Houng-Lee & anor v Mosman Council [2013] NSWLEC 1195

Houng-Lee & anor v Mosman Council [2013] NSWLEC 1195

The appeal should be upheld with amended conditions because a 150mm lowering of the top two levels, lawn, drying court and rear terrace area, plus a further 150mm reduction in the covered terrace structure, would achieve reasonable view sharing consistent with the aims and objectives of Mosman Local Environmental Plan 2012 and Mosman Residential Development Control Plan. The full 500mm lowering was not warranted because the overall panorama from 20 Awaba Street would improve after removal of the Liquidambar, the remaining view obstruction was not significant enough, the non-compliant roof portion would have negligible view impact, and amended terrace and landscaping controls would avoid...

Jurisdiction
Australia
Judgment Date
16 October 2013
Procedural Posture
Class 1 Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against the Council's Deemed Refusal of Modification Application No 8.2012.250.2 / On Site Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment With Directions Before Final Orders
Outcome
Appeal to be upheld once amended plans and consolidated conditions are finalised; final orders to be issued in Chambers.
Legal Topics
['deletion or Amendment of Development Consent Conditions' 'view Sharing' 'building Height' 'visual Bulk' 'privacy Impacts' 'landscaping Height' 'retaining Walls and Fences' 'streetscape Impacts']
['environmental Planning and Assessment' 'development Consent Modification' 'land and Environment'] ['deletion or Amendment of Development Consent Conditions' 'view Sharing' 'building Height' 'visual Bulk' 'privacy Impacts' 'landscaping Height' 'retaining Walls and Fences' 'streetscape Impacts']

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Procedural Posture

Class 1 Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against the Council's Deemed Refusal of Modification Application No 8.2012.250.2 / On Site Hearing After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated; Principal Judgment With Directions Before Final Orders

Legal Issues

  1. 1 ['Whether conditions requiring the top two levels of the dwelling, covered terrace, lawn and drying court to be lowered by 500mm should be deleted or amended.' 'Whether the modified development would cause unacceptable view loss or visual bulk impacts to 20 Awaba Street and 22A Awaba Street.' 'Whether landscaping heights would unacceptably affect views from 22A Awaba Street.' 'Whether proposed front retaining walls and the northern boundary fence would unacceptably affect the Lavoni Street streetscape.' 'Whether privacy impacts to 22 Lavoni Street could be addressed by design, fencing and landscaping changes.']

Ratio Decidendi

The appeal should be upheld with amended conditions because a 150mm lowering of the top two levels, lawn, drying court and rear terrace area, plus a further 150mm reduction in the covered terrace structure, would achieve reasonable view sharing consistent with the aims and objectives of Mosman Local Environmental Plan 2012 and Mosman Residential Development Control Plan. The full 500mm lowering was not warranted because the overall panorama from 20 Awaba Street would improve after removal of the Liquidambar, the remaining view obstruction was not significant enough, the non-compliant roof portion would have negligible view impact, and amended terrace and landscaping controls would avoid...

Court Disposition

Appeal to be upheld once amended plans and consolidated conditions are finalised; final orders to be issued in Chambers.

Orders

  • ['The applicant is to file and serve amended plans that reflect this decision by 23 October 2013.' 'The parties are to file and serve agreed consolidated conditions of consent by 30 October 2013 - both in hard copy and electronically in Word 97 format.' 'Final Orders will be issued in Chambers.']