NSW Caselaw
Reported Decision : 63 NSWLR 124 140 LGERA 201
New South Wales Court of Appeal
CITATION: Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169
HEARING DATE(S): 14 April 2005
JUDGMENT DATE: 23 May 2005
JUDGMENT OF: Santow JA at 1; Tobias JA at 2; Stein AJA at 131
DECISION: Hunter Development Brokerage Pty Limited v Cessnock City Council CA 40779/04:; (1) Appeal allowed; (2) Order 1 made by Bignold J on 17 August 2004 be set aside; (3) Order that the proceedings be remitted to the Land and Environment Court for determination by that Court in accordance with the decision of this Court; (4) Order that the respondent pay the appellant's costs of the appeal, but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified; Tovedale Pty Limited v Shoalhaven City Council CA 40812/04:; (1) Appeal allowed; (2) Order 1 made by Bignold J on 28 August 2004 be set aside; (3) Declare that the development consent granted by the respondent on 28 September 1989 (Council reference SF6559) for the subdivision of Lot 6 DP714802 and Lot 8 DP740045 at Old Southern Road, South Nowra has not lapsed; (4) Order that the respondent pay the appellant's costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified.
CATCHWORDS: LAND AND ENVIRONMENT- Devlopment consents for subdivision of land - Whether consents had lapsed - Under Environmental Planning and Assessment Act, consent lapsed unless "building, engineering or construction work relating to" development was "physically commenced" upon land to which consent applied - Whether expression "building, engineering or construction work" was capable of including survey work and/or geotechnical investigation work - Whether survey work and/or geotechnical investigation work carried out by respective appellants was, in fact, engineering work and whether it was "physically commenced" - Relevance of whether work was "merely preparatory" - Whether work in each case "related to" approved development - STATUTORY CONSTRUCTION - "Relating to" - Ambit in context of reference, in lapsing provisions of Act, to work "relating to" the development
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