DILLON v GOSFORD CITY COUNCIL [1995] NSWCA 124

DILLON v GOSFORD CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 22 and 23 February 1995, 7 April 1995

[1995] NSWCA 124

Environmental Planning and Assessment Act 1979; Local Government Act 1919; development approval.

The appellant appealed against the decision of Bannon J, in proceedings brought by the respondent, declaring that the appellant had carried out an extractive industry without the consent of the respondent and in breach of s76 of the Environmental and Planning Assessment Act 1979 (EPA Act) and orders to restrain him from certain activities and to compel him to reinstate the land and stabilise the quarry face within three months. The orders were suspended for eighteen months.

The respondent cross appealed against the orders on the basis of their internal inconsistency.

Ordinance 105 "Town and Country Planning- General Interim Development" prohibited private extractive industry except with the permission of the interim development authority. In 1963 the respondent granted approval to the appellant to use the land as a quarry pursuant to this Ordinance.

Ordinance 105 ceased to have effect from 24 May 1968 when the Shire of Gosford Planning Scheme Ordinance (the GPSO) was prescribed to take effect; Local Government Act, s342U(8). CL51 provided that nothing in the Ordinance prevented the carrying out of work in accordance with the 1963 approval if the carrying out of work was commenced but not completed before 24 May 1968, the appointed day or was substantially commenced within a twelve month period after that day.

On 18 February 1977 the GPSO was suspended and Interim Development Order (IDO 100) was gazetted. On 30 March 1979 Interim Development O.122- Gosford (IDO 122) was gazetted. CL54 of IDO 100 and CL44 of IDO 122 provided that nothing in the Orders should prevent the carrying out of any development in accordance with any consent which was in force at the appointed day, 18 February 1977 and 30 March 1979 respectively, if the development had been commenced within a twelve month period after that day.