Salmon v Mosman Municipal Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Salmon v Mosman Municipal Council [2023] NSWLEC 1310

Hearing dates:

6 June 2023

Date of orders:

20 June 2023

Decision date:

20 June 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. 008.2021.00000196.002 is modified in the terms in Annexure A.

(3) Development Consent No. 008.2021.00000196.001 as modified by the Court is Annexure B.

(4) All exhibits are returned except for Exhibits A, G, H and K.

Catchwords:

MODIFICATION APPLICATION – modification application to original consent – dwelling house development in C4 Environmental Living zone – whether substantially the same – no public submissions made – reasons given for the grant of consent

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.55

Environmental Planning and Assessment Regulation 2021

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

State Environmental Planning Policy (Biodiversity Conservation) 2021, Ch 6, s 6.6

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

Cases Cited:

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298;[1999] NSWLEC 280

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

Scrap Realty Pty Ltd v Botany Bay City Council(2008) 166 LGERA 342;[2008] NSWLEC 333

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Sydney City Council v Ilenace Pty Ltd[1984] 3 NSWLR 414 ; (1984) 45 LGRA 217

Texts Cited:

Mosman Residential Development Control Plan 2012

Category:

Principal judgment

Parties:

Sarah Penelope Salmon (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicant)
Submitting Appearance (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/78823

Publication restriction:

Nil

Judgment

1. COMMISSIONER: On 22 December 2022, this Court delivered judgment in Salmon v Mosman Municipal Council [2022] NSWLEC 1722 (“Salmon Case”) in respect of an appeal brought in Class 1 of the Court’s jurisdiction following the refusal by Mosman Municipal Council (the Council) of Development Application No. 008.2021.00000196.001 seeking consent for alterations and additions to a dwelling house and swimming pool at 5A Hopetoun Avenue, Mosman (the original DA). The Salmon Case granted consent to the original DA (original consent).

2. On 9 March 2023, the Applicant in these proceedings filed an appeal under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), in respect of Modification Application No. 008.2021.00000196.002 (modification application).

3. The modification application seeks to modify the original consent in the following terms:

• Enclose the area under the approved pool to form a new pool plantroom;

• Remove the existing garage door and add a new wire mesh panel lift garage door in line with the approved swimming pool;

• Relocate the approved lift shaft to be external to the existing dwelling envelope;

• Add a new cleaners/gardeners WC within the existing storeroom;

• Amend pedestrian access steps

• Construct new bin store adjacent to the driveway.

• Minor internal…