22 Redan St Pty Ltd v Mosman Municipal Council; 22 Redan St Pty Ltd The Trustee for 22 Redan St Unit Trust v Mosman Municipal Council [2024] NSWLEC 1013

Catchwords: DEVELOPMENT APPEAL – alterations and additions to residential flat building – contravention of wall height development standard – contravention of floor space ratio development standard – orders APPEAL – application directly to the court for approval to modify a consent – whether substantially the same – orders Land and Environment Court New South Wales Amendment notes Medium Neutral Citation: 22 Redan St Pty Ltd v Mosman Municipal Council; 22 Redan St Pty Ltd The Trustee for 22 Redan St Unit Trust v Mosman Municipal Council [2024] NSWLEC 1013 Hearing dates: 15 and 18 September 2023 Date of orders: 23 January 2024 Decision date: 23 January 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: See orders at [80] and [81] Catchwords: DEVELOPMENT APPEAL – alterations and additions to residential flat building – contravention of wall height development standard – contravention of floor space ratio development standard – orders APPEAL – application directly to the court for approval to modify a consent – whether substantially the same – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.7 Environmental Planning and Assessment Regulation 2021, ss 38, 113 Land and Environment Court Act 1979, s 34 Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.6, 5.10, 6.4, 6.7 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 DEDICO Development Services v Mosman Municipal Council [2022] NSWLEC 1339 Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: 22 Redan St Pty Ltd ACN 648 592 456 (Applicant in 2022/295990) 22 Redan St Pty Ltd The Trustee For 22 Redan St Unit Trust ABN 87159820678 (Applicant in 2022/385118) Mosman Municipal Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes and Verekers (Respondent) File Number(s): 2022/385118 2022/295990 Publication restriction: No Judgment COMMISSIONER : This is a decision relating to two Class 1 Development Appeal s pursuant to s s 4.55(8) and 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being as follows: Modification Application Proceedings 2022/295990 is an appeal filed 5 October 2022 , made directly to the Court , pursuant to s 4.55(8) of the EPA Act , to modify development consent DA 008.2021.310.001 granted by the Court on 7 July 2022 (the Consent) which includes internal reconfiguration and infill of balconies, minor changes to the roof out l ine, relocation of access to the communal open space and provision of three additional parking spaces in the basement and the addition of a dwelling on the lower ground/basement level (the Proposed Modification ) at 22 Redan Street, Mosman legally described as Lot 1 in DP 203987 (the Site) ( Mod App l ication ) ; and Development Application Appeal Proceedings 2022/385118 is an appeal filed 21 December 2022 , pursuant to s 8.7 of the EPA Act, against the refusal of development application 008.2022.00000302.001 on 9 December 2022 which seeks consent for alterations and additions to the approved residential flat building , including design modifications and an additional dwelling on the lower ground/basement level (the Proposed Development) at the Site ( DA Appeal ) . The Consent was granted for the demolition of the existing dwelling house and the con s truction of a residential flat building comprising six dwellings . The Consent was granted by the C ourt following an agreement reached between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) in the decision of Horton C of DEDICO Development Services v Mosman Municipal Council [2022] NSWLEC 1339. The proposed alterations and additions to the approved residential flat building are the same as the works proposed in the Modification Application . The proposed additional dwelling will be accessible from the approved lower ground floor/basement level, will not be visible from Redan Lane, or from the dwellings which overlook the site along Muston Street or from Redan Street. Consent or approval for t he proposed works is sought by two path ways simultaneously namely, a development application for alterations and additions , and, or in the alternative , a modification application to modify a consent. The parties agree that should the Court determine either matter in the affirmative, it need not proceed to determine the other matter in the affirmative or at all. This is not correct as the Court is required to determine each appeal before it , unless and until an appeal is discontinued by the parties . Neither of the se appeals have been discontinued , thus each is determined as set out in this judgment. The Applicant identifies and outlines th at there are different jurisdictional prerequisites for the two proceedings as follows: For the DA Appeal ; the question is whether the contraventions of development standards are justified in written requests pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 ( MLEP ) for wall height (cl 4.3A) and floor space ratio ( FSR ) (cl 4.4) ; For the Mod Application : the question is whether the proposed