Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122

Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122

Engineering and construction works (specifically certain clearing, geotechnical, survey, and driveway works) undertaken by or for Moorebank Recyclers Pty Ltd were physically commenced on the site prior to 27 June 2009, were sufficiently related to the consented development, and were not shown to be unlawful. Accordingly, the development consent had not lapsed under s 95(4) of the Environmental Planning and Assessment Act 1979 (NSW).

Jurisdiction
Australia
Judgment Date
16 September 2016
Procedural Posture
Appeals Under S 75 L EPA Act / Determination of Separate Question on Whether Development Consent Had Lapsed
Outcome
Finding that the development consent had not lapsed; separate question answered in the negative.
Legal Topics
['development Consent Lapse' 'physical Commencement' 'construction of Statutory Terms (epa Act S 95)']
['planning and Environment Law'] ['development Consent Lapse' 'physical Commencement' 'construction of Statutory Terms (epa Act S 95)']

Case Brief

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Procedural Posture

Appeals Under S 75 L EPA Act / Determination of Separate Question on Whether Development Consent Had Lapsed

Legal Issues

  1. 1 ['Whether development consent DA 1417/05 lapsed prior to 27 June 2009 under s 95(4) of the Environmental Planning and Assessment Act 1979 (NSW)' "Whether works undertaken prior to 27 June 2009 constituted 'engineering' or 'construction' work relating to the consent" 'Whether the requisite engineering or construction work was physically commenced on the relevant land']

Ratio Decidendi

Engineering and construction works (specifically certain clearing, geotechnical, survey, and driveway works) undertaken by or for Moorebank Recyclers Pty Ltd were physically commenced on the site prior to 27 June 2009, were sufficiently related to the consented development, and were not shown to be unlawful. Accordingly, the development consent had not lapsed under s 95(4) of the Environmental Planning and Assessment Act 1979 (NSW).

Court Disposition

Finding that the development consent had not lapsed; separate question answered in the negative.

Orders

  • ['The answer to the separate question is: the Consent had not lapsed; engineering and construction works relating to the Consent works had physically commenced prior to 27 June 2009 for the purposes of s 95(4) of the Environmental Planning and Assessment Act 1979 (NSW).']