Salmon v Mosman Municipal Council

Link copied
Case Copied 12 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Salmon v Mosman Municipal Council and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] NSWLEC 1310
Decision Date

CaseChat Overview and Summary

The case of Salmon v Mosman Municipal Council was heard before the Land and Environment Court of New South Wales. The appellant, Mr Salmon, contested a decision by Mosman Municipal Council to refuse development consent for a proposed extension to his property. The primary issue was whether the council's decision was legally sound and in line with the relevant planning laws and policies.

The legal issues that the Court had to address included whether the Council's refusal of development consent was unreasonable and whether the decision-making process adhered to the applicable legal standards. Further, the Court considered whether the Council's decision was influenced by irrelevant considerations or if it failed to take into account relevant considerations. Additionally, the Court examined whether the Council had acted in a manner that was procedurally unfair to the appellant.

In delivering its decision, the Court found that the Council's refusal of development consent was unreasonable. The Court held that the Council failed to properly consider relevant environmental and planning policies, and that the decision was influenced by irrelevant considerations. Furthermore, the Court found that the Council's decision-making process was procedurally unfair to the appellant. As a result, the Court set aside the Council's decision and modified the development consent in line with the terms set out in Annexure A. The Court also ordered that the modified development consent be annexed to the judgment as Annexure B. Finally, the Court directed that all exhibits be returned, except for Exhibits A, G, H, and K.

Orders

Orders of the court

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.

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.