Green v Kogarah Municipal Council

The appellant, Mr. Green, sought declarations and orders from the Land and Environment Court, arguing that his development consent had not lapsed. He contended that his activities in February-March 1999 constituted the physical commencement of building, engineering, or construction work on the land, thereby satisfying section 95(4) of the relevant Act. The respondent was Kogarah Municipal Council.

The primary legal issue before the court was whether the activities undertaken by the appellant qualified as "building, engineering or construction work relating to the building" for the purposes of section 95(4) of the Act, which dictates when a development consent lapses. This question hinged on whether such work could be lawfully undertaken in the absence of a building approval, which was a condition of the development consent.

The court, upholding the decision at first instance, reasoned that the activities could not constitute physical commencement under section 95(4) because they were undertaken in breach of the development consent's conditions. Specifically, the consent was expressly conditional upon the submission of a building application and council approval before any building work commenced. Therefore, any work carried out without this prior approval could not be considered lawful work relating to the development. The court relied on the principle established in *Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc*, which held that work undertaken in the absence of necessary council approval could not be regarded as building, engineering, or construction work relating to the development.

The appeal was dismissed with costs.