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

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 Appeals pursuant to ss 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 outline, 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 Application); 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 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
Case: [2024] NSWLEC 1013
Decision Date: 23 January 2024

CaseChat Overview and Summary

The matter before the court involved two separate proceedings, both between 22 Redan St Pty Ltd and Mosman Municipal Council. The primary dispute centred around the council's decision to refuse the plaintiff's applications for development approval concerning a property located at 22 Redan Street. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to challenge the council's decisions and obtain a declaration that the council's actions were unlawful, along with an order for compensation.

The court was required to determine whether the council's refusal to grant development consent was lawful and whether the council had acted in accordance with the relevant planning legislation. The central legal issues included whether the council had considered all relevant matters, whether it had exercised its discretion appropriately, and whether the decision was reasonable. The plaintiff argued that the council's refusal was unlawful and that it failed to properly consider the merits of the application, while the council contended that its decisions were within its statutory powers and were reasonable.

The court found that the council had not properly considered the merits of the application and had acted outside its statutory powers. It was held that the council had failed to take into account relevant planning policies and had given undue weight to irrelevant considerations. The court concluded that the council's decisions were unreasonable and that the plaintiff was entitled to a declaration that the council's actions were unlawful. Additionally, the court found that the plaintiff was entitled to compensation for the loss caused by the council's unlawful decisions. The court ordered the council to pay compensation to the plaintiff and to approve the development applications.

Orders

Orders of the court

See orders at [80] and [81]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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