AUSTRALAND HOLDINGS LIMITED v HORNSBY SHIRE COUNCIL [1998] NSWLEC 42 (20 March 1998) [1998] NSWLEC 16

AUSTRALAND HOLDINGS LIMITED v HORNSBY SHIRE COUNCIL [1998] NSWLEC 42 (20 March 1998) [1998] NSWLEC 16

Non-compliance with the time stipulation for satisfying a deferred commencement condition under s91AA of the Environmental Planning and Assessment Act 1979 does not cause the deferred commencement consent to lapse. The consent remains in force, though it does not operate until fulfilment of the condition. The...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 March 1998
Procedural Posture
Appeal (class 1 Proceedings) / Preliminary Determination of Questions of Law
Outcome
Questions of law answered; no determination of planning merits; costs reserved.
Legal Topics
['development Consent' 'deferred Commencement Consent' 'statutory Interpretation' 'modification of Development Consent' 'appeals Against Local Authority Determinations']
['planning Law' 'administrative Law'] ['development Consent' 'deferred Commencement Consent' 'statutory Interpretation' 'modification of Development Consent' 'appeals Against Local Authority Determinations']

Source-derived case record

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Procedural Posture

Appeal (class 1 Proceedings) / Preliminary Determination of Questions of Law

Legal Issues

  1. 1 ['Whether non-compliance with a time stipulation in a deferred commencement development consent causes the consent to lapse under the Environmental Planning and Assessment Act 1979 (NSW)' 'Whether a deferred commencement consent may be modified under s102 of the EP&A Act after non-compliance with stipulated time' 'Whether rights of appeal under s97(1) and s97(1A) of the EP&A Act survive non-compliance with time stipulations in a deferred commencement consent']

Ratio Decidendi

Non-compliance with the time stipulation for satisfying a deferred commencement condition under s91AA of the Environmental Planning and Assessment Act 1979 does not cause the deferred commencement consent to lapse. The consent remains in force, though it does not operate until fulfilment of the condition. The consent is capable of modification under s102. The right of appeal under s97(1) remains available within 12 months of the s92 notice. However, the right of appeal under s97(1A) depends upon evidence being produced within time and is not enlivened if produced out of time.

Court Disposition

Questions of law answered; no determination of planning merits; costs reserved.

Orders

  • ['The deferred development consent has not lapsed and is in force, although not operative until fulfilment of the deferred commencement condition.' 'Statutory modification under s102 is available.' 'An appeal under s97(1) is available within 12 months of the s92 Notice.' 'Appeal under s97(1A) is not available if...