Savellis v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Savellis v Sutherland Shire Council [2018] NSWLEC 100

Hearing dates:

18 June 2018

Date of orders:

18 June 2018

Decision date:

18 June 2018

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:
(1) The appeal is dismissed.
(2) The respondent is to pay to the applicants the filing fees incurred by the applicants in commencing the appeal.

Catchwords:

APPEAL – appeal against Council’s decision on deferred commencement condition – whether deferred commencement consent has lapsed – Council purported to modify consent to extend time period for satisfaction of deferred commencement condition – purported modification legally ineffective – application failed to satisfy deferred commencement condition within original specified time period – deferred commencement consent has lapsed

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 28(2), 80(3), 81(1), 83, 95, 95A, 96
Environmental Planning and Assessment Regulation 2000 cl 95(3)
Sutherland Shire Local Environmental Plan 2015

Cases Cited:

Hilltop Planners Pty Limited v Great Lakes Council (2003) 127 LGERA 333; [2003] NSWLEC 214
Kinder Investments Pty Limited v Sydney City Council (2005) 143 LGERA 237; [2005] NSWLEC 737
Reid's Farm Pty Ltd v Murray Shire Council (2010) 182 LGERA1; [2010] NSWLEC 127

Category:

Principal judgment

Parties:

Mr Sam Savellis (First Applicant)
Mrs Vicky Savellis (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
Mr S Nash (Respondent)

 

Solicitors:
Ms J Amy, Sutherland Shire Council (Respondent)

 

Mr S Savellis appeared in person

  Mr S Savellis appeared as agent for Mrs V Savellis

File Number(s):

2018/161794

Publication restriction:

Nil

Judgment

A deferred commencement condition is not satisfied

1. Mr and Mrs Savellis own land at 13 Trumper Place, Menai (‘the land’) that they wish to redevelop. They applied for and were granted by Sutherland Shire Council (‘the Council’) on 19 June 2015 development consent for the demolition of the existing dwelling and the construction of a new dual occupancy. The development consent was granted subject to a condition under s 80(3) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the conditions. The deferred commencement condition was:

“1. Deferred Commencement Condition

(a) Restriction as to User

The ‘Restriction as to User’ secondly referred to in Deposited Plan 259494 is to be released, varied or modified so as to permit the erection and use of the dual occupancy development as approved by this development consent. Evidence of registration of the release, variation or modification of this restriction as to user, against the title of the land, is to be submitted to Council.”

2. As permitted under cl 95(3) of the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation’), the Council specified the period within which the applicant must produce evidence to the consent authority sufficient to enable it to be satisfied as to the matter in the deferred commencement condition. This was a period of one…