be acceptable in accordance with cl 5.10 of the MLEP.
For reasons set out at [15]-[18], I am satisfied that the visual impact of the development to and from Sydney Harbour is minimised by the integration of landscape planting that also reflects and maintains the existing natural landscape and landform in accordance with cl 6.4 of the MLEP.
Relatedly, I accept the landscape area calculation contained in the Landscape Area plan (Exhibit J) exceeds the quantum of 35% of the site area required by cl 6.6 of the MLEP.
As the modification application extends the scope of earthworks from that in the original DA, cl 6.7 of the MLEP is a relevant consideration. On the basis of the architectural plans at Exhibit A, Tab 2 and the Geotechnical Opinion prepared by JKGeotechnics dated 2 June 2023 (Exhibit K), I have considered those matters at cl 6.7(3) of the MLEP as are relevant to the modification application, and conclude they are adequately addressed.

State Environmental Planning Policy (Biodiversity Conservation) 2021

As the site is identified to be within the Sydney Harbour Catchment area, Ch 6 of State Environmental Planning Policy (Biodiversity Conservation) 2021 (Biodiversity SEPP) applies.
In respect of s 6.6 of the Biodiversity SEPP, I have considered those matters at s 6.6(1), and am satisfied that the terms of conditions of consent provide for appropriate capture and collection of rainwater for re-use by means of on-site detention (OSD) and a positive covenant on the title to require maintenance of the OSD system and rainwater tanks that will result in the quality of water entering Sydney harbour being as close as possible to neutral or beneficial, and the minimise the impact of water flow on Sydney harbour.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

In respect of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the application is accompanied by a BASIX certificate (Cert No. A416052_07, dated 22 February 2023) prepared by Alan Kempster Architects (Exhibit A, Tab 3) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021.

Conclusion

In respect of those matters remaining, I find the development application, as amended, warrants the grant of consent pursuant to s 4.16 of the EPA Act, subject to conditions of consent.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development Consent No. 008.2021.00000196.002 is modified in the terms in Annexure A. 3. Development Consent No. 008.2021.00000196.001 as modified by the Court is Annexure B. 4. All exhibits are returned except for Exhibits A, G, H and K. T Horton Commissioner of the Court 78823.23 Annexure A 78823.23 Annexure B

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: 20 June 2023

(1999) 106 LGERA 298

(2008) 166 LGERA 342

(2015) 209 LGERA 233

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Judgment (11 paragraphs)

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Cases Cited (9)