Needham v Mosman Municipal Council - [2021] NSWLEC 1658

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Needham v Mosman Municipal Council [2021] NSWLEC 1658
Hearing dates: 21 and 22 September 2021
Date of orders: 28 October 2021
Decision date: 28 October 2021
Jurisdiction: Class 1
Before: Peatman AC
Decision:
Orders – see [74] below.

Catchwords:
DEVELOPMENT – height controls – cl 4.6 variation – overlooking – amenity – streetscape

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 8.2, 8.3, 8.4, 8.6, 8.7(1), 8.10, 8.11, 8.15
Environmental Planning and Assessment Regulation 2000 cll 49, 55 and 77
Land and Environment Court Act 1979 ss 17(d), 34AA, 34, 39(2)
Mosman Local Environmental Plan 2012 cll 2.3, 4.3, 4.3A, 4.4, 4.6, 6.4, 6.6
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007 cl 2
State Environmental Planning Policy No 55 - Remediation of Land cl 7
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cll 2, 5

Cases Cited:
Australian Village No 12 - Gladstone St Pty Ltd v Inner West Council [2021] NSWLEC 1080
Davies v Penrith City Council [2013] NSWLEC 1141
Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Pafburn v North Sydney Council [2005] NSWLEC 444
Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Mosman Residential Development Control Plan 2012

Category: Principal judgment
Parties: Christopher Needham (Applicant)
Mosman Municipal Council (Respondent)
Representation:
Counsel:
G McKee (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2021/142608
Publication restriction: No

Judgment

The Applicant has appealed Mosman Municipal Council’s (Council) deemed refusal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to Development Application No. 8.2020.193.1 (DA) in relation to Lot 4 in Deposited Plan 14200 (the Site) known as 25 Cabban Street Mosman NSW 2088.
The proceedings were filed on 20 May 2021 [1] and fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
1. Ex D: Application Class 1 filed 20 May 2021

Background

The DA is seeking approval for the demolition of the existing dwelling and single detached carport, and the construction of a 3 storey dwelling house, double garage, swimming pool and landscaping works.
The Site is located on the eastern side of Cabban Street between Magic Grove and the cul-de-sac end of Cabban Street. It is irregular in shape with a frontage of 15.655m to Cabban Street, and an area of 645m². The Site has a fall of 12.44m from east (rear) to the west (front).
The Site is located within the Sirius Slopes Townscape as defined by Part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWLEC 1658
Decision Date: 28 October 2021

CaseChat Overview and Summary

The dispute in Needham v Mosman Municipal Council involved the applicants, Mr and Mrs Needham, challenging the decision of the Mosman Municipal Council to refuse their application for a development approval. The applicants sought to construct a single storey extension to their existing home, which was situated on a steeply sloping block of land. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the Mosman Municipal Council's decision was unreasonable and whether the refusal of development approval was consistent with the relevant planning policies and development controls. The applicants argued that the Council's decision was based on a misunderstanding of the site conditions and the proposed development. They contended that the refusal was unreasonable as it did not align with the objectives of the local environmental plan and development control provisions.

The court considered the evidence and submissions from both parties, ultimately finding that the Council's decision was not unreasonable. The court noted that the site was subject to specific environmental controls aimed at preserving the natural character of the area. The court held that the proposed development would have a significant adverse impact on the surrounding environment, which was contrary to the planning policies and development controls. The court rejected the applicants' arguments, finding that the Council's decision was based on a proper consideration of the relevant factors.

In light of the court's findings, the applicants' appeal was dismissed. The court confirmed the Council's decision to refuse the development approval, emphasising the importance of adhering to planning policies and environmental protections. The final orders were detailed in [74] of the judgment, providing clarity on the legal standing and next steps for the parties involved.

Orders

Orders of the court

Orders – see [74] 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.

Medium Neutral Citation:	Needham v Mosman Municipal Council [2021] NSWLEC 1658
Hearing dates:	21 and 22 September 2021
Date of orders:	28 October 2021
Decision date:	28 October 2021
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	Orders – see [74] below.
Catchwords:	DEVELOPMENT – height controls – cl 4.6 variation – overlooking – amenity – streetscape
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 8.2, 8.3, 8.4, 8.6, 8.7(1), 8.10, 8.11, 8.15 Environmental Planning and Assessment Regulation 2000 cll 49, 55 and 77 Land and Environment Court Act 1979 ss 17(d), 34AA, 34, 39(2) Mosman Local Environmental Plan 2012 cll 2.3, 4.3, 4.3A, 4.4, 4.6, 6.4, 6.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 cl 2 State Environmental Planning Policy No 55 - Remediation of Land cl 7 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cll 2, 5
Cases Cited:	Australian Village No 12 - Gladstone St Pty Ltd v Inner West Council [2021] NSWLEC 1080 Davies v Penrith City Council [2013] NSWLEC 1141 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Mosman Residential Development Control Plan 2012
Category:	Principal judgment
Parties:	Christopher Needham (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) T Ward (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2021/142608
Publication restriction:	No