modification is substantially the same as the consent as granted (s 4.55(2), EPA Act) . The Respondent’s case is that the Court would not be satisfied to uphold the cl 4.6 written request relied on by the Applicant to justify the contravention of the FSR development standard (Ex D, Tab 5 ) and that the C ourt would not be satisfied that the proposed modification is substantially the same as the consent as granted. The Respondent submit ted , in closing , that the FSR cl 4.6 jurisdictional prerequisite is determinative of the DA Appeal. The Applicant moved on a Notice of Motion for each appeal during the hearing . In relation to the Notice of Motion in the Mod Application , f iled 8 September 2023 and listed 15 September 2023 , t he Court notes that the Respondent as the relevant consent authority has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the Applica nt amending the Modification Application 8.2021.310.2 by the following documents filed 8 September 2023: Updated BASIX Certificate Number: 1407670M_02 prepared by EMF Griffiths In relation to the Notice of Motion in the DA Appeal , f iled 8 September 2023 and listed 15 September 2023 , t he Court notes that the Respondent as the relevant consent authority has agreed under s 38 of the EPA Regulation to the Applica nt amending the Development Application 8.202 2 .30 2 . 1 by the following documents filed 8 September 2023 which are minor changes : Updated BASIX Certificate Number: 1407670M_02 prepared by EMF Griffiths ; Updated cl 4.6 Variation Request (Wall Height) dated August 2023 prepared by BBC Consulting Planners . The proceedings commenced on site and the Court heard from objectors in accordance with the List of Objectors (Ex 7 ) and objector evidence notes (Ex 8 ). Concerns regarding process, namely that the modification is major and should be dealt with by way of development application, geotechnical concerns regarding excavation and traffic were raised . The adjoining neighbour is concerned to protect acoustic amenity, particularly in relation to the location of air compressor fans near the kitchen window . This last concern was addressed during the hearing which established that the location of the neighbour’s kitchen window could be seen in the First Floor Plan drawing 002-003 Rev J1 , whereas the air conditioning condensers are seen as being located on the lower level in Lower Ground Plan drawing 002-001 Rev J1 , behind the acoustic louvres and it was concluded that these condensers are 800mm below the height of the kitchen window sill and set back from the boundary approximately 3 to 3.5m and that the louvre panels were designed by the acoustic engineer . Mr Wells agrees as to the location and acoustic treatment to the condensers and agrees that there is no need to move these condensers satisf ying the concerns raised by the neighbour as to acoustic amenity . Mr Wells relies on the Acoustic Report (Ref: P0030, dated 31 March 2023) prepared by E-Lab Consulting which “appears to deal adequately with the acoustics, noting that the author concludes that “all hot and cold water plant, mechanical plant and equipment (including all exhaust and supply fans) will meet the noise emission requirements of a suite of controls including NSW EPA’s Noise Policy for Industry 2017” (Further Supplementary JER Town Planning p 15, par 6.1, Ex 5 DA Appeal) . I am satisfied that the objectors’ concerns have been appropriately considered and addresse d , and I note that the Respondent, in closing submissions , submit that there are no concerns raised by the objectors which would cause or result in the refusal of the applications (Hearing note s, p 36) . W hilst on site , the parties referred to the reduced levels (RLs) as follows: Tennis Court RL 60.65 Ground proposed RL 61. 25 Ground as approved RL 61.550 Lower ground RL 57.450 Communal open space RL 53.84 and noting that this is the same RL as the Northern end of the footpath to Redan Street . During the site inspection , the l ocation and functionality of the proposed communal open space accessed via a tunnel which is proposed to be 7m lower than where we stood , and noted as being equivalent to the level of the footpath of Redan Street , which is itself , higher than the level of the road carriageway. The inspection included Trees 30 (Ficus) and 31 (Eucalyptus) which are proposed to be retained and the s ide fence and stairs . Finally, the garden bed which directly impacts the variations to ground level existing and in relation to a small portion of wall height which exceed s a wall height of 7.2m was inspected. I will deal firstly with the DA Appeal , setting out my reasons why I conclude that the appeal should be upheld and consent granted , subject to conditions. Secondly, I will give my reasons in the Mod Appl ication as to why I conclude that the Mod Appl ication should be dismissed. The DA Appeal Statement of Facts and Contentions (SOFAC) filed by the Respondent on 27 February 2023 (Ex 1 ) sets out the facts and contentions . A t hearing the Respondent presse d the following contentions : Inappropriate modification of an