Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83

Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83

The respondent did not establish that the works relied on to avoid lapsing of development consent (demolition, clearing, fencing, water disconnection) were completed in compliance with necessary conditions (including appointment of a Principal Certifying Authority and relevant pre-demolition conditions). As a result, the development consent lapsed. The completed building was therefore constructed without development consent, is now a prohibited development under current zoning, and the court declares a breach of s 76B (now s 4.3) of the Environmental Planning and Assessment Act 1979. In exercise of discretion, the court declines to order demolition but restrains use for residential...

Jurisdiction
Australia
Judgment Date
01 June 2018
Procedural Posture
Class 4 Civil Enforcement Proceedings / Final Judgment and Orders
Outcome
Declaration of prohibited development; order restraining use; costs to applicant unless otherwise ordered
Legal Topics
['development Consent Lapsing' 'prohibited Development' 'remedial Orders' 'occupational Certificates' 'breach of Environmental Planning and Assessment Act 1979']
['environment and Planning Law'] ['development Consent Lapsing' 'prohibited Development' 'remedial Orders' 'occupational Certificates' 'breach of Environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Final Judgment and Orders

Legal Issues

  1. 1 ['Has the 2004 development consent for the subject site lapsed?' 'Was the multi-dwelling constructed lawfully commenced?' 'Can the respondent rely on demolition/site works as physical commencement to save consent?' 'What is the appropriate relief or order for a completed, but unauthorised or prohibited, development?']

Ratio Decidendi

The respondent did not establish that the works relied on to avoid lapsing of development consent (demolition, clearing, fencing, water disconnection) were completed in compliance with necessary conditions (including appointment of a Principal Certifying Authority and relevant pre-demolition conditions). As a result, the development consent lapsed. The completed building was therefore constructed without development consent, is now a prohibited development under current zoning, and the court declares a breach of s 76B (now s 4.3) of the Environmental Planning and Assessment Act 1979. In exercise of discretion, the court declines to order demolition but restrains use for residential...

Court Disposition

Declaration of prohibited development; order restraining use; costs to applicant unless otherwise ordered

Orders

  • ['Declaration that the respondent carried out prohibited development for which no development consent was in force in breach of s 4.3 (formerly s 76B) of the Environmental Planning & Assessment Act 1979 for the multi-unit development on Lot 190 in DP 1060765 (527 Woodville Road, Guildford);' 'Order restraining the...