Brown v Mosman Municipal Council [2024] NSWLEC 1022

Land and Environment Court New South Wales

Medium Neutral Citation: Brown v Mosman Municipal Council [2024] NSWLEC 1022 Hearing dates: 19 December 2023 Date of orders: 25 January 2024 Decision date: 25 January 2024 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Application 8.2022.208.1, for the construction of an inground swimming pool and fence at 1 Cobbittee Street, Mosman, Lot 1 in DP191632, is determined by the grant of consent, subject to the conditions at Annexure A. (3) All exhibits except for A, B and G are returned. Catchwords: DEVELOPMENT APPLICATION – swimming pool beyond front building line – impacts on streetscape – impacts on landscape character – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Mosman Local Environmental Plan 2012, cl 1.2 Texts Cited: Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: Michelle Eileen Brown (1st Applicant) Michael John Brown (2nd Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent)

Solicitors: McKees Legal Solutions (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2023/219437 Publication restriction: No

JUDGMENT 1. The Applicants currently own and reside in a detached house on the corner of Middle Head Road and Cobbittee Street, Mosman, at which they intend to construct an inground swimming pool and associated fence in their front garden. The Respondent, Mosman Municipal Council, has refused development application, DA 8.2022.208.1 requesting permission to construct the pool and fence, and it is this refusal that is the subject of this Class 1 Appeal. 2. These proceedings have been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The site is located at 1 Cobbittee Street, Mosman, Lot 1 in DP 191632 on an irregularly shaped corner lot (Figure 1). The dwelling is located to the north-eastern corner of this lot, with its rear wall situated along the eastern boundary. To the south of the dwelling is a garage and studio, with a triangle of vegetated land towards the street corner beyond this. Relevantly, the impact of this configuration is that there is no rear garden on the property, and the sole useable private open space lies to the front (west) of the dwelling, facing Cobbittee Street. It is in this private open space to the west of the dwelling that the swimming pool is proposed. 4. Subsequent to the filing of this appeal, leave was granted by the Court for the Applicants to amend the application, and it is this amended application that is relied upon in these proceedings. Based on the amended application, the Respondent presses the following contentions: * The siting and location of the swimming pool, and * The visual impact of the pool fence in the streetscape. 1. An additional contention pertaining to the removal of an existing tree is proposed to be resolved by a condition of consent requiring the planting of a suitable replacement tree. Figure 1: Extract of Mosman Aerial Map, Exhibit 1, Annexure 3 showing the subject site in pink.