[2018] NSWLEC 118
Tenacity Consulting v Warringah Council (2004) 134 LGERA 23
[2004] NSWLEC 140
Wehbe v Pittwater Council (2007) 156 LGERA 446
[2007] NSWLEC 827
Zhang v Canterbury City Council (2001) 115 LGERA 373
Source
Original judgment source is linked above.
Catchwords
[2018] NSWLEC 118
Tenacity Consulting v Warringah Council (2004) 134 LGERA 23[2004] NSWLEC 140
Wehbe v Pittwater Council (2007) 156 LGERA 446[2007] NSWLEC 827
Zhang v Canterbury City Council (2001) 115 LGERA 373
Judgment (27 paragraphs)
[1]
Judgment
This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Mosman Municipal Council (Council) of development application No 8.2022.276.1 (DA). The DA seeks the grant of consent for the demolition of existing structures and construction of a five-storey residential flat building and associated development at 87 and 87A Cowles Road, Mosman, legally identified as SP 43081 and SP 54235, respectively (the site).
[2]
Proceedings
Since the filing of the appeal, and as a consequence of various discussions among experts from either party, the DA has been amended with the consent of Council. The amendment was undertaken with the granting of a notice of motion by the Court's Registrar on 8 August 2023, and after reading of an affidavit affirmed by L Cone (lawyer for the applicant) which outlined the substances of the proposed changes and how contentions had been or could be addressed. Ms Cone's affidavit evidence and the amended application documents were marked Ex A in the proceedings.
Council has made the Court aware that its position is that it is satisfied that the amended plans resolve the issues raised by them in the Amended Statement of Facts and Contentions filed 18 August 2023 (Ex 1). The evidence of this is that on 23 August 2023, the parties filed with the Court agreed draft orders for the grant of development consent subject to nominated conditions.
Notwithstanding the position of the parties, the obligation upon the Court in the appeal remains to determine whether it is lawful and appropriate to grant the consent having regard to the whole of the relevant circumstances. The Court's Practice Note - Class 1 Development Appeals (Practice Note) sets out the procedural requirements at par 99:
"Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
(i) the content of the proposed orders (including the proposed conditions of consent);
(ii) the date of the hearing by the Court to consider making the proposed consent orders; and
(iii) the opportunity for any such person to be heard,
or that, in the circumstances of the case, notification is not necessary."
In regard to the requirement to "give reasonable notice", I can note the following. R McCulloch (lawyer for Council) filed affidavit evidence to indicate that notice was given to those objecting to the proposal in regard to:
The date of the hearing and site inspection, indicating the opportunity for persons to be heard by the Court in relation to the proposal (by email to objectors dated 10 August 2023). A link to the amended plans was also provided in this email.
The content of the proposed consent orders, which included agreed conditions (by email to objectors dated 29 August 2023). This advice included a further invitation to participate.
Having regard to the Practice Note (par 99), I find this to be reasonable notice of the proposed consent orders and of the opportunity, to those objecting, to have submissions heard by the Court.
For the reasons that are set out below, and having regard to objections received, I find that I agree with the position adopted by the parties and that it is lawful and appropriate to grant the consent having regard to the whole of the relevant circumstances.
[3]
Site and locality
I note here I rely substantially on Ex 1 for descriptive material included in this and the following section of the judgment.
The site is a regular shaped allotment with frontages to Cowles Road (26.36m) to the west and Gurrigal Street (26.36m) to the east and comprises a total area of 809.3m2. 87 Cowles Road is occupied by a two-storey brick building, comprising two apartments. A three-storey red brick residential flat building, comprising six apartments, exists on 87A Cowles Road. It is this block which is northernmost on the site and abuts 507 Military Road, a five-storey complex of strata units with commercial uses on the ground floor and residential units above. Immediately adjoining the site to the south is a Council depot (at 79-86 Cowles Road).