existing consent ; and Contravention of the FSR development standard. This con tention also encompasses the remaining contentions relating to d esired f uture c haracter (DFC) and e xcessive storage which I will deal with together in the consideration of the cl 4.6 written request to justify the contravention of the FSR development standard. In relation to e xcessive s torage , the Respondent contends that the proposed use of the storerooms at Lower Ground Level is not clearly indicated and could be for two extra carparking spaces , being additional GFA . During the proceedings, the Court heard evidence as to the use of the lower ground level and the Applicant agrees to conditions as to the proposed use of these storerooms (see condition 3) . In relation to the first contention in the DA Appeal , I note the expert town planners ’ evidenc e (Ex 3) that the DA is for a permissible purpose seeking to make alterations and additions to an approved development . The Respondent made the submission , in closing submissions, that this is a manipulation of the process which will discourage reasonable settlement of matters where an Applicant will look for “banked fat” to use later in return for some additional development capacity (Further Supplementary JER , p ar 2.5.29, Ex 5 DA) . I accept the evidence of the expert planners and find that the first contention is not made out because each application must be assessed on its me r its at the time that the application is made. I will come back to the DA Appeal’s remaining contention regarding the FSR development standard at [ 29 ]. The Mod App lication Amended Statement of Facts and Contentions (ASOFAC) filed by the Respondent on 27 February 2023 (Ex 1 ) sets out a number of contentions . H owever , as I have found that the jurisdictional prerequisite of the first contention is not satisfied , it is not necessary to address the other contention in any further detail. The Court was assisted by the expert evidence contained in the Joint Expert Report Town Planning filed on 11 April 2023 (Ex 3 ) and Supplementary Joint Expert Report Town Planning filed 17 April 2023 (Ex 4) and Further Supplementary Joint Expert Report Town Planning (Ex 5) , all prepared by Robert Chambers for the Applicant and Peter Wells for the Respondent. In the short minutes of order made by the Court o n 10 February 2023 , order 3 is that the evidence in one of the proceedings is evidence in the other proceedings. DA Appeal: Is the contravention of the Wall height development standard justified? The Site is subject to a maximum height of building (HOB) development standard of 8.5m , pursuant to cl 4.3 of the MLEP and the Height Blanket Diagrams Drawing 007-005 in Tab 4 of Exhibit CM-2 (Ex D) demonstrate that the Proposed Development complies with the HOB development standard. The w all height development standard of 7.2m maximum wall height (cl 4.3A, MLEP) is contravened by the Proposed Development as a result of the garden bed which causes the variations to the ground level existing. The Applicant relies on an Updated cl 4.6 Variation Request (Wall Height) dated August 2023 prepared by BBC Consulting Planners (Ex F) (Wall Height Written Request) . Measured from ground level existing to the underside of the eaves at the wall line, the Proposed Development has a small area which contravenes the wall height development standard . The wall height exceedance is limited to the area below the eaves of the roo fline of the southern elevation as depicted in green the parts of the wall on Views 1 to 3 of the S outh -East elevation in Drawing 007-00 5 Rev J1 and 007-006 Rev J1 extracted below at F ig 1 and Fig 2 : Fig 1 : Wall height exceedance shown in green in extract from Drawing 007-005 Rev J1 (Ex F) Fig 2 : Wall height exceedance shown in green in South Elevation extracted from Drawing 007-006 Rev J1 (Ex F) The Wall Height Written Request demonstrates that compliance with the development standard is u nreasonable or unnecessary because the objectives of the wall height development standard are achieved notwithstanding the contravention . Those objectives are as follows: To provide for view sharing ; To minimise the adverse effects of bulk and scale of buildings ; and To encourage two -storey buildings consistent with the desired future character of the area . T he W all H eight W r itten R equest lists , at page 7 , how the proposal is consistent with the objectives of the wall height development standard and , at page 8 , there is a lack of any adverse amenity impact associated with the non-compliance in accordance with Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256 ; [2018] NSWLEC 118 , which at [ 58 ] deal s with objectives of a development standard requiring protection or minimising impacts on amenity such as the second objective above , states as follows : “[58] … Objectives (b),(c),(d) and (e) of cl 4.3(1) each require consideration (either through protection or minimisation) of amenity, whether local amenity, the amenity of adjoining or nearby properties or the amenity of the public domain. As a result, the consistency