Talebi v Mosman Council

Land and Environment Court (NSW)|2018-12-17|Before: Preston CJ

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Mosman Council (the Council) of Development Application No. 8.2017.131.1 for alterations and additions to an existing dwelling house (the proposal) at 14 Bapaume Road, Mosman (the site).
The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 December 2018. 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. This decision included reducing the area of the balcony on the uppermost level and deleting the roof structure over that balcony; deleting the roof terrace over the existing garage and making some other minor changes to the proposal.
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 4.16 of the EPA Act to grant consent to the development application.

Clause 4.3 of MLEP 2012 Height of Buildings

The site is zoned R2 Low Density Residential pursuant to the MLEP 2012 and the proposal is permissible with consent.
The proposal exceeds the maximum height of buildings development standard for the site of 8.5m, as the proposal has a maximum height of 9.18m at the north-western corner.
The objectives of the height of buildings development standard for development on land zoned R2, at cl 4.3(1)(a) of LEP 2012, are as follows: (i) to share public and private views, and (ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and (iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and (iv) to minimise the adverse effects of bulk and scale of buildings,

The applicant's written request to contravene the height of buildings development standard

The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 [25] ("Initial Action")). The applicant's written request seeking to justify the contravention of the development standard must adequately address both:

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of MLEP 2012);
that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of MLEP 2012).

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 [42]-[51] and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

The objectives of the development standard are achieved notwithstanding non-compliance with the standard;
The underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
Underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
The development standard has been abandoned by the council; or
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).

The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
The environmental planning grounds relied on in the written request under cl 4.6 of LEP 2012 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. 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 [24]).
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard. The applicant's written request justifies the contravention of the development standard on the following bases:

The site falls from Mitchell Street (to the east) towards Bapaume Road (to the west) and the breach of the height of buildings development standard is in the north-western corner of the proposal. The breach of the height of buildings development standard will therefore not be readily evident when the dwelling is viewed from the public domain in Mitchell Street and the Bapaume Road elevation is screened by mature vegetation and has a substantial setback from the western boundary.
The additional built form in the north-western corner of the proposal will be partially visible from Bapaume Road to the north-west of the site, but this form is not inconsistent with the established character of the street.
The setback from Bapaume Road is consistent or greater than the setback of adjoining development.
The proposal does not result in any adverse amenity impacts on adjoining properties.

I am satisfied that the written request has adequately addressed that compliance with the height of buildings development standard in MLEP 2012 is unnecessary or unreasonable in the circumstances of this proposal.

Clause 4.6(4)

Clause 4.6(4) 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 [13]). The consent authority must form two positive opinions of satisfactions under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).
The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]).
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives, for the reasons given by the applicant in the written request to contravene the height of buildings development standard, as follows:

The proposal retains public and private views.
The proposal has minimal visual impact when viewed from the public domain and from neighbouring properties, because the additions are restricted to the existing building footprint.
The proposal has no visual impacts that would be discernible from the harbour and surrounding foreshores.
The proposal maintains the desired future character of the area as the additions are not readily perceptible due to the substantial screening of the dwelling by mature trees, the modest streetscape presentation to all frontages and the minimal amenity impacts on adjoining development, whilst also being compatible with the height, bulk and scale of other buildings within the visual catchment.
The proposal maintains solar access to the southern neighbour.
Teinimises other amenity impacts as demonstrated by the lack of privacy and view impacts.
Maintains the existing pitched roof form over the existing dwelling whilst the flat roof component over the western extension minimises visual and amenity impacts and is consistent with other flat roof extensions on the western side.

On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action [29]).

Clause 4.3a of MLEP 2012 Maximum wall height

The proposal exceeds the maximum wall height development standard of 7.2m, as the proposal has a maximum wall height of 9.18m on the northern elevation.

The applicant's written request to contravene the maximum wall height development standard

The applicant provided a written request seeking to justify the contravention of the maximum wall height development standard. The applicant's written request justifies the contravention of the development standard on the following bases:

The proposed wall height variation would not be readily evident along Mitchell Rd.
The contributor to the wall height variation is the extension of the upper level on the western side facing Bapaume Road. The northern elevation is significantly setback from the Bapaume Road boundary and is screened by mature vegetation.
The additional wall height is proposed over the existing building footprint and does not extend beyond that of the neighbouring dwelling to the south.
The heavily vegetated nature of Stanton Lane which runs along the northern side of the site and the limited extent of additional built form beyond that which exists also combine to ensure that the additional wall height would not be readily evident, nor would it generate any unreasonable or uncharacteristic streetscape or visual bulk impacts.
The proposal does not result in any adverse amenity impacts on adjoining properties.

