Simpson v Mosman Municipal Council [2022] NSWLEC 1736

Simpson v Mosman Municipal Council [2022] NSWLEC 1736

The appeal was dismissed because the proposed expansion of the basement would involve excessive excavation, including a large footprint and portions of excavation up to about two storeys, and the design and location of the excavation did not minimise cut and fill or site disturbance as required by Parts 4.2 and 5.14 of the Mosman Residential Development Control Plan 2012. The Court found that the reasons for the original consent in Simpson v Mosman Municipal Council [2022] NSWLEC 1241 did not assist because no merit assessment of the originally disputed excavation issues was made, and the Applicant's particular storage and technology needs did not justify approval of a modification...

Jurisdiction
Australia
Judgment Date
29 December 2022
Procedural Posture
Class 1 Development Appeal Pursuant to S 4.55(8) of the Environmental Planning and Assessment Act 1979 Seeking Approval for Modification of Development Consent 8.2021.316.1 / Decision After Hearing
Outcome
Application to amend the modification application approved; appeal dismissed; all exhibits retained.
Legal Topics
['development Appeal' 'modification Application' 'excavation' 'basement Expansion' 'floor Space Ratio' 'mosman Residential Development Control Plan 2012']
['planning and Environment Law' 'development Consent Modification'] ['development Appeal' 'modification Application' 'excavation' 'basement Expansion' 'floor Space Ratio' 'mosman Residential Development Control Plan 2012']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 4.55(8) of the Environmental Planning and Assessment Act 1979 Seeking Approval for Modification of Development Consent 8.2021.316.1 / Decision After Hearing

Legal Issues

  1. 1 ['Whether the proposed additional excavation for the residential basement was excessive and inappropriate for the Site having regard to its topography.' 'Whether the Proposed Modification was inconsistent with Objective O9 and Planning Control P21 of Part 4.2 Siting and Scale of the Mosman Residential Development Control Plan 2012.' 'Whether the Proposed Modification was inconsistent with Objective O1 and Planning Control P2 of Part 5.14 Excavation and Site Management of the Mosman Residential Development Control Plan 2012.' 'Whether the reasons for granting the original development consent assisted the Court under s 4.55(3) of the Environmental Planning and Assessment Act 1979.' 'Whether the asserted need for additional storage and plant space justified the proposed excavation.']

Ratio Decidendi

The appeal was dismissed because the proposed expansion of the basement would involve excessive excavation, including a large footprint and portions of excavation up to about two storeys, and the design and location of the excavation did not minimise cut and fill or site disturbance as required by Parts 4.2 and 5.14 of the Mosman Residential Development Control Plan 2012. The Court found that the reasons for the original consent in Simpson v Mosman Municipal Council [2022] NSWLEC 1241 did not assist because no merit assessment of the originally disputed excavation issues was made, and the Applicant's particular storage and technology needs did not justify approval of a modification...

Court Disposition

Application to amend the modification application approved; appeal dismissed; all exhibits retained.

Orders

  • ['Pursuant to s 39(2) of the Land and Environment Court Act 1979, exercising the function of Mosman Municipal Council as consent authority under s 113(4) of the Environmental Planning and Assessment Regulation 2021, approves the application for an amendment to modification application 8.2021.316.1 made on 7 October...