Smith v Wyong Shire Council - [2008] NSWLEC 115

Land and Environment Court

of New South Wales

CITATION: Smith v Wyong Shire Council [2008] NSWLEC 115

PARTIES:
APPLICANT
Darcy Peter Smith
RESPONDENT
Wyong Shire Council

FILE NUMBER(S): 41235 of 2007

CORAM: Pain J

KEY ISSUES:
Development Consent :- whether development consent lapsed or physically commenced - whether construction certificate under s 81A Environmental Planning and Assessment Act 1989 required
Practice and Procedure:- whether Court should issue a declaration that development physically commenced in absence of contradictor

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 81A, s 95, s 95A, s 96, s 109C

CASES CITED: Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124
Jones v Sutherland Shire Council (1979) 40 LGRA 323
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812
Sharp v Hunters Hill Council (2002) 120 LGERA 155
Williams v Coffs Harbour City Council [2007] NSWLEC 440

DATES OF HEARING: 7 March 2008

EX TEMPORE JUDGMENT DATE: 7 March 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr G Newport
SOLICITOR
Law and Planning
RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

7 March 2008

41235 OF 2007 Smith v Wyong Shire Council
EX TEMPORE JUDGMENT

1 Her Honour: In this matter the Applicant seeks, inter alia, the following relief:

1. A declaration that development consent, as modified, to Development Application No 1107/04 for the erection of residential flat buildings at 30-36 Toowoon Bay Road, 17A-21 Kitchener Road and 11 Centennial Avenue, Long Jetty (“the Consent”) has been physically commenced in accordance with section 95(4) of the Environmental Planning and Assessment Act 1979.

2. A declaration that the Consent has not lapsed.

2 There is no contradictor as Wyong Shire Council (the Council) has filed a submitting appearance and did not appear today. The development consent for development application 1107/04 expired if not commenced on 13 September 2007. There is no automatic entitlement to a declaration and the applicant must demonstrate to the Court that it is appropriate that one issue; see Jones v Sutherland Shire Council (1979) 40 LGRA 323, Williams v Coffs Harbour City Council [2007] NSWLEC 440.

3 The Applicant filed an Amended Points of Claim which stated that, inter alia:

1. On 13 September 2004 the Council granted development consent to DA 1107/2004 to permit demolition of existing site improvements and the erection of residential flat buildings at 30-36 Toowoon Bay Road, 17A-21 Kitchener Road and 11 Centennial Avenue, Long Jetty (the lands).

2. The consent was modified on 6 September 2005 to extend the date the consent would lapse unless physically commenced pursuant to s 95A of the Environmental Planning and Assessment Act 1979 (the EPA Act). The consent was extended until 13 September 2007.

3. On 14 June 2007 the Applicant lodged a Class 1 appeal against the Council’s deemed refusal of the s 96 application to modify the consent by deleting condition 5.

4. On 12 September 2007 the Court modified…

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: [2008] NSWLEC 115
Decision Date: 7 March 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Darcy Peter Smith sought a declaration that the development consent for the erection of residential flat buildings at specified locations had been physically commenced and that the consent had not lapsed. The Wyong Shire Council did not oppose the application. The development consent was due to lapse unless physically commenced by 13 September 2007. The court needed to decide whether the Applicant had demonstrated that the development consent had been physically commenced and had not lapsed, as per the Environmental Planning and Assessment Act 1979.

The court examined the legal requirements for physical commencement of development as per section 95(4) of the Act, considering the demolition and additional works carried out by the Applicant on 12 and 13 September 2007. The court also considered whether a construction certificate under section 81A of the Act was required for the demolition works. It found that the demolition and additional works were necessary for the implementation of the development consent and were lawful, as the demolition of a building did not require a construction certificate. The court concluded there was a controversy as the Council had not responded to the Applicant's letter seeking confirmation of the physical commencement of the development consent.

The court exercised its discretion to make the declaration sought by the Applicant. It declared that the development consent had been physically commenced and had not lapsed in accordance with section 95(4) of the Environmental Planning and Assessment Act 1979. The court's decision was based on the demolition and additional works carried out by the Applicant, which were necessary for the implementation of the development consent and were lawful. The court found that there was a controversy as the Council had not responded to the Applicant's letter seeking confirmation of the physical commencement of the development consent. The court's decision was in line with previous cases and provided clarity on the legal requirements for physical commencement of development under the Act.

Orders