Redpath v Mosman Municipal Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Redpath v Mosman Municipal Council [2023] NSWLEC 1629

Hearing dates:

Conciliation conference on 17 October 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely upon the Amended Development Application.

(2) The appeal is upheld.

(3) Development Application No. 8.2022.225.1 for the alterations and additions to the existing dwelling at 18 Lavoni Street, Mosman is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – conciliation conference – amended plans and documents – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.13

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 34AA

Mosman Local Environmental Plan 2012, cll 2.7, 4.3, 4.3A, 4.4, 5.10, 6.1, 6.4, 6.6, 6.7, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 10, s 10.1

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223

Category:

Principal judgment

Parties:

Nicholas Redpath (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
J Nouseir, solicitor (Applicant)
K Glanville, solicitor (Respondent)

Solicitors:
Mills Oakley
Pikes & Verekers

File Number(s):

2023/144600

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant Nicholas Redpath. The Applicant appeals the determination of their development application, in particular the imposition of deferred commencement conditions 1(a) and 1(b) in Part A of the consent issued by Mosman Municipal Council (the Respondent). Although the appeal is against conditions, the Consent ceases to have effect by operation of s 8.13(1) of the EPA Act. The development application, as amended, seeks consent for alterations and additions to the existing dwelling at 18 Lavoni Street, Mosman (Lot 32 in DP 6648).

2. A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 17 October 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.

3. The amendments to the development application can be broadly summarised as follows:

1. Provision of additional information, including a Geotechnical Report prepared by White Geotechnical.

2. Amendments to the setback, form and materials of the proposed upper-level addition.

3. Provision of an amended BASIX certificate.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s…