Huang v Waterhouse

Case [2025] NSWLEC 71

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Woollahra Residential Development Control Plan 2003 (NSW) (repealed)

Woollahra Local Environmental Plan 1995 (NSW) (repealed)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

Coalcliff Community Association Inc.…

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AGLC
Huang v Waterhouse [2025] NSWLEC 71
Case
[2025] NSWLEC 71
Decision Date

CaseChat Overview and Summary

The matter in Huang v Waterhouse involved the applicant, Huang, contesting the validity of development consent granted by Woollahra Municipal Council to the respondents. The dispute centred around the alteration and addition to an existing garage/studio at 6 Tivoli Avenue, Rose Bay. The case was heard by the Land and Environment Court of New South Wales. Huang contended that the development consent, numbered 795/2006/1 and granted on 26 June 2007, had lapsed due to non-compliance with the relevant statutory timelines. Specifically, Huang argued that the development consent expired on 26 June 2012, as the respondents had not initiated the construction within the required timeframe. The court was tasked with determining whether the development consent had indeed lapsed and whether the statutory provisions had been properly adhered to by the respondents.

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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