Land and Environment Court New South Wales Medium Neutral Citation: St Basil's Homes and NSW Land and Housing Corporation v Randwick City Council [2011] NSWLEC 72 Hearing dates: 14 April 2011 Decision date: 14 April 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: 1. Declaration that Development Consent 00/00293/GJ granted by Randwick City Council (Council) on 12 December 2000 and issued by the Council on or about 21 December 2000 for St Paul's Square Consortium in relation to the land known as Lot 1 DP 776899 and granting consent for aged and disabled persons housing involving the erection of seven buildings with provision of 152 self-care units has not lapsed under s 95 of the Environmental Planning and Assessment Act 1979. 2. Declaration that the deferred commencement condition imposed pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 on development consent 00/00293/GJ granted by Randwick City Council (Council) on 12 December 2000 and issued by the Council on or about 21 December 2000 to St Paul's Square Consortium in relation to land known as Lot 1 DP 776899 and granting consent for aged and disabled persons housing involving the erection of seven buildings for provision of 152 self-care units has been satisfied and that the development consent is an operative consent. Catchwords: DEVELOPMENT CONSENT:-whether lapsed - whether deferred commencement condition satisfied and consent operative Legislation Cited: Environmental Planning and Assessment Act 1979 ss 80(3), 95 Cases Cited: Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169, 63 NSWLR 124 Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council [2009] NSWLEC 86 Category: Principal judgment Parties: 40114/11 St Basil's Homes (Applicant) Randwick City Council (Respondent) 40119/11 NSW Land and Housing Corporation (Applicant) Randwick City Council (Respondent) Representation: 40114/11 Mr C R Ireland (Applicant) 40119/11 Mr P J McEwen SC (Applicant) 40114/11 McPhee Kelshaw (Applicant) 40119/11 Susan Hill & Associates (Applicant) File Number(s): 40114/11, 40119/11 ex tempore Judgment 1In these two proceedings the applicants, St Basil's Homes and NSW Land and Housing Corporation, seek two identical declarations. One is that a deferred development consent granted by Randwick City Council under s 95 of the Environmental Planning and Assessment Act 1979 ( EPA Act ) has not lapsed. The other is that the deferred development condition imposed under that development consent has been satisfied and that the development consent is an operative consent. 2The Council has entered a submitting appearance in both proceedings. 3Although there is no contradictor, the courts will not grant declaratory relief by consent. A declaration should only be made on the basis of evidence and submissions: Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council [2009] NSWLEC 86 at [14]. 4Section 95 of the EPA Act relevantly provides: 95 Lapsing of consent (1) A development consent lapses 5 years after the date from which it operates. ... (4) Development consent for: (a) the erection of a building, or ... (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. 5In Hunter Development Brokerage Pty Ltd v Cessnock City Council ; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169, 63 NSWLR 124 at [86] it was held that the concept that the work must be physically commenced "requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal and that it must truly be work relating in a real sense to that which has been approved." The statutory provision only requires relevant work to be "physically commenced". It need not continue, let alone be completed. 6Development consent 293/GJ ( DA 293 ) was granted on 21 December 2000 to St Paul's Square Consortium in relation to land known as Lot 1 DP 776899 for aged and disabled persons housing involving the erection of seven buildings with the provision of 152 self-care units. 7Under a contract of sale dated 30 December 2010 St Basil's Homes agreed to purchase the land from NSW Land and Housing Corporation, which is still the registered proprietor. 8Pursuant to a special condition of the contract, St Basil's Homes was required to commence proceedings seeking the two subject declarations. 9The deferred commencement condition of the contract required: The preparation, submission and approval of a development application for the regeneration and revegetation of the heritage gardens located onsite adjacent to Coogee Bay Road known as "the Grove". 10Development consent DA 38/GJ ( DA 38 ) for the regeneration and revegetation of the heritage gardens adjacent to Coogee Bay Road known as "the Grove" was granted by the Council on 22 February 2001. 11As that satisfied the deferred development condition, DA 293 operated from 22 February 2001 and lapsed five years later on 22 February 2006 unless related building, engineering or construction work commenced on the land before the latter date. 12On 22 March 2001 the Council by letter confirmed that the deferred commencement condition of DA 293 had been satisfied and that DA 293 was operable as of 22 February 2001. 13The evidence establishes overwhelmingly that substantial Stage 1 earthworks for DA 293 were commenced and completed in December 2005. The evidence also shows that there were significant earlier works of a different nature. I am satisfied on the evidence that the work the subject of DA 293 was physically commenced before the date on which it would otherwise have lapsed under s 95. Therefore it has not lapsed. 14The only remaining question is one of discretion. There is evidence from a priest of the Greek Orthodox Church who is the Chief Executive Officer of St Basil's Homes that it is imperative to the financial wellbeing of St Basil's Homes that it secures the benefit of the consent DA 293 once purchase of the site is completed. There is also evidence from an officer of the NSW Land and Housing Corporation that the funds obtained pursuant to the sale of the site would be put towards services for those in need of social housing and may include people who are homeless, people who are living in unstable accommodation, people escaping domestic violence or other situations where they are at risk and people with a disability where their current accommodation is physically unsuitable for them. Therefore there is a public interest benefit that would be obtained as a result of the sale. I am satisfied that there is utility in making the declarations that are sought and that in the exercise of my discretion I should make them. 15Accordingly, the Court makes the following declarations in both matters: 1. A declaration that Development Consent 00/00293/GJ granted by Randwick City Council (Council) on 12 December 2000, and issued by the Council on or about 21 December 2000 for St Paul's Square Consortium, in relation to the land known as Lot 1 DP 776899 and granting consent for aged and disabled persons housing involving the erection of seven buildings for the provision of 152 self-care units, has not lapsed under s 95 of the Environmental Planning and Assessment Act 1979. 2. A declaration that the deferred commencement condition imposed pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 on development consent 00/00293/GJ granted by Randwick City Council (Council) on 12 December 2000, and issued by the Council on or about 21 December 2000 to St Paul's Square Consortium, in relation to the land known as Lot 1 DP 776899, and granting consent for aged and disabled persons housing involving the erection of seven buildings for the provision of 152 self-care, units has been satisfied and that the development consent is an operative consent. 3. The exhibits may be returned. Amendments 07 March 2012 - omission of jurisdiction Amended paragraphs: Cover page DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2012