Karellas & Anor v Mosman Council [2016] NSWLEC 1234

Land and Environment Court New South Wales

Medium Neutral Citation: Karellas & Anor v Mosman Council [2016] NSWLEC 1234 Hearing dates: 13 April 2016 Date of orders: 31 May 2016 Decision date: 29 April 2016 Jurisdiction: Class 1 Before: Morris C Decision: See paragraphs 89 Catchwords: MODIFICATION OF CONSENT CONDITIONS: building height; visual and amenity impacts of proposed pool and pool house Legislation Cited: Land and Environment Court Act 1979; Mosman Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979; Swimming Pools Act 1992 Cases Cited: Bettar v Council of the City of Sydney [2014] NSWLEC 1070; Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; Morris v Leichhardt Council [2008] NSWLEC 1106; Tenacity Consulting v Warringah [2004] NSWLEC 140 Texts Cited: Mosman Residential Development Control Plan Category: Principal judgment Parties: Andreas Karellas Helen Karellas (Applicants)

Mosman Council (Respondent) Representation: Counsel: Mr M Staunton (Applicants)

Solicitors: Mr T Sattler, Sattler & Associates (Applicants)

Ms J Walsh, Pikes & Verekers Lawyers(Respondent) File Number(s): 11125 of 2015

Judgment 1. Mr and Mrs Karellas own property known as No 9 Burran Avenue, Mosman and hold a development consent, (8.2014.223.1) which authorises alterations and additions to a dwelling house on that land comprising ground and first floor additions, swimming pool and pool house and landscaping works. That consent was granted on 17 June 2015. 2. Despite the wording of the approved development, condition 2 of the consent requires the deletion from all approved drawings, the pool house, swimming pool, tank room pool room, associated stairs and other structures. Condition 3 requires amendment to the roof of the proposed dwelling so that it has a pitch of 3 degrees from the same pitching point indicated on the approved plans and lowering the chimney. 3. Mr and Mrs Karellas lodged an application on 7 October 2015 with the council that sought to modify those two conditions and as that application had not been determined in the prescribed period they lodged an appeal on 4 December 2015 against its deemed refusal. 4. The matter commenced as a conciliation conference pursuant to the provisions of s34AA of the Land and Environment Court Act 1979 with resolution of some but not all of the contentions. No agreement was reached in relation to the majority of contentions and the matter proceeded to hearing. The parties agreed that the matters discussed in the conciliation process would be evidence in the proceedings and as the result of those discussions, the applicant proposed a number of amendments to the proposal during the hearing.