Talebi v Mosman Council [2018] NSWLEC 1671

Talebi v Mosman Council [2018] NSWLEC 1671

The Court was satisfied that the cl 4.6 written requests adequately addressed why compliance with the height, wall height and FSR development standards was unreasonable or unnecessary and that the proposal was in the public interest because it was consistent with the relevant development standard and zone objectives. The Court was also satisfied that the proposal would have no impact on the heritage significance of the adjoining public steps item. Accordingly, the parties' agreed decision was one the Court could have made in the proper exercise of its functions, requiring the proceedings to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 8.2017.131.1 / Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application No. 8.2017.131.1 approved subject to conditions of consent at Annexure A.
Legal Topics
['development Application for Alterations and Additions to an Existing Dwelling House' 'clause 4.6 Variation Request' 'contravention of Height of Buildings Development Standard' 'contravention of Maximum Wall Height Development Standard' 'contravention of Floor Space Ratio Development Standard' 'adjoining Heritage Item' 'conciliation Agreement']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['development Application for Alterations and Additions to an Existing Dwelling House' 'clause 4.6 Variation Request' 'contravention of Height of Buildings Development Standard' 'contravention of Maximum Wall Height Development Standard' 'contravention of Floor Space Ratio Development Standard' 'adjoining Heritage Item' 'conciliation Agreement']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 8.2017.131.1 / Orders Following S 34 AA Conciliation Conference and Agreement Between the Parties Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." "Whether the applicant's written requests under cl 4.6 of the Mosman Local Environmental Plan 2012 adequately justified contraventions of the height of buildings, maximum wall height and floor space ratio development standards." 'Whether the proposed development was in the public interest because it was consistent with the objectives of the contravened development standards and the zone objectives.' 'Whether the proposal would affect the heritage significance of the adjoining public steps heritage item under cl 5.10(4) of the Mosman Local Environmental Plan 2012.']

Ratio Decidendi

The Court was satisfied that the cl 4.6 written requests adequately addressed why compliance with the height, wall height and FSR development standards was unreasonable or unnecessary and that the proposal was in the public interest because it was consistent with the relevant development standard and zone objectives. The Court was also satisfied that the proposal would have no impact on the heritage significance of the adjoining public steps item. Accordingly, the parties' agreed decision was one the Court could have made in the proper exercise of its functions, requiring the proceedings to be disposed of in accordance with that agreement.

Court Disposition

Appeal upheld; Development Application No. 8.2017.131.1 approved subject to conditions of consent at Annexure A.

Orders

  • ["The applicant is granted leave to amend the application and rely on the plans listed under Condition 1 below the heading '1. The development shall be carried out in accordance with the following stamped approved plans and documentation, except where amended by later conditions of consent' at Annexure A." "The...