Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169

Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169

Survey work and geotechnical investigation work physically commenced on the subject land constitute 'engineering work relating to' the approved subdivision within the meaning of the Environmental Planning and Assessment Act. As these works had been physically commenced before the relevant lapsing dates, the development consents did not lapse. The characterisation of these works as 'merely preparatory' is not a basis for excluding them from the statutory test. The primary judge erred in holding otherwise.

Jurisdiction
Australia
Judgment Date
23 May 2005
Procedural Posture
Appeal / Final Judgment in Court of Appeal
Outcome
Appeals allowed
Legal Topics
['development Consent' 'lapsing of Consent' 'statutory Interpretation' 'subdivision of Land' 'engineering Work']
['land and Environment Law' 'administrative Law'] ['development Consent' 'lapsing of Consent' 'statutory Interpretation' 'subdivision of Land' 'engineering Work']

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Procedural Posture

Appeal / Final Judgment in Court of Appeal

Legal Issues

  1. 1 ["Whether physical survey work and/or geotechnical investigation work constitutes 'engineering work' within the meaning of the Environmental Planning and Assessment Act provisions governing lapsing of development consents for subdivision of land" "Whether the relevant work had been 'physically commenced' and 'related to' the approved development prior to the lapsing date" "Whether the characterisation of the work as 'merely preparatory' is relevant under the legislative scheme"]

Ratio Decidendi

Survey work and geotechnical investigation work physically commenced on the subject land constitute 'engineering work relating to' the approved subdivision within the meaning of the Environmental Planning and Assessment Act. As these works had been physically commenced before the relevant lapsing dates, the development consents did not lapse. The characterisation of these works as 'merely preparatory' is not a basis for excluding them from the statutory test. The primary judge erred in holding otherwise.

Court Disposition

Appeals allowed

Orders

  • ['Order 1 made by Bignold J on 17 August 2004 (Hunter) and 28 August 2004 (Tovedale) set aside' 'Proceedings remitted to the Land and Environment Court for determination in accordance with the decision of the Court of Appeal (Hunter)' 'Declaration that the development consent granted to Tovedale on 28 September 1989...