Zhang v Mosman Municipal Council [2021] NSWLEC 1203

Zhang v Mosman Municipal Council [2021] NSWLEC 1203

The Court was satisfied that each cl 4.6 written request adequately demonstrated that compliance with the relevant development standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the contravention. The proposal was consistent with the objectives of the height, wall height and FSR standards and with the R2 Low Density Residential zone objectives, would reasonably maintain public and private views and local amenity, would minimise adverse bulk, scale and visual impacts, and gave rise to no unresolved scenic protection, contamination or Sydney Harbour Catchment jurisdictional barrier. The neighbour objections were adequately addressed by the...

Jurisdiction
Australia
Judgment Date
28 April 2021
Procedural Posture
Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No 8.2020.94.1 / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979; Principal Judgment
Outcome
Appeal upheld; development application No. 8.2020.94.1 approved subject to conditions; written requests for contraventions of height of buildings, wall height and floor space ratio development standards upheld.
Legal Topics
['development Application for Alterations and Additions to a Dwelling' 'contravention of Height of Buildings Development Standard' 'contravention of Wall Height Development Standard' 'contravention of Floor Space Ratio Development Standard' 'clause 4.6 Written Requests' 'neighbour Objection' 'scenic Protection' 'view Loss and Residential Amenity']
['planning and Environment' 'development Consent' 'land Use and Zoning'] ['development Application for Alterations and Additions to a Dwelling' 'contravention of Height of Buildings Development Standard' 'contravention of Wall Height Development Standard' 'contravention of Floor Space Ratio Development Standard' 'clause 4.6 Written Requests' 'neighbour Objection' 'scenic Protection' 'view Loss and Residential Amenity']

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Procedural Posture

Class 1 Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No 8.2020.94.1 / Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979; Principal Judgment

Legal Issues

  1. 1 ['Whether the written request seeking to justify contravention of the height of buildings development standard at cl 4.3 of Mosman Local Environmental Plan 2012 should be upheld under cl 4.6.' 'Whether the written request seeking to justify contravention of the wall height development standard at cl 4.3A of Mosman Local Environmental Plan 2012 should be upheld under cl 4.6.' 'Whether the written request seeking to justify contravention of the floor space ratio development standard at cl 4.4A of Mosman Local Environmental Plan 2012 should be upheld under cl 4.6.' 'Whether objecting submissions about planning controls, view impact, amenity, scenic protection and streetscape warranted refusal.' 'Whether other jurisdictional matters under Mosman Local Environmental Plan 2012, State Environmental Planning Policy No 55—Remediation of Land and Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 prevented approval.']

Ratio Decidendi

The Court was satisfied that each cl 4.6 written request adequately demonstrated that compliance with the relevant development standard was unreasonable or unnecessary and that sufficient environmental planning grounds justified the contravention. The proposal was consistent with the objectives of the height, wall height and FSR standards and with the R2 Low Density Residential zone objectives, would reasonably maintain public and private views and local amenity, would minimise adverse bulk, scale and visual impacts, and gave rise to no unresolved scenic protection, contamination or Sydney Harbour Catchment jurisdictional barrier. The neighbour objections were adequately addressed by the...

Court Disposition

Appeal upheld; development application No. 8.2020.94.1 approved subject to conditions; written requests for contraventions of height of buildings, wall height and floor space ratio development standards upheld.

Orders

  • ['The written request seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Mosman Local Environmental Plan 2012, prepared by Planning Ingenuity and dated 9 April 2021 is upheld.' 'The written request seeking to justify the contravention of the wall height development...