Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86

Land and Environment Court of New South Wales

CITATION : Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: Zaymill Pty Limited and Maksim Holdings Pty Limited PARTIES : RESPONDENT: Ryde City Council

FILE NUMBER(S) : 40109 of 2009

CORAM: Biscoe J

KEY ISSUES: DEVELOPMENT CONSENT :- for construction of dwellings - whether lapsed after 5 years - whether engineering work relating to the builidng or work physically commenced before then.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 95

CASES CITED: Hunter Development Brokerage Pty Ltd v The Cessnock City Council; Tovedale Pty Ltd v the Shoalhaven City Council [2005] NSWCA 169, (2005) 63 NSWLR 124

DATES OF HEARING: 1 May 2009

EX TEMPORE JUDGMENT DATE : 1 May 2009

APPLICANT: Mr C Gough, solicitor SOLICITORS Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT: submitting appearance SOLICITORS Ryde City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BISCOE J

1 May 2009

40109 of 2009

ZAYMILL PROPRIETARY LIMITED v RYDE CITY COUNCL

EX TEMPORE JUDGMENT 1 HIS HONOUR: HIS HONOUR: The applicants, Zaymill Pty Limited and Maksim Holdings Pty Limited, seek a declaration that development consent No 1024/2001 issued by the respondent City of Ryde Council on 11 October 2002 for the construction of thirty-two dwellings on proposed lots one and three in a subdivision of 1-13 Pennant Avenue, Denistone, has not lapsed pursuant to s 95(4) of the Environmental Planning and Assessment Act 1979. The respondent council has filed a submitting appearance accept as to costs. BACKGROUND 2 The development consent approved the construction of thirty-two dwellings on lots one and three on the property at 1-13 Pennant Avenue, Denistone. If the building engineering or construction work relating to the approved work was not physically commenced before 11 October 2007, then the consent would lapse in accordance with the provisions of s 95 of the Environmental Planning and Assessment Act 1979. Conditions 30-35 of the consent required certain remediation works to be carried out on the property. 3 Between 9 April and 2 May 2003 the following works were carried out on the property: (a) the excavation and removal of approximately five cubic metres of soil from the former paint storage area tested and disposed of to the Penrith Waste Facility at Mulgoa; (b) the excavation of approximately seven cubic metres of soil from the former paint storage area tested and validated for reuse on the site. (c) the excavation of approximately eighty cubic metres of soil from beneath the former wool store tested and disposed of to the Penrith Waste Facility at Mulgoa. (d) The excavation of approximately forty cubic metres of soil from the scouring waste water pits tested and validated for reuse on the site. 4 Parsons Brinckerhoff were then commissioned to prepare a remediation and validation report and lodgement with the council as required by condition thirty-two of the consent. In July 2003 Environ were commissioned to prepare a site audit statement as required by condition thirty-two. 5 On 27 September 2007 the applicant's solicitor wrote to the council seeking an acknowledgement that the work had physically commenced before the date of lapsing. On 2 October 2007 the council indicated that the council would not provide the confirmation sought.