Land and Environment Court of New South Wales CITATION : Trenbath v Mosman Municipal Council [2004] NSWLEC 596 APPLICANT Anthony and Denise Trenbath PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10785 of 2004 CORAM: Murrell C KEY ISSUES: Development Consent :- Section 96 modifications to dwelling house approval LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11/10/2004 EX TEMPORE 10/11/2004 JUDGMENT DATE : APPLICANT Mr N Laird, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 11 October 2004 10785 of 2004 Anthony and DeniseTrenbath v Mosman Municipal Council JUDGMENT 1 This matter has come before me this morning as consent orders for the property known as 27 Redan Street, Mosman. The council issued a development consent for a dwelling house for alterations and additions to a semi-detached house on 4 June 2002. 2 The original development application was accompanied by SEPP 1 objections with respect to the total floor space of the area and the floor space ratio. The floor space ratio control provides for 0.5:1. The proposal consented to by the council was 0.77:1. The wall height also required a SEPP 1. The control required 7.2 m the proposal has a wall height of 8.3 m. In the original assessment report the council officer agreed that the SEPP 1 objections in the circumstances of the case should be supported and that the controls were unreasonable and unnecessary in circumstances of the case. 3 There was a previous s 96 application submitted to the council and council granted consent on 20 June 2003 to those modifications and one of those conditions was the replacement of the macadamia tree with another tree of 6.5 m. 4 The application that is before the Court this morning is a s 96 modification after the dwelling house has been completed. And there are a number of amendments or changes to the development as built and a comprehensive plan has been prepared in that respect to incorporate all the changes that have occurred known as Issue H drafted by Red Rock Design drawing No. 3 and there are two accompanying landscape plans with the s 96 application. 5 The alterations and changes to the dwelling that are in this s 96 application relate to an additional area for the laundry and minor modifications in terms of roof structures. There is an additional .02 FSR proposed to the building such that it brings the total FSR to 0.79:1. The council officer prepared a report and recommended approval. There was a Court appointed expert, Ms Laidlaw, who considered that the s 96 application should be approved. She did a comprehensive assessment and during the assessment process identified a number of other irregularities with the plan as approved and the dwelling as built. 6 Despite the fact many of the changes have been built the purpose of these proceedings is to look at the s 96 application. (The approval is not retrospective it is approval from today of such modifications). I see no reason why the Court should not enter into the consent orders. I have noted that there was an objector to the original application who objected to a three storey development. I have assessed the plans, in one portion there is a three storey element but I agree with the assessments of both Ms Laidlaw and the assessment officer that this would warrant refusal in terms of the increased bulk that results. 7 I do note the objector's concerns. He owns a property at the rear to the north of the subject property at No. 14 Balmoral Avenue Mosman. In a nutshell in many respects he is objecting to the original approval which he considered was inappropriate in terms of exceeding council's controls. 8 I have had regard to his concerns however I am satisfied that the proposed s 96 application is not one that would unreasonably lead to development by creep and therefore I am satisfied the s 96 application by consent orders should not be opposed by the Court. 9 It is noted during the proceedings that the landscaping condition 4 requires an additional tree at the rear on the northern boundary and this has not been picked up and as such the applicant is prepared to provide an amended landscape plan for the Court's approval which would form part of the approved plans for the s 96 application incorporating the Issue H architectural plan drawing No. 3 and landscape plan which is to be amended to reflect the previous s 96 amendment by the council. 10 Therefore on the basis of the evidence I am satisfied that the practise direction with respect to consent orders has been complied with in that the objectors who made objections to the original application and the s 96 application was also notified and that people had the opportunity to come to the Court. I have also read the objection of the owner of No. 14 Balmoral Avenue. 11 Therefore on the basis of the Court's assessment the consent orders proposed by the applicant and the council are agreed to. 12 The formal orders of the Court will be on the receipt of the amended landscape plan: 1. The appeal in respect of the s 96 application submitted to Mosman Municipal Council for an amendment to a consent issued in 2002 is upheld. 2. Consent is granted to the modifications as shown in the architectural plans prepared by Red Rock Design dated August 2004, drawing No. 03, Issue H and the amended landscape plan drawn by David Cook, drawing No. 09 dated 28 October 2004. 3 The exhibits with the exception of Exhibits 2 and A are returned to the parties. ____________________________ J S Murrell Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.