Hopkins v Mosman Council [2020] NSWLEC 1476

Hopkins v Mosman Council [2020] NSWLEC 1476

The agreed decision was one the Court could have made because the cl 4.6 requests adequately addressed the statutory requirements for contravening the height and wall height standards, the proposed development was consistent with the objectives of the standards and the R2 Low Density Residential zone, no relevant environmental planning instrument prevented consent, and the remaining planning matters including heritage, FSR, bush fire protection, SEPP 55, Sydney Harbour Catchment and BASIX were satisfactorily addressed. The Court was therefore required to dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
09 October 2020
Procedural Posture
Class 1 Appeal Concerning Refusal of Development Application 8.2019.65.1 / Mandatory Conciliation Conference; Parties Reached Agreement Under S 34(3) of the Land and Environment Court Act 1979 and Sought Orders Giving Effect to That Agreement
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['dwelling House Development' 'conciliation Agreement' 'clause 4.6 Variation Request' 'height of Buildings Standard' 'wall Height Standard' 'heritage Impacts' 'floor Space Ratio' 'bush Fire Protection' 'sepp 55 Remediation' 'basix']
['planning and Environment' 'development Consent' 'land and Environment Court Procedure'] ['dwelling House Development' 'conciliation Agreement' 'clause 4.6 Variation Request' 'height of Buildings Standard' 'wall Height Standard' 'heritage Impacts' 'floor Space Ratio' 'bush Fire Protection' 'sepp 55 Remediation' 'basix']

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Procedural Posture

Class 1 Appeal Concerning Refusal of Development Application 8.2019.65.1 / Mandatory Conciliation Conference; Parties Reached Agreement Under S 34(3) of the Land and Environment Court Act 1979 and Sought Orders Giving Effect to That Agreement

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 written request under cl 4.6 of the Mosman Local Environmental Plan 2012 justified contravention of the height of buildings standard in cl 4.3.' 'Whether the written request under cl 4.6 of the Mosman Local Environmental Plan 2012 justified contravention of the wall height standard in cl 4.3A.' 'Whether the proposed development satisfied relevant planning controls and environmental planning instruments, including heritage, floor space ratio, bush fire protection, SEPP 55, Sydney Harbour Catchment and BASIX requirements.']

Ratio Decidendi

The agreed decision was one the Court could have made because the cl 4.6 requests adequately addressed the statutory requirements for contravening the height and wall height standards, the proposed development was consistent with the objectives of the standards and the R2 Low Density Residential zone, no relevant environmental planning instrument prevented consent, and the remaining planning matters including heritage, FSR, bush fire protection, SEPP 55, Sydney Harbour Catchment and BASIX were satisfactorily addressed. The Court was therefore required to dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['Leave is granted to the Applicants to rely upon amended architectural plans (revision E) prepared by Weir Phillips Architects dated 30 September 2020.' 'Leave is granted to the Applicants to rely upon amended landscape plans (revision G) prepared by Melissa Wilson Landscape Architect dated 1 October 2020.' 'Leave...