EMERITUS PTY LTD v SOUTH SYDNEY COUNCIL [1994] NSWCA 89

EMERITUS PTY LTD v SOUTH SYDNEY COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, POWELL and COLE JJA 23 November 1994, 23 November 1994

[1994] NSWCA 89 No enforceable expectation.

Gleeson CJ In this matter I will ask Cole JA to give the first judgment.

Cole JA On 9 August 1989 South Sydney City Council granted development consentfor the demolition of an existing building and the erection on the property known as 28 Billyard Avenue, Elizabeth Bay, of seven residential units. On 11 August 1989 Emeritus Pty Ltd (Emeritus), the owner of 26 Billyard Avenue Elizabeth Bay, commenced proceedings in the Class Four Jurisdiction of the Land and Environment Court seeking a declaration that the resolution of Council was void, and an order that the Council be restrained from dealing with the building application lodged by the developer, Hopkins and Dyer Pty Ltd, in respect of the proposed development.

That application by Emeritus was dismissed by the Land and Environment Court in a judgment dated | February 1990. An appeal was lodged on 28 February 1990 and has come on for hearing today.

The original development consent granted on 9 August 1989 would have expired on 9 August 1991 in consequence of the provisions of s99(1) of the Environment Planning Assessment Act 1979. However, in accordance with the provisions of subs3 of that section the developer obtained a one year extension of that development consent, which thus lapsed on 9 August 1992. According to an affidavit filed on behalf of the second respondent in connection with a notice of motion by the second respondent developer seeking orders that the appeal be dismissed and that the appellant pay the respondent's costs, the developer has been unable to obtain finance to proceed with the development.

The notice of motion seeking that relief came before the court on 14 November 1994 and was adjourned to the hearing date of this appeal.