The application is accompanied by a BASIX certificate (Cert No. 1357610S_02 dated 11 April 2024) prepared by Gradwell Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.
The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.
[2]
As required by the Court, parties tendered without prejudice conditions of consent during the hearing. However, both parties also sought directions to file and serve amended conditions of consent, and the Court made those directions as stated at [10].
The dispute between the parties as to conditions of consent are largely confined to amendments sought by the Respondent to plans before the Court.
Condition 9 seeks the deletion or reduction in size of the plant room so as not to necessitate additional excavation. Absent a layout demonstrating the minimum required area for the plantroom, and for those reasons set out at [52]-[] of this decision, I decline to adopt the Respondent's Condition 9a in this regard.
For the reasons stated at [55], I also decline to adopt the Respondent's condition at Condition 9c.
The Respondent seeks amendments to the landscape design in the northern setback to achieve a height of between 4-6m. The Applicant submits such an outcome would be irresponsible in a setback of 1500mm, as it would preclude solar access to the ground floor bedroom.
The ground floor bedroom has the advantage of large glazed doors to the east that appears to receive more sunlight in the morning period than is likely to be received in the north facing window at any time of the day in winter. This is because of the setback determined by the Applicant is less than 3m, and within close proximity to No 8 The Grove which overshadows the window about which the Applicant makes submissions.
Any concern held by the Applicant as to access to the northern boundary from a change in landscape planting can be ameliorated, in my view, by a combination of species selection and maintenance.
Adopting the Respondent's proposed condition would go some way to addressing the concerns held by the owner of No 8 The Grove as to privacy and amenity afforded to that property by a green outlook to this boundary.
Not unrelatedly, the Applicant seeks to strike that part of Condition 87 in Annexure A that requires the project landscape architect to provide photographic evidence of the completed landscape, verifying conformity with the landscape design for which consent is granted, and which is also the subject of Condition 76. As I regard the requirement sought by the Respondent to be other than onerous, and directly related to a matter in contest in these proceedings, I adopt the Respondent's proposed wording of the Condition.
[3]
(1) The appeal is upheld.
(2) Development application 8.2022.361.1 seeking consent for demolition of the existing dwelling on the site, and construction of a new dwelling house, swimming pool, landscaping and site works, including the re-location of an existing inter-allotment drainage easement, is determined by the grant of consent, subject to conditions of consent at Annexure A.
(3) All exhibits are returned except for Exhibits A, B, C, J and 6.
Condition 22A. Stormwater runoff generated from the development shall be directed to the kerb inlet pit located along The Grove generally in accordance with the Stormwater Management Plans prepared by QUANTUM Engineers Job No.180359_SW REV I dated 27th March 2024.
[7]
Construction Plans & Details shall be prepared and Certified by a suitably qualified civil engineer that the above has been met, and is to be included with the Construction Certificate
Parties
Applicant/Plaintiff:
Xiradis
Respondent/Defendant:
Mosman Municipal Council
Legislation Cited (4)
Planning and Assessment Act 1979
Environment Court Act 1979
Planning and Assessment Regulation 2021
Civil Procedure Rules 2005
Cases Cited (4)
The height standard is exceeded
The Respondent contends the development application, as amended, remains unacceptable and should be refused due to the excessive height of the development proposed.
The height of building standard applicable to the site is 8.5m according to cl 4.3(2) of the MLEP (the height standard). The proposed development has a maximum height of 10.59m at the eastern-most overhang of the level 2 roof, when measured from a point vertically below. Lesser exceedances are evident in the balustrade surrounding the Level 2 terrace, and a portion of the clerestory roof over the uppermost level.
As the proposal exceeds the height standard, the Applicant relies on a written request prepared in accordance with cl 4.6 of the MLEP, authored by Mr Vaughan Milligan dated April 2024 (the height request) (Exhibit G).
In general terms, the height request states the height exceedance is partly a consequence of the site's slope to the north-east and previous excavation on the site.
Building height is defined in the dictionary of the MLEP in the following terms:
building height (or height of building) means -
(a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or
(b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building,
including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
The existing ground level from where the height is measured is the existing topography beneath the existing building, including prior excavation, as understood by the Court in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582.