The site is located within the Spit Junction Business Centre as defined by the Mosman Business Centre Development Control Plan 2012 (MBCDCP). The surrounding area can be characterised as mixed use including commercial and residential land uses.
There is an existing street tree along the site's Cowles Road frontage that forms part a row of street trees that are identified as a heritage item of local significance.
[4]
Proposal
Apart from demolition, the proposal would involve:
Two basement levels, principally for parking, storage and waste management.
Ground floor level with four residential units (one x one-bedroom, two x three-bedroom and one x four-bedroom units) and with a partially enclosed pedestrian footpath (accessible from each street frontage) and landscaping.
First floor with four x four-bedroom residential units.
Second floor with four x three-bedroom residential units.
Third floor with two x four-bedroom residential units.
Fourth floor with one x four-bedroom residential unit.
A lift overrun would extend above the roof level somewhat.
[5]
Statutory considerations
Here I have had regard to a joint agreed jurisdictional statement provided to the Court on 29 August 2023 (jurisdictional statement).
[6]
Mosman Local Environmental Plan 2012
The site is located within an area formerly identified as B2 Local Centre under Mosman Local Environmental Plan 2012 (MLEP). However, under certain recent changes to employment zones in NSW under the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 and State Environmental Planning Policy Amendment (Land Use Zones) (No 3) 2022, the B2 zone was re-characterised in MLEP, and generally, as E1 Local Centre zone.
In any event there is no dispute the proposal, characterised as a residential flat building, is permissible with consent under the existing and former zone.
Under cl 4.3, the site is subject to a 15m height control. The proposal breaches the height control by a maximum of 1.2m (8% variance).
Under cl 4.4, the site is subject to a floor space ratio (FSR) control of 2.5:1. The DA, as amended, would comprise 1,976.4m2 of gross floor area (GFA), as demonstrated in the architectural plans at Tab 1 of Ex A (DA04.00 Rev F) and agreed by Council. This is about 47m2 under the maximum GFA. The proposal is therefore compliant with the FSR control.
[7]
State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development
State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the development and requires consideration of certain matters and demonstration of the design quality of the development. I will turn to it when considering the issues raised generally.
[8]
Other statutory considerations
Certain other relevant jurisdictional matters are addressed later in the judgment.
[9]
Merits issues
Having read over the numerous objecting submissions in relation to the proposal and mindful of relevant policy settings, which I refer to relevantly below, I consider the major issues of concern in these proceedings can be separated into the three somewhat related fields of: (1) view loss and (2) visual bulk and visual privacy (including side setback) and (3) building height (in particular the consideration of the contravention of cl 4.3 of MLEP).
[10]
Policy
While the objectives of the E1 zone do not include a reference to views, nominated aims of MLEP do so (cl 1.2 aim (e) and (f)). The objectives of the building height control also have an objective of "(sharing) public and private views".
Part 6.8 of MBCDCP is concerned with view sharing, and can be thought of as providing guidance in relation to giving effect to such aims and objectives (mindful of s 3.42 of EPA Act). The objectives and planning controls relating to Part 6.8 are reproduced below.
Figure 1 - Excerpt from Mosman Business Centres Development Control Plan Part 6.8 (Ex 2 folio 444)
The commentary to Part 6.8 of MBCDCP indicates that:
"New development should be designed to minimise view loss to the public and to adjoining and adjacent properties while still providing opportunities for views from the development itself. This approach is called "view sharing". Sensitive new building design can ensure the reasonable sharing of views. By its nature view sharing will involve sharing on the part of the affected parties. Neither obtaining nor retention of views can be assured in this process having regard to the criteria set out below."
The Court's planning principle, which indicates a four-step process for the analysis of view impact is well known (Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) at [25]-[29]). However, MBCDCP Part 6.8 establishes its own set of "steps in the assessment of view sharing". The steps are reproduced as follows:
"1. What views are to be affected? In this Plan, a reference to views is a reference to water views and views of significant landmarks (e.g. The Heads, Opera House and Harbour Bridge). Such views are more highly valued than land views or views without significant landmarks. District views and views of bushland will be considered in development assessment where they are the only views available.
