Zhang v Mosman Municipal Council

Proceedings

1. The proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an on-site inspection.
2. There were considerable amendments to the proposal prior to and during the course of this conciliation. The amendments were such that the experts, called to give evidence, came to an agreement that all of the contentions raised by Council had been addressed satisfactorily. However, the parties were not able to come to a formal agreement.
3. In turn, the matter proceeded to an in-person hearing.
4. The experts providing evidence to the Court were Mr D Waghorn (for the Applicant) and Ms K Gordon (for Council). The experts evidence included a joint report which was tendered as Ex 3.

Proposal

1. The main feature of the proposal, above and beyond that already approved through Development Consent 8.2016.139.2, is provision of an additional level for a new master bedroom. There would be an associated balcony providing an outlook to the west, and water views. The approved pitched roof would no longer go ahead, replaced by a flat roof. Relatively minor changes at the basement, ground and first level are also proposed.

Statutory considerations

1. The site is zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (MLEP). The proposal is permissible within the R2 zone.
2. Clauses 4.3 and 4.3A of MLEP provide controls relating to the maximum height of buildings which the proposal would contravene, a matter for attention below. Clause 4.4A of MLEP provides floor space ratio (FSR) controls applicable to the site. There is a legal question involved in the determination of whether the proposal contravenes the applicable FSR control. Other statutory considerations will be addressed below, as required.
3. Mosman Residential Development Control Plan 2012 (MRDCP) also applies.

Issues

1. With the amendments to the proposal, leave for which was granted during the course of the hearing, the experts giving evidence in the case have come to an agreed position that the application addresses all of the contentions raised. Council, in turn, advised the hearing that it would no longer press the contentions.
2. This leaves me, here, in a position where I need to give consideration to any objecting submissions, as well as statutory or jurisdictional barriers to approval.

Objecting submissions

1. Written submissions were made objecting to the proposal. The objecting submissions might be summarised as follows:

• breach of planning controls (in particular height and FSR)
• unacceptable view impact including loss of water views
• amenity impacts (unacceptable overshadowing, visual and acoustic privacy, visual bulk impacts)
• non-compliance with scenic protection standards
• visual impact on streetscape.

1. I also heard oral submissions from the immediate neighbours (21 and 17 Euryalus Street) during the site inspection and prior to the hearing, with an agreed summary of these submissions tendered into evidence as Ex 2. It is notable that the then proposed amendments to the plans were shown and explained to these immediate neighbours. Having been informed about the amendments, with the attention to amenity concerns previously raised explained by Ms Gordon, the neighbour to the south (17 Euryalus Street) indicated that the amendments seemed to have addressed the concerns raised. That is, in relation to view loss, bulk and scale, privacy and overshadowing. Amended plans removed a breach of the side setback control for the lift and stairs (Ex 3, par 93). Having heard the explanation from the experts, and viewed the plans, I agree that those concerns raised by the neighbour to the south have been adequately addressed.
2. Having been informed on the changes, the neighbour to the north (21 Euryalus Street) remained concerned about the fact that the proposal breached certain development standards. There was also a concern about streetscape impacts of the building massing.
3. I will now turn to the development standard contraventions which among other things allow me to give consideration to streetscape and building massing concerns.

Contravention of development standards

1. The proposal would provide for a contravention of MLEP in two ways relating to its height:

• Clause 4.3 provides that the height of a building on the site is "not to exceed the maximum height shown for the land on the Height of Buildings Map", which in this case is 8.5m.
• Clause 4.3A provides that a building on the site must not have a wall height that exceeds 7.2m.

1. It was Council's view that there was also a contravention in relation to FSR. While there was disagreement on the part of the planning experts as to whether this was the case, the Applicant did not contest this contravention in legal terms. Both parties agreed that despite any FSR contravention, the proposal did not warrant refusal on such grounds. Nevertheless, this is a matter for my own satisfaction, which I will turn to following consideration of the height contraventions.
2. The Applicant is seeking an exception for the contravention of each of the development standards under cl 4.6(2) of the MLEP, which provides relevantly as follows: (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument...
3. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)- (5): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
4. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (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.
5. 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 each of the contraventions. I granted leave for the amendment of the application to accommodate each of these written requests, prepared by Planning Ingenuity, and each dated 9 April 2021, during the course of the hearing. The FSR written request (relating to the contravention of cl 4.4A of MLEP) became Ex C, the building height written request (relating to the contravention of cl 4.3 of MLEP) became Ex D, and the wall height contravention written request (relating to the contravention of cl 4.3A of MLEP) became Ex E.

