Cloke v Mosman Municipal Council - [2025] NSWLEC 1308

Land and Environment Court

New South Wales

Medium Neutral Citation: Cloke v Mosman Municipal Council [2025] NSWLEC 1308
Hearing dates: 06 and 07 March 2025
Date of orders: 07 May 2025
Decision date: 07 May 2025
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. 8.2024.113.1 for alterations and additions to a semi-detached dwelling including the provision of an on-site parking space, new front fence, and landscaping at 170 Raglan Street Mosman legally known as Lot 2 DP 445266 subject to the conditions of consent in Annexure A.

Catchwords:
DEVELOPMENT APPEAL – residential development – off street parking hard stand – Australian standards and assessment of on street parking – expert evidence – public interest – precedent – character and streetscape presentation – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34AA
Roads Act 1993, s 6
Environmental Planning and Assessment Regulation 2021, s 38
Mosman Local Environmental Plan 2012, cl 6.6

Cases Cited:
CAHCJH Pty Ltd v Mosman Municipal Council [2024] NSWLEC 1517
Edwards Pension Fund Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1177
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522
Young v Parramatta City Council [2003] NSWLEC 198

Texts Cited:
Australian Standard 2303:2018 Tree stock for landscape use
Australian Standard AS2890.5:2020 Parking facilities
Australian Standard/New Zealand Standard 2890.1 Parking Facilities
Justice Rachel Pepper, ‘Making Sure That Curiosity Does Not Kill the CAT: the Use of Expert Evidence in Merits Review Fora Where the Rules of Evidence Do Not Apply’ (Conference Paper, COAT NSW Conference, 6 September 2019)
Mosman Residential Development Control Plan 2012 as amended December 2024
Roger Giles, ‘Dispensing with the Rules of Evidence’ (1990) 7 Australian Bar Review 233

Category: Principal judgment
Parties: James Cloke (Applicant)
Mosman Municipal Council (Respondent)
Representation:
Counsel:
D Briggs (Solicitor)(Applicant)
R McCulloch (Solicitor)(Respondent)
Solicitors:
D G Briggs and Associates (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2024/347383
Publication restriction: Nil

Judgment

COMMISSIONER: This case is about a proposed off street vehicular hard stand on residential property which will require the construction of a new driveway or vehicular crossing off Raglan Street in Mosman. Mosman Municipal Council (the Council) refused the granting of consent because of the impact the proposal will have on the on-street car parking space between a bus stop and the existing driveway at the adjacent property. The Applicant appeals that refusal on the basis of expert evidence that although people may physically be able to park four cars in that area, the dimensions of the area are such that it is only large enough to accommodate three cars before and after the Proposed Development thus there will be no loss of an on-street car parking space.
The Class 1 Development Appeal is pursuant to…

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.

Keep reading for free

Create a free CaseChat account to read Cloke v Mosman Municipal Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWLEC 1308
Decision Date: 07 May 2025

CaseChat Overview and Summary

Cloke v Mosman Municipal Council involved the applicant, Cloke, who sought development consent from Mosman Municipal Council for alterations to a semi-detached dwelling at 170 Raglan Street, Mosman. The proposed alterations included an on-site parking space, a new front fence, and landscaping. The Council refused the application, leading to Cloke lodging an appeal with the Land and Environment Court of New South Wales.

The primary legal issue the Court needed to address was whether the Council's refusal of development consent was lawful and reasonable. The Court considered whether the decision was based on proper consideration of the relevant planning instruments, policies, and statutory criteria. Cloke argued that the Council's refusal was unreasonable and based on an improper application of the development control provisions of the local planning instrument.

The Court found that the Council's refusal was not based on a proper consideration of the statutory criteria and planning policies. The Court held that the proposed alterations were consistent with the surrounding area and did not adversely affect the character of the neighbourhood. The Court also found that the Council had not adequately considered the benefits of the proposed alterations, such as the provision of on-site parking and improved landscaping. The Court concluded that the refusal of development consent was unreasonable and unlawful.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 8.2024.113.1 for alterations and additions to a semi-detached dwelling including the provision of an on-site parking space, new front fence, and landscaping at 170 Raglan Street Mosman legally known as Lot 2 DP 445266 subject to the conditions of consent in Annexure A.

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:	Cloke v Mosman Municipal Council [2025] NSWLEC 1308
Hearing dates:	06 and 07 March 2025
Date of orders:	07 May 2025
Decision date:	07 May 2025
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. 8.2024.113.1 for alterations and additions to a semi-detached dwelling including the provision of an on-site parking space, new front fence, and landscaping at 170 Raglan Street Mosman legally known as Lot 2 DP 445266 subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPEAL – residential development – off street parking hard stand – Australian standards and assessment of on street parking – expert evidence – public interest – precedent – character and streetscape presentation – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34AA Roads Act 1993, s 6 Environmental Planning and Assessment Regulation 2021, s 38 Mosman Local Environmental Plan 2012, cl 6.6
Cases Cited:	CAHCJH Pty Ltd v Mosman Municipal Council [2024] NSWLEC 1517 Edwards Pension Fund Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1177 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522 Young v Parramatta City Council [2003] NSWLEC 198
Texts Cited:	Australian Standard 2303:2018 Tree stock for landscape use Australian Standard AS2890.5:2020 Parking facilities Australian Standard/New Zealand Standard 2890.1 Parking Facilities Justice Rachel Pepper, ‘Making Sure That Curiosity Does Not Kill the CAT: the Use of Expert Evidence in Merits Review Fora Where the Rules of Evidence Do Not Apply’ (Conference Paper, COAT NSW Conference, 6 September 2019) Mosman Residential Development Control Plan 2012 as amended December 2024 Roger Giles, ‘Dispensing with the Rules of Evidence’ (1990) 7 Australian Bar Review 233
Category:	Principal judgment
Parties:	James Cloke (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: D Briggs (Solicitor)(Applicant) R McCulloch (Solicitor)(Respondent) Solicitors: D G Briggs and Associates (Applicant) Pikes and Verekers Lawyers (Respondent)
File Number(s):	2024/347383
Publication restriction:	Nil