2. How are the views obtained and assessed? Views from private dwellings considered in development assessment are those available horizontally to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth).
3. Where is the view enjoyed from? Views enjoyed from living and entertainment areas of neighbouring properties are highly valued. Views available from other areas within residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the building concerned. Public views are highly valued and will be assessed with the observer standing at an appropriate vantage point in a public place.
4. Is the proposal reasonable? A proposal that complies with all development standards (e.g. building height, floor space ratio) and planning controls (e.g. building setbacks, roof pitch) is more reasonable that one that breaches them."
[11]
Evidence
Two planning experts gave sworn evidence in the proceedings: J Mead (appointed by the applicant) and S Layman (appointed by Council). Mr Layman also provided written evidence which was marked Ex 3 in the proceedings. These experts were of the opinion that the proposal satisfactorily met view sharing provisions of MBCDCP. Of note to the experts was what was described by Mr Mead as the "notching back" of the proposed building from both street boundary and (northern) side boundary, which significantly opened up views from the adjoining residences to the north (within 507 Military Road). Mr Layman put it as follows (Ex 3 p 23):
"• The revised design proposes setbacks from Cowles Road that are greater than those required by MBCDCP 2012. The increased setbacks proposed by the revised design from the Cowles Road boundary and the common boundary with 507 Military Road reduce view loss and provide a sensitive new building design that ensures the reasonable sharing of views, as required by MBCDCP 2012 Part 6.8 View sharing.
• The setbacks proposed by the revised design from the Gurrigal Street boundary and the increased setback proposed from common boundary with 507 Military Road have a neutral impact on view loss.
• The revised design is, apart from the lift overrun, marginally above the LEP height limit. While this exceedance of the height limit is subject to a Clause 4.6 objection to a development standard, analysis and assessment of the 3D modelling and photomontages confirm that the excess building height of itself has no significant additional impact on views enjoyed by 18/507 and 22/507 Military Road Mosman. A compliant design would have a not dissimilar impact."
There was also substantial objecting evidence in regard to view loss from the residences to the north (particularly within 507 Military Road). During the site inspection, I heard an oral submission from a town planner (M Gheorghiu) on behalf of the owner of Unit 22 in 507 Military Road. Mr Gheorghiu also provided written evidence and photomontage evidence (Ex 6) in relation to the view impact on this property. I also had the opportunity to inspect from Unit 22 in 507 Military Road, which sits at the top level of the five-storey block. During the site inspection, I was able to gain an appreciation of the view loss impact myself using the photomontage material in relation to the amended application (Ex A Tab 6) and the material provided by Mr Gheorghiu. I can also note here that Mr Gheorghiu had prepared a number of view loss submissions for other properties in the 507 Military Road building, which I have also considered.
Mr Gheorghiu's evidence was that the view loss was "unacceptable and devastating". This evidence focused particularly on Tenacity view impact principles. Three key points raised in this evidence warrant particular mention. The first was concerned with a point raised in Tenacity's fourth step (regarding "reasonableness") relating to whether a more skilful design could provide the applicant with the same development potential. Mr Gheorghiu believed there was an opportunity for more, to use Mr Mead's term, "notching back" of the proposed development from the north. That is to say, it is evident that there is indeed a stepping back of the development from the southern boundary (shared with a Council depot). Perhaps this area could be increased in its massing to the south to free up space to the north to retain more views and amenity generally from within the 507 Military Road building, but particularly Unit 22.
The second point which I particularly note from Mr Gheorghiu, highlights Tenacity's first step's emphasis (in assessing views to be affected) that "whole views" are valued more highly than partial views. It is clear that at present living and entertaining areas on the upper levels of 507 Military Road, and in particular Unit 22, have unbroken panoramic views of the harbour and its foreshores, at least between North Sydney CBD and Bondi Junction, including the Sydney Harbour Bridge and city skyline. While some views would be retained, the "wholeness" of the view would be lost.
