Wright & Anor v Mosman Council [2013] NSWLEC 1082

Wright & Anor v Mosman Council [2013] NSWLEC 1082

The appeal was dismissed because the proposed modified garage and granny flat was inconsistent with the R3 zone aims and objectives and the DCP controls: it was not compatible with the desired future character in bulk, height and scale, did not adequately regard local amenity, would visually dominate Somerset Street, had excessive wall height close to the adjoining boundary, and proposed a separate domicile in an upper storey of a garage contrary to the garage and carport controls or, alternatively, with adverse visual effect on the street.

Jurisdiction
Australia
Judgment Date
14 May 2013
Procedural Posture
Class 1 Appeal Against Refusal of Modification Application / Hearing Held on Site After S34 AA Conciliation Conference Terminated
Outcome
Appeal dismissed
Legal Topics
['bulk and Scale' 'streetscape Impact' 'garage and Granny Flat Development' 'development Control Plan Compliance' 'r3 Medium Density Residential Zone Objectives']
['planning and Environment Law' 'development Consent Modification' 'heritage Conservation'] ['bulk and Scale' 'streetscape Impact' 'garage and Granny Flat Development' 'development Control Plan Compliance' 'r3 Medium Density Residential Zone Objectives']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Modification Application / Hearing Held on Site After S34 AA Conciliation Conference Terminated

Legal Issues

  1. 1 ['Whether the proposed modification to increase the garage height and provide a granny flat within the roof space would have an unacceptable streetscape impact.' 'Whether the proposed modification was contrary to the planning controls, including controls applying to the Shadforth Street Conservation Area Townscape.' 'Whether adequate information was provided to show compliance with AS 2890.1:2004 and the Building Code of Australia, subject to possible conditions if approval were granted.']

Ratio Decidendi

The appeal was dismissed because the proposed modified garage and granny flat was inconsistent with the R3 zone aims and objectives and the DCP controls: it was not compatible with the desired future character in bulk, height and scale, did not adequately regard local amenity, would visually dominate Somerset Street, had excessive wall height close to the adjoining boundary, and proposed a separate domicile in an upper storey of a garage contrary to the garage and carport controls or, alternatively, with adverse visual effect on the street.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The application to modify Development Consent 8.2012.147.1 is refused.' 'The exhibits, other than exhibits A and 2 may be returned.']