Smith v Wyong Shire Council [2008] NSWLEC 115

Smith v Wyong Shire Council [2008] NSWLEC 115

The demolition work and associated additional works undertaken on 12 and 13 September 2007 were physical works on the land relating to and necessary to implement the development consent, and the demolition work was lawful because it did not require a construction certificate. There was sufficient controversy because the Applicant had sought Council confirmation and the Council had not responded, so a declaration had utility notwithstanding the Council's submitting appearance.

Jurisdiction
Australia
Judgment Date
07 March 2008
Procedural Posture
Development Consent Declaration Proceeding / Ex Tempore Judgment
Outcome
Declaration made that the development consent had been physically commenced and had not lapsed.
Legal Topics
['lapsing of Development Consent' 'physical Commencement of Development Consent' 'construction Certificate Requirements' 'declaratory Relief in Absence of Contradictor']
['planning and Environment Law' 'practice and Procedure'] ['lapsing of Development Consent' 'physical Commencement of Development Consent' 'construction Certificate Requirements' 'declaratory Relief in Absence of Contradictor']

Case Brief

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Procedural Posture

Development Consent Declaration Proceeding / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether development consent, as modified, to Development Application No 1107/04 had been physically commenced in accordance with s 95(4) of the Environmental Planning and Assessment Act 1979 before it would otherwise lapse.' 'Whether demolition and associated additional works undertaken on 12 and 13 September 2007 were lawful notwithstanding that no construction certificate was in force.' 'Whether the Court should grant declaratory relief where the Council filed a submitting appearance and did not appear.']

Ratio Decidendi

The demolition work and associated additional works undertaken on 12 and 13 September 2007 were physical works on the land relating to and necessary to implement the development consent, and the demolition work was lawful because it did not require a construction certificate. There was sufficient controversy because the Applicant had sought Council confirmation and the Council had not responded, so a declaration had utility notwithstanding the Council's submitting appearance.

Court Disposition

Declaration made that the development consent had been physically commenced and had not lapsed.

Orders

  • ['The Court declared that development consent, as modified, to Development Application No 1107/04 for the erection of residential flat buildings at 30-36 Toowoon Bay Road, 17A-21 Kitchener Road and 11 Centennial Avenue, Long Jetty has been physically commenced and that the Consent has not lapsed in accordance with...