Luigi Rosselli Pty Limited v Mosman Municipal Council [2022] NSWLEC 1502

Luigi Rosselli Pty Limited v Mosman Municipal Council [2022] NSWLEC 1502

The applicant’s written requests were found to adequately address the matters required under cl 4.6(3) of LEP 2012, demonstrating that compliance with the height and wall height standards was unreasonable or unnecessary due to prior excavation, and providing sufficient environmental planning grounds. The proposal was found to be consistent with the objectives of the contravened standards and the R2 zone; therefore, the appeal was upheld and development consent granted.

Parties
Applicant: Luigi Rosselli Pty Limited; Respondent: Mosman Municipal Council
Jurisdiction
Australia
Judgment Date
15 September 2022
Procedural Posture
Appeal Pursuant to S 8.7(1) Environmental Planning and Assessment Act 1979 / Principal Judgment Following Conciliation Conference
Outcome
Appeal upheld; development consent granted subject to conditions
Legal Topics
Development Application, Height of Buildings Standard, Wall Height Standard, Contravention of Development Standards, Zone Objectives, Conciliation Conference, Public Interest
Planning and Environment Development Application Height of Buildings Standard Wall Height Standard Contravention of Development Standards Zone Objectives Conciliation Conference Public Interest

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Parties

Luigi Rosselli Pty Limited

Applicant

Mosman Municipal Council

Respondent

Procedural Posture

Appeal Pursuant to S 8.7(1) Environmental Planning and Assessment Act 1979 / Principal Judgment Following Conciliation Conference

Legal Issues

  1. 1 Whether development consent should be granted for a proposal exceeding height and wall height development standards under Mosman Local Environmental Plan 2012
  2. 2 Whether the applicant's written requests adequately address cl 4.6 of LEP 2012
  3. 3 Whether the proposal is in the public interest as consistent with objectives of the development standards and the zone

Ratio Decidendi

The applicant’s written requests were found to adequately address the matters required under cl 4.6(3) of LEP 2012, demonstrating that compliance with the height and wall height standards was unreasonable or unnecessary due to prior excavation, and providing sufficient environmental planning grounds. The proposal was found to be consistent with the objectives of the contravened standards and the R2 zone; therefore, the appeal was upheld and development consent granted.

Court Disposition

Appeal upheld; development consent granted subject to conditions

Orders

  • The appeal is upheld.
  • Development Application No. 8.2021.436.1 for the demolition of an existing dwelling and construction of a new dwelling and swimming pool, at 4 Wyargine Street, Mosman (Lot 46 in DP 666727), is determined by the grant of consent, subject to the conditions of consent at Annexure A.