Land and Environment Court
New South Wales
Medium Neutral Citation: Huang v Waterhouse [2025] NSWLEC 71 Hearing dates: 14 November 2024 Date of orders: 4 July 2025 Decision date: 04 July 2025 Jurisdiction: Class 4 Before: Pritchard J Decision: The Court makes the following orders:
(1) Declare that development consent 795/2006/1 granted by Woollahra Municipal Council on 26 June 2007, for “alterations and additions to existing garage / studio” at 6 Tivoli Avenue, Rose Bay lapsed on 26 June 2012.
(2) The first respondent to pay the applicant’s costs as agreed or assessed.
Catchwords: ENVIRONMENT AND PLANNING – Consent – Construction – Whether certain conditions of development consent required compliance prior to undertaking work comprising part of the approved development – Whether work related to the approved development prevented its lapse – s 95 of the Environmental Planning and Assessment Act 1979 (NSW) — Whether work could be said to have physically commenced – Conditions required compliance prior to the work undertaken – Modification, revocation or review — s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) – Forming state of satisfaction that development was substantially the same — Whether decision to approve modification was manifestly unreasonable – Discretion
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) (as in force between 1 March 2007 and 4 July 2007) s 95
Environmental Planning and Assessment Act 1979 (NSW) (as in force on between 13 March 2012 and 6 July 2012) s 95
Environmental Planning and Assessment Act 1979 (NSW) (as in force between 1 January 2024 and 1 July 2024) s 4.55
Environmental Planning and Assessment Amendment (Development Consents) Act 2010 (NSW)
Environmental Planning and Assessment Regulation 2021 (NSW) s 96
Local Government Act 1993 (NSW)
Woollahra Residential Development Control Plan 2003 (NSW) (repealed)
Woollahra Local Environmental Plan 1995 (NSW) (repealed)
Woollahra Local Environmental Plan 2014 (NSW)
Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85
Ashmere Cove Pty Ltd v Beekink(No 2) (2007) 244 ALR 534; [2007] FCA 142
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26
Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59
Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171
Bourne v, Swan and Edgar Ltd [1903] 1 Ch 211
Cameron v Woollahra Municipal Council [2024] NSWCA 216
Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limed and Minister for Mineral Resources (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401
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- Case
- [2025] NSWLEC 71
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the development consent lapsed on 26 June 2012 due to the non-commencement of construction within the prescribed period. The court had to examine the statutory provisions concerning development consent and the timeline for the initiation of construction. It was also necessary to consider the evidence presented by both parties regarding the progress, or lack thereof, of the construction works. The court needed to ascertain whether the statutory requirements were met and if the council's decision to grant the consent was valid under the relevant legislation.
The court held that the statutory timeline for the commencement of construction was a mandatory requirement, and non-compliance with this requirement resulted in the development consent lapsing. The evidence indicated that the construction had not commenced within the specified period, leading the court to conclude that the development consent had indeed lapsed on 26 June 2012. The court found in favour of Huang, declaring the development consent invalid and ordering that it lapsed on the aforementioned date. The court further directed that the respondents bear the costs of the proceedings as per the agreement or assessed terms.
Orders
Orders of the court
The Court makes the following orders:
(1) Declare that development consent 795/2006/1 granted by Woollahra Municipal Council on 26 June 2007, for “alterations and additions to existing garage / studio” at 6 Tivoli Avenue, Rose Bay lapsed on 26 June 2012.
(2) The first respondent to pay the applicant’s costs as agreed or assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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