The third point from Mr Gheorghiu which I emphasise here is concerned with the building height contravention implications. Briefly here, Mr Gheorghiu believed that the contravention, which was a result of the provision of the fourth floor, could reasonably result in the loss of that entire floor. If the proposal were reduced to a ground floor and three levels above, there would be much less view impact.
[12]
Consideration
A point to make in consideration of Mr Gheorghiu's approach to the preparation of his submission is to confirm that it has not been an intent of the Court's planning principles to override development control plan provisions which are drafted directly in relation to the relevant topic (and mindful of the provisions of s 3.42 of the EPA Act). This was put as follows by Moore SC, as he then was, in Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126 at [59]:
"59 Planning principles published and adopted by the Court are intended to provide guidance to those who bring similar cases to the Court for determination and are also intended to provide assistance and guidance for local consent authorities. They do not and cannot have the same force as some form of statutory prescription. They certainly cannot automatically displace or override the provisions of a local environmental plan or a development control plan that deals with the topic of a particular planning principle in a fashion differing from that enunciated by the planning principle itself."
Nevertheless, I can take the comments made by Mr Gheorghiu on face value while I give principal consideration, in my evaluation on this topic, to MBCDCP Part 6.8 (Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167).
The view loss assessment prepared by the applicant (Ex A Tab 6) was agreed as providing a satisfactory technical representation by the experts. The analysis covered Unit 22 and Unit 18 directly below. It was clear from the imagery that the major view loss was to Unit 22.
Photomontage material seemed to reflect the requirements of Part 6.8 in accounting for standing views 1m from balcony edge and from a similar distance from the inside edge to the large, glassed sliding doors to the living areas. It is clear that existing views from both the balcony and within the living area looking north are special and include landmarks such as Sydney Harbour Bridge and much of the CBD including Barangaroo and Centre Point Tower. The Horizon Tower at Darlinghurst is also evident, and from the balcony the North Sydney CBD towers are also evident. There is a clear view of the harbour itself between foreground trees. These are "highly valued" views under the first step and third steps in Part 6.8. When I turn to the question of what views are lost and what are retained, Mr Gheorghiu is correct that a considerable portion of the "whole view" presently available would be lost with the proposed development. However, and mindful of Part 6.8, the principal landmark views would be retained when viewing from quite large areas of the balcony and living areas. This includes Sydney Harbour Bridge and much of the CBD including Barangaroo and Centre Point Tower and from the balcony the North Sydney CBD are also evident. Water views would be substantially lost, although they are not extensive at present.
The fourth step in Part 6.8 concerned with whether the proposal is reasonable, draws in other development controls. I note the written evidence of Mr Layman that the amended proposal provides setbacks to Cowles Road which are greater than required by MBCDCP (Ex 3 p 23). In his oral evidence, Mr Mead referred me to comparisons between the amended proposal and a complying building envelope in the photomontage evidence. In particular p 29 (Ex A Tab 6) indicates a very considerable improvement between the two. For example, a compliant envelope can be seen to take out much of the CBD skyline landmark views from the balcony edge of Unit 22. A not dissimilar scenario presents in relation to views from the living areas of Unit 22.
I also sought comment from the experts in regard to the side setback controls under MBCDCP. The relevant provisions are in Part 5.1, with Objectives O4 and O5, and respectively Planning Controls P8 and P9 most relevant (see Figure 2).
Figure 2 Excerpt from Mosman Business Centres Development Control Plan Part 5.1 (Ex 2 folio 425)
Under P8 (see Figure 2), it is clear that there is no requirement for a side setback control in this instance, given the site does not adjoin residentially zoned land. The proposal does include some side setbacks. The plans indicate a 3.025m setback for the building in the area of its north-western corner, the most critical area in regard to view impact for 507 Military Road. The 45 degree height plane control under P9 (see Figure 2) applies to street setbacks.
