Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd

Omaya Investments Pty Ltd and others (appellants) appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning alleged breaches of development consent. The dispute centred on whether variations to approved development plans had been lawfully made and whether subsequent construction work was authorised. The respondents included Dean Street Holdings Pty Ltd and others.

The Court of Appeal was required to determine whether the appellants had complied with the relevant environmental planning regulations regarding the variation of development plans. Specifically, the court considered whether a written application was necessary for such variations, whether the approval of the certifying authority had been properly recorded, and whether the consent authority had been duly notified of any changes. The court also had to assess whether a construction certificate had been validly modified and whether work undertaken without the certifying authority's approval rendered the development unlawful.

The Court of Appeal upheld the primary judge's findings, reasoning that the regulations governing variations to development consent were not satisfied. The court found that the process for varying approved plans required a formal written application and that the approval of the certifying authority needed to be recorded in a specific manner. Furthermore, the failure to notify the consent authority of the variations meant that the subsequent construction work, which deviated from the original consent, was undertaken unlawfully. The court applied principles of statutory interpretation to the Environmental Planning and Assessment Regulation 2000 (NSW), emphasising the importance of procedural compliance.

The appeal was dismissed, and the appellants were ordered to pay the costs of the first to third respondents on the ordinary basis and the costs of the fourth and fifth respondents on a submitting basis.