CARISTE PTY LTD and ANOR v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS [1996] NSWCA 92

CARISTE PTY LTD vy THE COUNCIL OF THE CITY OF BLUE MOUNTAINS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and SHELLER JJA and Simos AJA 8 October 1996, 18 November 1996 [1996] NSWCA 92

Environmental Planning and Assessment Act 1979 — s99 — meaning of development consent as to location of purification lagoon — development physically commenced by work relating to lagoon and sewer line prior to date of lapsing of development consent — works done not in breach of conditions of development consent and not otherwise unlawful.

Local Government Act 1919 — s304 s304 — definition of "building" — earth dam not "structure" in circumstances of building approval not required.

ORDERS

1. Appeal allowed.

2. Orders of the Land and Environment Court set aside.

3. Respondent's application to the Land and Environment Court dismissed with costs. 4. Respondent to pay the costs of the appellants of the appeal.

Clarke JA I agree with the reasons of, and the orders proposed by, Justice Simos.

Beazley JA I agree with Simos AJA.

Simos AJA This is an appeal from the decision of Pearlman CJ in the Land and Environment Court delivered on 19 April 1993.

As her Honour stated, there were two matters arising for decision in the case. The first matter required a determination of what constituted a development consent granted by the respondent, the Council of the City of the Blue Mountains ("the Council"), to the first appellant, Cariste Pty Ltd ("the First Appellant") on 23 November 1999. The second matter required a determination of the question whether that development consent had lapsed by virtue of s99 of the Environmental Planning and Assessment Act 1979 ("the Act"). That section of the Act provides generally that a development consent lapses unless the development the subject of that consent is physically commenced within two Years of the date of the consent.