The proposal retains substantial landmark views to the city skyline, Sydney Harbour Bridge and Barrangaroo (and North Sydney) for the living area and balcony of the most affected residence within 507 Military Road (Unit 22). The views are not as striking from Unit 18, but there remains some retention of CBD skyline views from some areas within the apartment. This is essentially a result of the "notching back" of the buildings north-west corner. This for me is an example of the type of view sharing outcome sought by Objective O2 to Part 6.8 of MBCDCP.
If I return to what I saw to be Mr Gheorghiu's key points of concern. In regard to the first two points, I do not see particular provision under Part 6.8 to relate complying development to further design alternatives, or to highlight the importance of "whole views". But in this instance, the most important aspects of the views are retained for key living and entertaining areas. I am not convinced of a need for a relocation of building massing to the south in this instance. There are two reasons for this. First and most important is that the proposal more than complies with relevant setback controls. Second, and less important, is that I see some sense in the comments from the experts on potential for future development of the depot site to the south, and imposing building massing along the northern boundary to that site provides an obvious restriction on solar access opportunities. I also cannot agree with Mr Gheorghiu that it follows that the height breach (of up to 1.2m) in some manner means it is reasonable to assume the loss of the whole upper level of the development for view loss purposes. The reason for this is that there are no doubt many variables available for consideration in the design conception process, which would reasonably suggest optimisation of building height in this setting of good views. Mr Gheorghiu's assumption is better read as a leap of faith, rather than an evidence based submission.
The principal point here is the requirement for me to consider the application before me and in this instance the proposal is seen to adequately address the relevant planning controls in relation to view sharing under MBCDCP. In turn, I find the view loss impacts reasonable in all of the circumstances.
[13]
Visual bulk and visual privacy
Objectors also raised concern about the scale and presentation of the building to the northern boundary. In Mr Gheorghiu's written submission dated 14 July 2023, it was argued the 45 degree height plane control should also operate with respect to the common boundary with 507 Military Road. He noted that the building on 507 Military Road did adopt a building envelope consistent with that control in relation to its (southern) boundary with the subject site. Another objector from 507 Military Road, although from the first residential floor, raised concerns in regard to visual privacy.
I am satisfied with the proposal in relation to both of these concerns. As indicated above in relation to view loss, the 45 degree height plane control under MBCDCP does not apply to side boundaries which are not to land zoned residential (see Figure 2). Further, the 1.5m side setback control applicable in the relevant E1 zone only applies in instances where the site adjoins residentially zoned land. 507 Military Road is not residentially zoned land. More generally, I note the proposal's setback configuration to the north (a 3.025m and greater setback towards the north-western corner, but including zero lot line development (at some levels and varying a little at the upper levels) towards the less sensitive north-eastern corner). This seems a reasonable response to MBCDCP's objectives relating to reducing the impressions of building bulk.
During the site inspection, there was an opportunity to examine the visual privacy concerns, noting the experts understanding of the apartment layouts in the adjoining 507 Military Road. Special note was taken of the first floor level from which an objection was received. Generally, I accept the position adopted by the experts that there were no unreasonable visual privacy impacts on the first floor residential level as a consequence of the proposed development, given the configuration of windows. I also accept Mr Layman's advice that Levels 3 and 4 (setback 1m and 3m, respectively, from the northern boundary) and with only bathroom and corridor windows of relevance provides an adequate visual privacy relationship with 507 Military Road (Ex 3 p 18).
[14]
Building height contravention
The proposal breaches the height of buildings control at cl 4.3 of MLEP. The maximum building height is 15m. The plans indicate the proposal has a maximum height of 16.2m to the top of the lift overrun and a maximum height of 16m to the top of the building parapet.
The applicant is seeking an exception in relation to the contravention of this development standard under the permissive powers at cl 4.6(2) of MLEP. To enliven these permissive powers (to grant development consent notwithstanding a development standard contravention), the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [14]). The first opinion is in regard to a written request from the applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
The applicant has opened up the possibility of application of cl 4.6(2) in this matter by submission of written requests seeking to justify the contravention. The written request was prepared by Planning Ingenuity and was dated 24 July 2023 (Ex A Tab 5).
