Kavoosi v Mosman Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kavoosi v Mosman Council [2020] NSWLEC 1277

Hearing dates:

Conciliation conference on 22 June 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

Refer to orders at [6]

Catchwords:

MODIFICATION APPLICATION – conciliation conference – contravention of development standards – retrospective approval – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Cases Cited:

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240

Category:

Principal judgment

Parties:

Kambiz Kavoosi (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
S Patterson (Solicitor) (Respondent)

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

File Number(s):

2019/341628

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s determination of a modification application (MA) made pursuant to s 4.55(2) of the EPA Act.

2. The MA (reference number 8.2006.337.5) seeks to modify Development Consent No. 8.2006.337.1 which was for alterations and additions to a dwelling house at 13 Euryalus Street, Mosman (site). The MA proposes changes to the approved building height, floor space ratio, built form including roof and changes to landscaping.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 June 2020 and at which I presided. At the conciliation conference, the parties came to an 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 modification application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In particular they drew my attention to an assessment report prepared by the Council in regard to the matter (Council’s Bundle of Documents filed 28 February 2020, behind Tab 8).

4. In regard to jurisdiction, I find as follows:

1. Having regard to s 4.55(2)(a), the parties indicated their agreement that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I agree with the parties. This is because the original consent involved alterations and additions to a dwelling house, as does this application. That is, the proposed use does not change. Further, the external building envelope, internal configuration and landscape arrangements, after modification, would be essentially and materially the same as that originally approved.

2. Having regard to ss 4.55(2)(b), (c) and (d), I am satisfied with the advice…