Stone v Mosman Municipal Council [2022] NSWLEC 1046

Stone v Mosman Municipal Council [2022] NSWLEC 1046

The Court upheld the cl 4.6 request and approved the development application because the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The cl 4.6 written request adequately demonstrated that strict compliance with the 8.5m height standard was unreasonable or unnecessary, that there were sufficient environmental planning grounds for the 8.8m height, and that the proposal was in the public interest because it was consistent with the objectives of cl 4.3 and the R3 Medium Density Residential zone. The Court was also satisfied that the identified jurisdictional prerequisites and relevant planning controls had been addressed.

Jurisdiction
Australia
Judgment Date
01 February 2022
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of Development Application No 8.2020.220.1 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; cl 4.6 request upheld; development application approved subject to conditions of consent in Annexure 'A'.
Legal Topics
['residential Development Alterations and Additions' 'clause 4.6 Written Request to Vary Maximum Building Height Development Standard' 'flood Planning' 'sydney Harbour Catchment Planning Controls' 'state Environmental Planning Policy No. 55 Remediation of Land' 'basix Requirements' 'section 34 Conciliation Agreement']
['planning and Environment Law' 'development Consent' 'land and Environment Court Procedure'] ['residential Development Alterations and Additions' 'clause 4.6 Written Request to Vary Maximum Building Height Development Standard' 'flood Planning' 'sydney Harbour Catchment Planning Controls' 'state Environmental Planning Policy No. 55 Remediation of Land' 'basix Requirements' 'section 34 Conciliation Agreement']

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of Development Application No 8.2020.220.1 / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

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 cl 4.6 written request adequately justified contravention of the maximum building height development standard in cl 4.3 of the Mosman Local Environmental Plan 2012.' 'Whether the proposed development satisfied the relevant planning controls and jurisdictional prerequisites, including provisions relating to Sydney Harbour Catchment, contamination, BASIX, zoning, flood planning, acid sulfate soils, natural watercourse and scenic protection area.']

Ratio Decidendi

The Court upheld the cl 4.6 request and approved the development application because the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The cl 4.6 written request adequately demonstrated that strict compliance with the 8.5m height standard was unreasonable or unnecessary, that there were sufficient environmental planning grounds for the 8.8m height, and that the proposal was in the public interest because it was consistent with the objectives of cl 4.3 and the R3 Medium Density Residential zone. The Court was also satisfied that the identified jurisdictional prerequisites and relevant planning controls had been addressed.

Court Disposition

Appeal upheld; cl 4.6 request upheld; development application approved subject to conditions of consent in Annexure 'A'.

Orders

  • ['The request pursuant to clause 4.6 of the Mosman Local Environmental Plan 2012 to vary the development standard for height contained in clause 4.3 thereof, as prepared by Bonus + Associates dated 10 November 2021, is upheld.' 'The appeal is upheld.' "Development Application No. 8.2020.220.1 for alterations to an...