Wall height contravention

1. The wall height contravention under cl 4.3A is greater than that relating to building height (cl 4.3). I will therefore consider it first. According to Ex E, the proposed second floor level has a varying wall height of up to 13m measured to the parapet roof. Given the wall height control is 7.2m, the proposal is non-compliant with the development standard and seeks approval notwithstanding a contravention of up to 5.8m. The wall height contravention is greatest along the western (front) facade.

Whether compliance is unreasonable or unnecessary

1. Mindful of cl 4.6(3)(a) of MLEP, Ex E 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). Ex E uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of the standard. It is notable here that cl 4.3A does not have nominated objectives of itself. Ex E uses the objectives of cl 4.3 of MLEP, headed "Height of buildings", for examination. This is a reasonable course in the circumstances (ie where the clauses have a commonality in their titles with cl 4.3A reasonably seen as involving "additional" provisions to the overall topic of height of buildings). The objectives of cl 4.3 are, relevantly, 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
2. In regard to the first objective, Ex E makes reference to DA.8.2016.139.2 (ie the previously approved development on the site) and the view loss analysis undertaken for that proposal, which came to the conclusion that no view loss would come about from that proposal. Ex E advises that further inspections have shown that there would be no additional view loss with the plans as now proposed.
3. In regard to the second objective, Ex E indicated that the new second floor level, replacing an approved pitched roof, would not be readily identifiable from the harbour or foreshore. Well setback from the foreshore, it was submitted that it would blend in with the surrounding natural and built environment, and would not be a visually prominent.
4. In regard to the third objective, Ex E drew attention to the varied building typologies in the area, and changes to the height and form of buildings in the site vicinity over recent years, which, it was argued, could reasonably be seen to be indicators of desired future character. Special regard was had to 13 and 15 Euryalus Street which were larger modern buildings when compared to some of the older style forms in the vicinity. Ex E argued that the proposal's height and form were comparable to the immediately neighbouring buildings, and those in the wider area, with the roof quite consistent with the more modern housing forms.
5. In regard to the fourth objective, Ex E argued that the non-compliance with the height development standard would not have any adverse impact on the amenity of adjoining properties in terms of bulk and scale, views, solar access and privacy.
6. I accept that Ex E has demonstrated that the objectives of the building height standard have been achieved notwithstanding the contravention. I accept Ex E's arguments that view loss would be negligible or that there would be no impact, and that the proposal meets the objective of sharing public and private views. This position was agreed in in the joint expert report (Ex 3, pars 100-102, with the experts confirming that the changes recommended by the experts had been adopted).
7. It is also clear that the proposal would provide for a minimisation of the visual impact including from the harbour and foreshores. As indicated in Ex D, this relates to the distance of the property to the foreshore, the fact of the front setback of the higher portions of the building and the proposed landscaping.
8. It has also been demonstrated to my satisfaction that the proposed building height and roof form would be compatible with the desired future character, mindful of the scale of buildings in the locality. I am also satisfied that Ex E has demonstrated satisfactorily that the proposed building would minimise the potential adverse effects associated with bulk and scale. Evidence in support of the written request here was the opinion of the potentially most impacted upon neighbour that his concerns have been addressed.
9. In coming to my conclusion in regard to Ex E's commentary relating to each of these objectives, including in relation to the objections from 21 Euryalus Street, I have given attention to the opinion of Council's expert. Ms Gordon saw the wall height (and building) height contraventions as not unreasonable in regard to character compatibility and bulk and scale (relevant to the objections from owners of 21 Euryalus Street). In turn I am satisfied that the arguments submitted in Ex E demonstrate that the objectives of cl 4.3A of MLEP in regard to wall height have been achieved. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Whether there are sufficient environmental planning grounds

1. Ex E argues there are sufficient planning grounds to justify the contravention. It seems to me there are two main points to the argument. The first is concerned with the previous excavation for the garage level of DA.8.2016.139.2. If the proposed development was measured from natural ground level or the levels prior to excavation, the proposed development would be much closer to compliance with the development standard. The second is concerned with the particulars of the breach and can be understood from the following quote (Ex E, p 8): "… The proposed second floor level is centrally located on the site and setback approximately 32.6m from the Euryalus Street boundary and 4.6-6.6m from the side boundaries to ensure the second floor level does not read as a sheer three storey element and complies with the side setback requirements of MRDCP. The recessive design of the proposed additions, coupled with the 4.6-32.6m setback of the proposed second floor level will ensure the additions will not be visually prominent when viewed from Euyalus Street."
2. As indicated in Ex E, the fact of the perceived lesser scale of the wall height contravention (ie taking into account the pre-existing ground level prior to garage excavation), when coupled with setbacks and other design features aimed at minimising impact, are sufficient planning grounds to justify the contravention.
3. Together, the above findings mean Ex E has adequately addressed the matters required to be demonstrated by cl 4.6(3) of MLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the wall height contravention.

