Pselletes v Randwick City Council [2009] NSWCA 262

Pselletes v Randwick City Council [2009] NSWCA 262

The Court held that the operative consent is the actual determination made by the Council's delegate under s 80(1), which excluded the balcony because the applicant had withdrawn that component before the determination. The notice of determination did not constitute the grant of consent but rather provided notice of the actual determination. As such, no lawful consent existed for the balcony, and the Council's subsequent order requiring removal was valid.

Parties
Appellant: Gary Pselletes; Respondent: Randwick City Council
Jurisdiction
Australia
Judgment Date
08 September 2009
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Development Consent, Development Applications, Statutory Construction, Building Approvals, Amendment or Withdrawal of Development Applications, Function of Development Consent Notice
Environmental Law Planning Law Development Consent Development Applications Statutory Construction Building Approvals Amendment or Withdrawal of Development Applications Function of Development Consent Notice

Case Brief

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Parties

Gary Pselletes

Appellant

Randwick City Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the development consent granted by the Council included the balcony as proposed in the original application or excluded it following the applicant's withdrawal of that part of the proposal
  2. 2 Whether the consent is constituted by the delegate's actual determination under s 80(1) of the Environmental Planning and Assessment Act 1979 or by the notice of determination issued under s 81

Ratio Decidendi

The Court held that the operative consent is the actual determination made by the Council's delegate under s 80(1), which excluded the balcony because the applicant had withdrawn that component before the determination. The notice of determination did not constitute the grant of consent but rather provided notice of the actual determination. As such, no lawful consent existed for the balcony, and the Council's subsequent order requiring removal was valid.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.
  • The appellant to pay the Council's costs of the appeal.