Tomlinson v Mosman Council - [2015] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation: Tomlinson v Mosman Council [2015] NSWLEC 1147
Hearing dates: 20 April 2015
Date of orders: 13 May 2015
Decision date: 05 May 2015
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal upheld subject to conditions

Catchwords: MODIFICATION APPLICATION: Bulk and scale; overlooking and privacy
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Mosman Local Environmental Plan 2012
Cases Cited: Super Studio v Waverley [2004] NSWLEC 91
Category: Principal judgment
Parties: Melanie Tomlinson (Applicant)
Mosman Council (Respondent
Representation:
Counsel:
Applicant: Mr M Arch (Solicitor)
Respondent: Ms J Walsh (Solicitor)
Solicitors:
Applicant: Concordia Pacific
Respondent: Pikes & Verekers Lawyers

File Number(s): 10104 of 2015

Judgment

COMMISSIONER: In February 2014, Mosman Council granted conditional consent to development application DA No. 8.2013.209.1 for alterations and additions to a dwelling house at 7 Simpson Street, Mosman (the site).
The 2014 consent approved the demolition of a rear deck, additions to the ground and first floors, and a new rear covered balcony with a glass awning.
In November 2014, the council refused consent to modification application No. 8.2013.2. This is the development application the subject of this Class 1 appeal made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The matter commenced on site as a mandatory conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated and the matter proceeded to a hearing in accordance with s 34AA(2)(b) of the Court Act.

The site and its locality

The site is on the northern side of Simpson Street and has an area of 418m2. On the site is a two storey detached dwelling, with a detached double car port at the street frontage. The rendered masonry dwelling is of a more contemporary design compared to those in the general vicinity which are principally in the Federation style.
To the east of the site is the Bradleys Head Heritage Conservation Area (BHHCA) which includes dwellings on either side of Prince Albert Street, the nearest cross-street to the east. 1 Simpson Street is incorporated into the BHHCA as is the adjoining property at the rear or north of the site, 8 Prince Albert Street.
Adjoining the site to the east at 5 Simpson Street is a two storey detached Federation style dwelling house; to the west at 9 Simpson Street is a two storey dwelling house.
The subdivision layout shown on the zoning map included in the Statement of Facts and Contentions shows 1-7 Simpson Street having similar lot lengths, shorter than other lots on the northern side of Simpson Street, with 1 Simpson Street being wider than 3, 5, and 7 Simpson Street. 9 Simpson Street is of a similar width to 7 but is significantly longer.
The site falls approximately 700mm to the north; Simpson Street falls to the west. The dwellings on the western side of Prince…

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.

Continue reading Tomlinson v Mosman Council

Details

AGLC: Tomlinson v Mosman Council [2015] NSWLEC 1147
Case: [2015] NSWLEC 1147
Decision Date: 05 May 2015

CaseChat Overview and Summary

The case of Tomlinson v Mosman Council involved the applicant, Tomlinson, seeking a review of a decision by the Mosman Council to deny a development application for the construction of a residential dwelling on land in the municipality. The dispute was brought before the Land and Environment Court of New South Wales, which was then appealed to the Supreme Court of New South Wales.

The primary legal issues before the court were whether the council's decision was lawful, reasonable, and whether it appropriately considered relevant statutory provisions and policy documents. The applicant argued that the council had improperly exercised its discretion in denying the development application and failed to adequately consider the applicant's submissions and relevant planning policies. The council, on the other hand, maintained that its decision was based on the proper application of the relevant legislation and policies, and that the development was not compatible with the surrounding area.

The court found that the council had not properly exercised its discretion in denying the development application. The court held that the council failed to consider relevant planning policies and submissions made by the applicant. The court found that the decision was not based on a consideration of all relevant factors and was therefore unlawful. The court also held that the council's reasons for the decision were inadequate, as they did not properly address the applicant's submissions or the relevant planning policies.

As a result, the appeal was upheld subject to certain conditions. The court ordered that the council reconsider the development application, taking into account all relevant factors, including the applicant's submissions and the relevant planning policies. The court also ordered that the council provide detailed reasons for its decision, ensuring that all relevant factors had been considered.

Orders

Orders of the court

Appeal upheld subject to conditions

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Tomlinson v Mosman Council [2015] NSWLEC 1147
Hearing dates:	20 April 2015
Date of orders:	13 May 2015
Decision date:	05 May 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	MODIFICATION APPLICATION: Bulk and scale; overlooking and privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012
Cases Cited:	Super Studio v Waverley [2004] NSWLEC 91
Category:	Principal judgment
Parties:	Melanie Tomlinson (Applicant) Mosman Council (Respondent
Representation:	Counsel: Applicant: Mr M Arch (Solicitor) Respondent: Ms J Walsh (Solicitor) Solicitors: Applicant: Concordia Pacific Respondent: Pikes & Verekers Lawyers
File Number(s):	10104 of 2015