Rose Saltman and Michael Wiles v Mosman Council [2016] NSWLEC 1632

Rose Saltman and Michael Wiles v Mosman Council [2016] NSWLEC 1632

Although the approval of a garage at 1 Holt Avenue triggered a special circumstance under s 6.9 P2(a) of the Mosman Residential Development Control Plan 2012, that approval did not justify further removal of significant fabric from the exposed natural rockface in front of 3 Holt Avenue. The rockface was an important and prominent feature of the Holt Avenue Divided road heritage item, and the proposal or amended proposal would destroy a prominent and important portion of it, causing an unacceptable adverse impact on the heritage significance of the item and its setting.

Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 8.2016.5.1 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Terminated Without Agreement; Hearing Held Forthwith
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application for Basement Garage' 'excavation of Natural Rockface on Council Land' 'heritage Significance of Holt Avenue Divided Road' 'mosman Local Environmental Plan 2012 Cl 5.10' 'mosman Residential Development Control Plan 2012 S 6.9']
['planning and Environment' 'heritage Conservation' 'development Consent'] ['development Application for Basement Garage' 'excavation of Natural Rockface on Council Land' 'heritage Significance of Holt Avenue Divided Road' 'mosman Local Environmental Plan 2012 Cl 5.10' 'mosman Residential Development Control Plan 2012 S 6.9']

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Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 8.2016.5.1 / Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Terminated Without Agreement; Hearing Held Forthwith

Legal Issues

  1. 1 ['Whether excavation into the exposed natural rockface on Council land to construct a basement garage would have an unacceptable impact on the heritage significance of the Holt Avenue Divided road heritage item and its setting.' 'Whether the prior approval of a garage at 1 Holt Avenue constituted a special circumstance under s 6.9 P2(a) of the Mosman Residential Development Control Plan 2012 justifying further excavation of the rockface.' "Whether an amended proposal incorporating Council's heritage expert's suggestions would adequately address the heritage impacts."]

Ratio Decidendi

Although the approval of a garage at 1 Holt Avenue triggered a special circumstance under s 6.9 P2(a) of the Mosman Residential Development Control Plan 2012, that approval did not justify further removal of significant fabric from the exposed natural rockface in front of 3 Holt Avenue. The rockface was an important and prominent feature of the Holt Avenue Divided road heritage item, and the proposal or amended proposal would destroy a prominent and important portion of it, causing an unacceptable adverse impact on the heritage significance of the item and its setting.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. 8.2016.5.1 for the excavation into the rock face on Council land to construct a basement garage at 3 Holt Avenue, Mosman, is refused.' 'The exhibits, other than exhibits 1, A and B, are returned.']