Amelia v Mosman Municipal Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Amelia v Mosman Municipal Council [2025] NSWLEC 1043

Hearing dates:

26 and 27 September 2024

Date of orders:

28 January 2025

Decision date:

28 January 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No 8.2023.107.1 is modified in the terms set out in Annexure A.

(3) Development consent No 8.2023.107.1, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B.

(4) The exhibits are returned except for Exhibit A.

Catchwords:

APPEAL – modification application – construct garage-like structure and enclosed driveway to extend to approved basement car parking of new dwelling – whether substantially the same development - impact on streetscape – existing mature tree preservation

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s 34AA

Mosman Local Environmental Plan 2012

Cases Cited:

North Sydney Council v Michael Handley & Associates (1998) 43 NSWLR 468; [1998] NSWSC 163

Arrage v Inner West Council [2019] NSWLEC 85

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Libby Amelia (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Thomson Geer (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/109394

Publication restriction:

No

JudgmenT

1. COMMISSIONER: This is a class 1 appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 NSW (EPA Act) from the deemed refusal of a Modification Application No 8.2023.107.3 (the MOD) by Mosman Municipal Council (the Council) to modify the development consent No 8.2023.107.1 (2023 Consent) on land at 42 Almora Street, Mosman, NSW 2088, being Lot 2 DP 963781 (the Site).

2. The 2023 Consent states that it approved “alterations and additions to a dwelling house including extension of basement garage” which was granted subject to a condition requiring compliance with an earlier consent No 8.2020.130.1. Therefore the 2023 Consent approves more than just ‘alterations and additions’ and authorises demolition of all existing structures, including the dwelling house and garage.

3. The appeal was subject to conciliation starting on Site, in accordance with s 34AA(2)(a) of the Land and Environment Court 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act and the proceedings moved to a hearing forthwith in Court pursuant to s 34AA(2)(b)(i).

The Modification Application

4. The MOD seeks approval for the construction of a ‘garage’ like structure in the nature of a windowless tunnel constructed on the approved angular driveway from the Almora Street entrance to the approved underground basement car parking thus connecting the garage structure to the dwelling house. For ease of reference I will adopt the short hand “garage structure” to encompass the work sought to be approved by the Court. The location of the work is…