of a development with those objectives, and the unreasonableness and lack of necessity to comply with a development standard, can be demonstrated through a lack of adverse amenity impacts: see Randwick City Council v Micaul Holdings Pty Ltd at [34].” The Wall Height Written Request demonstrated that there were s ufficient environmental planning grounds to justify the contravention . T he W all H eight W ritten R equest provides , at page 8 , that : “The minor and very localised non-compliance with the 7.2m wall height control facilitate a superior design outcome which allows for rational and efficient floor plates which do not seek to match the undulating topography of the site which gives rise to the minor non-compliance . The amended built form which is proposed provides for a high quality and coherent design outcome throughout, rather than introduce a localised step-down as reflected by the existing consent : the alterations and additions which are proposed seek to ensure high quality floor plates, a consistent roof line and a more logical design outcome.” The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3A(4) of the MLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the M LEP and that the proposed development would 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. Is the contravention of the FSR development standard justified? This Respondent contends that the contravention of the FSR development standard is not justified in accordance with the requirements of cl 4.6 of the MLEP. The Applicant relies on the Updated cl 4.6 Variation Request dated July 2023 prepared by BBC Consulting Planners (Ex D, Tab 5 ) pursuant to cl 4.6 of the MLEP (FSR Written Request) . The Site is subject to a maximum FSR development standard of 0.55:1 pursuant to cl 4. 4 of the MLEP , being 1,221m 2 of permissible gross floor area (GFA). The Proposed Development proposes a total of 1,764m 2 of GFA being a variation of 543m 2 and a total FSR of 0.79:1 or 44% . The experts agree with these figures . The Respondent refers the Court to the decision of Preston CJ in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338 ; [2019] NSWLEC 61 where at [77] , His Honour said that : “ The requirement that the matters in cl 4.6(3) be demonstrated by the written request refers to an outcome, not a process. Although the written request “seeks” to justify the contravention of the development standard, it must do this by “demonstrating” the matters in paragraphs (a) and (b) of cl 4.6(3). These matters are outcomes: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are environmental planning grounds to justify contravening the development standard. ” I am satisfied that compliance with the FSR development standard is u nreasonable and unnecessary because objectives ( i ) – (iv) of the FSR development standard in cl 4. 4 of the MLEP are achieved notwithstanding the contravention of the standard as demonstrated in the FSR Written Request. The objectives of the FSR development standard are as follows : To ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale ; To provide a suitable balance between landscaping and built form ; To minimise the adverse effects of bulk and scale of buildings ; and To limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off . The Written Request , at page s 7 to 9 , provides a list of reasons why the Proposed Development is consistent with the objectives of the FSR development standard including the following: The appearance remains fundamentally unchanged and the proposal remains compatible with the DFC of the area (Written Request, page 8) . The setback from the eastern boundary of the Site is 13m and is separated from that boundary by a substantial area of landscaping and “ the proposal retains the eastern part of the site as communal landscaped open space resulting in no substantial change in the relationship between built form and landscaping, however, ease of access to the communal open space is improved and connectivity from the communal open space to the footpath in Redan Street is provided : this is a consequence of the insertion of the new dwelling at lower ground level which necessitates the tunnel access (from the lifts) below the lower ground level to the communal open space on the eastern part of the site” (Written Request, page 8) . “The DA for the additional GFA which gives rise to the proposed variation to the FSR control seeks to minimise the adverse effects of bulk and scale by reducing the building height by 0.3m which provides an amenity benefit by improving views (when compared to the approved development) from properties to the west of the site on the western side of Redan Lane.” (Written Request, page 8) . Mr Wells agreed in cross examination that the Proposed Development improves views. I accept and find that the FSR contravention will not have any detrimental impact on adjoining neighbours . “ The quantum of excavation is identified on Ref J drawing 007-004: to the extent that the quantum of excavation proposed in the DA is greater than that in the approved scheme, further geotechnical advice