Hopkins v Mosman Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hopkins v Mosman Council [2020] NSWLEC 1476

Hearing dates:

Conciliation conference on 30 September and 1 October 2020

Date of orders:

09 October 2020

Decision date:

09 October 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [39]

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Mosman Local Environmental Plan 2012

State Environmental Planning Policy 55 – Remediation of Land

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

New South Wales Rural Fire Service, Planning for Bush Fire Protection: A guide for councils, planners, fire authorities and developers (November 2019)

Category:

Principal judgment

Parties:

John Hopkins (First Applicant)
Sally Hopkins (Second Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicants)
S Patterson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/41001

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under ss 8.6(2) and 8.7(1) of the Environmental Planning and Assessment Act 1979 against the refusal by the Mosman Council (the Respondent) of Development Application 8.2019.65.1 (the Development Application) which proposes substantial alterations and additions to a dwelling house constituting construction of a new dwelling and swimming pool (the proposed development) at 38 Burrawong Avenue, Mosman (the site).

2. The appeal was listed for mandatory conciliation on 30 September 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted leave for the matter to commence with an onsite view. In the company of the parties and the experts, I was taken to the following properties in order to hear submissions from the owners:

1. Ms Margaret Ward, of 40 Burrawong Avenue drew my attention to the visual bulk and scale that would be presented close to the southern boundary of the property, and with sightlines to a ground floor living area, and external covered patio, and first floor dressing room, study and daughter’s bedroom.

2. Mr Alex Pope of 36 Burrawong Avenue submits that recent refurbishment of their home relocated the living, dining and kitchen areas to make the most of the northerly aspect that would be overshadowed by the proposed development.

3. Mr Greg Curson, of 19 Silex Avenue submits that the proposed development would result in view loss to a portion of the harbour currently enjoyed from an outdoor entertaining terrace, and a reduced pitch to the roof of the proposed development would substantially resolve a number of the concerns held by all neighbouring properties.

4. I was also taken on to the subject site to view the existing levels and setbacks on the site including…