Donvito v Hawkesbury City Council [2022] NSWLEC 26

Donvito v Hawkesbury City Council [2022] NSWLEC 26

Where a staged development has Council-accepted management plans and construction certificates, and where a specific consent condition (condition 12) relates only to future works (here, roof replacement) not included in the Stage 1 works commenced, satisfaction of that condition may properly be deferred to the stage involving that work. The carrying out of Stage 1 works, with appropriate construction certificate and Council acceptance, was sufficient commencement to prevent consent lapsing.

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Class 4 Proceedings / Judgment After Contested Hearing (no Contradictor), Decision on Declaration
Outcome
Declaration granted: development consent has not lapsed
Legal Topics
['development Consent' 'consent Lapsing' 'staged Development' 'construction Certificate Requirements']
['planning Law' 'environmental Law'] ['development Consent' 'consent Lapsing' 'staged Development' 'construction Certificate Requirements']

Case Brief

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Procedural Posture

Class 4 Proceedings / Judgment After Contested Hearing (no Contradictor), Decision on Declaration

Legal Issues

  1. 1 ['Whether development consent DA0406/12 had lapsed for want of commencement of building works within 5 years under s 4.53(1)(a) Environmental Planning and Assessment Act 1979' 'Proper construction of condition 12 of consent: whether need for satisfaction prior to all construction certificates or only to the stage involving relevant roof works']

Ratio Decidendi

Where a staged development has Council-accepted management plans and construction certificates, and where a specific consent condition (condition 12) relates only to future works (here, roof replacement) not included in the Stage 1 works commenced, satisfaction of that condition may properly be deferred to the stage involving that work. The carrying out of Stage 1 works, with appropriate construction certificate and Council acceptance, was sufficient commencement to prevent consent lapsing.

Court Disposition

Declaration granted: development consent has not lapsed

Orders

  • ['Declare that Development Consent DA 0406/12 issued by Hawkesbury City Council on 9 July 2013 (and dated 22 July 2013) for alterations and additions to an existing building and use of the building as a boarding house at 100 Mileham Street, South Windsor has not lapsed' 'The exhibit is returned' 'Costs are reserved']