Day v Pinglen Pty Ltd [1981] HCA 23

High Court of Australia Mason, Murphy, Aickin, Wilson and Brennan JJ. Day v Pinglen Pty Ltd [1981] HCA 23

ORDER Appeal allowed with costs against the first respondent. Order of the Supreme Court of New South Wales Court of Appeal Division set aside and in lieu thereof make the following orders:

1. That the appeal to that Court be allowed with costs against the first respondent.

2. That the judgment appealed from be set aside and that in lieu thereof:

(i) Declare that the development consent and building approval granted by the secondnamed defendant to Macfield (N.S.W.) Pty. Limited and dated 25 March 1976 in respect of the development of No. 1A Lavender Crescent, Lavender Bay has become void.

(ii) Order that the first and thirdnamed defendants be restrained until further order of a Court of competent jurisdiction from carrying on further building work on the land known as No. 1A Lavender Crescent, Lavender Bay, being the whole of the land comprised in Certificate of Title Volume 13875 Folio 78 without a valid consent from the secondnamed defendant.

(iii) Order that the firstnamed defendant pay the costs of the plaintiff.

Remit the matter to the Supreme Court to proceed in accordance with the judgment of this Court.

Cur.adv.vult.

The Court delivered the following written judgment:—

May 26 Mason, Murphy, Aickin, Wilson and Brennan JJ.

This is an appeal by special leave from the decision of the Court of Appeal of the Supreme Court of New South Wales (Hope and Mahoney JJ.A., Samuels J.A. dissenting) upholding the decision given against the appellant by Kearney J. at first instance. The central question in the case is whether an approval in respect of a building work has become void for want of "substantial commencement" within the meaning of that term in s. 315 of the Local Government Act 1919 N.S.W., as amended ("the Act").