Mullins & Mullins v Mosman Municipal Council [2004] NSWLEC 414

Mullins & Mullins v Mosman Municipal Council [2004] NSWLEC 414

The amended proposal resolved the height, heritage, conservation area and primary view impact concerns, was largely contained within the existing roof profile when viewed from affected neighbouring properties, did not materially obstruct harbour views, and had acceptable bulk and scale despite the floor space ratio exceedance because the State Environmental Planning Policy No. 1 objection was upheld. There was no other sufficient reason for refusal, so the appeal was upheld and consent granted subject to conditions.

Jurisdiction
Australia
Judgment Date
28 July 2004
Procedural Posture
Class 1 Appeal Concerning Deemed Refusal of a Development Application for Alterations and Additions to a House / Ex Tempore Judgment After on Site Hearing
Outcome
Appeal upheld; development consent granted subject to conditions; costs submissions directed.
Legal Topics
['development Application' 'alterations and Additions to Dwelling House' 'harbour Views' 'floor Space Ratio' 'height Limit' 'heritage Item' 'conservation Area' 'state Environmental Planning Policy No. 1 Objection' 'costs']
['planning and Environment Law'] ['development Application' 'alterations and Additions to Dwelling House' 'harbour Views' 'floor Space Ratio' 'height Limit' 'heritage Item' 'conservation Area' 'state Environmental Planning Policy No. 1 Objection' 'costs']

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Procedural Posture

Class 1 Appeal Concerning Deemed Refusal of a Development Application for Alterations and Additions to a House / Ex Tempore Judgment After on Site Hearing

Legal Issues

  1. 1 ["Whether the proposed alterations and additions should be refused because of height exceedance, bulk and scale, streetscape impacts, effects on neighbours' harbour views, architectural unity, or impacts arising from proximity to a heritage item and conservation area." 'Whether non-compliance with the floor space ratio standard should be excused under a State Environmental Planning Policy No. 1 objection.' 'Whether the respondent should recover costs arising from the amended design and resumed hearing.']

Ratio Decidendi

The amended proposal resolved the height, heritage, conservation area and primary view impact concerns, was largely contained within the existing roof profile when viewed from affected neighbouring properties, did not materially obstruct harbour views, and had acceptable bulk and scale despite the floor space ratio exceedance because the State Environmental Planning Policy No. 1 objection was upheld. There was no other sufficient reason for refusal, so the appeal was upheld and consent granted subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions; costs submissions directed.

Orders

  • ['The appeal is upheld.' 'Consent is granted to alterations and additions to No.2 Milner St, Mosman as shown in drawings in Exhibit J being 0205/01, 02A, 03B, 04B, 05B, 06B, 07B, 08B, 09, 10, 11A, 12A by Owen Kimberley Architect as amended by and in accordance with the conditions in Annexure A hereto.' 'The exhibits...