Norlex Holdings Pty Ltd v Wingecarribee Shire Council [2010] NSWLEC 149

Norlex Holdings Pty Ltd v Wingecarribee Shire Council [2010] NSWLEC 149

The consent had not lapsed because the extraction, collection, testing and analysis of spring water and the acoustic testing undertaken by Norlex were engineering work related to the consent and physically commenced on the property before 30 August 2000. The water work related to conditions requiring extraction under commercial licence and water quality monitoring, and the acoustic work related to condition 1(d). The fence and gate repair was not building, engineering or construction work because it was maintenance of pre-existing items and did not relate to the approved work.

Jurisdiction
Australia
Judgment Date
31 August 2010
Procedural Posture
Proceedings Concerning Whether a Development Consent Had Lapsed / Judgment After Hearing
Outcome
Application succeeded; declaratory relief granted that the development consent had not lapsed.
Legal Topics
['development Consent Lapse' 'physical Commencement of Work' 'engineering Work' 'environmental Planning and Assessment Act 1979 S 95(4)' 'development Consent Conditions']
['planning and Environment Law'] ['development Consent Lapse' 'physical Commencement of Work' 'engineering Work' 'environmental Planning and Assessment Act 1979 S 95(4)' 'development Consent Conditions']

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Procedural Posture

Proceedings Concerning Whether a Development Consent Had Lapsed / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the development consent was for the erection of a building or the carrying out of a work.' 'Whether the work relied upon by Norlex was building, engineering or construction work.' 'Whether the work related to the building or work the subject of the consent, rather than to a modification application or new development application.' 'Whether the work was physically commenced on the land to which the consent applied before 30 August 2000.']

Ratio Decidendi

The consent had not lapsed because the extraction, collection, testing and analysis of spring water and the acoustic testing undertaken by Norlex were engineering work related to the consent and physically commenced on the property before 30 August 2000. The water work related to conditions requiring extraction under commercial licence and water quality monitoring, and the acoustic work related to condition 1(d). The fence and gate repair was not building, engineering or construction work because it was maintenance of pre-existing items and did not relate to the approved work.

Court Disposition

Application succeeded; declaratory relief granted that the development consent had not lapsed.

Orders

  • ['The Court declares that the development consent (DA 057/94) granted by the council for the extraction of groundwater on the property and notified pursuant to the provisions of the EPAA on 30 August 1995, has not lapsed.' "The costs of the proceedings are reserved. If within 7 days Norlex has not filed a notice of...