I am satisfied that the written request has adequately addressed that compliance with the maximum wall height development standard in MLEP 2012 is unnecessary or unreasonable in the circumstances of this proposal.

Clause 4.6(4)

I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives, for the same reasons as those given at [17].

Clause 4.4 of MLEP 2012 Floor Space Ratio (FSR)

The proposal exceeds the maximum FSR development standard for the site of 0.5:1, as the proposal has a FSR of 0.59:1.
The objectives of the height of buildings development standard for development on land zoned R2, at cl 4.4(1)(a) of LEP 2012, are as follows: (i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and (ii) to provide a suitable balance between landscaping and built form, and (iii) to minimise the adverse effects of bulk and scale of buildings, (iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off

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

The applicant provided a written request seeking to justify the contravention of the height of buildings development standard. The applicant's written request justifies the contravention of the development standard on the following bases:

The proposed FSR variation would not be readily evident along Mitchell Rd as only a minor proportion of the overall built form is evident from that vantage point.
The primary contributor to the FSR variation is the extension of the upper level on the western side facing Bapaume Road. Such area is substantially recessed from the Bapaume Road frontage and is essentially screened by mature vegetation, as shown below. A significant proportion of the FSR variation is within the lower sub floor area which does not contribute to the visual bulk of the dwelling as viewed from the public domain and from neighbouring properties. Without the sub floor area, the dwelling would have an FSR of 0.538:1.
The significant setbacks from boundaries, the extent of established mature trees and the primary east-west orientation of dwellings, together combine to limit the perception of the proposed additional height, bulk and scale of the proposal. There are other dwellings of a 2-3-storey scale evident along Bapaume Road, which are within the visual catchment of the site, to the south and north. These nearby dwellings are surrounded by less mature vegetation than the existing dwelling on the site. This results in existing development in the vicinity of the site being more prominent than the proposal.

I am satisfied that the written request has adequately addressed that compliance with the FSR development standard in MLEP 2012 is unnecessary or unreasonable in the circumstances of this proposal.

Clause 4.6(4)

I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives for the reasons given by the applicant in the written request to contravene the FSR development standard, as follows:

The proposal is compatible with the desired future character of the area as its building bulk and scale does not generate any unreasonable or incompatible streetscape or visual bulk impacts to either street frontage or lane frontage or when viewed from adjoining and adjacent dwellings.
The proposed extensions to the upper level do not extend beyond the existing building footprint and therefore maintain the existing substantial landscaping on the site, which screens the proposal when viewed from Bapaume Road. The proposed height, bulk and scale is compatible with the scale of development anticipated by the suite of LEP and DCP controls.

The site adjoins a heritage item

The site adjoins the public steps between Bapaume Road and Mitchell Road, identified as an item of heritage in the MLEP 2012 (Schedule 5, item 322).
I have considered, pursuant to cl 5.10(4) of MLEP 2012, the effect of the proposal on the heritage significance of the adjoining item and I am satisfied that the proposal will have no impact on the items identified heritage significance, because the proposal does not include any works along the shared boundary and the proposal has no amenity impacts on the access way nor on views of the access way from the public domain.

Conclusion

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. 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.

Orders

The orders of the Court are: 1. The applicant is granted leave to amend the application and rely on the plans listed under Condition 1 below the heading '1. The development shall be carried out in accordance with the following stamped approved plans and documentation, except where amended by later conditions of consent' at Annexure A. 2. The applicant's written request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 ("MLEP 2012") seeking to justify the breach of the height of buildings development standard set out in clause 4.3 of the MLEP 2012 prepared by ABC Planning dated 18 December 2018 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the MLEP 2012. Consequently, the applicant's written request is well founded and is upheld. 3. The applicant's written request pursuant to clause 4.6 of the MLEP 2012 seeking to justify the breach of the wall height variation development standard set out in clause 4.3A(4) of the MLEP 2012 prepared by ABC Planning dated 18 December 2018 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the MLEP 2012. Consequently, the applicant's written request is well founded and is upheld. 4. The applicant's written request pursuant to clause 4.6 of the MLEP 2012 seeking to justify the breach of the floor space ratio development standard set out in clause 4.4A of the MLEP 2012 prepared by ABC Planning dated 18 December 2018 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the MLEP 2012. Consequently, the applicant's written request is well founded and is upheld. 5. The appeal is upheld. 6. Development Application No. 8.2017.131.1 for alterations and additions to an existing dwelling house at 14 Bapaume Road, Mosman is approved, subject to the conditions of consent at Annexure A.

Susan O'Neill Commissioner of the Court Annexure A Plans

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: 24 December 2018

(2007) 156 LGERA 446

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