Tao v Mosman Municipal Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Rural Fire Service, Planning for Bush Fire Protection (November 2019)

Category: Principal judgment

Parties: Nicholas Tao (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
M Harker (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2024/472078

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a dwelling house at 1A Lower Spofforth Walk, Mosman. The development application was refused on 18 September 2024. The applicant appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [19] below, are made as a result of an agreement between the parties that was reached in the course of a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 3 March 2026. I presided over the conciliation conference.

An agreement was reached

3. At the conciliation conference, it was clear to me that an agreement had been reached between the parties.

4. The agreement reached was initially recorded in a document filed on 27 February 2026 under the title ‘consent order/judgment’. The document is signed on behalf of both the applicant and the respondent, and contains final orders for the determination of the appeal and the grant of development consent.

5. The consent order/judgment also contains an order granting leave to amend the development application in accordance with the documents the subject of the Notice of Motion filed on 24 February 2026, which provide revisions to hoarding and fencing detail, an arboricultural letter, and additional information about building and wall height compliance.

6. In a conciliation conference arranged pursuant to s 34AA(2)(a) of the LEC Act, s 34(3) applies and requires that, if an agreement is reached “as to the terms of a decision in the proceedings that would be acceptable to the parties”, the presiding Commissioner is obligated to dispose of the proceedings in accordance with the decision. Section 34(3) provides:

(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a) must dispose of the proceedings in accordance with the decision, and

(b) must set out in writing the terms of the decision.

7. Section 34AA(2)(b) makes it clear that the termination of the conciliation conference occurs in the event that “no agreement of a kind referred to in section 34(3) is reached”.

8. Although a practice has developed for the agreement to be reduced to writing and to be furnished to the presiding Commissioner under the title “s 34 agreement”, that is not a requirement of ss 34 or 34AA, although s 34(10) makes it clear that a signed document is admissible as to the fact that such agreement has been reached. It provides:

(10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement.

9. It is a question of fact as to whether “agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties”. A signed agreement is not required, although any document signed by both parties is evidence of that fact.

10. In these proceedings, I find that an agreement has been reached between the parties. The substance of that agreement is articulated in the document filed on 27 February 2026. In the course of the conciliation conference on 3 March 2026, the solicitor for the Council received instructions to withdraw their agreement to the consent orders. However, the Council, through its solicitor, expressed that it raised no issues in objection to the grant of development consent. The Council did not want the signed consent order/judgment to be received as a “s 34 agreement” and sought that the Court carry out a hearing on the merits prior to making the agreed orders contained therein. However, the question of fact concerns whether an agreement under s 34(3) has been reached, not whether a document by the name of “s 34 agreement” has been furnished. The Council’s preference for the Court to conduct a hearing on the merits is not relevant to the fact of whether an agreement has been reached. I am bound by the provisions of s 34AA of the LEC Act, which contemplates a hearing only if no such agreement is reached.

11. I consider that although the Council withdrew its agreement to the consent orders/judgment document, it did not withdraw its agreement to the terms of a decision in the proceedings that would be acceptable to the parties, being the grant of development consent subject to conditions. Although the agreement is not recorded in the usual way, I am satisfied an agreement, in fact, has been reached between the “the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties”. The agreement is for the grant of development consent to the amended development application, subject to the conditions of consent agreed to by the parties. The conditions of consent agreed upon are those annexed to the consent order/judgment document, subject to a change to reflect an updated BASIX certificate dated 3 March 2026.

The obligation to dispose of the proceedings in accordance with the decision agreed upon

12. Upon there being an agreement between the parties, I am obligated to dispose of the proceedings in accordance with the decision agreed upon. To do so, I must first be satisfied that it is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]).

13. The parties have provided a Jurisdictional Statement on Jurisdictional Prerequisites (the Statement), which sets out the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in condition 1, and an expert report of Deborah Laidlaw addressing the planning controls and resident submissions, including how those controls are complied with (Compliance Report). Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

14. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

15. The development is for the purpose of a dwelling house, which is permissible with consent in the R3 Medium Density Residential zone in which the site is located, pursuant to the Mosman Local Environmental Plan 2012 (MLEP).

16. The proposed development complies with the applicable floor space ratio (FSR) development standard (cl 4.4), and the development standard for a minimum landscaped area (cl 6.6), that apply pursuant to the MLEP.

17. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5 m, pursuant to cl 4.3 of the MLEP. The proposed maximum height of 9.9 m represents a contravention of 1.4 m above the numerical standard. However, the contravention is confined to a small area in the southwestern corner of the ground level terrace, where much of the exceedance is between 0.12 and 0.6 m, with the balustrade in that area causing the highest exceedance. The development application is accompanied by a written document concerning this contravention, as required by s 35B of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). Consistent with the requirements of cl 4.6(3) of the MLEP, and based on the written document dated February 2026, I am satisfied that the applicant has demonstrated that:

(a) Compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance; and (b) There are sufficient environmental planning grounds that justify the breach in the height development standard as the exceedance arises from the existing topography of the site and occurs in an area that has been previously excavated with a retaining wall.

