Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106

Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106

The applicant failed to discharge the onus of proving lawful substantial commencement before the consent lapsed; without such commencement, original development consent lapsed and no application for modification can proceed under s 96(2) EPA Act.

Parties
Applicant: Davi Developments Pty Ltd; Respondent: Leichhardt Council
Jurisdiction
Australia
Judgment Date
05 March 2007
Procedural Posture
Appeal Against Deemed Refusal of Modification Application (development Consent) / Determination of Preliminary Issues on Substantial Commencement and Modification
Outcome
Appeal dismissed; application for modification of development consent refused.
Legal Topics
Substantial Commencement, Modification of Development Consent, Lapsing of Consent, Section 96 Environmental Planning and Assessment Act
Environmental Law Planning Law Administrative Law Substantial Commencement Modification of Development Consent Lapsing of Consent Section 96 Environmental Planning and Assessment Act

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Parties

Davi Developments Pty Ltd

Applicant

Leichhardt Council

Respondent

Procedural Posture

Appeal Against Deemed Refusal of Modification Application (development Consent) / Determination of Preliminary Issues on Substantial Commencement and Modification

Legal Issues

  1. 1 Whether substantial commencement of building work occurred within the applicable time limit before development consent lapsed
  2. 2 Whether the work relied on was lawful and could be counted as substantial commencement
  3. 3 Whether the proposed modification would result in substantially the same development under s 96(2) Environmental Planning and Assessment Act 1979

Ratio Decidendi

The applicant failed to discharge the onus of proving lawful substantial commencement before the consent lapsed; without such commencement, original development consent lapsed and no application for modification can proceed under s 96(2) EPA Act.

Court Disposition

Appeal dismissed; application for modification of development consent refused.

Orders

  • The application is dismissed.
  • The application for modification of development consent No. 3736 is determined by refusal of consent.