DETALA PTY LIMITED v BYRON SHIRE COUNCIL [2002] NSWCA 404

DETALA PTY LIMITED v BYRON SHIRE COUNCIL [2002] NSWCA 404

The work carried out by the appellant before the expiration of the five-year statutory period was not sufficient to prevent the lapsing of development consent because it was undertaken without a construction certificate as required by s81A(4) of the Environmental Planning and Assessment Act 1979 and without satisfying the mandatory conditions of consent, specifically condition 23, as the Council's approval was never granted; failure to obtain mandatory statutory approvals rendered the work incapable of saving the consent from lapse.

Jurisdiction
Australia
Judgment Date
18 December 2002
Procedural Posture
Appeal and Application for Leave to Appeal / Judgment on Appeal From Land and Environment Court; Interlocutory Application Also Determined
Outcome
Appeal and application for leave to appeal dismissed with costs.
Legal Topics
['development Consent Lapse' 'tree Preservation Order' 'breach of Consent Conditions' 'construction Certificate Requirement' 'estoppel' 'environmental Planning and Assessment Act 1979']
['local Government' 'environmental Law' 'administrative Law'] ['development Consent Lapse' 'tree Preservation Order' 'breach of Consent Conditions' 'construction Certificate Requirement' 'estoppel' 'environmental Planning and Assessment Act 1979']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal and Application for Leave to Appeal / Judgment on Appeal From Land and Environment Court; Interlocutory Application Also Determined

Legal Issues

  1. 1 ["Whether development consent lapsed under s 95(1) Environmental Planning and Assessment Act 1979 due to failure to physically commence approved works within time; whether breach of condition 23 (tree removal without plan approval) prevented works from saving consent; whether requirement for construction certificate under s81A(4) not met; whether Council estopped from denying commencement; whether works were 'in accordance' with consent; operation of transitional regulations."]

Ratio Decidendi

The work carried out by the appellant before the expiration of the five-year statutory period was not sufficient to prevent the lapsing of development consent because it was undertaken without a construction certificate as required by s81A(4) of the Environmental Planning and Assessment Act 1979 and without satisfying the mandatory conditions of consent, specifically condition 23, as the Council's approval was never granted; failure to obtain mandatory statutory approvals rendered the work incapable of saving the consent from lapse.

Court Disposition

Appeal and application for leave to appeal dismissed with costs.

Orders

  • ['The appeal is dismissed with costs.' 'The application for leave to appeal is dismissed with costs.']