The height request adopts what is described as the first and fourth way, of the five non-exhaustive ways set out in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, to assert that compliance with the height standard is unreasonable or unnecessary (cl 4.6(3)(a))
Floor space ratio
The Respondent contends that the floor space ratio (FSR) proposed exceeds that permitted by the relevant standard at cl 4.4A of the MLEP.
The Applicant believes the development complies with the FSR standard when proper regard is had to the Dictionary of the MLEP.
The point of difference between the parties is whether, firstly, the corridor, or hallway, between the garage and the proposed lift is required to be included or excluded from the FSR calculation and secondly, whether the area in the garage is excessive and likewise contributes to floor space.
Mr Milligan's opinion is that the area should be excluded from the calculation because the corridor connecting the garage to the lift is consistent with the exclusionary provisions of the Dictionary that read as follows:
gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes -
…
but excludes -
…
(g) car parking to meet any requirements of the consent authority (including access to that car parking), and
Ms Englund cites the decision of Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass) to assert that any area beyond 36m2 in the garage should also be included in the calculation of floor space and the FSR.
This is because the Respondent, at Section 5.10 of the MRDCP (Table - Car parking rates) sets a maximum of 36m2 for a garage, while an area of 58.39m2 is proposed. A note explaining the requirement is as follows:
For the purposes of calculating gross floor area only carparking to meet the requirements of Council (including access to that car parking) is excluded from the calculation.
When the requisite area is assumed in the calculation of FSR, Ms Englund believes the FSR is expressed as 0.52:1.
The Applicant relies upon a written request, prepared by Mr Milligan dated April 2024 (Exhibit H) in the event that the FSR is found to exceed the standard of 0.5:1.
I record here, for reasons similar to those at [39] of the Malass decision, that the additional area in the garage should not be excluded from the FSR calculation. When the area in excess of 36m2 is added to the area of the proposed, as appears in the table at DA-4000, the total GFA is 351.97m2. An FSR of 0.5:1 permits 341.7m2 of GFA on the site.
The FSR request states that the inclusion of GFA not otherwise included results in a FSR of 0.515:1, which exceeds that permitted by 3.64%.
The FSR Request asserts compliance with the FSR standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance.
The relevant objectives of the standard are found at cl 4.4 of the MLEP as follows:
(a) for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living -
(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 reasons set out in the FSR request are as follows:
1. The proposed dwelling represents a minor increase of 11.54m2 from the dwelling already located on the site. When the basement level, which is predominantly below ground, is excluded, the FSR for that part of the building that is visible above ground is 0.479:1, and so complies.
2. The new dwelling is a significant improvement from the existing dwelling in terms of its modulation, articulation, privacy, solar access and the like, and is in keeping with the bulk, scale and desired future character of the locality.
3. The balance between landscape and built form is improved, which I understand to be reference to the compliant landscape area.
4. Views and solar access for neighbouring properties are maintained.
5. The proposal utilises some of the existing excavation to accommodate new floor area.
The FSR Request also sets out environmental planning grounds it considers sufficient to justify the contravention as follows:
1. The sloping topography necessitates the addition of an internal passenger lift to navigate the levels on the site, and access to that lift via a corridor.
2. This is achieved within a built form that is consistent with the prevailing development pattern in the area. The proposal is not other than orderly and economic use of the land, and does not obstruct views but will maintain those existing views.
3. Finally, the departure from the FSR standard is minor and absent adverse impacts.
I accept and am satisfied that the proposed development is consistent with the objectives of the FSR standard for the reasons set out in the FSR Request, and that the environmental planning ground are sufficient to justify the contravening of the FSR standard.
In forming this state of satisfaction, I have considered the steeply sloping topography that combines, in this particular location in The Grove, with sites that are more shallow than those further north. The combination of these factors reduces the site area that is amenable to construction without excavation, given the steep slope, but also the existing trees and rock outcrops that are, in this case, retained. The excavation for the garage and other floor space at that level, utilises, in part, the footprint of prior excavation and so limits the excavation within a constrained site.
I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the applicable zones for the reasons given in the request.
I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP and I find no grounds on which the Court should not uphold the height request.