Williams v Coffs Harbour City Council - [2007] NSWLEC 440

Reported Decision: 155 LGERA 344

Land and Environment Court

of New South Wales

CITATION: Williams v Coffs Harbour City Council [2007] NSWLEC 440

PARTIES: APPLICANTS
Craig Williams and Leah Williams
RESPONDENT
Coffs Harbour City Council

FILE NUMBER(S): 400374 of 2007

CORAM: Pain J

KEY ISSUES: Injunctions and Declarations :- whether declaration that development physically commenced ought be made in absence of contradictor

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 99
Local Government (Consequential Provisions) Act 1993

CASES CITED: ASIC v Rich & Ors (2004) 50 ACSR 500;
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47;
Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124;
KJD York Management Services Pty Ltd v City of Sydney Council (2006) 148 LGERA 117.

DATES OF HEARING: 28 June 2007

EX TEMPORE JUDGMENT DATE: 28 June 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr P Clay with Ms F Berglund
SOLICITOR
Harbord Property Lawyers
RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

28 June 2007

400374 of 2007 Craig Williams and Leah Williams v Coffs Harbour City Council
EX TEMPORE JUDGMENT

1 Her Honour: These are Class 4 proceedings seeking a declaration that the development consent no 225/92 granted by the Respondent Council on 19 January 1993 for the construction and use of a 136 site caravan park at Lot 350, DP 703698, Pacific Highway, Arrawarra (the land) has not lapsed.

2 The Council has filed a submitting appearance save as to costs so that there is no contradictor to the application.

Relevant legislation

3 When development consent no 225/92 was granted on 19 January 1993 s 99(1)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) provided that a development consent lapsed after two years. Section 99 was amended by the Local Government (Consequential Provisions) Act 1993 Sch 2 cl 8, which commenced on 1 July 1993, so that a development consent lapsed after five years if not physically commenced. Under the savings and transitional provisions, a development consent that had not lapsed before the commencement of Sch 2 lapsed five years after the date from which it operated (Sch 3, cl 1). This amending Act also changed the requirement for commencement from “substantial” to “physical” (s99(4)). This continued to be the relevant provision when the lapsing date of 19 January 1998 occurred.

Evidence relied on to support finding of physical commencement

4 The evidence consisted of the tender of documents largely obtained from the Council’s file and recent correspondence between the Applicants’ solicitor and the Council concerning whether the Council would state in writing that the consent 225/92 had been commenced. The Council has not provided that statement. An affidavit of Mr Wilson, engineer, sworn 19 June 2007 who undertook engineering work on the site in January 1993 states:

I was aware during the preparation for the Works that there was a requirement for…

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: [2007] NSWLEC 440
Decision Date: 28 June 2007

CaseChat Overview and Summary

Craig Williams and Leah Williams sought a declaration that the development consent granted by the Coffs Harbour City Council had not lapsed. The Council did not contest the application, leading to the consideration of whether a declaration should be made in the absence of a contradictor. The primary legal issue was whether the Court should grant a declaration that the development consent had not lapsed, considering the absence of a contradictor and the implications of making such a declaration on public rights. The Court examined the meaning of "physical commencement" and whether there was sufficient evidence to establish that the development had physically commenced before the lapse date. It was held that physical commencement was sufficiently demonstrated by the activities undertaken on the site prior to the lapse date. The Court also considered whether it should exercise its discretion to make a declaration in the absence of a contradictor, noting that while there was no automatic right to a declaration, the Court could make one if it was satisfied by evidence and if there was a "controversy" that warranted judicial resolution. Given the evidence presented and the utility of the declaration to the applicants, the Court exercised its discretion to make the declaration that the development consent had not lapsed.

The Court declared that the development consent granted by the Coffs Harbour City Council on 19 January 1993 for the construction and use of a 136-site caravan park at Lot 350, DP 703698, Pacific Highway, Arrawarra had not lapsed.

Orders