Miller & anor v Pittwater Council [2015] NSWLEC 1196

Land and Environment Court New South Wales

Medium Neutral Citation: Miller & anor v Pittwater Council [2015] NSWLEC 1196 Hearing dates: 6-7 May 2015 Date of orders: 30 May 2015 Decision date: 26 May 2015 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld. Modification application N0051/09/S96/2 is approved subject to the conditions of consent in Annexure A. Catchwords: MODIFICATION APPLICATION: subdivision consent - relocation and expansion of building footprints; loss of tree canopy; visual impact Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Pittwater Local Environmental Plan 2013 Cases Cited: Miller v Pittwater Council [2011] NSWLEC 1117 Miller & anor v Pittwater Council [2014] NSWLEC 1087 Category: Principal judgment Parties: Gabriel and Chelsea Miller (Applicants) Pittwater Council (Respondent) Representation: Counsel: Applicants: Mr M Staunton (Barrister) with Ms J Reid (Barrister) Respondent: Ms H Irish (Barrister)

Solicitors: Applicants: Tony Sattler & Associates Respondent: King & Wood Mallesons File Number(s): 10792 of 2014

Judgment 1. COMMISSIONER: In 2011 the Court granted consent to Development Application N0051/09 for a four-lot subdivision at 232-234 Barrenjoey Road, Newport (Miller v Pittwater Council [2011] NSWLEC 1117). In 2014, the Court, as constituted, approved Development Application N0108/13 for the subdivision of one of the lots created by the 2011 approval into two lots (Miller & anor v Pittwater Council [2014] NSWLEC 1087). 2. The appeal now before the Court seeks to modify the original consent to DA N0051/09 by modifying condition A1A to alter the plans upon which the consent relies: to demonstrate the as-built works undertaken on site; to relocate, resize and reshape each of the four previously approved building footprints; and to demonstrate a useable area of private open space associated with each dwelling. 3. The modification application N0051/09/S96/2 is made under s 96AA of the Environmental Planning and Assessment Act 1979 (the Act); the appeal to the Court against Pittwater Council's refusal of the modification application is pursuant to 97AA of the Act.