Public interest

1. 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 wall height standard and the objectives for development within the R2 zone.
2. 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]).
3. I agree with and rely on Ex E's demonstration that the proposed development is consistent with the objectives of the wall height standard as considered above.
4. The zone objectives are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain the single dwelling character of the environmentally sensitive residential areas of Mosman. • To maintain the general dominance of landscape over built form, particularly on harbour foreshores. • To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. • To ensure that development is of a height and scale that seeks to achieve the desired future character. • To encourage residential development that maintains or enhances local amenity and, in particular, public and private views. • To minimise the adverse effects of bulk and scale of buildings.
5. The proposal provides for a single dwelling house and as such is clearly consistent with the first and third objectives. I am satisfied that, with the proposed landscaping, and tree retention as proposed (a condition requires a canopy tree in the front setback area), the proposal is compatible with the fourth zone objective. As indicated in regard to my consideration of Ex E, and having a mind to the agreed evidence of the experts, I am satisfied that the proposal is of a height and scale that aligns with the desired future character. I am also convinced, on the basis of the agreed evidence from the experts, that the proposal reasonably maintains local amenity and public and private views, and is consistent with the objective of minimising adverse effects of bulk and scale as a consequence. The second and fifth zone objectives are not relevant to this proposal. On the basis of the above I find the development consistent with the R2 zone objectives.
6. Based on my findings above, the proposed development will be in the public interest because it is consistent with the objectives of the wall height standard and the objectives for development within the R2 Low Density Residential 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 wall height contravention.

Conclusion - wall height contravention

1. 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.
2. 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 wall height standard.

Building height contravention

1. I will mention here that, understandably, there are many parallel findings between the wall height and building height contraventions.
2. According to Ex D, the proposed second floor level has a varying height of 9.7-13m. The proposal is therefore non-compliant with the development standard of 8.5m and seeks approval notwithstanding a building height contravention of up to 4.5m. The building height contravention is also greatest along the western (front) facade.

Whether compliance is unreasonable or unnecessary

1. Similar to the particulars relating to the wall height contravention, Ex D seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary using the first "Wehbe way" (ie that the development achieves the objectives of the standard, notwithstanding the contravention.
2. Again understandably, there are similar arguments posited in Ex D supporting the achievement of the objectives of cl 4.3 as those proposed with respect to the wall height contravention. Given the flat roof characteristics of the proposal, for the same reasons as outlined in regard to the consideration of Ex D, I am satisfied that the relevant objectives are achieved in this instance. That is that the proposal achieves the objectives of sharing of public and private views, minimising visual impact (particularly when viewed from the harbour and surrounding foreshores), ensuring compatibility with the desired future character of the area in terms of building height and roof form and minimising the adverse effects of bulk and scale of buildings.

Whether there are sufficient environmental planning grounds

1. The environmental planning grounds posited in Ex D in regard to the building height contravention aligned considerably with those put forward in regard to the wall height contravention. Reference is made to the perceived rather than "technical" building height (ie having regard to the approved excavation relating to DA.8.2016.139.2), and the front and side boundary setbacks of contravening elements. Again, I find these planning grounds sufficient to justify contravention of the standard.

Public interest

1. In consideration of the test at cl 4.6(4)(a)(ii) of MLEP, I can again refer to my findings when considering the contravention in relation to wall height. That is, I have already found that the proposal is consistent with the objectives of the development standard (in this case the same objectives apply to both the wall height and building height standards) and the zone objectives.

Conclusion - building height contravention

1. 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.

Floor space ratio contravention

1. The relevant FSR controls are at cl 4.4A of MLEP. The planning experts disagree as to whether there is an FSR contravention. The matter in dispute between the experts is the extent to which area excluded from the Applicant's gross floor area (GFA) plans, as "access to … car parking" under MLEP's GFA definition, should have been so excluded. The total floor area in dispute is some 17.5m². With this area included in GFA, the FSR of the proposal would contravene the controls by 9.1m² or less than 2% (Ex C, p 2).
2. It is notable that Ms Gordon believed that the proposal warranted support, notwithstanding the contravention of the FSR control. In the circumstances of the case, the Applicant did not make legal submissions seeking to demonstrate that FSR compliance had been achieved. In turn and again in the circumstances of the case, I accept that there is a contravention and now give consideration to the matter having regard to cl 4.6 of MLEP, including the Applicant's written request (Ex C).

