Lim v Mosman Municipal Council

[2023] NSWLEC 1344

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lim v Mosman Municipal Council [2023] NSWLEC 1344

Hearing dates:

Conciliation conference held on 23 June 2023

Date of orders:

06 July 2023

Decision date:

06 July 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Consent 8.2016.189.1 is modified by consent to Modification Application 8.2016.189.3, in the terms set out in Annexure A.

(3)   Development Consent 8.2016.189.1 is subject to the consolidated conditions as described in Annexure B.

Catchwords:

MODIFICATION APPLICATION – condition relating to approved dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, s 98

Land and Environment Court Act 1979, 34AA

Mosman Local Environment Plan 2012

Texts Cited:

Mosman Community Participation Plan 2018

Mosman Development Control Plan 2012

Category:

Principal judgment

Parties:

Peter Khing Hee Lim (First Applicant)
Andrew Darroch (Second Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (First and Second Applicants)
K Glanville (Solictior) (Respondent)

Solicitors:
Boskovitz Lawyers (First and Second Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/165423

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against a condition imposed on Development Consent 8.2016.189.1 (the Consent) by the Mosman Municipal Council (hereafter the Council), as sought in Modification Application 8.2016.189.3 (the MA), relating to an existing dwelling on Lot 81 in Deposited Plan 578674, also known as 5 Ryan Avenue, Mosman (hereafter the site).

2. The MA seeks amendment to the Consent by deletion of condition 68A, which is described as follows:

“68A Prior to the release of the Occupation Certificate or occupation of the upper level of the dwelling house whichever occurs first, a restriction as to use pursuant to section 88E of the Conveyancing Act 1919 shall be registered on the title of the property to require that the only items which may be placed or fixed on the rear upper level terrace off bedroom 5 (being the terrace adjacent to window 25) shall be outdoor furniture or plans maintained at a height at or below the balustrade level (i.e RL 31.05).

In this condition "items" shall include (without limiting the generality of the term) fixtures, blinds, awnings, plants, structures or furniture.

The covenant shall be in a form approved by Council's solicitor and may only be released or modified with the consent of Mosman Council.

Reason - to protect the view from 3 Ryan Avenue.”

3. The original Development Application 8.2016.189.1 (the DA) was determined as granted consent by the Land and Environment Court on 17 May 2017. The MA was refused on 12 April 2023 on the grounds of protection of view sharing to an adjoining property.

4. The applicant appealed against the refusal of the MA, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by request of the parties. The conciliation conference was held by Microsoft Teams before myself as the Duty Commissioner.

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 Court, which amend the contested condition of consent and correct errors in two existing conditions, as described in Annexure A.

7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its power under s 4.55(2) of the EPA Act, to amend Development Application 8.2016.189.1, as described in Annexure A, with consolidated conditions in Annexure B.

8. The requirements of s 4.55(2)(a) of the EPA Act are satisfied. The parties agree that the modification is substantially the same as originally approved under the Consent, specifically with regards to the built form and is consistent with other conditions of the consent. Deletion of condition 68A from the Consent does not affect the protection of amenity and view sharing to the adjoining property.

9. The parties confirm that the development is not integrated development, pursuant to s 4.46 of the EPA Act, and that the requirements of 4.55(2)(b) are not relevant for consideration.

10. The parties agree that the amendment to the conditions of consent address all relevant jurisdictional requirements. There are no substantive changes to the built form or scale of the approved dwelling, consistent with the provisions of the Mosman Local Environment Plan 2012. The satisfaction of the requirements of s 4.15(1) of the EPA Act remain unchanged as assessed in the Consent. The requirements of s 4.55(3) are addressed.

11. The Council confirms that the notification of the MA under appeal was made pursuant to the requirements of the Mosman Development Control Plan 2012 and the Council’s Community Participation Plan 2018. Council received one submission in objection. The issues raised in this submission have been considered in the agreement to modify the Consent. Subsections 4.55(2)(c) and (d) of the EPA Act are satisfied.

12. The requirements of s 4.55(8) of the EPA Act are addressed. The parties confirm that the requirements of s 4.55, and as relevant subss (2) and (3) have been satisfied.

13. I am satisfied that based on the evidence before the Court that there are no jurisdictional impediments to the agreement seeking modification to the Consent, as described in Annexures A and B. Council has undertaken the appropriate merit assessment. The appeal for Modification Application 8.2016.189.3 satisfies the requirements of s 4.55(2) of the EPA Act for the Court to grant consent to modify the Consent.

14. All works relied on by the MA are contained within the site and the first applicant is the owner of the site, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021.

15. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

16. The Court orders that:

1. The appeal is upheld.

2. Development Consent 8.2016.189.1 is modified by consent to Modification Application 8.2016.189.3, in the terms set out in Annexure A.

3. Development Consent 8.2016.189.1 is subject to the consolidated conditions as described in Annexure B.

Sarah Bish

Commissioner of the Court

Annexure A (125951, pdf)

Annexure B (264029, pdf)

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Decision last updated: 06 July 2023