TODBERN PTY LTD v HURSTVILLE CITY COUNCIL [1998] NSWCA 234

TODBERN PTY LTD v HURSTVILLE CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY and STEIN JJA 30 April 1998, 30 April 1998 [1998] NSWCA 234

SOURCE of power for a variation of a Development Consent period - interpretation of statute — s99 Environmental Planning and Assessment Act 1979 (NSW) — s36 Interpretation Act 1987 (NSW)

Cole JA The judgment of Justice Pearlman dated 17 April 1997 recites the factual circumstances giving rise to the issues in contention, the competing submissions of the opposing parties concerning the construction of cl(b) of the Consent and her Honour's reasons for resolving that construction in favour of the respondents.

Those same contentions had been re-agitated on appeal. For my Part I would be content to adopt the reasons of Pearlman J as my own. In my view they are plainly correct. However, we have been informed that at least three matters have been raised on this appeal which were not raised in the Court below. I must say it is not entirely clear to me that that is so.

The first matter is the contention that s99(2) is the only source of power for a variation of the period referred to in s99(1) Environmental Planning and Assessment Act 1979 after which a Development Consent lapses.

Accordingly, if the power under s99(2) is to be exercised, then it is said that there must be a clear exercise of the power under s99(2) and to introduce notions of acting upon" is to introduce a foreign notion or to pollute the source of referred to in s99(2). I think it is a sufficient answer to that submission to say that any fair reading of cl(b) indicates that the period of the consent has been varied pursuant to s99(2) from five years to two years.

The second contention said to be additional to those argued below is that it is impermissible to relate the expression "unless acted upon within two years" as used in the Development Consent, with the expression used in s99(4) namely, "building, engineering or construction work relating to the building subdivision or work physically commenced".