[15]
Whether compliance is unreasonable or unnecessary
Mindful of cl 4.6(3)(a) of MLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of the standard. The objective of cl 4.3(1)(b) relevant to the site (and its setting within the E1 Local Centre zone) is as follows:
…to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form and will produce a cohesive streetscape.
The written request argues and demonstrates through provision of an architectural drawing excerpt (Ex A Tab 5 Figure 3) that the proposal would generally adopt the predominant two-storey street wall height at both Cowles Road (along the site's western boundary) and Gurrigal Street (along the site's eastern boundary). Then the building steps in as the height increases. This setting back of the building to its street frontages with height increase, according to the written request "(reflects) height, bulk and scale consistent with the desired future character", with the "minor height non-compliance" not readily discernible at the street level. A comparison is drawn with the adjoining development to the north (507 Military Road), which has a somewhat similar height contravention and roof configuration (Ex A Tab 5 Figure 3). Further, in relation to the topic of whether compliance is unreasonable or unnecessary in the circumstances, the written request argues that there are no additional impacts as a consequence of the contravention, and that the contravention is important to achieving other planning goals. These arguments convince me that the proposed building would be compatible with the desired future character of the area in terms of building height and roof form and will produce a cohesive streetscape. I am satisfied that the arguments submitted in the written request demonstrate that the objectives of cl 4.3 of MLEP in regard to wall height have been achieved.
As the objective of the building height standard is achieved, notwithstanding the contravention, there is no need for strict compliance. No purpose would be serviced by requiring strict compliance with the standard. In turn, the requirements of cl 4.6(3)(a) are met.
[16]
Whether there are sufficient environmental planning grounds
The written request argues there are sufficient planning grounds to justify the contravention. It seems to me there are three main and related points to its argument. The first argues that the breach is relatively minor (up to 8%) and would have minimal impact. The points include that the contravention is setback from the street and would not be visually intrusive from the streetscape and neighbouring properties, and would not bring any significant amenity impacts, including in relation to view loss, overshadowing and privacy. Comparisons are drawn with 507 Military Road which has a similar height contravention and presents reasonably to the street. The second argument is that the proposal's provision of a number of residential dwellings of varying sizes would meet an established community need; and a reduction in dwellings would likely eventuate were strict compliance required. The third argument is that the proposal would assist in achieving three of the EPA Act objects, as listed at s 1.3(c), (d) and (g). I accept that the breach is relatively minor and does not bring any significant impact. I also agree that this housing provision can help meet a community need. Most significantly, I do believe the proposal aligns well with the objects of the EPA Act as referenced. On this point, most particularly I accept the written request's argument that the design configuration of the proposal, including the building height breach, but contextualised with the rest of the proposed building massing in response to objector concerns including in relation to view loss, promotes good design and amenity of the built environment. These are environmental planning grounds sufficient to justify the contravention. In turn, the requirements of cl 4.6(3)(b) are met.
[17]
Public interest
I now turn to the test at cl 4.6(4)(a)(ii) of MLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the E1 zone.
The interpretation of the word "consistent" has been considered in many judgments of the Court. Here, briefly, I accept the interpretation that the word consistent is synonymous with compatible (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).
I agree with and rely on the written request's demonstration that the proposed development is consistent with the objectives of the building height standard as considered above.
The E1 Local Centre zone objectives are as follows:
• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.
• To encourage investment in local commercial development that generates employment opportunities and economic growth.
• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area.
• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
• To enhance the viability, vitality and amenity of the local centres.
• To maintain active uses at street level, with a predominance of retail use.
• To allow the amalgamation and redevelopment of land in Spit Junction.
• To minimise the effect of business uses on the amenity of adjacent residential areas having regard to building design, operation and activities, traffic generation and the car parking capacity of local roads.
