Ell v Mosman Municipal Council - [2025] NSWLEC 1707

Land and Environment Court

New South Wales

Medium Neutral Citation: Ell v Mosman Municipal Council [2025] NSWLEC 1707
Hearing dates: Conciliation conference 16-17 September 2025
Date of orders: 30 September 2025
Decision date: 30 September 2025
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1) The Applicant is granted leave to amend Development Application No. 8.2024.293.1 in accordance with the plans and documents in Annexure B.
(2) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the height of building development standard, prepared by Planning Ingenuity, is upheld.
(3) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the wall height development standard, prepared by Planning Ingenuity, is upheld.
(4) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012, to vary the foreshore building line development standard, prepared by Planning Ingenuity, is upheld.
(5) The appeal is upheld.
(6) Development Application No. 8.2024.293.1, as amended, for the demolition of existing structures and construction of a new dwelling including garage, tree removal, landscaping, swimming pool and associated works at 29 Shellbank Avenue, Mosman, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:
APPEAL — development application — conciliation conference — agreement between parties — orders

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), s 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Mosman Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.3A, 4.6, 6.3, 6.4
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pts 6.2, 6.3, ss 6.6, 6.7, 6.8 6.9, 6.10, 6.28
State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11, 2.12, 2.13, 4.6

Cases Cited:
Inner West Council v XYZ Services Pty Limited [2025] NSWLEC 68
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited:
Mosman Residential Development Control Plan 2012, Mosman Council

Category: Principal judgment
Parties: Robert Ell (Applicant)
Mosman Municipal Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2025/115147
Publication restriction: Nil

JUDGMENT

COMMISSIONER: Robert Ell (applicant) brings this appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the refusal of Development Application No. 8.2024.293.1 (DA) under the delegation of the Mosman Local Planning Panel. Mosman Municipal Council (Council) is the respondent in the proceedings.
The DA, as amended, seeks consent for the demolition of the existing dwelling and the construction of a new dwelling house and swimming pool at 29 Shellbank Avenue, Mosman (site).

Conciliation and agreement between the parties

The Court arranged mandatory conciliation between the parties under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on…

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 Ell 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 1707
Decision Date: 30 September 2025

CaseChat Overview and Summary

The case of Ell v Mosman Municipal Council involved the applicant seeking amendments to a development application for the construction of a new dwelling, including a garage, tree removal, landscaping, swimming pool, and associated works at 29 Shellbank Avenue, Mosman. The applicant also sought variations to the height of the building development standard, wall height development standard, and foreshore building line development standard as per the Mosman Local Environmental Plan 2012. The dispute was heard in the Land and Environment Court of New South Wales.

The legal issues before the court were whether the applicant was entitled to amend the development application and whether the requests to vary the development standards were valid under the Mosman Local Environmental Plan 2012. The court had to consider the applicant's submissions and the relevant provisions of the planning legislation and local environmental plan.

The court granted the applicant leave to amend the development application in accordance with the plans and documents provided. It found that the requests to vary the development standards were in compliance with the Mosman Local Environmental Plan 2012, and upheld the applicant's written requests. The court concluded that the development application, as amended, met the criteria for approval and granted consent for the proposed works, subject to the specified conditions.

The final orders of the court included granting the applicant leave to amend the development application, upholding the requests to vary the development standards, and approving the development application, subject to the conditions set out in Annexure A. The appeal was also upheld.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is granted leave to amend Development Application No. 8.2024.293.1 in accordance with the plans and documents in Annexure B.

(2) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the height of building development standard, prepared by Planning Ingenuity, is upheld.

(3) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the wall height development standard, prepared by Planning Ingenuity, is upheld.

(4) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012, to vary the foreshore building line development standard, prepared by Planning Ingenuity, is upheld.

(5) The appeal is upheld.

(6) Development Application No. 8.2024.293.1, as amended, for the demolition of existing structures and construction of a new dwelling including garage, tree removal, landscaping, swimming pool and associated works at 29 Shellbank Avenue, Mosman, is determined by the grant of consent, subject to the conditions of consent at 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:	Ell v Mosman Municipal Council [2025] NSWLEC 1707
Hearing dates:	Conciliation conference 16-17 September 2025
Date of orders:	30 September 2025
Decision date:	30 September 2025
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The Applicant is granted leave to amend Development Application No. 8.2024.293.1 in accordance with the plans and documents in Annexure B. (2) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the height of building development standard, prepared by Planning Ingenuity, is upheld. (3) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012 to vary the wall height development standard, prepared by Planning Ingenuity, is upheld. (4) The Applicant's written request made pursuant to cl 4.6 of the Mosman Local Environmental Plan 2012, to vary the foreshore building line development standard, prepared by Planning Ingenuity, is upheld. (5) The appeal is upheld. (6) Development Application No. 8.2024.293.1, as amended, for the demolition of existing structures and construction of a new dwelling including garage, tree removal, landscaping, swimming pool and associated works at 29 Shellbank Avenue, Mosman, is determined by the grant of consent, subject to the conditions of consent at Annexure A.
Catchwords:	APPEAL — development application — conciliation conference — agreement between parties — orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 8.7 Land and Environment Court Act 1979 (NSW), ss 34, 34AA Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Mosman Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.3A, 4.6, 6.3, 6.4 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pts 6.2, 6.3, ss 6.6, 6.7, 6.8 6.9, 6.10, 6.28 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11, 2.12, 2.13, 4.6
Cases Cited:	Inner West Council v XYZ Services Pty Limited [2025] NSWLEC 68 McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Mosman Residential Development Control Plan 2012, Mosman Council
Category:	Principal judgment
Parties:	Robert Ell (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2025/115147
Publication restriction:	Nil