Zaymill Pty Ltd v Ryde City Council - [2009] NSWLEC 86

Land and Environment Court

of New South Wales

CITATION: Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Zaymill Pty Limited and Maksim Holdings Pty Limited
RESPONDENT:
Ryde City Council

FILE NUMBER(S): 40109 of 2009

CORAM: Biscoe J

KEY ISSUES: DEVELOPMENT CONSENT :- for construction of dwellings - whether lapsed after 5 years - whether engineering work relating to the builidng or work physically commenced before then.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 95

CASES CITED: Hunter Development Brokerage Pty Ltd v The Cessnock City Council; Tovedale Pty Ltd v the Shoalhaven City Council [2005] NSWCA 169, (2005) 63 NSWLR 124

DATES OF HEARING: 1 May 2009

EX TEMPORE JUDGMENT DATE: 1 May 2009

LEGAL REPRESENTATIVES:
APPLICANT:
Mr C Gough, solicitor
SOLICITORS
Storey & Gough
RESPONDENT:
submitting appearance
SOLICITORS
Ryde City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

1 May 2009

40109 of 2009

ZAYMILL PROPRIETARY LIMITED v RYDE CITY COUNCL

EX TEMPORE JUDGMENT

1 HIS HONOUR: HIS HONOUR: The applicants, Zaymill Pty Limited and Maksim Holdings Pty Limited, seek a declaration that development consent No 1024/2001 issued by the respondent City of Ryde Council on 11 October 2002 for the construction of thirty-two dwellings on proposed lots one and three in a subdivision of 1-13 Pennant Avenue, Denistone, has not lapsed pursuant to s 95(4) of the Environmental Planning and Assessment Act 1979. The respondent council has filed a submitting appearance accept as to costs.

BACKGROUND

2 The development consent approved the construction of thirty-two dwellings on lots one and three on the property at 1-13 Pennant Avenue, Denistone. If the building engineering or construction work relating to the approved work was not physically commenced before 11 October 2007, then the consent would lapse in accordance with the provisions of s 95 of the Environmental Planning and Assessment Act 1979. Conditions 30-35 of the consent required certain remediation works to be carried out on the property.

3 Between 9 April and 2 May 2003 the following works were carried out on the property:

(a) the excavation and removal of approximately five cubic metres of soil from the former paint storage area tested and disposed of to the Penrith Waste Facility at Mulgoa;
(b) the excavation of approximately seven cubic metres of soil from the former paint storage area tested and validated for reuse on the site.
(c) the excavation of approximately eighty cubic metres of soil from beneath the former wool store tested and disposed of to the Penrith Waste Facility at Mulgoa.
(d) The excavation of approximately forty cubic metres of soil from the scouring waste water pits tested and validated for reuse on the site.

4 Parsons Brinckerhoff were then commissioned to prepare a remediation and validation report and lodgement with the council as required by condition thirty-two…

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: [2009] NSWLEC 86
Decision Date: 1 May 2009

CaseChat Overview and Summary

The applicants, Zaymill Pty Limited and Maksim Holdings Pty Limited, sought a declaration that their development consent for the construction of thirty-two dwellings on lots one and three of a subdivision at 1-13 Pennant Avenue, Denistone, had not lapsed under section 95(4) of the Environmental Planning and Assessment Act 1979. The respondent, Ryde City Council, opposed the application. The key issue was whether the engineering work required by the consent had been physically commenced before the consent lapsed on 11 October 2007. This was a critical point because if the work had not physically commenced, the consent would have lapsed.

The court examined the nature and extent of the works carried out on the site, including the excavation and removal of soil, and the preparation of remediation and validation reports. The applicants argued that these works constituted engineering work necessary to physically commence the development. The court referred to Hunter Development Brokerage Pty Ltd v The Cessnock City Council; Tovedale Pty Ltd v the Shoalhaven City Council, which established a test for determining whether preparatory work can be considered physical commencement. The court found that the work done on the site was more than merely notional or equivocal and had a real nexus with the approved development, satisfying the criteria for physical commencement.

The court concluded that the work undertaken by the applicants did physically commence the development and thus prevented the consent from lapsing. The court granted the declaration sought by the applicants, stating that the development consent had not lapsed. Costs were reserved, and any application for costs had to be made within fourteen days.

The final orders were that development consent No 1024/2001 for the construction of thirty-two dwellings had not lapsed, costs were reserved, and the exhibits could be returned. This decision provided clarity on the status of the development consent and ensured that the applicants could proceed with their plans without the risk of the consent lapsing.

Orders