• To ensure the facades of new buildings in Mosman Junction are in keeping with the proportions of surrounding traditional shop fronts.
• To maintain the local character and enhance the village atmosphere of Mosman Junction by limiting the height, bulk and scale of buildings.
• To encourage development that is compatible with the centre's position on the hierarchy of centres.
The first, second and fourth objectives are concerned with providing for, and encouraging investment in, retail, commercial and community uses, including on the ground floor of buildings. The underlying aim relates to serving the needs of local people and generating employment and economic growth. The proposal is characterised as a residential flat building, a permissible use in the zone and which more directly relates to other zone objectives. Nonetheless, the proposal is consistent with the first, second and fourth objectives in that it makes allowance for small home office arrangements at the ground floor for two of the units, including provision of direct entries from the street. In my view, this is a reasonable response to what is sought from these three objectives, in the circumstances.
The proposed provision of residential dwellings makes the proposal obviously consistent with the third zone objective.
The fifth and sixth zone objectives would be achieved with the proposal because of the intensification of activity which can be thought of as associating with the proposal and its design features. There would be almost a doubling of the number of residences located within the bounds of the site. In addition, there would be new street front access to residences along both the Cowles Road and Gurrigal Street frontages. The proposal does not offend the objective relating to maintaining a predominance of retail use in the zone because the site is used for residential purposes now.
The proposal involves amalgation of sites and thus lines up with the seventh zone objective.
In regard to the eight zone objectives, and while I would not see the proposal as for "business use" in the sense described, I am satisfied that the proposal minimises its effects on the amenity of adjacent residential uses. I have described the building design considerations relating to the amenity of the most affected residences at 507 Military Road, above, finding the design satisfactory. I note that Council had raised concerns in relation to certain traffic and parking related matters, but that these concerns had been addressed through the plan amendments (Ex 3 p 6). The scale of operations and activities which can be expected with the small home office arrangements would not unreasonably affect local amenity. The proposal is consistent with the eighth zone objective.
The proposal is compatible with the ninth zone objective as it is not in an area where traditional shopfronts are particularly in the surrounds.
The proposal maintains the local character by essentially meeting the existing building envelope controls except for a breach of the height standard which is hardly perceptible from the street. It would be reasonably seen as enhancing the village atmosphere by increasing the number of people living in Mosman Junction in close proximity to the various shops and services on offer. The proposal is consistent with the tenth zone objective.
The proposal is consistent with the eleventh and final zone objective because it does not bring commercial or retail development of a scale that would impact on this centre's position on the hierarchy of centres.
Based on my findings above, the proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the E1 Local Centre zone of MLEP. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of MLEP are met in regard to the building height contravention.
[18]
Conclusion - wall height contravention
I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of MLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.
With the above findings, the states of satisfaction required by cl 4.6 of MLEP have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the building height standard.
[19]
Mosman Local Environmental Plan 2012
I can note the following other factors relating to MLEP. In regard to cl 6.1 and acid sulfate soils, the parties advise the site is not identified in the relevant maps as being affected. In regard to cl 6.7 and earthworks, I have given relevant consideration and note the applicant has included in the Amended DA a Geotechnical Report prepared by Martens Consulting dated 27 April 2023 (Ex A Tab 14) and updated stormwater plans (Ex A Tab 7) which attend to the relevant matters.
[20]
State Environmental Planning Policy No. 65 Design Quality of Residential Flat Buildings
State Environmental Planning Policy No. 65 Design Quality of Residential Flat Buildings (SEPP 65) brings forward certain requirements, as does the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). Relevantly, s 29 of the EPA Regulation 2021 requires a development application that relates to residential apartment development to be accompanied by a statement from a qualified designer meeting stipulated requirements. A statement dated 20 July 2023 prepared by Ben Pomroy (Architect with registration number 7918) (Ex A Tab 3) was submitted with the amended application explaining how the development addresses the design quality principles and demonstrating how the objectives of the Apartment Design Guide (ADG) have been achieved.
