Sit Family Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1198

Sit Family Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1198

The Court upheld both appeals because the Applicant demonstrated that the Rumpus Room and Plant Room modifications were acceptable on merit and satisfied the jurisdictional requirement that the modified development remain substantially the same as the originally approved development. The Rumpus Room modification involved minor entry reorganisation and enclosure of an undercroft with little discernible visual consequence, and the FSR variation was acceptable. The Plant Room excavation was within the approved building footprint and was not inconsistent with the relevant excavation and siting objectives of the Mosman Residential Development Control Plan 2012.

Jurisdiction
Australia
Judgment Date
28 April 2023
Procedural Posture
Class 1 Appeals Under S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning Modification Applications Under S 4.55(8) / Final Hearing After Unsuccessful S 34 AA Conciliation Conference
Outcome
Both appeals upheld; both modification applications approved.
Legal Topics
['modification Applications' 'dwelling House' 'floor Space Ratio' 'excavation' 'substantially the Same Test' 'mosman Local Environmental Plan 2012' 'mosman Residential Development Control Plan 2012']
['environmental Planning and Assessment' 'land and Environment' 'development Consent Modification'] ['modification Applications' 'dwelling House' 'floor Space Ratio' 'excavation' 'substantially the Same Test' 'mosman Local Environmental Plan 2012' 'mosman Residential Development Control Plan 2012']

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Procedural Posture

Class 1 Appeals Under S 8.9 of the Environmental Planning and Assessment Act 1979 Concerning Modification Applications Under S 4.55(8) / Final Hearing After Unsuccessful S 34 AA Conciliation Conference

Legal Issues

  1. 1 ['Whether the Court had power to modify Development Consent DA 008.2020.185.001.' 'Whether the modified development was substantially the same development as originally approved for the purposes of s 4.55 of the Environmental Planning and Assessment Act 1979.' 'Whether the floor space ratio exceedance associated with the Rumpus Room modification was acceptable on merit.' 'Whether the extent of excavation for the Plant Room modification was acceptable under the Mosman Residential Development Control Plan 2012.']

Ratio Decidendi

The Court upheld both appeals because the Applicant demonstrated that the Rumpus Room and Plant Room modifications were acceptable on merit and satisfied the jurisdictional requirement that the modified development remain substantially the same as the originally approved development. The Rumpus Room modification involved minor entry reorganisation and enclosure of an undercroft with little discernible visual consequence, and the FSR variation was acceptable. The Plant Room excavation was within the approved building footprint and was not inconsistent with the relevant excavation and siting objectives of the Mosman Residential Development Control Plan 2012.

Court Disposition

Both appeals upheld; both modification applications approved.

Orders

  • ['In proceedings 2022/290750, the appeal is upheld.' 'Modification Application numbered DA 008.2020.185.001.2 (the Plant Room) is approved and the Development Consent granted to Development Application 008.2020.185.001 is modified as set out in Annexure "A" to the judgment.' 'In proceedings 2022/290750, the exhibits...