has been obtained which is to the effect that the sub-surface conditions beneath the eastern part of the tennis court comprise poorly compacted, uncontrolled fill which is not suitable to support floor slabs and footings, including the ground floor slab as approved. As a result , the material beneath the eastern part of the tennis court needs to be excavated in any event. ” (Written Request page 9) . I come back to excavation in more detail in the context of cl 6.7 of MLEP at [ 5 1 ] because t he evidence reveals that the amount of excavation proposed is greater than the excavation strictly required . H owever , I accept that the geotechnical advice presented to the Court supports the proposal and I find that there is no additional impact from the additional excavation in and of itself. The Respondent submits that the Wehbe first test method, achieving the objectives of the standard notwithstanding the contravention, fails because the Proposed Development is not compatible with the DFC as a result of the bulk and scale, being a three- storey presentation to the east and 80 % of the width of the Site. The Respondent submits that the DFC can be derived from the following: T he description of the Balmoral Townscape in the Mosman Residential Development Control Plan 2012 ( DCP ) Part 7.4 (Ex 2 folio 260) . T he controls of the DCP (Ex 2, folio 261 ) . The Respondent argues that the reference in the DCP to “ Bulky mega housing ” also applies to the Proposed Development which is a residential flat building ( RFB ) and that the RFB has an excessive longitudinal width. I do not accept this argument because I interpret the reference “Bulky mega housing” to be a reference to a single residential dwelling and there are other and additional controls which apply to an RFB that do not apply to single residential dwellings throughout the DCP and other planning instruments. The development standards themselves , namely the FSR development standard of a maximum FSR o f 0.55:1 . I note that a written request , pursuant to cl 4.6 of the MLEP , i s a legitimate and appropriate means to justify the contravention of a development standard. Existing development of single or semi detached dwellings and the balance of landscape and built form. Mr Wells expresses the opinion that the balance will be reduced with a built form being more dominant when viewed from Redan Street and he queries the utility of landscaping. I accept that there may be a change to the balance of landscape and built form but I find that there will ... be an acceptable and appropriate balance . In relation to the DFC of the area, the Site is mapped as Area 1 and is part of the Balmoral Townscape pursuant to the DCP (Ex 2, Tab 15) which includes a Character Statement and a number of controls. Mr Wells refers to these , including the description of the area and character. I accept that the perceived bulk and scale of the approved building from the surrounding public domain will remain fundamentally the same notwithstanding the contravention of the FSR development standard because the HOB remains compliant, albeit reduced by 300mm, and the landscaping regime w ill appear essentially unchanged from the public domain. This is one of the reasons why I conclude that the Proposed Development remains compatible with the DFC and remains consistent with the objective s of the FSR development standard . I am satisfied that the FSR Written Request has demonstrated that compliance with the FSR development standard is unreasonable and unnecessary in the circumstances because the Proposed Development is consistent with the objectives of the FSR development standard as set out above. I am satisfied that cl 4.6(3)(b) of the MLEP has been complied with because the FSR Written Request has demonstrated that there are s ufficient environmental planning grounds to justify the contravention of the FSR development standard . The FSR Written Request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the FSR development standard, as required by cl 4.6(3)( b) of the MLEP , at pages 10 to 12. The additional GFA is described as being “contained in the new unit to be inserted on the lower ground floor level, in the enclosed terraces and balconies on the western side of each of the approved units on the ground and first floor levels and in the basement level tunnel access to the communal open space” (FSR Written Request , page 10) . I accept that “ i t is not often the case that a new dwelling can be added to an approved development without impacting on the amenity of neighbours, particularly on the Balmoral slopes where views are highly valued ” (FSR Written Request, page 10) . However, “ t he outcome is consistent with the object of the Act of promoting the orderly and economic development of land, particularly as it provides an additional high amenity dwelling without any discernible increase in bulk and scale ” (FSR Written Request, page 10-11) . As an environmental planning ground, the FSR Written Request refers to whether the FSR contravention would set an unreasonable or undesirable precedent and argues that : “the non-compliance will not set an unreasonable or undesirable precedent or standard in the context of the site and its surrounds as the proposal has a distinct lack of adverse impacts and furthermore, the opportunity to insert an additional dwelling into the lower ground level of an approved building which in part occupies the space currently occupied by the volume of the retaining structure for a tennis court is unlikely to occur elsewhere” . (FSR Written Request, page 11) The land is zoned for the purpose of medium density residential development which is relevant to the p ublic interest and I am satisfied that the Proposed Development achieves the objectives of the R3 Medium Density zone which are as follows: To provide for the housing needs of the community within a medium density residential environment. To provide a variety of housing types within a medium density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale. To encourage residential development that has regard to local amenity and , in particular, public and private views. The Court is satisfied that the applicant’s written request , seeking to justify the contravention of the development standard in cl 4.3A(4) of the MLEP , has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the M LEP and that the proposed development would 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. Other jurisdictional prerequisites for the DA Appeal As there are no substantive merit contentions and noting the Respondent’s position regarding the outcome of the cl 4.6 FSR Written Request ([6] above) , it is appropriate to address the other jurisdictional prerequisites that the DA Appeal must satisfy before the Court can exercise its function to grant the consent as sought by the Applicant. The eastern portion of the Site is identified as being within the “ scenic protection area ” on the MLEP Scenic Protection Map , and pursuant to cl 6.4(3) of the MLEP , development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that— 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 the development will maintain the existing natural landscape and landform. The Proposed Development does not affect the extent of visual i mpact posed by the development to and from Sydney Harbour from the Consent . I have taken into consideration the lowering of the roofline by 300mm . I accept that the Proposed Develo p ment does not result in any substantive change to the Site’s relationship with the local heritage items adjoining the Site boundary , namely Item No 440 – Redan Street Road Reserve , pursuant to cl 5.10, MLEP . I come back now to the proposed excavation. Cl ause 6.7 (3) of the MLEP requires consideration of the following matters in deciding whether to grant development consent for earthworks: (a) the likely disruption of, and detrimental effect, if any, on— (i ) existing drainage patterns and soil stability in the locality, and (ii) the natural features of, and vegetation on, the land and adjoining land, (b) the effect of the development on the likely future use or redevelopment of the land, € the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining propertie€ (e) the source of fill material and the destination of excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impact on, a watercourse, drinking water catchment or environmentally sensitive area, (h) appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. The Respondent submits that cl 6.7 of the MLEP requires a proposed development to minimise excavation and that the JK Geotechnics document dated 22 March 2023 at Tab 4 of Ex C refer s to a depth of unstable fill at 1.2m , not a depth of 3.6m which is the proposed extent of excavation , thereby resulting in “ significant additional excavation which can’t meet the objective ” (iv) of cl 6.7 of the MLEP . The Court has before it the following documents which satisfy the earthworks matter s of cl 6.7(3) of the MLEP: Geotechnical Investigation Report prepar e d by JK Geotechnics , dated 22 July 2021 ( Tab 17, Ex A ) ; Supplementary Geotechnical Letters prepared by JK Geotechnics dated 22 March 2023 (Tab 8, Ex B , Tab 4, Ex C) . The recommendations of the geotechnical evidence listed above are incorporated into the Proposed/Draft Conditions of Consent (Ex J) and the report concludes that the Proposed Development is geotechnically feasible and supported. For the reasons given at [ 3 5 ] and supported by the geotechnical evidence as incorporated into the conditions, I am satisfied that the matters in cl 6.7(3) have all been considered. Accordingly, I conclude that the DA Appeal can be upheld and consent granted for the proposed alterations and additions , subject to conditions. Proposed/Draft Conditions of Consent filed in Court on 18 September 2023 (Ex J) are agreed except for condition 117 regarding Tree Pruning which reads as follows: “ Tree Pruning 117. To guarantee long term viability of the Port Jackson Fit Tree (tree 31), future Tree Permit Assessment forms will not be considered on the basis of view improvement.” Mr Wells confirmed his assumption that this proposed condition