Sharp v Hunters Hill Council [2002] NSWLEC 27

Sharp v Hunters Hill Council [2002] NSWLEC 27

Partial demolition of the existing dwelling on the development site was 'building work' under s 95(4) of the Environmental Planning and Assessment Act 1979 as it was a necessary physical prelude to erection of the approved new dwelling; since such demolition was physically commenced before the lapsing date and did not require a construction certificate, statutory lapsing of the development consent was avoided. Drainage works related to the approved new dwelling also sufficed for this purpose.

Jurisdiction
Australia
Judgment Date
08 March 2002
Procedural Posture
Declaratory Application / Judgment After Final Hearing
Outcome
Declaration in favour of Applicants; development consent has not lapsed.
Legal Topics
['development Consent Lapsing' 'demolition Works' 'construction Certificates' 'environmental Planning and Assessment Act 1979, S 95(4)']
['planning and Environment Law'] ['development Consent Lapsing' 'demolition Works' 'construction Certificates' 'environmental Planning and Assessment Act 1979, S 95(4)']

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Procedural Posture

Declaratory Application / Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether statutory lapsing of development consent was avoided by carrying out demolition and/or other building or engineering works under s 95(4) Environmental Planning and Assessment Act 1979 (NSW)' 'Whether a construction certificate was required prior to partial demolition for the purposes of s 95(4) and s 81A(2)']

Ratio Decidendi

Partial demolition of the existing dwelling on the development site was 'building work' under s 95(4) of the Environmental Planning and Assessment Act 1979 as it was a necessary physical prelude to erection of the approved new dwelling; since such demolition was physically commenced before the lapsing date and did not require a construction certificate, statutory lapsing of the development consent was avoided. Drainage works related to the approved new dwelling also sufficed for this purpose.

Court Disposition

Declaration in favour of Applicants; development consent has not lapsed.

Orders

  • ['Declare that Development Consent No 1939/95 granted by Hunters Hill Council on 22 January 1996 in respect of No 19 Wybalena Road, Hunters Hill for demolition of the existing dwelling and construction of a new dwelling has not lapsed pursuant to s 95 of the Environmental Planning and Assessment Act 1979.' 'Question...