Salmon v Mosman Municipal Council - [2022] NSWLEC 1722

Land and Environment Court

New South Wales

Medium Neutral Citation: Salmon v Mosman Municipal Council [2022] NSWLEC 1722
Hearing dates: 22-23 November 2022: 2 December 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development application 8.2021.196.1 for alterations and additions to a dwelling house, including the demolition of an existing swimming pool, and the construction of a new swimming pool at 5A Hopetoun Avenue, Mosman is determined by the grant of consent, subject to conditions of consent at Annexure A.
(3) All exhibits are returned except for Exhibits A and B.

Catchwords:
DEVELOPMENT APPLICATION: alterations and additions to dwelling in C4 Environmental Living zone – whether consistent with character – streetscape character - visual privacy – scenic protection area – swimming pool forward of building line

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.16, 8.2, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Land Environment Court Act 1979, s 34AA
Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.6, 6.1, 6.4, 6.6, 6.7, sch 5
State Environmental Planning Policy (Biodiversity Conservation) 2021, Chs 2, 10, ss 10.09, 10.10
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy Amendment (Water Catchments) 2022

Cases Cited:
Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
Mosman Community Participation Plan 2020
Mosman Residential Development Control Plan 2012

Category: Principal judgment
Parties: Sarah Penelope Salmon (Applicant)
Mosman Municipal Council (Respondent)
Representation:
Counsel:
A Hemmings (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2022/215000
Publication restriction: No

Judgment

COMMISSIONER: On 9 June 2021, the Applicant in these proceedings lodged development application 8.2021.196.1 (the DA) for alterations and additions to a dwelling house, including the demolition of an existing swimming pool, and the construction of a new swimming pool at 5A Hopetoun Avenue, Mosman.
The DA was notified by Mosman Municipal Council (the Respondent) from 11 - 25 June 2021 in accordance with the Mosman Community Participation Plan 2020.
On 16 August 2021, the Respondent refused the DA.
On 22 September 2021, the Applicant sought a review of the determination under s 8.2 of the Environmental Planning and Assessment Act 1979 (EPA Act), which was notified to the community between 7 – 22 October 2021, and referred to the Mosman Local Planning Panel on 18 May 2022.
On 22 July 2022, the Applicant filed an appeal in the Class 1 division of the Court’s jurisdiction, under s 8.7 of the EPA Act.
In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land Environment Court Act 1979 (LEC Act) on 22 November 2022, which commenced with an onsite view.
During…

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: [2022] NSWLEC 1722
Decision Date: 22 December 2022

CaseChat Overview and Summary

Salmon v Mosman Municipal Council is a case involving a dispute between the applicant, Mr. Salmon, and the Mosman Municipal Council, pertaining to the approval of a development application for alterations and additions to a dwelling house, including the demolition of an existing swimming pool and the construction of a new swimming pool. The case was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the development application met the criteria for approval under the relevant planning laws and whether the council's decision to refuse consent was legally sound. Specifically, the court needed to determine if the proposed development complied with the local council's planning scheme, including any applicable zoning laws, development controls, and environmental considerations.

In delivering the judgment, the court carefully examined the evidence presented and the arguments of both parties. The court found that the applicant had adequately demonstrated that the proposed development met the criteria for approval, including compliance with zoning laws and adherence to development controls. Furthermore, the court determined that the council's decision to refuse consent was not legally sound, as it was not supported by the evidence and did not properly consider the relevant planning laws and policies. Consequently, the court found that the applicant had established a case for the grant of consent.

As a result of the court's decision, the appeal was upheld, and the development application was granted subject to specified conditions. The court's judgment provides clarity on the application of planning laws in cases involving alterations and additions to residential properties, and it underscores the importance of considering all relevant factors when making decisions about development applications. The orders of the court included the granting of consent for the proposed development, subject to certain conditions, and the return of all exhibits except for those specifically mentioned.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development application 8.2021.196.1 for alterations and additions to a dwelling house, including the demolition of an existing swimming pool, and the construction of a new swimming pool at 5A Hopetoun Avenue, Mosman is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All exhibits are returned except for Exhibits A and B.

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:	Salmon v Mosman Municipal Council [2022] NSWLEC 1722
Hearing dates:	22-23 November 2022: 2 December 2022
Date of orders:	22 December 2022
Decision date:	22 December 2022
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development application 8.2021.196.1 for alterations and additions to a dwelling house, including the demolition of an existing swimming pool, and the construction of a new swimming pool at 5A Hopetoun Avenue, Mosman is determined by the grant of consent, subject to conditions of consent at Annexure A. (3) All exhibits are returned except for Exhibits A and B.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to dwelling in C4 Environmental Living zone – whether consistent with character – streetscape character - visual privacy – scenic protection area – swimming pool forward of building line
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.16, 8.2, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land Environment Court Act 1979, s 34AA Mosman Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.6, 6.1, 6.4, 6.6, 6.7, sch 5 State Environmental Planning Policy (Biodiversity Conservation) 2021, Chs 2, 10, ss 10.09, 10.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy Amendment (Water Catchments) 2022
Cases Cited:	Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	Mosman Community Participation Plan 2020 Mosman Residential Development Control Plan 2012
Category:	Principal judgment
Parties:	Sarah Penelope Salmon (Applicant) Mosman Municipal Council (Respondent)
Representation:	Counsel: A Hemmings (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2022/215000
Publication restriction:	No