De Saxe v Mosman Municipal Council

[2020] NSWLEC 1512

Land and Environment Court

New South Wales

Medium Neutral Citation:

De Saxe v Mosman Municipal Council [2020] NSWLEC 1512

Hearing dates:

Conciliation conference on 12 and 13 October 2020

Date of orders:

26 October 2020

Decision date:

26 October 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend development application 8.2019.81.1 to rely on the amended architectural and landscape plans referred to in the table to condition 1 in Annexure ‘A’.

(2)   The appeal is upheld

(3)   Development consent is granted to development application 8.2019.81.1 for the construction of an in-ground swimming pool and landscaping subject to the conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Mosman Local Environmental Plan 2012

Swimming Pools Act 1992

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020)

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Marshal de Saxe (First Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2019/248030

Publication restriction:

No

Judgment

1. COMMISSIONER: Marshal de Saxe (the Applicant) has appealed the refusal by Mosman Municipal Council (the Respondent) of his development application 8.2019.81.1 seeking approval for construction of an in-ground swimming pool and associated landscaping (the Proposed Development) at 10 Waitovu Street, Mosman (the Subject Site).

2. The Subject Site is zoned R2 Low Density Residential under the provisions of Mosman Local Environmental Plan 2012 (MLEP), and the Proposed Development is permissible within this zone.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 12 and 13 October 2020, and I presided over that conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s ‘COVID-19 Pandemic Arrangements Policy’, and a site view was undertaken as part of the proceedings.

6. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. The Applicant’s development application has been made with owner’s consent. The Parties advise that the departures from the provisions of MLEP in relation to landscaped area (cl 6.6) and Mosman Residential Development Control Plan 2012 in relation to the pool setbacks are reasonable in the circumstances of the case.

9. Having considered the advice of the Parties, provided above at [8] I agree that the any jurisdictional prerequisites in relation to which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act to determine this application have been so satisfied.

10. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

12. In making the orders to give effect to the agreement between the Parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court orders that:

1. The Applicant is granted leave to amend development application 8.2019.81.1 to rely on the amended architectural and landscape plans referred to in the table to condition 1 in Annexure ‘A’.

2. The appeal is upheld.

3. Development consent is granted to development application 8.2019.81.1 for the construction of an in-ground swimming pool and landscaping subject to the conditions in Annexure ‘A’.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (228013, pdf)

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Decision last updated: 26 October 2020