McNally v Mosman Municipal Council [2013] NSWLEC 1074

Land and Environment Court New South Wales

Medium Neutral Citation: McNally v Mosman Municipal Council [2013] NSWLEC 1074 Hearing dates: 12 and 13 March 2013 Decision date: 07 May 2013 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld in part. 2. The development application for alterations and additions to existing dwelling at 25 Bond Street, Mosman, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits D and F, may be returned. Catchwords: DEVELOPMENT APPLICATION - alterations and additions to an existing dwelling. Condition of consent requiring deletion of double carport. Impact on dwelling and streetscape. Legislation Cited: Environmental Planning and Assessment 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012 Cases Cited: Zhang v Canterbury Council [2001] NSWCA 167 Category: Principal judgment Parties: James and Beth McNally (Applicant)

Mosman Municipal Council (Respondent) Representation: Ms S Leis (Applicant) Mr M Whelan of Mark Whelan Lawyer Pty Ltd (Applicant)

Ms J Walsh of Pikes Verekers Lawyers (Respondent) File Number(s): 11253 of 2012

Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a condition imposed by Mosman Municipal Council (council) on its development consent issued on 22 June 2012 to a development application (8.2012.98.1) for a "New carport, front fence, timber arbour and landscaping to a dwelling house" at 25 Bond Street, Mosman (site). 2Condition 2 of the development consent requires: The double carport structure forward of the front building alignment is to be deleted. The double carport structure adds the additional bulk and scale to the site and streetscape and does not comply with the Mosman Residential Development Control Plan requirements for carport and garage design. 3The carport, which is required to be deleted, is proposed to be within the front setback of the site. It would be approximately 5m wide x 6.43m long and accommodate two cars. It is to be constructed with timber posts and terra cotta tiled roof and accessed off the existing vehicular kerb crossing. 4A hardstand was approved under DA 8.2004.219.1 but is different to the hardstand that exists on the site. The current development application seeks to enlarge and lower the hardstand area, which is not opposed by council. 5The key issues in dispute between the parties are whether the proposed carport dominates the house and is acceptable within the streetscape.