Matsoukas v Woollahra Municipal Council [2010] NSWLEC 1255

Land and Environment Court of New South Wales

CITATION : Matsoukas v Woollahra Municipal Council [2010] NSWLEC 1255

APPLICANT Harry Matsoukas PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 10329, 10500 of 2010

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT MODIFICATION :-

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Woollahra Residential Development Control Plan 2003

CASES CITED: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

DATES OF HEARING: 10 September 2010

DATE OF JUDGMENT: 13 September 2010

APPLICANT Ms J Reid, solicitor LEGAL REPRESENTATIVES: Pikes Lawyers RESPONDENT Mr P Rigg, solicitor Norton Rose

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

13 September 2010

10329 of 2010 Matsoukas v Woollahra Municipal Council 10500 of 2010 Matsoukas v Woollahra Municipal Council

JUDGMENT 1 Commissioner: These appeals are from the refusal by the Woollahra Municipal Council (the Council) of two applications to modify a development consent for the erection of a dwelling house at 38 Fitzwilliam Road Vaucluse (the site). 2 The proposed erection of a dwelling house on the site has a long history. The first approval for the demolition of the existing single storey dwelling house and the erection of a new three storey dwelling house and excavated garage was granted by the Council in 1997 (BA 687/1997). That approval has been the subject of a number of modifications approved by the Council, which are detailed in the Council's Statement of Facts and Contentions filed in each of the proceedings. In 2004 the Council approved development application DA 161/2004 for alterations and additions to the approved dwelling house, which included some unauthorised works. In 2008 the Court upheld three appeals in respect of applications for modification of the then current consents pursuant to an agreement reached between the parties under s34(3) of the Land and Environment Court Act 1979 (the Court Act), and approved plans which required rectification of unauthorised works on the site. 3 In these proceedings, the two applications made to the Council were stated to have been made under s96AA of the Environmental Planning and Assessment Act 1979 (the Act). The applications to the Court, and the Council's Statement of Facts and Contentions filed in both proceedings, identify the appeals as being made under s96 of the Act. The applications seek to modify the development consent granted by the Council in 2004, as modified by the Court in 2008. The parties have confirmed that the applications before the Court are made pursuant to s96(6) of the Act, relying on s96(1A) of the Act.