Fabemu (No 2) Pty Ltd v Kiama Municipal Council [2023] NSWLEC 79

Fabemu (No 2) Pty Ltd v Kiama Municipal Council [2023] NSWLEC 79

The borehole drilling was engineering work relating to the approved development and occurred before the extended lapsing date, but condition 4 of the development consent required a traffic control management plan, designed by an RMS accredited designer and approved by Council, before commencement of any works. Because condition 4 was of general application and had not been satisfied before the borehole drilling, those works were carried out in breach of the condition and could not be relied upon to physically commence the consent under s 4.53(4).

Jurisdiction
Australia
Judgment Date
21 July 2023
Procedural Posture
Class 4 Proceedings Seeking a Declaration Concerning Physical Commencement of a Development Consent Under S 4.53(4) of the Environmental Planning and Assessment Act 1979 / Principal Judgment on Amended Summons
Outcome
Amended Summons dismissed and declaration refused.
Legal Topics
['lapsing of Development Consent' 'physical Commencement' 'engineering Works' 'conditions Precedent' 'traffic Control Management Plan']
['planning and Environment Law' 'development Consent'] ['lapsing of Development Consent' 'physical Commencement' 'engineering Works' 'conditions Precedent' 'traffic Control Management Plan']

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Procedural Posture

Class 4 Proceedings Seeking a Declaration Concerning Physical Commencement of a Development Consent Under S 4.53(4) of the Environmental Planning and Assessment Act 1979 / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether geotechnical borehole drilling constituted building, engineering or construction work relating to the approved development for the purposes of s 4.53(4) of the Environmental Planning and Assessment Act 1979.' 'Whether the borehole drilling was physically commenced on the land before the consent would otherwise lapse.' 'Whether unsatisfied conditions of consent, particularly condition 4 requiring a traffic control management plan before commencement of any works, prevented reliance on the borehole drilling as physical commencement of the consent.']

Ratio Decidendi

The borehole drilling was engineering work relating to the approved development and occurred before the extended lapsing date, but condition 4 of the development consent required a traffic control management plan, designed by an RMS accredited designer and approved by Council, before commencement of any works. Because condition 4 was of general application and had not been satisfied before the borehole drilling, those works were carried out in breach of the condition and could not be relied upon to physically commence the consent under s 4.53(4).

Court Disposition

Amended Summons dismissed and declaration refused.

Orders

  • ['The Amended Summons is dismissed.' 'The application for a declaration that Development Consent 10.2015.77.1 dated 25 October 2016 for the construction of a dwelling at 242 Fern Street, Gerringong has commenced is refused.' 'The exhibits are returned.']