Besmaw Pty Limited v Sutherland Shire Council and Another [2003] NSWLEC 181

Besmaw Pty Limited v Sutherland Shire Council and Another [2003] NSWLEC 181

Although the works carried out on 19 September 1997 were construction work physically commenced on the land and, apart from condition issues, related to the approved Stage 1 access road, Besmaw had not complied with condition 11 of the modified consent concerning groundwater quality testing and had not complied with conditions requiring silt fences before construction work. Because the work was not permitted by the development consent read with its conditions, it was not construction work commenced for the purposes of s 99(4) and Besmaw was not entitled to the declaration sought.

Jurisdiction
Australia
Judgment Date
08 August 2003
Procedural Posture
Class 4 Application for Declaratory Relief Concerning Development Consent Lapse Under S 99(4) of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing
Outcome
Application dismissed; costs reserved.
Legal Topics
['physical Commencement of Development Consent' 'construction Work Relating to Approved Development' 'compliance With Conditions of Development Consent' 'lapse of Development Consent' 'declaratory Relief']
['planning and Environment Law' 'development Consent'] ['physical Commencement of Development Consent' 'construction Work Relating to Approved Development' 'compliance With Conditions of Development Consent' 'lapse of Development Consent' 'declaratory Relief']

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Procedural Posture

Class 4 Application for Declaratory Relief Concerning Development Consent Lapse Under S 99(4) of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether work carried out on 19 September 1997 was building, engineering or construction work within the meaning of s 99(4) of the Environmental Planning and Assessment Act 1979 as then in force.' 'Whether the work related to the approved development for an access road.' 'Whether the work was a sham or merely preparatory work.' 'Whether non-compliance with conditions of the modified consent and activity approval meant the work was not permitted by the consent and did not prevent the consent from lapsing.']

Ratio Decidendi

Although the works carried out on 19 September 1997 were construction work physically commenced on the land and, apart from condition issues, related to the approved Stage 1 access road, Besmaw had not complied with condition 11 of the modified consent concerning groundwater quality testing and had not complied with conditions requiring silt fences before construction work. Because the work was not permitted by the development consent read with its conditions, it was not construction work commenced for the purposes of s 99(4) and Besmaw was not entitled to the declaration sought.

Court Disposition

Application dismissed; costs reserved.

Orders

  • ['The application for relief in [1] in the Further Amended Application Class 4 dated 4 November 2002 is dismissed.' 'Costs reserved.' 'The exhibits may be returned.']