Houng-Lee & anor v Mosman Council [2013] NSWLEC 1195

Land and Environment Court New South Wales

Medium Neutral Citation: Houng-Lee & anor v Mosman Council [2013] NSWLEC 1195 Hearing dates: 3 October 2013 Decision date: 16 October 2013 Jurisdiction: Class 1 Before: Fakes C Decision: See paragraph [91] Catchwords: MODIFICATION: deletion of conditions of consent requiring a reduction in overall height of development; view sharing Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Rod Houng-Lee (First Applicant) Liddy Korner (Second Applicant) Mosman Council (Respondent) Representation: Applicants: Mr G McKee (Solicitor) Respondent: Ms J Walsh (Solicitor) Applicants: McKees Legal Solutions Respondent: Pikes & Verekers Lawyers File Number(s): 10577 of 2013

Judgment 1COMMISSIONER: In February 2013 Mosman Development Assessment Panel (MDAP), under delegation of Mosman Council, approved Development Application No 8.2012.250.1 for the demolition of an existing dwelling and the construction of a new dwelling with a covered terrace and associated landscaping at 24 Lavoni Street, Mosman (the site). 2The MDAP approved the DA subject to the inclusion of a number of conditions including Condition 2 which required: The Construction Certificate plans shall detail the following components of the development lowered by 500mm: · The top two levels of the dwelling house (Levels 2 & 3 - such that the upper roof does not exceed RL33.4 and the lower roof parapet does not exceed RL32.4) · The covered terrace in the rear yard; and · The lawn and drying court in the rear yard. 3The reduction in height was recommended in order to provide a reasonable sharing of views between the proposed development and properties upslope. 4The consent also imposed conditions relating to a retaining wall and a portion of the fence adjacent to the northern boundary, both in the front set back of the site (Conditions 4(c), 6(h), 4(f) and 6(l)). 5In May 2013, the applicants lodged Modification Application No 8.2012.250.2 seeking deletion of the conditions listed above as well as amendments to condition 6(d) in regards to landscaping and the inclusion of a canopy roof to provide shelter over the entry level door at level 2. 6In July 2013, the applicants appealed under s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the council's deemed refusal of the Modification Application. 7The Modification Application was subsequently referred to the MDAP for determination. In August the MDAP approved the modification application subject to discontinuance of the appeal and the retention of condition 2 of the original consent. The canopy was approved and condition 6(d) amended to enable the planting of three small trees rather than one large tree. The principle reason given in regards to condition 2 is: In respect to the requested amendment to the height of the building, landscaping and cabana the Panel considers that the enhancement of views to bedrooms as submitted by the applicant as reasons for the height adjustment is unreasonable having regard to the view loss that arises from living areas of adjoining properties. 8The appeal was not discontinued and the matter proceeded to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached the conciliation was terminated under s 34AA(2)(b) and the matter progressed to an on-site hearing.