of consent sought by the Respondent is sought by the landscape department of the Respondent and it was put to him that this condition fetters the discretion of Council. In closing submissions, the Respondent concede d that any future tree permit applications will be dealt with on their own merits. I agree and f ind that condition 117 should be deleted. Mod Application – is the proposed modification substantially the same as the development for which consent was granted ? (s 4.55 (2) and (8) of the EPA Act) The Respondent contends that the “modifications have transformed the proposal from one that is within the scope of the bulk and scale outcome sought by MLEP to one that considerably departs from the objectives and provisions of the development standards” (ASOFAC Contention 1 particular (e), page 12) . The Respondent essentially relies on consideration of the reasons for the Consent (s 4.55(3) of the EPA Act ) to support this contention . The consent was granted by the C ourt following an agreement reached between the parties pursuant to s 34 of the LEC Act in the decision of Horton C of DEDICO Development Services v Mosman Municipal Council [2022] NSWLEC 1339. As such , there are no reasons for the granting of consent other than as contained in the conditions of consent and the approved documents. The Respondent refer red the C ourt to consent condition 4 of the Consent (Ex A, Tab 4) as evidence that compliance with the numerical controls and development standards were critical to the parties reaching their agreement pursuant to s 34 of the LEC Act. Mr Wells said that he did not ask to reduce the height of the building during the negotiations for the Consent because the development was compliant with FSR and HOB development standards which he says were “ essential features ” of the Consent. (Hearing notes page 25) The ASOFAC particularises the quantitative changes in Contention 1, noting that the Respondent now agrees with the FRS calculation of 0.79:1 and that quantitatively the Proposed Modification proposes to add a dwelling (unit) increasing the number of dwellings from 6 to 7 . I have adopted the table from the ASOFAC and set out the quantitative comparison from the evidence (including Ex 5, par 2.4.3A, page 5) in the table below: Consent Proposed Modification Quantum of variation Use RFB RFB NIL Dwellings 6 7 1 Unit mix 5 x 3 bedroom 1 x 4 bedroom 5 x 3 bedroom 2 x 4 bedroom 1 x 4 bedroom FSR (cl 4.4 maximum 0.55:1) 0.55:1 GFA: 1,221m 2 0.79 :1 GFA: 1 ,764.5m 2 550m 2 or 44% Landscaped area ( cl 6.6 minimum 50%) 50.3% (1,116.7m 2 ) 50.2% ( 1,1 1 4.8m 2 ) (Dwg 007-004) 1.9m 2 or 0. 1% Wall height (cl 4.3A max 7.2m) 7.2m Depicted in green Drawing 007-005 Rev J1 and 007-006 Rev J1 Minor Storeys 3 (incl garage) 4 (incl additional plant room and tunnel access) (Further Supplementary JER, Ex 5 page 17 par 2.4.2 e) “ to the extent that the internal access pathway on the Basement Plan (DWG 002-000 Rev J1 ) might be said to comprise an additional level, it does so over an area of 74m 2 … equivalent to only 3.33% of the site area.” 33.3% Setback of basement level (northern boundary) (3m minimum required to align with ground floor setback) 7.149m 1.5m 79% (5.649m) variation to approved setback 50% (1.5m) variation to DCP control Carparking 14 1 6 2 Excavation 3, 21 0 m 3 5,375 m 3 2,1 65 m 3 or 6 8 % Height of building RL 6 8,730 RL 68430 300mm Southern wall on Eastern side is moved slightly to the South Terraces to Redan Lane frontage North West of each unit is converted to media room; The Applicant submits that , in essence , the units remain the same and that the princip al change is the addition of unit 01 in the lower ground , where all other units have an East/West orientation whereas the additional proposed unit 01 will have a North/South orientation. The other change is the new plan sheet 002-000 Rev J1 , being the Basement showing the new access pathway to the communal open space. S ection 4.55(2) (a) of the EPA Act requires the Court to be “ satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all) ” . The Applicant submits that the result of the comparison between the Consent and the Proposed Modification “must be a finding that the development is “essentially” or “materially” the same as the approved development ” ( Applicant’s Jurisdictional Note, par 22) . The Applicant submits that : “the development does not propose any substantial variation as to the design of the northern or southern façades , nor the western façade (facing Redan Lane). The eastern façade will change as a result of the in-fill of the new unit 01 on the Lower Ground level, but will be screened from public view (see Photomontage at Tab 1 and Tab 7 of Exhibit CM-1). Accordingly, the development, as modified, will appear substantially the same as the original approval from all public viewpoints (cf. par 25 of Town Planning Report No 1 and page 10 of Town Planning Report No 2).” (Jurisdictional Note, par 25(b)) I may accept that visually there is no substantial change when viewed from most public places, however , I have been unable to form the positive