Smith v Mosman Municipal Council

Cases Cited: Smith v Mosman Municipal Council [2023] NSWLEC 1156
Smith v Mosman Municipal Council [2024] NSWLEC 1201

Category: Principal judgment

Parties: Paul Smith (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
A Chryssochoides (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Piper Alderman (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2025/73292

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Paul Smith (the Applicant) against the deemed refusal of Modification Application DA8.2022.41.4 (the MA) by Mosman Municipal Council (the Respondent).

2. At the date of its lodgement, the MA sought to modify Development Consent DA DA8.2022.41.1 (the parent DA), which granted consent for alterations and additions to an existing apartment building and dwelling house at 20-22 Raglan Street Mosman (the site).

3. Consent for the parent DA was granted by the Court on 4 April 2023 in Smith v Mosman Municipal Council [2023] NSWLEC 1156*.*

4. An earlier Modification Application (DA8.2022.41.2) was approved by the Court on 19 April 2024 in Smith v Mosman Municipal Council [2024] NSWLEC 1201.

5. Demolition and early construction phase works have commenced lawfully on the site.

6. The MA which forms the subject of this appeal was lodged with the Respondent on 8 January 2025.

7. The Applicant filed a Class 1 Application with the Court against the Respondent’s deemed refusal of the MA on 24 February 2025.

8. The MA, as lodged, initially sought approval for the following modifications to the parent DA:

9. Extension of the basement to facilitate provision of fire stairs for the dwelling, additional plant area for the apartments and the relocation of the OSD tank to below the basement.

10. Provision of new fire egress from the rear yard of the dwelling and the rear yard of the apartment building to the adjoining public footpath.

11. Increase in the height of the lift overrun and parapet height of the vertical circulation enclosure within the apartment building.

12. Changes to the apartment building swimming pool and landscaped area including access configuration.

13. Provision of a sewer pipe to Sydney Water requirements.

14. Change of the solid balustrade to glass for the top level apartment.

15. Provision of a hydrant booster set to the street adjacent to the apartment building.

16. Additional floorspace to dwelling house at Lower Ground Level and internal layout changes to both the apartment building and dwelling house.

17. Addition of below ground plant room within the front setback of 20 Raglan Street.

18. Changes to landscaping more generally.

19. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 April, 13 May and 22 May 2025. I presided over the conciliation conference.

20. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting approval to an amended MA, subject to conditions.

21. Of note, the MA has been amended during the conciliation conference to resolve the contentions pressed by the Respondent, which included concerns for impacts arising from inadequate landscaping provision, unacceptable height, bulk and scale arising from the lift overrun and associated stair enclosure parapet, poor interface with the public domain and neighbouring buildings, and potential heritage impacts given the site’s heritage context.

22. In summary, design amendments have been made to minimise the apparent increase in scale associated with the lift overrun, necessary fire egress has been consolidated and made more discreet within the site, plant rooms and building services have been refined and sited to minimise impacts upon the streetscape, and the landscape design now increases areas of soft planting, improves privacy outcomes and accommodates vegetation of a more substantive scale.

23. 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 function under s 4.55 of the EPA Act to modify the existing DA.

24. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

25. In that regard, I am satisfied the MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

26. Pursuant to s 4.56(1)(a) of the EPA Act, I am satisfied the amended MA remains substantially the same as the parent DA. The parent DA was granted consent for alterations and additions to the existing residential apartment building and dwelling house, the construction of a basement carpark, two swimming pools and associated landscaping.

27. The amended MA reflects relatively minor modifications to the parent DA. There is no change to the proposed use, no change to the number of levels above or below ground, no change to the number of dwellings, and the general appearance of the buildings continues to present to the immediate streetscape as a residential apartment development and separate dwelling.

28. Pursuant to s 4.56(1)(b) of the EPA Act, I am satisfied, that the MA was notified in accordance with the Respondent’s Community Participation Plan. The MA was notified from 20 January to 3 February 2025 and the Respondent received one submission raising concerns for construction phase impacts.

29. The parties agree, and I am satisfied, the amended MA adequately considers the concerns raised by the objectors. Agreed conditions of consent deal with construction phase impacts, noise, vibration and hours of work.

30. The parties agree, and I am satisfied, that the Mosman Local Environmental Plan 2012 (MLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent, and that the amended MA maintains the objectives of the R3 zone.

31. The parties agree, and I am satisfied, that pursuant to cl 4.3 of the MLEP - Height of buildings - the site is subject to an 8.5m height control. The parent DA was granted development consent with a maximum building height exceedance of 3,080mm. This exceedance is primarily associated with the ridge heights of the two existing buildings on the site, and was supported at the time by a written request (pursuant to cl 4.6 of the MLEP) which justified the variance of the development standard.

32. The amended MA proposes some localised increase in building height associated with the residential apartment building in the area above the lift overrun, breezeway and parapet. The amended MA seeks to accommodate a lift that is compliant with the relevant provisions of the Building Code of Australia. Despite this localised additional building height, the lift overrun, breezeway and parapet remain well below the existing approved ridge height and does not materially alter the perceivable bulk, form and scape of the proposed development, nor does it give rise to unreasonable additional impacts.

33. Additionally, since the amended MA is made pursuant to s.4.55 of the EPA Act, no further cl 4.6 written request to vary the height of building development standard is required.

