K and M Prodanovski Pty Ltd v Wollongong City Council

The New South Wales Court of Appeal considered an appeal by K and M Prodanovski Pty Ltd (the appellant) against a decision of the primary judge concerning the lapsing of a development consent granted by Wollongong City Council (the respondent). The dispute centred on whether the development consent had lapsed due to a failure to commence the development within the prescribed timeframe.

The central legal issue before the Court of Appeal was whether the appellant had commenced the development in accordance with the terms of the development consent, thereby preventing it from lapsing under section 95(4) of the *Environmental Planning and Assessment Act 1979* (NSW). Specifically, the Court had to determine if the geotechnical work, which the appellant contended constituted the commencement of the development, was undertaken in a manner that satisfied the conditions of the consent, particularly in light of the prerequisite of completing demolition work.

The Court reasoned that the development consent required demolition to be completed before geotechnical work could be considered as part of the development. As the demolition work had not been undertaken as required by the consent, the subsequent geotechnical work did not constitute the commencement of the development in accordance with the consent. Therefore, the development consent had lapsed. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.