Taylor v Mosman Municipal Council

[2021] NSWLEC 1617

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taylor v Mosman Municipal Council [2021] NSWLEC 1617

Hearing dates:

15-16 June, 25 August and 22 September 2021

Date of orders:

19 October 2021

Decision date:

19 October 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Consent is granted to Modification Application No. 8.2015.162.2, as amended, for alterations and additions to the dwelling at 7 Ellamatta Avenue, Mosman, subject to conditions set out in Annexure A.

(3) The exhibits are returned, except for A and 2.

Catchwords:

MODIFICATION APPLICATION – dwelling house – heritage conservation area – appeal upheld – orders

Legislation Cited:

Environmental Planning and Assessment Regulation 2000, cl 121B

Land and Environment Court Act 1979, s 39

Cases Cited:

Taylor v Mosman Municipal Council [2021] NSWLEC 1522

Category:

Principal judgment

Parties:

Kevin William Taylor (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/361589

Publication restriction:

No

Judgment

1. COMMISSIONER: On 8 September 2021, I handed down my reasons in the Class 1 appeal Taylor v Mosman Municipal Council [2021] NSWLEC 1522 (the Principal Judgment) and indicated that upon satisfaction of certain directions, I would give consideration to the making of final orders.

2. In the Principal Judgment, the Applicant was directed to prepare final architectural drawings, based on the Issue E plans tendered as Exhibit D, but further amended to reflect the reasons set out in the principal judgment.

3. Similarly, the Respondent was directed to prepare a corresponding set of conditions of consent to reflect the reasons set out in the Principal Judgment.

4. The parties appeared before me again on 22 September to discuss the practical implications of incorporating particular aspects of the judgment into the final architectural drawings and to resolve certain conditions of consent.

5. The amended drawings were filed with the court by the Applicant on 6 October 2021.

6. The conditions of consent have been further discussed between the parties, and in the majority are agreed.

7. One specific condition of consent remains to be settled (Condition 16), and the parties have each provided alternative competing versions, requesting the Court to determine the final form of this remaining condition.

8. The Court received the alternative competing versions of Condition 16 on 7 October 2021 along with further written submissions from the parties.

9. In reviewing the competing versions of Condition 16 and considering written submissions, I accept those of the Respondent and now determine to adopt Condition 16 in the following terms:

“16 A revised landscape plan prepared by a qualified Landscape Architect or Landscape Consultant to a scale of 1:100 or 1:200 and conforming to Council's Residential Development Control Plan and relevant conditions of this Consent, must be submitted to Council’s or the Accredited Certifier’s satisfaction with the Construction Certificate application. It must include;

Provision of suitable native landscaping between the garage and southern laundry wall to provide effective landscape screening of the wall.

Provision of a native canopy tree centred in the turf area to reach a maturity height of at least 12m. The tree shall be maintained as a canopy tree and shall not be pruned in a manner to prevent it reaching its maturity height or unduly restrict the spread of the canopy.”

10. In making this determination, in particular regarding 16(b), I appreciate the concern noted by the Applicant that a condition drafted in this form may unintentionally constrain reasonable maintenance pruning from being carried out.

11. However, I accept the Respondent’s submission that condition 16(b), as drafted, is to ensure the tree is not pruned in a manner that restricts it from reaching its maximum height or spread upon maturity. I accept the condition is clear in its terms, and that an arborist is able to differentiate between maintenance pruning and pruning of the nature that would prevent the tree from reaching its mature height and spread.

12. I am satisfied that the amended plans and the final settled conditions of consent accord with those reasons set out in the Principal Judgment, and I now make the following orders and thereby dispose of the matter.

13. Accordingly, the Court notes:

1. The Court, under s 39(2) of the Land and Environment Court Act 1979, exercising the function of Mosman Municipal Council as the relevant consent authority, and pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Modification Application 8.2015.162.2 to reflect the architectural plans filed with the Court on 6 October 2021.

2. The Applicant has uploaded the amended Modification Application to the NSW Planning Portal on 5 October 2021.

Orders

14. The Court orders:

1. The Appeal is upheld.

2. Consent is granted to Modification Application No. 8.2015.162.2, as amended, for alterations and additions to the dwelling at 7 Ellamatta Avenue, Mosman, subject to conditions set out in Annexure A.

3. The exhibits are returned, except for A and 2.

………………………

M Pullinger

Acting Commissioner of the Court

Annexure A (298678, pdf)

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