CSR Ltd v Fairfield City Council and Anor [2001] NSWLEC 221

CSR Ltd v Fairfield City Council and Anor [2001] NSWLEC 221

Condition B, properly construed in the context of the deferred commencement conditions, did not vary the statutory five year lapsing period under s 99(2). It imposed a time limit for satisfying the deferred commencement requirements, with non-fulfilment causing the consent to remain permanently inoperative rather than causing it to lapse under s 99. Because s 95A is predicated on a variation of the five year lapsing period, it did not apply to the two year period in condition B. CSR's s 95A application was therefore misconceived and the Class 1 appeal from the deemed refusal was incompetent.

Jurisdiction
Australia
Judgment Date
24 September 2001
Procedural Posture
Class 1 Appeal Against Deemed Refusal of an Application to Extend a Period Specified in a Condition of Development Consent / Preliminary Questions of Law as to Competency of the Appeal and Costs
Outcome
Preliminary question 1 answered No; the s 95A extension was unavailable and the appeal was found incompetent, with final dismissal orders deferred pending mention.
Legal Topics
['deferred Commencement Development Consent' 'extension of Lapsing Period' 'competency of Class 1 Appeal' 'preliminary Questions of Law' 'costs in Planning Appeals']
['planning and Environment Law' 'land and Environment Court Procedure'] ['deferred Commencement Development Consent' 'extension of Lapsing Period' 'competency of Class 1 Appeal' 'preliminary Questions of Law' 'costs in Planning Appeals']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of an Application to Extend a Period Specified in a Condition of Development Consent / Preliminary Questions of Law as to Competency of the Appeal and Costs

Legal Issues

  1. 1 ['Whether the two year period in condition B of the development consent was able to be extended under s 95A of the Environmental Planning and Assessment Act 1979.' "Whether CSR's Class 1 appeal from the deemed refusal of its s 95A application was competent." 'Whether the non-fulfilment of the deferred commencement requirements caused the development consent to lapse or instead remain inoperative.' 'Whether costs should be ordered in favour of the respondents after determination of the preliminary questions of law.']

Ratio Decidendi

Condition B, properly construed in the context of the deferred commencement conditions, did not vary the statutory five year lapsing period under s 99(2). It imposed a time limit for satisfying the deferred commencement requirements, with non-fulfilment causing the consent to remain permanently inoperative rather than causing it to lapse under s 99. Because s 95A is predicated on a variation of the five year lapsing period, it did not apply to the two year period in condition B. CSR's s 95A application was therefore misconceived and the Class 1 appeal from the deemed refusal was incompetent.

Court Disposition

Preliminary question 1 answered No; the s 95A extension was unavailable and the appeal was found incompetent, with final dismissal orders deferred pending mention.

Orders

  • ['Question 1: Is the period of two years referred to in condition B able to be extended under s 95A of the Environmental Planning and Assessment Act 1979? Answer: No.' 'Question 2: Does not arise.' 'Question 3: The question is hypothetical, as no s 96 modification application is before the Court, and it is...