Guiseppe and Maria Romeo v Pittwater Council [2011] NSWLEC 1078

Guiseppe and Maria Romeo v Pittwater Council [2011] NSWLEC 1078

The modifications proposed—namely, reinstating a residential unit and altering the external façade—materially and qualitatively change key elements of the development such that the Court is not satisfied the resulting building is 'substantially the same' as the one originally approved. As a result, the Court had no jurisdiction to grant the modification application under s96AA(1)(a).

Parties
Applicant: Guiseppe and Maria Romeo; Respondent: Pittwater Council
Jurisdiction
Australia
Judgment Date
05 April 2011
Procedural Posture
Appeal / Judgment After Hearing
Outcome
Appeal dismissed; application to modify development consent refused.
Legal Topics
Modification of Development Consent, Existing Use Rights, Jurisdiction – Substantially the Same Development, Impact on Heritage and Public Domain, View Sharing Principles
Planning and Environment Modification of Development Consent Existing Use Rights Jurisdiction – Substantially the Same Development Impact on Heritage and Public Domain View Sharing Principles

Case Brief

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Parties

Guiseppe and Maria Romeo

Applicant

Pittwater Council

Respondent

Procedural Posture

Appeal / Judgment After Hearing

Legal Issues

  1. 1 Whether the proposed modified development is 'substantially the same' as the originally approved development under s96AA(1)(a) of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the merits of the proposed modification satisfy requirements of s79C(1) of the Act if jurisdiction available

Ratio Decidendi

The modifications proposed—namely, reinstating a residential unit and altering the external façade—materially and qualitatively change key elements of the development such that the Court is not satisfied the resulting building is 'substantially the same' as the one originally approved. As a result, the Court had no jurisdiction to grant the modification application under s96AA(1)(a).

Court Disposition

Appeal dismissed; application to modify development consent refused.

Orders

  • Appeal dismissed.
  • Application No. N0051/05/S96/2 to modify the development consent granted by the Court on 12 January 2007 in Romeo v Pittwater Council [2007] NSWLEC 15 is refused.