Poletto v Mosman Council [2019] NSWLEC 1513

Poletto v Mosman Council [2019] NSWLEC 1513

The applicant's expert conceded that part of the proposed wall would exceed the 7.2m wall height development standard. Because no cl 4.6 written request was before the Court, a jurisdictional pre-condition to granting consent had not been satisfied. The exceedance was evident from the application materials and had been consistently raised by the Council, so it was not appropriate to adjourn proceedings under s 34AA to allow the applicant to satisfy that pre-condition. Nor was an 'amber light' approach appropriate where the Court lacked a required jurisdictional basis and did not have adequate information to conclude that the remaining merit issues were resolved. The Court therefore had no...

Jurisdiction
Australia
Judgment Date
25 October 2019
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing Held Forthwith After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Application for Alterations and Additions to Dwelling House' 'clause 4.6 Written Request' 'development Standards' 'wall Height' 'floor Space Ratio' 'side Setbacks' 'view Impacts' 'privacy Impacts' 'bulk and Scale' 'streetscape Impacts' 'adjournment' 'amber Light Consideration']
['environmental Planning and Development' 'land and Environment Court Procedure'] ['development Application for Alterations and Additions to Dwelling House' 'clause 4.6 Written Request' 'development Standards' 'wall Height' 'floor Space Ratio' 'side Setbacks' 'view Impacts' 'privacy Impacts' 'bulk and Scale' 'streetscape Impacts' 'adjournment' 'amber Light Consideration']

Case Brief

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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 / Hearing Held Forthwith After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ['Whether the proposed development exceeded the 7.2m wall height development standard in cl 4.3A of the Mosman Local Environmental Plan 2012.' 'Whether development consent could be granted without a written request under cl 4.6 of the Mosman Local Environmental Plan 2012 for the agreed wall height breach.' 'Whether the proceedings should be adjourned to allow preparation and consideration of a cl 4.6 written request.' "Whether an 'amber light approach' should be applied despite the absence of a cl 4.6 written request." 'Whether it was necessary to determine the disputed FSR compliance, merit issues, and disputed driveway condition.']

Ratio Decidendi

The applicant's expert conceded that part of the proposed wall would exceed the 7.2m wall height development standard. Because no cl 4.6 written request was before the Court, a jurisdictional pre-condition to granting consent had not been satisfied. The exceedance was evident from the application materials and had been consistently raised by the Council, so it was not appropriate to adjourn proceedings under s 34AA to allow the applicant to satisfy that pre-condition. Nor was an 'amber light' approach appropriate where the Court lacked a required jurisdictional basis and did not have adequate information to conclude that the remaining merit issues were resolved. The Court therefore had no...

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The applicant is granted leave to rely on amended plans.' 'The appeal is dismissed.' 'Development consent to Development Application No. 8.2018.200.1 for alterations and additions to an existing dwelling house at 236A Raglan Street, Mosman is refused.' 'The exhibits are returned other than Exhibits A, D, E and 1.']