2 Phillip Rise Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28

Land and Environment Court New South Wales

Medium Neutral Citation: 2 Phillip Rise Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28 Hearing dates: 12 December 2022 Decision date: 22 March 2023 Jurisdiction: Class 1 Before: Moore J Decision: See directions at [73] Catchwords: APPEAL - Appeal against the refusal of application for a construction certificate ‑ Acting Commissioner holds that development consent proposed to found the construction certificate had lapsed ‑ Applicant challenges Acting Commissioner's conclusion as wrong at law ‑ Acting Commissioner concluded that contamination testing did not satisfy a condition of the development consent because the testing had not been carried out by the then owner of the site for the purposes of satisfying the development consent - carrying out contamination testing in satisfaction of the condition of the development consent relied upon by the Applicant as demonstrating the development consent had not lapsed ‑ condition required that contamination testing be undertaken ‑ purpose for which the relevant contamination testing was carried out ‑ carrying out of contamination testing which complied with the terms of the development consent condition as a matter of fact, in its scope sufficient to satisfy the condition no matter by whom and why that testing was carried out - appeal upheld ‑ directions given to permit construction certificate to be uploaded to the Planning Portal and the making of orders to finalise the proceedings COSTS ‑ costs in s 56A appeals follow the event - Respondent ordered to pay the Applicant's costs of the appeal Legislation Cited: Environmental Planning and Assessment Act 1979, s 99 Land and Environment Court Act 1979, s 56A Cases Cited: 2 Phillip Rise Pty Ltd v Kempsey Shire Council [2022] NSWLEC 1107 Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Category: Principal judgment Parties: 2 Phillip Rise Pty Ltd (Applicant) Kempsey Shire Council (Respondent) Representation: Counsel: Mr R Lancaster SC (Applicant) Mr M Seymour, barrister (Respondent)