34. The parties agree, and I am satisfied, that pursuant to cl 4.3A of the MLEP - Height of buildings (additional provisions) - the site is subject to a 7.2m wall height control. The parent DA was granted development consent with a maximum wall height of 5,180mm. This exceedance is primarily associated with the wall heights of the two existing buildings on the site, and was supported at the time by a written request (pursuant to cl 4.6 of the MLEP) which justified the variance of the development standard.

35. The amended MA proposes some localised increase in wall height associated with the residential apartment building in the area above the lift overrun, breezeway and parapet. As noted above, the amended MA seeks to accommodate a compliant lift and does not materially alter the perceivable bulk, form and scape of the proposed development, nor does it give rise to unreasonable additional impacts.

36. Similarly, since the amended MA is made pursuant to s.4.55 of the EPA Act, no further cl 4.6 written request to vary the height of wall development standard is required.

37. The parties agree, and I am satisfied, that pursuant to cl 4.4 of the MLEP - Floor space ratio (FSR) - the site is subject to a 0.6:1 FSR control. The parent DA was granted development consent with an FSR of 0.93:1 and was supported at the time by a written request (pursuant to cl 4.6 of the MLEP) which justified the variance of the FSR development standard.

38. The amended MA increases the FSR of the proposed building to 0.97:1, however this increase in floor space is predominantly accommodated below ground level and does not materially alter the perceivable bulk, form and scape of the proposed development, nor does it give rise to unreasonable additional impacts.

39. Additionally, as the MA is made pursuant to s.4.55 of the EPA Act, a further cl 4.6 written request to vary the FSR development standard is not required.

40. Pursuant to cl 5.10 of the MLEP - Heritage conservation - the parties agree, and I am satisfied, that the site includes a listed heritage item as identified at Sch 5 of the MLEP. The site is also in close proximity to other listed heritage items. The parent DA was granted development consent after consideration of the effect of the proposal upon heritage significance of the local area. The amended MA proposes a minor change to the approved external form and appearance of the parent DA and brings no additional unreasonable adverse impacts to heritage items in the vicinity of the site.

41. Pursuant to cl 6.4 of the MLEP - Scenic protection - the parties agree, and I am satisfied, that the parent DA was assessed as appropriately minimising the visual impact of the development to and from Sydney Harbour, and maintaining the existing natural landscape and landform.

42. The amended MA proposes only minor changes to the approved external form and appearance of the parent DA and therefore brings no additional unreasonable adverse impacts to views to and from Sydney Harbour or to the natural landscape and landform.

43. Pursuant to cl 6.6 of the MLEP - Landscaped areas - the parties agree, and I am satisfied, that the minimum landscaping requirements for 20 Raglan Street is 50% and for 22 Raglan Street is 35%. Notwithstanding this, the parent DA was granted development consent with a combined landscaped area of 18.3%. Despite the deficiency in area, the parent DA was considered to meet the objectives of cl 6.6 and represented a net increase in landscaped area when compared to the existing site conditions.

44. The amended MA proposes minor rearrangement of the approved landscaping resulting in the maintenance of a landscaped area of 18.3%. I am satisfied the final amended MA continues to meet the objectives of cl 6.6 of the MLEP.

45. Pursuant to cl 6.7 of the MLEP - Earthworks - the parties agree, and I am satisfied, that the parent DA provides consent for excavation which was supported by a Geotechnical Assessment. The amended MA includes a revised stormwater concept plan and relocated OSD tank. The parties agree, and I am satisfied, that the proposed excavation is acceptable, and agreed conditions of consent ensure all excavation and earth works are to be endorsed by a qualified practicing Geotechnical Engineer.

46. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

47. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

48. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, an amended BASIX Certificate (for the dwelling at 22 Raglan Street) No. A446698_02 dated 20 December 2024, has been provided by the Applicant. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

49. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of ch 2 part 3 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) which deals with the retention of affordable rental housing. The existing building at 20 Raglan Street previously provided low-rental accommodation.

50. The parent DA considered the relevant provision of SEPP Housing and imposed conditions of consent requiring the payment of contributions for affordable housing. The amended MA does not vary these conditions of consent.

51. Accordingly, I am satisfied that the amended MA appropriately addresses the requirements of SEPP Housing.

52. The parties agree, and I am satisfied, that the amended MA remains subject to relevant provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). At the date of the parent DA’s grant of development consent, ch 10 of SEPP BC dealt with the Sydney Harbour catchment. The site is situated within an area mapped as being within the Sydney Harbour Catchment and the Foreshores and Waterways Area.

53. The parties agreed, and. am satisfied, that given the relatively low prominence of the site within the visual catchment of Sydney Harbour, the amended MA will not materially impact on views to or from Sydney Harbour.

54. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

55. The Court notes that:

56. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the approval of the Respondent.

57. The Applicant has lodged the amended MA with the Court on 22 May 2025.

Orders

46. The Court orders that:

47. Leave is granted to the Applicant to amend Modification Application DA8.2022.41.4 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

48. The appeal is upheld.

49. Development Consent DA8.2022.41.4 is modified subject to the conditions of consent set out at Annexure A.

50. Development Consent DA8.2022.41.4 (as modified) is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

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Annexure A.175 KB.pdf

Annexure B.360 KB.pdf