state of satisfaction required by s 4.55(2) of the EPA Act for the “ consent authority must form the positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development” ( A rrage v Inner West Council [2019] NSWLEC 85 at [31] (“ A rrage ” ) ) . The decision of Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114 ; [2022] NSWCA 227 includes the following at [112]: “[112] The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the “material and essential features” of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28].” I reproduce some relevant extracts from A rrage at [26] to [28] below as follows: “[26] The choice of language in the judicial decisions of “material and essential features” or a “material and essential physical element” of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be “substantially the same” development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word “substantially” in the former s 102(1)(a) of the EPA Act to mean “essentially or materially or having the same essence”. That interpretation of the word “substantially” was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55]. [27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be “essentially or materially” the same or “having the same essence” as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. [28] That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. ” I reproduce below images extracted from page 7 of the Further Supplementary JER Town Planning in the DA Appeal ( Ex 5 ) . Fig 3: images extracted from page 7 of the Further Supplementary JER Town Planning in the DA Appeal (Ex 5) Compa rison may be done as a quantitative and qualitative assessment and may include an assessment of the impacts. The q uantitative assessment is set out above at [ 62 ] . This comparison alone may be sufficient basis upon which to not be satisfied that the two developments are not substantially the same. I have considered the Further Planning JER Ex 5 Mod Application at par 2.4.6A . By way of a q ualitative comparison : The o verall proposed use is the same , namely a residential flat building ; The development r etains a two- storey presentation to Redan Lane, being the primary entrance to the Site , however the eastern presentation to Redan Street is unequivocally changed to a three- storey presentation ; A comparison of the approved landscaping plan shows a fundamentally similar landscaping arrangement and its relationship to the building envelope, including retaining the same trees as in the Consent ( Mr Chambers, JER Town Planning Ex 3, Mod Application , par 49 ) ; Change of use to the west - facing balconies by enclosing and converting them to media room s; Reconfiguration of the internal layout of the six units ; Reconfiguration and relocation of comm unal open space including the redesign of access connecting to lift cores . I accept that there is a q ualitative difference in relation to the Communal Open Space . During cross examination , Mr Wells explained that the earlier scheme had greater visual communal ownership and that it loses attractiveness if it is known that you are being watched. He described the tunnel access as “ carving out stadium tunnel resulting in a scar to the landscaped area” . Mr Wells, in JER Town Planning Ex 3, Mod Application , at par 54 states : “much of the outdoo r landscaped space that was (in the Existing Consent) sufficiently separated from the residential part, will be generally the same level as Unit 01 (FFL RL 57.45), reducing the quality and tendency for the open space to be sought-after for rela xation or quiet contemplation”. The Applicant put to Mr Wells that in relation to the agreement between the experts in the Further Supplementary JER ( Ex 5 page 4 DA JER ) , that the quantum increase in GFA/FSR is significant, that the significance is the number , but that the FSR is not significantly different in quality. I conclude that I am not satisfied as required by s 4.55(2) of the EPA Act and f or th i s reason , the Mod Application should be dismissed. Orders: DA Appeal Proceedings 2022/385118 The Court orders: The written request , pursuant to cl 4.6 , to justify the contravention of the development standard in cl 4.3A of M LEP is upheld. The written request , pursuant to cl 4.6 , to justify the contravention of the development standard in cl 4.4 of M LEP is upheld. The appeal is upheld. Development application N o 008.2022.00000302.001 for a lterations and additions to an approved residential flat building development at 22 Redan Street, Mosman , legally described as Lot 1 in DP 203987 , is determined by the grant of consent to the application , subject to the conditions in Annexure A. All exhibits are retained . Orders: Mod Application Proceedings 2022/295990 The Court orders : T he appeal is dismissed. All exhibits are retained . E Espinosa Commissioner of the Court Annexure A ********** Amendments 06 March 2024 - 06 March 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), correction is made to typographical errors in Annexure A. 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: 06 March 2024