Aplus Architecture Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1039

Land and Environment Court New South Wales

Medium Neutral Citation: Aplus Architecture Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1039 Hearing dates: Conciliation conference on 20 October, 30 November, 9 December and 16 December 2022 Date of orders: 2 February 2023 Decision date: 02 February 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) The appeal is upheld. (2) Development Application 8.2022.81.1 (as amended) for the demolition of existing structures and the construction of a mixed-use development comprising 29 residential apartments, 2 ground floor retail tenancies, basement car parking and associated stormwater infrastructure and landscaping works is approved, subject to the conditions of consent at Annexure A. (3) The Applicant's amended written request under cl 4.6 of the Mosman Local Environmental Plan 2012 (MLEP) prepared by Boston Blyth Fleming and dated 25 November 2022, seeking a variation of the development standard for height under clause 4.3 of the MLEP, is upheld. (4) The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) within 14 days of the date of these orders. (5) The Applicant is to pay the Respondent's costs thrown away by the amendment of the development application pursuant to section 8.15(3) of the EPA Act, in the agreed amount of $33,000. Catchwords: DEVELOPMENT APPEAL – shop top housing development – residential flat building – variation to height of building development standard – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 50 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, ss 34,39 Mosman Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.4B, 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 State Environmental Planning Policy Amendment (Water Catchments) 2022, cl 6.65 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings, cll 28, 30 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Texts Cited: Apartment Design Guide (July 2015) Planning Circular PS20-002 (May 2020) Mosman Business Centres Development Control Plan 2012 Category: Principal judgment Parties: Aplus Architecture Pty Ltd (Applicant) Mosman Council (Respondent) Representation: Counsel: H Irish (Applicant) R McCulloch (Solicitor) (Respondent)