Sharp v Hunters Hill Council - [2002] NSWLEC 27

Reported Decision: 120 LGERA 155

Land and Environment Court

of New South Wales

CITATION: Sharp v Hunters Hill Council [2002] NSWLEC 27

PARTIES:
APPLICANT:
Sharp
RESPONDENT:
Hunters Hill Council

FILE NUMBER(S): 40078 of 2001

CORAM: Bignold J

KEY ISSUES: Development Consent :- whether statutory lapsing has been avoided by carrying out of demolition works and other building or engineering works.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 81A, s 95(1) and s 95(4)

CASES CITED: Byron Shire Council v Detala Pty Ltd (2001) NSWLEC 234;
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350;
Green v Kogarah Municipal Council (2001) 115 LGERA 231;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
Jones v Sutherland Shire Council (1979) 40 LGRA 323;
London County Council v Marks and Spencer Ltd (1953) AC 535;
Mulcahy v Blue Mountains Council (No 2) (1995) 87 LGERA 422;
Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158;
Young v Warringah Shire Council (2001) NSWLEC 208

DATES OF HEARING: 15 October 2001

DATE OF JUDGMENT:
03/08/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr B Preston, SC with Mr A Gallasso, Barrister
SOLICITORS
Coleman & Greig
RESPONDENT:
Mr C McEwen, Barrister
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND

Matter No. 40078 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

8 March 2002

D AND L SHARP

Applicants

HUNTERS HILL COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Applicants seek declaratory relief in respect of a development consent granted by the Respondent on 22 or 23 January 1996, namely a declaration that that consent has not lapsed pursuant to the Environmental Planning and Assessment Act 1979, s 95(1) (EP&A Act) because “building, engineering or construction work relating to the building” within the meaning of s 95(4) of the Act was physically commenced within the statutory lapsing period of five years (which relevantly expired on 22 or 23 January 2001).

2. The development consent was granted in respect of premises known as No 19 Wybalena Road, Hunters Hill (the development site) owned by the Applicants.

3. The development consent authorised the demolition of the existing dwelling and the construction of a new dwelling, subject to a number of conditions (the development consent). It is apparent from the approved drawings that the new dwelling was to be located on the development site generally in the same position as the location of the existing dwelling. Since the new dwelling was to be a totally new development, it is obvious that before that building could be physically erected, the existing dwelling must be removed. Accordingly, the demolition of the existing dwelling was a necessary physical prelude to the erection of the new dwelling.

4. At the time the development consent was granted, demolition of a building situate within a “Conservation Area” designated by the Hunters Hill Local Environmental Plan No 1 (the LEP) required the grant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 27
Decision Date: 03/08/2002

CaseChat Overview and Summary

Sharp v Hunters Hill Council involved a dispute over whether the statutory lapsing of a development consent had been avoided by the carrying out of certain works. The applicant sought a declaration that the development consent had not lapsed, relying on several works, including excavation, drainage, landscaping, and partial demolition of the existing dwelling. The respondent council argued that these works did not qualify to avoid statutory lapsing as they either related to other development consents or required a construction certificate that was not obtained for the demolition work. The court found that the partial demolition work, which related to the erection of the new dwelling, qualified as building work under the Environmental Planning and Assessment Act 1979 and was commenced within the statutory lapsing period, thus avoiding lapsing. However, the other works did not sufficiently relate to the new dwelling and therefore did not avoid lapsing. The court granted the applicant's claim for a declaration that the development consent had not lapsed due to the partial demolition work.

Orders