Wellstone Mosman Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1675

Wellstone Mosman Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1675

The Court was satisfied that the written requests under cl 4.6 adequately demonstrated that compliance with the height and wall height development standards was unreasonable or unnecessary and that there were sufficient environmental planning grounds for the contraventions, because the exceedances were a justified response to the site's steep topography and allowed an FSR-compliant building envelope to be located where view impacts across the site to the harbour were minimised. The Court was also satisfied that the proposal was consistent with the objectives of the height of buildings development standard and the R3 zone, including view sharing, minimising visual impact, and compatibility...

Jurisdiction
Australia
Judgment Date
30 December 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and the Hearing Proceeded
Outcome
Appeal upheld; development application approved subject to conditions of consent at Annexure A.
Legal Topics
['development Application for Residential Flat Building' 'clause 4.6 Variation Requests' 'height of Buildings Development Standard' 'wall Height Development Standard' 'view Sharing' 'integrated Development' 'bush Fire Safety' 'residential Amenity']
['planning and Environment' 'development Consent' 'land Use'] ['development Application for Residential Flat Building' 'clause 4.6 Variation Requests' 'height of Buildings Development Standard' 'wall Height Development Standard' 'view Sharing' 'integrated Development' 'bush Fire Safety' 'residential Amenity']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and the Hearing Proceeded

Legal Issues

  1. 1 ['Whether leave should be granted to amend the application to rely on amended architectural and landscape plans and amended written requests to vary development standards.' "Whether the applicant's written request adequately addressed cl 4.6(3) of Mosman Local Environmental Plan 2012 for contravention of the height of buildings development standard." 'Whether the proposed development was in the public interest because it was consistent with the objectives of the height of buildings development standard and the R3 Medium Density Residential zone.' "Whether the applicant's written request adequately addressed cl 4.6(3) of Mosman Local Environmental Plan 2012 for contravention of the wall height development standard." 'Whether the proposed development should be approved subject to conditions of consent.']

Ratio Decidendi

The Court was satisfied that the written requests under cl 4.6 adequately demonstrated that compliance with the height and wall height development standards was unreasonable or unnecessary and that there were sufficient environmental planning grounds for the contraventions, because the exceedances were a justified response to the site's steep topography and allowed an FSR-compliant building envelope to be located where view impacts across the site to the harbour were minimised. The Court was also satisfied that the proposal was consistent with the objectives of the height of buildings development standard and the R3 zone, including view sharing, minimising visual impact, and compatibility...

Court Disposition

Appeal upheld; development application approved subject to conditions of consent at Annexure A.

Orders

  • ['The applicant is granted leave to amend the application to rely on the architectural and landscape plans listed in condition 1 of Annexure A and the amended written requests to vary development standards.' 'The appeal is upheld.' 'Development Application No. 8.2019.43.1 for the demolition of existing structures,...