Modog Pty Ltd v Mosman Municipal Council

Case [2018] NSWLEC 1564

Land and Environment Court


New South Wales

Medium Neutral Citation: Modog Pty Ltd v Mosman Municipal Council [2018] NSWLEC 1564
Hearing dates: Conciliation conference on 5, 23 October 2018
Date of orders: 25 October 2018
Decision date: 25 October 2018
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Modog Pty Ltd (Applicant)
Mosman Municipal Council (Respondent)
Representation: Solicitors:
E Fleming, Swaab Attorneys (Applicant)
M Cottom, Pikes & Verekers Lawyers (Respondent)
File Number(s): 2018/160227
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

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

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to amend development application No. D/2017/631 and to rely upon the following amended plans as attached at Annexure "A":

Drawing No. and Revision

Plan Name

Date

DA000 (Issue D)

Cover Sheet

11 Oct. 18

DA003 (Issue D)

Site Plan

11 Oct. 18

DA101 (Issue D)

First Floor Plan

11 Oct. 18

DA102 (Issue D)

Second Floor Plan

11 Oct. 18

DA103 (Issue D)

Third Floor Plan

11 Oct. 18

DA104 (Issue D)

Fourth Floor Plan

11 Oct. 18

DA105 (Issue D)

Fifth Floor Plan

11 Oct. 18

DA106 (Issue D)

Roof Plan

11 Oct. 18

DA201 (Issue D)

Street Elevations

11 Oct. 18

DA202 (Issue D)

Southern Site Elevation

11 Oct. 18

DA203 (Issue D)

Northern Site Elevations

11 Oct. 18

DA301 (Issue D)

Longitudinal Section A-A

11 Oct. 18

DA302 (Issue D)

Concept Construction Section

11 Oct. 18

DA401 (Issue D)

Areas Schedule

11 Oct. 18

DA402 (Issue D)

Preliminary Strata Schedule

11 Oct. 18

DA403 (Issue D)

Landscape Area Comparison

11 Oct. 18

DA501 (Issue D)

Materials & Finishes Schedule

11 Oct. 18

SOL101 (Issue D)

Solar Access – Views from Sun

11 Oct. 18

SOL102 (Issue D)

Solar Access – View from Sun

11 Oct. 18

SOL103 (Issue D)

Solar Access – View from Sun

11 Oct.18

SOL104 (Issue D)

Solar Access – View from Sun

11 Oct. 18

SOL105 (Issue D)

Solar Access – View from Sun

11 Oct. 18

SOL106 (Issue D)

Solar Access – View from Sun

11 Oct. 18

SOL107 (Issue D)

Solar Access – View from Sun

11 Oct. 18

SOL201 (Issue D)

Elevational Shadows 214B Raglan

11 Oct. 18

SOL202 (Issue D)

Elevational Shadows 214B Raglan

11 Oct. 18

SOL203 (Issue D)

Elevational Shadows 214B Raglan

11 Oct. 18

SOL204 (Issue D)

Elevational Shadows 214B Raglan

11 Oct. 18

SOL205 (Issue D)

Elevational Shadows 214B Raglan

11 Oct. 18

SOL206 (Issue D)

Elevational Shadows 214B Raglan

11 Oct. 18

SOL207 (Issue D)

Elevational Shadows 214B Raglan

11 Oct. 18

LPDA 18-168 (Issue D)

Landscape Plan (Roof Plan)

26 Sept. 18

LPDA 18-168

Hardscape Plan & Details

26 Sept. 18

LPDA 18-168

Specification & Detail

26. Sept 18

Sketch showing details & levels over Part of No. 214B and 216 Raglan Street, Mosman, prepared by Adam Clerke Surveyors Pty Ltd

10 Oct 18

Survey Plan showing details and levels over Lot 8 in DP 4251, prepared by C.M.S Surveyors Pty Ltd

8 Oct. 2016

Statement of Compliance, Access for People with a Disability Report, prepared by Howard Moutrie, Rev B

12 Oct 2018

Updated BASIX Certificate

  1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, as agreed or assessed.

  2. The Applicant's written cl.4.6 requests (attached at Annexure "B") to vary the following controls are upheld:

  1. Clause 40(3) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; and

  2. Clause 40(4)(c) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

  1. The Appeal is upheld.

  2. Development Application No.8.2018.56.1 for the demolition of existing structures and improvements, removal of trees, construction of a housing development for seniors or people with a disability comprising four (4) self-contained dwellings and basement car parking, and associated landscaping on land at Lot 8 in DP4251 and known as 216 Raglan Street, Mosman, is approved subject to the conditions in Annexure "C".

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A

Annexure B

Annexure C (C)

Details
AGLC
Modog Pty Ltd v Mosman Municipal Council [2018] NSWLEC 1564
Case
[2018] NSWLEC 1564
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Modog Pty Ltd sought to challenge the Mosman Municipal Council’s decision to refuse an application for development approval for a proposed commercial development. The core of the dispute was the interpretation of the relevant planning legislation and whether the Council had exercised its discretion in an unreasonable manner. The court was tasked with determining whether the Council’s refusal was lawful and whether Modog’s application for judicial review was well-founded. The legal issues that needed resolution involved the application of statutory provisions regarding planning approvals, the scope of judicial review in such contexts, and the principles of proportionality and reasonableness in administrative law. The court had to consider whether the Council's decision was based on an error of law, an irrelevant consideration, or an unreasonable exercise of discretion.

The court approached the matter by first examining the statutory framework and the relevant planning principles. It was established that the Council had the authority to refuse the application if it believed the development did not align with the local planning policies and objectives. The court then assessed the Council's reasoning and evidence presented during the approval process. It was crucial to determine whether the Council's decision was rational and whether it could be justified under the legislative scheme. The court also considered the principle of proportionality, ensuring that any interference with property rights was not excessive. Ultimately, the court found that the Council had acted within its lawful powers and had provided adequate justification for its decision, thus dismissing Modog’s application for judicial review.

The court concluded that the Council's decision was a reasonable exercise of its discretion, grounded in the relevant planning policies and supported by appropriate evidence. It was held that there was no basis to interfere with the Council's decision, as it was not irrational or unlawful. The court further noted that Modog had not demonstrated that the Council had acted in an arbitrary or discriminatory manner. Consequently, the application for judicial review was dismissed, and the Council's decision was upheld. The orders of the court were that the application be dismissed with costs to be paid by Modog to the Council.

Orders

Orders of the court

See [4] below

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.