Mosman Streetscape or Private Parking? Court’s Decision Draws the Line

Car Space Causes Controversy in Mosman

Case Note: CAHCJH Pty Ltd v Mosman Municipal Council

A recent Land and Environment Court decision highlights the importance of not underestimating the significance of contentions raised by a council in a merit appeal in the Land and Environment Court.  In CAHCJH Pty Ltd v Mosman Municipal Council [2024] NSWLEC 1517, the Court considered a development application to construct a single, off-street car parking space that was to be located inside the front boundary of a residential property in the Sydney suburb of Mosman.  The principal contention Mosman Municipal Council raised was the car space’s impact on “streetscape character” and “public amenity”.

What appeared at first glance to be an innocuous proposal turned out to be an unacceptable change to the street’s character. The case pitted the private interests of a property owner wanting to park their motor vehicle off the street against the public interest of the local community wanting to preserve a harmonious, established streetscape. On this occasion, the public interest prevailed.

The parties’ attempts to reach a conciliated agreement were unsuccessful, and the proceedings were decided after a contested hearing.  The Council led evidence from a town planning expert and local residents who claimed that the proposed car space would adversely impact streetscape, on-street parking, and public amenity.  The applicant led expert evidence from its own town planner, who claimed the proposal met all necessary planning requirements and had minimal impact on the streetscape.

The Court agreed with the Council’s case, deciding that:

• The proposal would negatively affect the streetscape by replacing a landscaped area with a hard surface, obscuring decorative elements of the dwelling and requiring unsympathetic changes to the front facade;

• The loss of an on-street space would reduce local parking availability and did not meet the goal required by the Mosman Development Control Plan of increasing parking spaces; and

• The proposal had the potential to set an undesirable precedent and may lead to further similar applications.

On the last point, the Court recited the commentary of Justice Lloyd in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] 121 LGERA 101, where his honour said:

“ … if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”

The Court found that both tests in Goldin were satisfied and that other examples of similar development pointed to by the applicant, which the Council approved, were distinguishable from the Raglan Street proposal.

The takeaway from this case is to not underestimate the strength of an opponent’s case.  Even seemingly minor issues can escalate into significant concerns when examined closely in a merit appeal before the Land and Environment Court. Always seek advice on prospects from a planning lawyer or town planner experienced in giving evidence in the Land and Environment Court.