Davi Developments Pty Ltd v Leichhardt Council

[2007] NSWLEC 106

Land and Environment Court

of New South Wales

CITATION:

Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106

PARTIES:

APPLICANT
Davi Developments Pty Ltd

RESPONDENT
Leichhart Council

FILE NUMBER(S):

10620 of 2006

CORAM:

Talbot J

KEY ISSUES:

Development Consent :- Modification application - Whether substantial comencement - whether work relied upon lawful - whether substantially the same development.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 96
Local Government Act 1919

CASES CITED:

Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Others (1999) 106 LGERA 243;
Day v Pinglen Pty Ltd (1981) 148 CLR 289;
Drummoyne Municipal Council v Page (1973) NSWLR 566;
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350;
Elizabeth Securities Pty Limited, Joseph Michael Malouf and Phozzie Anthony Malouf and as Executors of the will of Naaman George Malouf deceased (NSWLEC, 25/05/1982, unreported, Cripps J);
Irongates Developments Pty Ltd v Richmond–Evans Environmental Society Inc (1992) 81 LGERA 132;
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 ;
Moto Projects (No. 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298;
North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468

DATES OF HEARING:

26/02/2007

 
DATE OF JUDGMENT: 

5 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
N Hemmings QC
SOLICITORS
Allens Arthur Robinson

RESPONDENT
S Duggan (Barrister)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

5 March 2007

10620 of 2006 Davi Developments Pty Ltd v Leichardt Muncipal Council

JUDGMENT

1 Talbot J: On 22 December 2005, the applicant company made an application to modify development consent No. 3736 granted by the respondent council on 24 December 1970. The application to modify the consent has not been determined. The company has appealed to this Court on the basis of a deemed refusal of its application. In general terms the application for modification seeks an approval for the reduction of one floor, deletion of the lift overrun and the reconfiguration of the units with a rearrangement of the car park plan in respect of the existing proposal for a seven storey residential flat building with two levels for parking under.

2 The approval issued by the council on 24 December 1970 permitted demolition of two existing cottages on the subject land and erecting thereon the seven storey residential flat building with two levels for parking under in accordance with the particulars set out in an application to carry out development under the town planning provisions of the Local Government Act 1919 lodged with the council 27 January 1970 “as amended by letter dated 7 December 1970”.

3 A building application was subsequently lodged with the council on 23 December 1971. This application was considered by the council at its meeting on 21 March 1972 when consideration was deferred for 14 days to permit an inspection by the Works Committee of Council. At its meeting on 4 April 1972, the council resolved to adopt…