Trenbath v Mosman Municipal Council - [2004] NSWLEC 596

Land and Environment Court

of New South Wales

CITATION: Trenbath v Mosman Municipal Council [2004] NSWLEC 596

PARTIES:
APPLICANT
Anthony and Denise Trenbath
RESPONDENT
Mosman Municipal Council

FILE NUMBER(S): 10785 of 2004

CORAM: Murrell C

KEY ISSUES: Development Consent :- Section 96 modifications to dwelling house approval

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 11/10/2004

EX TEMPORE
JUDGMENT DATE : 10/11/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr N Laird, solicitor
SOLICITORS
Deacons
RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

11 October 2004

10785 of 2004 Anthony and DeniseTrenbath v Mosman Municipal Council
JUDGMENT

1 This matter has come before me this morning as consent orders for the property known as 27 Redan Street, Mosman. The council issued a development consent for a dwelling house for alterations and additions to a semi-detached house on 4 June 2002.

2 The original development application was accompanied by SEPP 1 objections with respect to the total floor space of the area and the floor space ratio. The floor space ratio control provides for 0.5:1. The proposal consented to by the council was 0.77:1. The wall height also required a SEPP 1. The control required 7.2 m the proposal has a wall height of 8.3 m. In the original assessment report the council officer agreed that the SEPP 1 objections in the circumstances of the case should be supported and that the controls were unreasonable and unnecessary in circumstances of the case.

3 There was a previous s 96 application submitted to the council and council granted consent on 20 June 2003 to those modifications and one of those conditions was the replacement of the macadamia tree with another tree of 6.5 m.

4 The application that is before the Court this morning is a s 96 modification after the dwelling house has been completed. And there are a number of amendments or changes to the development as built and a comprehensive plan has been prepared in that respect to incorporate all the changes that have occurred known as Issue H drafted by Red Rock Design drawing No. 3 and there are two accompanying landscape plans with the s 96 application.

5 The alterations and changes to the dwelling that are in this s 96 application relate to an additional area for the laundry and minor modifications in terms of roof structures. There is an additional .02 FSR proposed to the building such that it brings the total FSR to 0.79:1. The council officer prepared a report and recommended approval. There was a Court appointed expert, Ms Laidlaw, who considered that the s 96 application should be approved. She did a comprehensive assessment and during the assessment process identified a number of other irregularities with the plan as approved and the dwelling as built.

6 Despite the fact many of the changes have been built the purpose of these proceedings is to look at the s 96 application. (The approval is not…

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: [2004] NSWLEC 596
Decision Date: 10/11/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Anthony and Denise Trenbath applied for modifications to a development consent issued by the Mosman Municipal Council. The original consent was granted on 4 June 2002 for alterations and additions to a semi-detached house at 27 Redan Street, Mosman. The application sought to modify the approved development after the house had been completed. The modifications included an additional area for the laundry and minor roof structure alterations, which increased the total floor space ratio (FSR) to 0.79:1.

The primary legal issue before the court was whether the proposed modifications under Section 96 of the relevant legislation should be approved. The court had to consider whether the modifications would result in unreasonable development, particularly in light of objections raised regarding the original approval and the modifications. The applicant argued that the modifications were in line with the original consent and did not constitute unreasonable development. The council and a court-appointed expert supported the approval, while an objector raised concerns about the increased bulk and the original approval.

The court examined the evidence and plans submitted, including the comprehensive assessment by the court-appointed expert, Ms Laidlaw. The court found that the modifications, although built, did not unreasonably lead to development by creep. The court also noted that the landscaping condition requiring an additional tree had not been fulfilled and that the applicant was prepared to provide an amended landscape plan. The court was satisfied that the practise direction regarding consent orders was followed and that the objectors had been given an opportunity to be heard. Consequently, the court approved the modifications.

The formal orders of the court granted consent to the modifications as shown in the architectural plans prepared by Red Rock Design and the amended landscape plan. The exhibits, except for two specified ones, were returned to the parties. The appeal regarding the Section 96 application was upheld, and consent was granted to the modifications.

Orders