Boustred v Mosman Municipal Council [2008] NSWLEC 1365

Boustred v Mosman Municipal Council [2008] NSWLEC 1365

The original proposal would cause unacceptable loss of valuable water/land interface views from 12 Fairfax Road, but a 400 mm reduction in overall height would retain the majority of Middle Harbour views and satisfy the relevant view sharing objectives while causing minimal impact on the proposed dwelling's amenity. The reduced non-compliances with wall height and storey controls were justified by a well founded SEPP 1 objection, and the amendments were sufficiently specific to be imposed as conditions of consent rather than by deferred commencement.

Jurisdiction
Australia
Judgment Date
29 July 2008
Procedural Posture
Appeal Against Deemed Refusal of Development Application No. 8.2000.161 / Judgment
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'demolition of Existing Dwelling and Construction of New Dwelling' 'view Loss' 'view Sharing' 'development Standards' 'sepp 1 Objection']
['planning and Environment Law'] ['development Application' 'demolition of Existing Dwelling and Construction of New Dwelling' 'view Loss' 'view Sharing' 'development Standards' 'sepp 1 Objection']

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Procedural Posture

Appeal Against Deemed Refusal of Development Application No. 8.2000.161 / Judgment

Legal Issues

  1. 1 ['Whether the proposed dwelling would cause unacceptable view loss to properties on the opposite side of Fairfax Road.' 'Whether a 400 mm reduction in the proposed building height would satisfy the Residential DCP view sharing objectives.' 'Whether the SEPP 1 objection to maximum wall height and number of storeys development standards was well founded.' 'Whether the required amendments should be imposed as a condition of consent rather than a deferred commencement condition.']

Ratio Decidendi

The original proposal would cause unacceptable loss of valuable water/land interface views from 12 Fairfax Road, but a 400 mm reduction in overall height would retain the majority of Middle Harbour views and satisfy the relevant view sharing objectives while causing minimal impact on the proposed dwelling's amenity. The reduced non-compliances with wall height and storey controls were justified by a well founded SEPP 1 objection, and the amendments were sufficiently specific to be imposed as conditions of consent rather than by deferred commencement.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application 8.2008.16.1 for the demolition of an existing dwelling and the erection of a new dwelling at 31 Fairfax Road Mosman is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of exhibits 1, 5 and B.']