Richards v Mosman Municipal Council [2022] NSWLEC 1700

Richards v Mosman Municipal Council [2022] NSWLEC 1700

The pop-up roof element over the living room was acceptable because it was consistent in form and design with another roof element, the locality contained dwellings of varying height and form, the experts agreed there was no view loss, and the design minimised adverse effects of bulk and scale. The element was minor in description and physical presence and did not alter the approved dwelling so that it ceased to be substantially the same development. The modification application therefore warranted approval without the condition deleting the roof element.

Jurisdiction
Australia
Judgment Date
15 December 2022
Procedural Posture
Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of a Modification Application Made Pursuant to S 4.56 of the Environmental Planning and Assessment Act 1979 / Final Hearing and Orders on Modification Application
Outcome
Appeal upheld; modification application approved.
Legal Topics
['modification Application' 'dwelling' 'amended Plans' 'height of Buildings' 'wall Height' 'view Sharing' 'bulk and Scale' 'substantially the Same Development']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'dwelling' 'amended Plans' 'height of Buildings' 'wall Height' 'view Sharing' 'bulk and Scale' 'substantially the Same Development']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.9 of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of a Modification Application Made Pursuant to S 4.56 of the Environmental Planning and Assessment Act 1979 / Final Hearing and Orders on Modification Application

Legal Issues

  1. 1 ['Whether the height and design of the proposed roof element over the living room was acceptable despite non-compliance with height and wall height controls.' 'Whether the modified development would be substantially the same development as the development for which consent was originally granted.' 'Whether the modification application should be approved in full or with a condition requiring deletion of the roof element over the living room.']

Ratio Decidendi

The pop-up roof element over the living room was acceptable because it was consistent in form and design with another roof element, the locality contained dwellings of varying height and form, the experts agreed there was no view loss, and the design minimised adverse effects of bulk and scale. The element was minor in description and physical presence and did not alter the approved dwelling so that it ceased to be substantially the same development. The modification application therefore warranted approval without the condition deleting the roof element.

Court Disposition

Appeal upheld; modification application approved.

Orders

  • ['The Appeal is upheld.' 'The Modification Application, to modify Development Consent 8.2021.20.1, is approved and the Development Consent granted to Development Application 8.2021.20.1 by the Respondent on 19 August 2020, is modified as set out in Annexure "A".' 'The Development Consent to Development Application...