Altschwager v Mosman Municipal Council [2021] NSWLEC 1165

Altschwager v Mosman Municipal Council [2021] NSWLEC 1165

The amended proposal, supported by agreed conditions, adequately addressed the objectors' and Council's concerns about visual privacy, visual amenity, view sharing, streetscape impact and rear yard treatment. The cl 4.6 written request adequately demonstrated that compliance with the wall height development standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the 640mm contravention. The Court was also satisfied that the development was in the public interest because it was consistent with the objectives of the wall height standard and the R2 Low Density Residential zone objectives. Accordingly, there was power to grant consent and the...

Jurisdiction
Australia
Judgment Date
01 April 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Judgment After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Did Not Result in Agreement
Outcome
Development application approved subject to conditions.
Legal Topics
['development Application' 'dwelling House' 'wall Height Contravention' 'clause 4.6 Variation Request' 'view Sharing' 'visual Privacy' 'visual Amenity' 'landscape Treatment']
['planning and Environment Law' 'development Control'] ['development Application' 'dwelling House' 'wall Height Contravention' 'clause 4.6 Variation Request' 'view Sharing' 'visual Privacy' 'visual Amenity' 'landscape Treatment']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Final Judgment After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Did Not Result in Agreement

Legal Issues

  1. 1 ['Whether visual privacy and visual amenity impacts on 27 Pretoria Avenue were acceptable' 'Whether view loss, visual privacy and visual amenity impacts on 12 Cobbittee Street were acceptable' 'Whether the proposal would unreasonably dominate the streetscape' 'Whether the rear yard treatment, earthworks, landscaping and pool impacts were acceptable' 'Whether the cl 4.6 written request justified contravention of the wall height development standard in cl 4.3A(4) of Mosman Local Environmental Plan 2012']

Ratio Decidendi

The amended proposal, supported by agreed conditions, adequately addressed the objectors' and Council's concerns about visual privacy, visual amenity, view sharing, streetscape impact and rear yard treatment. The cl 4.6 written request adequately demonstrated that compliance with the wall height development standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the 640mm contravention. The Court was also satisfied that the development was in the public interest because it was consistent with the objectives of the wall height standard and the R2 Low Density Residential zone objectives. Accordingly, there was power to grant consent and the...

Court Disposition

Development application approved subject to conditions.

Orders

  • ['The Applicant is granted leave to amend the application to rely on the plans and documents as listed at Condition 1 of Annexure "A" and the written request pursuant to cl 4.6 of Mosman Local Environmental Plan 2012, dated 21 December 2020 and prepared by Kim Burrell.' 'The written request pursuant to cl 4.6 of...