Rising Damp Corporation Pty Ltd v Byron Shire Council [2012] NSWLEC 7

Land and Environment Court New South Wales

Medium Neutral Citation: Rising Damp Corporation Pty Ltd v Byron Shire Council [2012] NSWLEC 7 Hearing dates: 01/02/2012 Decision date: 01 February 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: 1. Declaration that development consent 90/31 granted by the respondent in July 1990 was for multiple occupancy of six dwellings on Lot 9 DP 248897 Newes Road, Coorabell. 2. Declaration that development consent 90/31 granted by the respondent in July 1990 for multiple occupancy of six dwellings on Lot 9 DP 248897 Newes Road, Coorabell has not lapsed. Catchwords: DEVELOPMENT CONSENT:- whether lapsed prior to statutory lapsing date - commencement of development prior to statutory lapsing date. Legislation Cited: Environmental Planning and Assessment Act 1979, s 99 Cases Cited: Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169, 63 NSWLR 124 JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535 Category: Principal judgment Parties: Rising Damp Corporation Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: COUNSEL: Mr J Anderson in person (Applicant) SOLICITORS: Marsdens Law Group (Respondent, submitting appearance) File Number(s): 40847/11

EX TEMPORE Judgment 1The applicant claims declarations that multiple occupancy development consent 90/31 issued in July 1990 by the respondent, Byron Shire Council, was for six dwellings on certain land, and that it has not lapsed. 2The applicant is represented in the proceedings by its director Mr John Anderson. The respondent has filed a submitting appearance and taken no active part in the proceedings. 3The development application sought development consent for "6 dwelling multiple occupancy" on lot 9 DP 248897, Newes Road, Coorabell. 4On 10 July 1990 the council determined to approve the application conditionally. 5On 31 July 1990 the council gave notice of determination to the applicant for consent. The notice of determination commenced as follows: Pursuant to Section 92 of the Act, notice is hereby given of the determination by Council of your application relating to lot 7, D.P. 248897, Newes Road, Coorabell for multiple occupancy of 4 dwellings. 6I am satisfied that the references in this notice to "lot 7" and to "4 dwellings" were typographical errors. They should have been references to, respectively, "lot 9" and "6 dwellings". I see no impediment to making a declaration that the development consent was for multiple occupancy of six dwellings on lot 9. 7The question then arises whether the development consent lapsed. At all material times the lapsing provision was the former s 99 of the Environmental Planning and Assessment Act 1979 (since replaced by s 95), which relevantly provided: 99. (1) A consent granted under this Division to a development application shall lapse- (a) unless the development the subject of that consent is commenced- (i) except as provided in subparagraph (ii)-within 2 years (or, if the consent authority so approves in accordance with subsection (3), 3 years) of the date upon which that consent becomes effective in accordance with section 93 or 101 (9) (in this section referred to as "the prescribed date" ); or ... (2) For the purposes of subsection (1) (a)- (a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work) of land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided)-that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies; or (b) where development comprises the use of any land, building or work (not being a use referred to in paragraph (a))-that development is commenced when the use of that land, building or work is actually commenced. 8Condition C of the development consent required the following work to be carried out: 1. An all weather internal gravel access road to be provided to each house site, minimum standard 3.6m wide and 150mm thick, with necessary drainage works to Council's Specification for Engineering Works. 2. An adequate turning circle area of 20m diameter or equivalent manoeuvring space is to be constructed for each dwelling site in accordance with Council's specification of Engineering Works. Area to be kept clear of all obstruction. 9The evidence establishes that prior to the lapsing date a substantial part of this work was carried out by Mr Andersen and a contractor, Mr Stephen Loane. 10In applying s 99(2)(a) to the facts, the only relevant questions are: (a) was the work relied upon building, engineering or construction work?; (b) if so, did it relate to the approved development?; (c) if so, was it physically commenced on the land to which the consent applied prior to the relevant lapsing date? See Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169, 63 NSWLR 124 at [111] and JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535 at [18]. In my opinion, on the evidence, these questions should be answered in the affirmative. 11Consequently, I am satisfied that in accordance with s 99(2)(a) development the subject of the consent commenced on the land to which the consent applied prior to the lapsing date. Accordingly, the development consent has not lapsed. I propose to grant a declaration to that effect. 12The orders of the Court are as follows: 1.Declaration that development consent 90/31 granted by the respondent in July 1990 was for multiple occupancy of six dwellings on Lot 9 DP 248897 Newes Road, Coorabell. 2.Declaration that development consent 90/31 granted by the respondent in July 1990 for multiple occupancy of six dwellings on Lot 9 DP 248897 Newes Road, Coorabell has not lapsed. 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: 02 February 2012