Cando Management and Maintenance Pty Ltd v Cumberland Council

Cando Management and Maintenance Pty Ltd (the applicant) sought judicial review of a decision by Cumberland Council (the respondent) to declare that a development consent had lapsed. The applicant argued that work undertaken on the land had prevented the consent from lapsing. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the work undertaken by the applicant, specifically the clearing of trees and shrubs, constituted "the carrying out of the work" or "the use of the land" for the purposes of preventing the lapse of a development consent under section 4.53 of the *Environmental Planning and Assessment Act 1979* (NSW). The Court also considered whether such work was related to the building or work to which the consent applied, and whether it was in compliance with or not prohibited by the consent.

The Court of Appeal found that the clearing of trees and shrubs, in the absence of any evidence that it was done in connection with the approved development or was otherwise permitted by the consent, did not constitute "the carrying out of the work" or "the use of the land" in a manner that would prevent the lapse of the development consent. The Court emphasised that the onus was on the applicant to demonstrate that the work undertaken met the criteria for preventing lapse, and that the work must be demonstrably linked to the development authorised by the consent. The Court held that the clearing of vegetation, without more, was not sufficient to prevent the lapse of the consent.

The Court of Appeal dismissed the appeal and affirmed the decision of the primary judge.