Mindful of the requirements of cl 28(2) of SEPP 65, I have taken into consideration: the design quality of the development when evaluated in accordance with the design quality principles, and I have taken into account the ADG. The statement of Mr Pomroy and the joint report of Mr Layman were useful to me here (Ex A Tab 3 and Ex 3). I do note the concern raised in submissions by Mr Gheorghiu, suggesting that the proposal is deficient in common open space and, (which relate to ADG Sections 3D and 3E, respectively. However, these topics are addressed by Mr Layman in his report (Ex 3 p 18), where he indicates he believes that: (1) the provision of private balconies larger than required and with relatively good solar access, addresses any concerns relating to common open space and (2) the qualitative and locational aspects of the deep soil, as proposed, are significant including through reduction of the basement extent to facilitate retention of the street tree near the north-western corner of the site. I accept the advice of the parties that Mosman Council does not have a SEPP 65 design review panel.
Having regard to Mr Pomroy's statement and the agreed sworn evidence of the experts, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria.
[21]
State Environmental Planning Policy (Biodiversity and Conservation) 2021
[22]
Chapter 2
Section 2.6 provides that that a person must not clear vegetation in a non-rural area of the State, relevantly, without the authority conferred by a permit granted by the council under that Part. According to the parties' jurisdictional statement, six of the trees which are proposed to be removed are relevant to these provisions (as addressed in the applicant's arboricultural report (Ex A Tab 11)). I note that Council agrees that removal of the six trees is appropriate, and approval should be granted for their removal. With my determination of this consent, I also agree that this is appropriate.
The now repealed Ch 10 continues to apply to the application under relevant savings provisions. While the site falls within the area of affectation under s 10.2, I accept the advice of the parties in that no jurisdictional determinations are required in this instance.
[23]
State Environmental Planning Policy (Resilience and Hazards) 2021
Section 4.6 requires a consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. I accept the advice that the site has been used for residential purposes and there is no history to suggest that the site is contaminated (Ex 3 p 18). The proposal does not require further consideration under these provisions.
[24]
Other provisions of section 4.15(1) of the Environmental Planning and Assessment Act 1979
Mindful of s 4.15(1)(b), I have given consideration to whether the proposal would have significant environmental impacts on the natural and built environments. My finding is that it would not. Here I also have regard to the proposed conditions, as agreed by the parties. In regard to s 4.15(1)(c), I have had regard to site suitability, again finding in the positive. In regard to s 4.15(1)(d), I have reviewed each of the written and oral submissions made and given consideration to them in my decision. The most significant issues, for me, have been addressed directly in this judgment. One further matter raised in objections warrants some attention here. It related to whether the proposed basement excavation could raise structural concerns for the neighbouring building to the north. I did raise this issue with the experts, who indicated they saw nothing unusual in the juxtaposition of the proposed excavation with the common boundary. I was referred to Conditions 11-14, providing for dilapidation reporting and seeking to ensure that no damage would occur to neighbouring structures during or subsequent to the carrying out of works. I accept the response to this concern as reasonable. In regard to s 4.15(1)(e), I have also given consideration to the public interest and found that the grant of conditional consent would be aligned with it, essentially based on the above analysis.
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Conclusion
Given my findings above, it is appropriate that the application be approved in accordance with consent conditions referenced in the Orders below.
[26]
Orders
The Court orders that:
1. The written request pursuant to cl 4.6 of Mosman Local Environmental Plan 2012, dated 24 July 2023 and prepared by Planning Ingenuity is upheld.
2. Development application No. 8.2022.276.1 for demolition, construction of a residential flat building comprising of 15 dwellings with basement carpark at 87-87A Cowles Road, Mosman is determined by the grant of consent subject to the conditions included at Annexure A.
3. The exhibits are returned with the exception of exhibits 1 and A, which are retained.
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Decision last updated: 04 October 2023