Would a reasonable person make a dash across a busy Ourimbah Road? This is the question lawyers, developers and Land and Environment Court clerks spent days poring over, and one which has seen a $44 million dollar project in Mosman denied approval.
What happened: Property developer Metis Group’s proposal to build a six-storey apartment complex in Mosman has been rejected in the Land and Environment Court, after the court ruled its placement within a rezoned “Low and Mid-rise Housing” area was based on an unrealistic walking route.
Metis argued a walk from their Awaba Street apartment complex to the shops at Spit Junction would come in at just under 400 metres, and thus make them eligible for a boost to height under New South Wales low and mid-rise housing policy.
How does it work: Low and mid-rise housing policy in New South Wales allows a boost to housing height around town centres. In the inner area (within 400m walking distance of a centre) developments can go up to six-storeys, and in the outer area (within 800m) the limit is four.
While the Awaba Street development easily falls within a 400 metre radius of Spit Junction (the town centre, in this case) the crucial part of the legislation is the words “walking distance”.
Pathfinding: After being rejected by Mosman Council last October, the developer made an appeal in the Land and Environment Court.
The case before the court focused on defining what exactly “walking distance” meant. In planning documents, the developer put forward a 378 metre route between the apartment complex and the town centre.
Mosman Council disputed this: they argued the average resident doesn’t just factor in speed when walking, but also safety. In council’s eyes, a reasonable walking route would not cross at an unsignalised section of Ourimbah Road, but use the pedestrian crossing down at Cowles Road.
The route they put forward came in at 423 metres, over the limit for the zoning uplift.
Developer route (left), council route (right)
While a minor inconvenience for a pedestrian, this small difference formed the basis of Commissioner Nicola Targett’s decision to reject the appeal, denying Metis Group’s development proposal.
What now: That may not be the end for the development, however. Prior to the judgement, Metis Group had already begun the process of lodging the development through a separate planning pathway, as a State Significant Development.
In this planning pathway, the consent of the local council is not necessary.
When asked, Metis Group would not comment on the SSD, and said it was “assessing its options”.
In a statement, a spokesperson said the company was disappointed by the decision, and that it desired more certainty around how state housing policies are applied.
“We want to work with the NSW Government to get more certainty into the legislative test, because as it stands, many other well-located properties across NSW will now face the same ambiguity”.