4. I am satisfied that consent should be granted notwithstanding the contravention of the development standard concerning maximum wall height, established by cl 4.3A of the MLEP. The applicable wall height development standard is 7.2 m. The proposed development has two isolated areas of non-compliance, being the wall supporting the southwestern corner of the ground level terrace (the same area that breaches the height development standard), and the southwestern and southeastern corners of the level 1 wall connecting to the roof. In those two areas, the variation to the maximum wall height is 1.9 m and 0.9-1.1 m respectively. The development application is accompanied by a written document concerning this contravention, as required by s 35B of the EPA Regulation 2021. Consistent with the requirements of cl 4.6(3) of the MLEP, and based on the written document dated February 2026, I am satisfied that the applicant has demonstrated that:

(a) Compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance; and (b) There are sufficient environmental planning grounds that justify the breach in the height development standard as the breaches arise from the existing sloping topography of the site.

5. The site is in the vicinity of a natural watercourse, such that cl 6.2 of the MLEP applies. Based on the Biodiversity Development Assessment Report dated 23 July 2025 (BDAR) and the stormwater concept plan by Partridge, I have considered the matters in cl 6.2(2).

6. The site is identified as being within a scenic protection area, such that cl 6.4 of the MLEP applies. Based on the architectural plans, the two photomontages, the existing character of the area, and the compliance report, I am satisfied of the matters in cl 6.4(3).

7. The development application includes very minimal earthworks, as the proposed development steps down with the natural topography and slope of the site. Based on the letter prepared by EI Australia and dated 28 March 2022 , I have considered the matters set out in cl 6.7(3) of the MLEP.

8. The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(1) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (NSW) (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the BDAR dated 23 July 2025. The BDAR concludes that the site does not contain threatened species or any areas of threatened ecological community, that the proposed Vegetation Management Plan will rehabilitate and maintain native vegetation, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

9. The site falls within the Sydney Harbour Catchment, such that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the stormwater concept plan, the BDAR, and the Statement, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas of waterbodies, and will ensure that public access through the adjacent park is maintained throughout the construction period, and I am therefore satisfied of the matters in s 6.9(2). Further, consultation has occurred with North Sydney Council, who manages the downstream catchment, as required by s 6.10.

10. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). As the site has a history of being vegetated and vacant, it is unlikely to be contaminated.

11. The site is within the coastal environment area and the coastal use area, pursuant to the SEPP RH. However, the site is also located in the Foreshores and Waterways Area within the meaning of the SEPP B&C, such that ss 2.10 and 2.11 of the SEPP RH do not apply. Based on the geotechnical advice given in the letter of EI Australia dated 28 March 2022, and the distance of the site from the nearest waterway, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards, as required by s 2.12 of the SEPP RH.

12. Section 4.14 of the EPA Act applies to the site, as it is mapped as bush fire prone land. Based on the Bushfire Assessment Report dated 7 June 2021, I am satisfied that the development conforms to the specifications and requirements of the Planning for Bush Fire Protection 2019, as required by s 4.14(1)(a).

13. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 3 March 2026. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

14. The development application was notified between 1 and 16 February 2024, and 28 written submissions were received in response. I have considered the issues raised in those written submissions, which are summarised in the Compliance Report. The Compliance Report also sets out the ways in which the issues raised by the objectors have been addressed.

15. A large proportion of the written and oral submissions in opposition to the proposed development concerned the impacts during the construction period, particularly from the use of a crane. I note that the conditions of consent require the Council to be provided with evidence of consent from landowners over whose land the crane will operate (condition 39), there are restrictions on the hours during which works can occur (condition 45), and all construction work is required to be completed within a 2 year period after commencement (condition 69).

16. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

18. I also note the Council’s approval of the application for an amendment to a development application pursuant to ss 37 and 38 of the EPA Regulation 2021, in accordance with the documents the subject of the Notice of Motion filed 24 February 2026. As described above, those documents include revisions to hoarding and fencing detail, an arboricultural letter, and additional information about building and wall height compliance.

Orders

19. The Court orders that:

20. Leave is granted to amend development application No 8.2023.320.1 in accordance with the Notice of Motion and Exhibit MB-2 filed 24 February 2026.

21. The appeal is upheld.

22. Development application No 8.2023.320.1, as amended, for the construction of a four-level dwelling house with swimming pool, tree removal and associated works including stormwater drainage, earthworks and landscaping at 1A Lower Spofforth Walk, Mosman, is determined by the grant of development consent subject to conditions contained in Annexure A.

J Gray

Commissioner of the Court

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Annexure A (370 KB, pdf)