Moorgate Mosman Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1188

Land and Environment Court New South Wales

Medium Neutral Citation: Moorgate Mosman Pty Ltd v Mosman Municipal Council [2023] NSWLEC 1188 Hearing dates: 24 and 25 January 2023 Date of orders: 21 April 2023 Decision date: 21 April 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) The development application, DA 8.2022.85.1, for the demolition of existing buildings and the construction of a part two and part four storey residential flat building comprising six dwellings and basement car parking at 187 & 189 Spit Road, Mosman (Lots 11 & 12 in DP 580452) is determined by the grant of consent subject to the conditions in Annexure A. (3) The exhibits are returned with the exception of Exhibits A and 1. Catchwords: DEVELOPMENT APPLICATION – Demolition of existing structures and construction of a residential flat building – whether the resulting impacts to public and views are reasonable – breach in minimum floor space ratio, building height and wall height development standards – written request for variation of standards – merit assessment – public interest – appeal upheld Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 8.9 Environmental Planning and Assessment Regulation 2000, cll 3, 49, 50 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, ss 34AA, 39 Mosman Local Environmental Plan 2012, cll 4.1, 4.3, 4.3A, 4.4, 4.6, 6.4, 6.6 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 No 65—Design Quality of Residential Apartment Development, cll 28, 30, Sch 1 Cases Cited: Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 Texts Cited: Apartment Design Guide 2015 Mosman Community Participation Plan 2020 Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: Moorgate Mosman Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: N Eastman (Applicant) R McCulloch (Solicitor) (Respondent)