Whether compliance is unreasonable or unnecessary

1. Ex C seeks to demonstrate that compliance with the FSR development standard is unreasonable and unnecessary using the first "Wehbe way" (ie that the development achieves the objectives of the standard, notwithstanding the contravention).
2. The objectives of cl 4.4 of MLEP are also seen as reasonably applying to the provisions at cl 4.4A in the circumstances. They 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
3. There are similar arguments posited in Ex C supporting the achievement of the objectives of cl 4.3 as those proposed with respect to the wall and building height contravention. Having now particular regard to FSR, I am satisfied that Ex C demonstrates that the relevant objectives are achieved in this instance. In regard to the first objective, Ex C demonstrates that the objective of ensuring the proposed building is compatible with the desired future character of the area, in terms of bulk and scale, is achieved. Ex C does this by referencing the proposed building form, including its front and side setbacks and height, and favourably comparing it with other buildings in the area. In regard to the second objective, Ex C references the proposed landscaping, including the fact that with this proposal there is an increased landscaped area when compared to the approved development (Ex C, p 11), which for me effectively demonstrates a suitable balance between landscaping and built form in this context. In regard to the third objective, Ex C points to the siting of the building, in particular its front and side boundary setbacks, and the demonstrated minimisation of potential impacts. I am satisfied from the arguments in Ex C, that the proposal achieves the objective of minimising adverse effects of bulk and scale of buildings. In regard to the final objective of the FSR standard, Ex C notes that the proposal does not result in any additional excavation, with reliance on previously approved urban run-off management. This objective is achieved.

Whether there are sufficient environmental planning grounds

1. The environmental planning grounds posited in Ex C include reference to the minor scale of the contravention, the fact that it would not be readily discernible from the street, minimal amenity impacts and the considerable setbacks of the new floor area: "the proposed second floor level will be setback 32.6m from the front boundary and 4.6-6.6m from the side boundaries" (Ex C, p 6). I find these planning grounds sufficient to justify contravention of the standard.

Public interest

1. In consideration of the test at cl 4.6(4)(a)(ii) of MLEP, I can rely on my above findings that Ex C has demonstrated to my satisfaction that the proposal is consistent objectives of the development standard. I have already found the proposal is consistent with the zone objectives.

Conclusion - FSR contravention

1. 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 a breach of the FSR standard.

Other objections

1. The objecting submissions commonly raised concerns about height, visual bulk and scale, including in regard to streetscape, amenity and of course view loss. I agree with the experts that these issues are all adequately addressed with the amended proposal, with the analysis involved in the consideration of the development standard contraventions sufficiently explaining my reasoning here.

Other jurisdictional matters

1. In regard to cl 6.4 of MLEP, concerned with scenic protection, I note subcl (3) requires that development consent not be granted unless the consent authority is satisfied that: (a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and (b) the development will maintain the existing natural landscape and landform.
2. In regard to subcl (a), I accept the advice of the experts that measures are taken to minimise visual impact, including in regard to the building massing, its siting (including front setback) and proposed landscaping. In regard to subcl (b) I accept their advice that there is no change involved to the natural landscape or landform with the proposal.
3. In regard to State Environmental Planning Policy No 55 - Remediation of Land, I accept the advice of the parties that there are no former uses of the land, or other evidence, to suggest the land is contaminated, and that the application does not require further consideration under cl 7.
4. Certain provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) apply to the site. The site does not fall within the Foreshores and Waterways Area as designated in the SREP. I have considered the aims set out in Part 1 of the SREP and find the application in alignment with these aims.

Conclusion

1. In accordance with the above findings, it is appropriate that the application be approved with consent conditions, as agreed between the parties and referenced in the orders below.

Orders

1. The Court orders that: 1. The written request seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Mosman Local Environmental Plan 2012, prepared by Planning Ingenuity and dated 9 April 2021 is upheld. 2. The written request seeking to justify the contravention of the wall height development standard at cl 4.3A of Mosman Local Environmental Plan 2012, prepared by Planning Ingenuity and dated 9 April 2021 is upheld. 3. The written request seeking to justify the contravention of the floor space ratio development standard at cl 4.4A of Mosman Local Environmental Plan 2012, prepared by Planning Ingenuity and dated 9 April 2021 is upheld. 4. The appeal is upheld. 5. Development application No. 8.2020.94.1 for alterations and additions to a dwelling under construction is approved subject to the conditions included at Annexure A. 6. The Exhibits are returned with the exception of Exhibits 1, A-E.

Commissioner of the Court Annexure A (233381, pdf) Plans (1655684, pdf)

Amendments 29 April 2021 - Insertion of "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: 29 April 2021