22 Redan St Pty Ltd v Mosman Municipal Council; 22 Redan St Pty Ltd The Trustee for 22 Redan St Unit Trust v Mosman Municipal Council [2024] NSWLEC 1013

22 Redan St Pty Ltd v Mosman Municipal Council; 22 Redan St Pty Ltd The Trustee for 22 Redan St Unit Trust v Mosman Municipal Council [2024] NSWLEC 1013

The development application appeal was upheld because the Court was satisfied that the cl 4.6 written requests adequately addressed the required matters for the wall height and floor space ratio contraventions, that the proposed development remained consistent with the objectives of the relevant standards and the R3 Medium Density zone, and that the other jurisdictional prerequisites including scenic protection, heritage and earthworks matters were satisfied. The modification application appeal was dismissed because the Court was not satisfied, having regard to quantitative and qualitative differences including the additional dwelling, increased floor space ratio and gross floor area,...

Jurisdiction
Australia
Judgment Date
23 January 2024
Procedural Posture
Class 1 Development Appeals / Decision on Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 and Modification Application Appeal Under S 4.55(8) of the Environmental Planning and Assessment Act 1979
Outcome
Development application appeal upheld and consent granted subject to conditions; modification application appeal dismissed.
Legal Topics
['development Appeal' 'modification of Development Consent' 'clause 4.6 Written Request' 'wall Height Development Standard' 'floor Space Ratio Development Standard' 'substantially the Same Development' 'residential Flat Building' 'earthworks' 'scenic Protection Area' 'heritage']
['planning and Environment Law' 'development Control' 'local Government'] ['development Appeal' 'modification of Development Consent' 'clause 4.6 Written Request' 'wall Height Development Standard' 'floor Space Ratio Development Standard' 'substantially the Same Development' 'residential Flat Building' 'earthworks' 'scenic Protection Area' 'heritage']

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Procedural Posture

Class 1 Development Appeals / Decision on Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 and Modification Application Appeal Under S 4.55(8) of the Environmental Planning and Assessment Act 1979

Legal Issues

  1. 1 ["Whether the contravention of the wall height development standard in cl 4.3A of the Mosman Local Environmental Plan 2012 was justified by the applicant's cl 4.6 written request." "Whether the contravention of the floor space ratio development standard in cl 4.4 of the Mosman Local Environmental Plan 2012 was justified by the applicant's cl 4.6 written request." 'Whether other jurisdictional prerequisites for the development application appeal, including scenic protection, heritage and earthworks considerations, were satisfied.' 'Whether the proposed modification was substantially the same development as the development for which consent was originally granted for the purposes of s 4.55(2) and (8) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The development application appeal was upheld because the Court was satisfied that the cl 4.6 written requests adequately addressed the required matters for the wall height and floor space ratio contraventions, that the proposed development remained consistent with the objectives of the relevant standards and the R3 Medium Density zone, and that the other jurisdictional prerequisites including scenic protection, heritage and earthworks matters were satisfied. The modification application appeal was dismissed because the Court was not satisfied, having regard to quantitative and qualitative differences including the additional dwelling, increased floor space ratio and gross floor area,...

Court Disposition

Development application appeal upheld and consent granted subject to conditions; modification application appeal dismissed.

Orders

  • ['In DA Appeal Proceedings 2022/385118, the written request, pursuant to cl 4.6, to justify the contravention of the development standard in cl 4.3A of MLEP is upheld.' 'In DA Appeal Proceedings 2022/385118, the written request, pursuant to cl 4.6, to justify the contravention of the development standard in cl 4.4...