Kennedy v Mosman Municipal Council [2021] NSWLEC 1379

Land and Environment Court New South Wales

Medium Neutral Citation: Kennedy v Mosman Municipal Council [2021] NSWLEC 1379 Hearing dates: Conciliation conference on 7 and 8 June 2021 Date of orders: 29 June 2021 Decision date: 29 June 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal be allowed in part and refused in part. (2) Development consent to development application 8.2019.17.1 for alterations and additions to a dwelling house (Consent) at 5 Amaroo Crescent, Mosman be modified as follows: (a) Condition 2: The Construction Certificate plans shall detail the garage to have an internal floor to ceiling height of 2.4m. The roof over the garage shall be reduced to RL26.52. The section of roof over the entry, forward of the garage door may be of a height no greater than RL 26.80. Amended (8.2019.17.2 and not altered by appeal proceedings 2020/362670) (b) Condition 5: Delete. Replace with: The Construction Certificate plans shall be modified to: (a) Detail the new living area on the ground floor plan to be set back a minimum of 1.5m from the southern property boundary. This shall be reflected in the planter in condition 4. (b) Detail the balcony to the new living room on the ground floor plan (including the roof over) to be set back at a minimum of 1.5m from the southern property boundary, for the first 1m as measured from the western façade (window W14), then be set back at a minimum of 2.5m from the southern property boundary for the remainder of the balcony edge. This detail is to include a privacy screen for the southern edge of the ground floor balcony extending from the western façade (window W14) to comprise vertical blades which are a maximum of 25 % open, fixed at a 45 degree to the west. (c) Provide for a skylight portal above the new living area on the Ground Floor plan extending into the terrace setback area on the First Floor plan, with the design of the skylight to be in compliance with the requirements of the NSW Rural Fire Service Planning for Bushfire Protection November 2019. Amended (appeal proceedings 2020/362670). (3) Condition 6: Deleted. Replace with: No further works are to be undertaken in relation to the skylight well until a Building Information Certificate (BIC) has been issued by Council for the work. A BIC Application shall be submitted to Council for the work within 28 days of the date of approval of Modification 8.2019.17.2. Amended and replaced (appeal proceedings 2020/362670). (4) The Consent as modified is consolidated in the terms in Annexure A. (5) The application to modify the Consent to delete condition 7 and 8 be refused. Catchwords: DEVELOPMENT APPEAL – residential – appeal against conditions of consent or terms of approval of modification application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.18, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Mosman Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Andrew Joseph Kennedy (First Applicant) Claudia Edwina Kennedy (Second Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: M Seymour (Applicants) T Ward (Solicitor) (Respondent)