JH Consolidated Pty Ltd v Mosman Municipal Council [2011] NSWLEC 1268

Land and Environment Court New South Wales

Medium Neutral Citation: JH Consolidated Pty Ltd v Mosman Municipal Council [2011] NSWLEC 1268 Hearing dates: 8, 9 August 2011 Decision date: 08 September 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed Catchwords: Development application - dwelling house - whether sufficient information to enable assessment of impacts - development standards - wall and building height - number of storeys - whether SEPP 1 objections should be upheld Legislation Cited: Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 1998 State Environmental Planning Policy No 1 - Development Standards Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 Category: Principal judgment Parties: JH Consolidated Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Mr J Hones, Hones La Hood (Applicant) Mr J Cole, HWL Ebsworth (Respondent) File Number(s): 10466 of 2011

Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the respondent Council of consent to Development Application 8.2011.74.1 for the partial demolition of an existing dwelling and construction of a new dwelling at Lot 1 DP 206347,13 Balmoral Avenue Mosman (the site). 2The proposed new dwelling incorporates four levels, with garage, storeroom, rumpus room and vehicle access and turning bay on level 1; kitchen, dining, living and laundry on level 2; study and three bedrooms with ensuites on level 3; and bedroom and ensuite on level 4. The proposed development included landscaping works, including excavation for a swimming pool and construction of retaining walls. 3The site is a battleaxe allotment incorporating an access handle approximately 3.67m wide from Balmoral Avenue. The site has a significant west to east slope of approximately 18m with an average gradient of 49 percent. The site presently contains a two storey detached masonry dwelling with parking for two cars. There are a number of significant trees on the site. 4The allotment immediately to the south is 15 Balmoral Avenue, on which there is a two storey dwelling. A development application for demolition of the existing dwelling on that site and construction of a new two storey dwelling, lodged with the respondent on 4 April 2011, was withdrawn. The allotments to the west of the site are 43 and 41 Redan Street. The allotments lower down the slope and to the east are 4 and 6 Ryan Avenue. The allotment to the north is 40 Upper Almora Avenue, which is occupied by a four storey residential flat building. On 2 September 2008 the Council approved under existing use rights provisions a development application for demolition of that flat building and construction of a new four storey residential flat building incorporating basement car parking on that site. 5The development application was received by the respondent on 6 April 2011 and was publicly notified from 18 April to 3 May 2011. The Class 1 appeal was filed with the Court on 2 June 2011. On 28 July 2011 leave was granted to the applicant to rely on amended plans to provide additional information in response to the respondent's Statement of Facts and Contentions. 6The issues between the parties are whether the applicant has provided sufficient information to enable a proper assessment of impacts of the proposed development including impacts of construction on the significant trees on the site, and stormwater; and whether the non-compliance with the wall and building height, number of storeys, floor space ratio, and landscaping controls can be justified.