Ross Winston Green v Kogarah Municipal Council [1999] NSWLEC 256

Ross Winston Green v Kogarah Municipal Council [1999] NSWLEC 256

The development consent lapsed because the works relied upon by the applicant were not building, engineering or construction work relating to a building capable of lawful construction under the consent. The consent required a building application and approval and other preliminary conditions before building work...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 December 1999
Procedural Posture
Class 4 Application for Declarations and Orders / Final Judgment
Outcome
Application dismissed with costs.
Legal Topics
['lapse of Development Consent' 'physical Commencement of Work' 'building Approval Conditions' 'preparatory Work' 'prohibited Work' 'subdivision and Dual Occupancy Development']
['planning and Environment Law' 'development Consent' 'local Government'] ['lapse of Development Consent' 'physical Commencement of Work' 'building Approval Conditions' 'preparatory Work' 'prohibited Work' 'subdivision and Dual Occupancy Development']

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Procedural Posture

Class 4 Application for Declarations and Orders / Final Judgment

Legal Issues

  1. 1 ['Whether the applicant was entitled to rely on Environmental Planning and Assessment Act 1979 s 95(4) to prevent the development consent from lapsing.' 'Whether excavation, clearing, drainage and related works were building, engineering or construction work relating to the building, subdivision or work for which consent was granted.' 'Whether work undertaken without the required building approval and in breach of consent conditions could be relied upon as work relating to the development.' 'Whether the work was merely preparatory or otherwise prohibited.']

Ratio Decidendi

The development consent lapsed because the works relied upon by the applicant were not building, engineering or construction work relating to a building capable of lawful construction under the consent. The consent required a building application and approval and other preliminary conditions before building work commenced, and no building approval existed. In any event, the excavation, clearing and drainage works were preparatory and not referable to approved building specifications, and work undertaken in breach of the consent could not be relied on under s 95(4).

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs." 'The exhibits be returned.']