Needham v Mosman Municipal Council (No. 2)

[2021] NSWLEC 1747

Land and Environment Court

New South Wales

Medium Neutral Citation:

Needham v Mosman Municipal Council (No. 2) [2021] NSWLEC 1747

Hearing dates:

21 and 22 September 2021

Date of orders:

7 December 2021

Decision date:

07 December 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders that:

1) The Applicant’s request, pursuant to clause 4.6 of Mosman’s Local Environmental Plan 2012, to vary the wall height standard contained in clause 4.3A(4) of Mosman’s Local Environmental Plan 2012 of 7.2m to 7.4m and 7.29m respectively is upheld.

2) The Applicant’s appeal is upheld.

3) Pursuant to s 4.16(1)(a) of the Environmental Planning and Assessment Act 1979 and s 39(2) of the Land and Environment Court Act 1979 consent is granted to Development Application No. 8.2020.193.1 in relation to Lot 4 in Deposited Plan 14200 known as 25 Cabban Street Mosman NSW 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, in accordance with the Conditions of Consent in Annexure A.

Catchwords:

DEVELOPMENT – height controls – cl 4.6 variation – overlooking – amenity - streetscape

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 39

Mosman Local Environmental Plan 2012, cll 4.3A, 4.6

Uniform Civil Procedure Rules 2005, r 36.17

Category:

Principal judgment

Parties:

Christopher Needham (Applicant)
Mosman Municipal Council (Respondent)

File Number(s):

2021/142608

Judgment

1. COMMISSIONER: On 28 October 2021 I handed down the principal judgment in this matter, being matter number [2021] NSWLEC 1658 (Principal Judgment).

2. Pursuant to Uniform Civil Procedure Rules 2005 (UCPR) r 36.17, and with the consent of the parties, the Principal Judgment is amended by deleting the first 2 plans in par [18] and par [73] and inserting the following 5 plans:

• DA02 Rev I Site & Roof Plan Dated 22.9.21 by Corben Architects

• DA05 Rev I Level 3 Plan dated 22.9.21 by Corben Architects

• DA07 Rev I North Elevation dated 22.9.21 by Corben Architects

• DA08 Rev I South Elevation dated 22.9.21 by Corben Architects

• DA10 Rev I West Elevation dated 22.9.21 by Corben Architects

3. In par [74] of the principal judgment, I gave Directions to both the respondent to comply with the provisions of cl 55(1) of the Environmental Planning and Assessment Regulation 2000, and to the applicant to subsequently file the amended development application. I am advised that the parties have carried out those directions as follows:

1. The respondent, Mosman Municipal Council, as the relevant consent authority, lodged the amendment of the development application on the NSW planning portal on or about 15 November 2021, reference number PEH 889.

2. The applicants filed a copy of the amended Development Application No. 8.2020.193.1 on 18 November 2021.

3. The respondent, Mosman Municipal Council, amended its draft conditions of consent in Ex 5 in accordance with the Directions, and filed a copy of the draft conditions on 25 November 2021.

4. The parties have complied with the Directions in the Principal Judgment, and I shall now uphold the appeal and grant development consent.

Orders:

5. The Court orders that:

1. The Applicant’s request, pursuant to clause 4.6 of Mosman’s Local Environmental Plan 2012, to vary the wall height standard contained in clause 4.3A(4) of Mosman’s Local Environmental Plan 2012 of 7.2m to 7.4m and 7.29m respectively is upheld.

2. The Applicant’s appeal is upheld.

3. Pursuant to s 4.16(1)(a) of the Environmental Planning and Assessment Act 1979 and s 39(2) of the Land and Environment Court Act 1979 consent is granted to Development Application No. 8.2020.193.1 in relation to Lot 4 in Deposited Plan 14200 known as 25 Cabban Street Mosman NSW 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, in accordance with the Conditions of Consent in Annexure A.

…………………………

M Peatman

Acting Commissioner of the Court

(Annexure A) (317386, pdf)

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Decision last updated: 07 December 2021