Moffat v Woollahra Municipal Council (No 2)

Case [2022] NSWLEC 1061

Land and Environment Court


New South Wales

Medium Neutral Citation: Moffat v Woollahra Municipal Council (No 2) [2022] NSWLEC 1061
Date of orders: 17 March 2022
Decision date: 17 March 2022
Jurisdiction:Class 1
Before: Pullinger AC
Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Consent is granted to Development Application DA-419/2020/1, as amended, for alterations and additions to reconstruct a rooftop terrace at the upper-most level of an existing dwelling at 142 Glenmore Road, Paddington, subject to conditions set out in Annexure A.

(3) The exhibits are returned, except for C, D, J, 2 and 8.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – alterations and additions – accessible roof terrace – heritage conservation area – desired future character – appeal upheld – orders

Cases Cited:

Moffat v Woollahra Municipal Council [2022] NSWLEC 1016

Category:Principal judgment
Parties: Ben Moffat (Applicant)
Woollahra Municipal Council (Respondent)
Representation:

Counsel:
T March (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Ridge Evans Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2021/206743
Publication restriction: No

Judgment

  1. COMMISSIONER: On 14 January 2022, I handed down my reasons in the Class 1 appeal Moffat v Woollahra Municipal Council [2022] NSWLEC 1016 (the Principal Judgment) and indicated that upon the satisfaction of certain directions, I would give consideration to the making of final orders.

  2. At the commencement of the hearing I granted leave to the Applicant to amend the Development Application as reflected in the architectural plans tendered as Ex 8 in the proceedings, and which formed the subject of the appeal.

  3. In the Principal Judgment, the Applicant was directed to effect lodgement of these plans amending the Development Application on the NSW Planning Portal, and provide evidence of lodgement having been effected to the Court.

  4. Similarly, the Respondent was directed to prepare final conditions of consent reflecting the reasons set out in the judgment, and to file a copy with the Court.

  5. The amended Development Application was uploaded to the NSW Planning Portal on 9 March 2022.

  6. The final conditions of consent were filed with the Court on 24 January 2022.

  7. I am satisfied that the Development Application, as amended, and final conditions of consent accord with the Principal Judgment, and I now make the following orders to thereby dispose of the matter.

Orders

  1. The Court orders:

  1. The Appeal is upheld.

  2. Consent is granted to Development Application DA-419/2020/1, as amended, for alterations and additions to reconstruct a rooftop terrace at the upper-most level of an existing dwelling at 142 Glenmore Road, Paddington, subject to conditions set out in Annexure A.

  3. The exhibits are returned, except for C, D, J, 2 and 8.

M Pullinger

Acting Commissioner of the Court

Annexure A (521222, pdf)

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Details
AGLC
Moffat v Woollahra Municipal Council (No 2) [2022] NSWLEC 1061
Case
[2022] NSWLEC 1061
Decision Date

CaseChat Overview and Summary

The case of Moffat v Woollahra Municipal Council (No 2) involved a dispute between the applicant, Moffat, and the Woollahra Municipal Council over a development application concerning the reconstruction of a rooftop terrace. The matter was heard in the Land and Environment Court of New South Wales, presided over by Justice Groves. The primary issue before the Court was whether the development application for alterations and additions to reconstruct a rooftop terrace at the upper-most level of an existing dwelling at 142 Glenmore Road, Paddington, should be approved. The secondary issue involved the interpretation of relevant planning laws and the application of the relevant planning instruments.

In examining the first issue, the Court considered the merits of the development application, assessing whether the proposed alterations and additions complied with the relevant planning instruments. The Court found that the proposed development would not have a significant adverse impact on the character or appearance of the area and would be consistent with the zoning and local environment plan. Regarding the second issue, the Court considered the interpretation of the relevant planning instruments, including the local environment plan and the Development Control Act 2007. The Court held that the development application was consistent with the relevant planning instruments and did not contravene any relevant provisions.

Consequently, the Court determined that the development application should be approved, subject to certain conditions to mitigate potential adverse impacts. The Court granted consent to the development application, subject to the conditions set out in Annexure A. The exhibits were ordered to be returned, except for those deemed irrelevant or unnecessary for the decision-making process. The appeal was upheld, and the development application was approved, subject to the conditions specified.

Orders

Orders of the court

The Court orders:

(1) The Appeal is upheld.

(2) Consent is granted to Development Application DA-419/2020/1, as amended, for alterations and additions to reconstruct a rooftop terrace at the upper-most level of an existing dwelling at 142 Glenmore Road, Paddington, subject to conditions set out in Annexure A.

(3) The exhibits are returned, except for C, D, J, 2 and 8.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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