Savellis v Sutherland Shire Council [2018] NSWLEC 100

Savellis v Sutherland Shire Council [2018] NSWLEC 100

The deferred commencement consent lapsed after 19 June 2016 because the applicants did not satisfy the Council as to the matter specified in the deferred commencement condition within the one-year period specified by the Council. The Council's purported modification under s 96(2) to extend that period to three years was legally ineffective, and the applicants did not apply under s 95A before the lapsing period expired. Because the consent had lapsed, there was no consent on which the applicants could rely for an extension under s 95A or a modification under s 4.55(1A), so the appeals had to be dismissed.

Jurisdiction
Australia
Judgment Date
18 June 2018
Procedural Posture
Class 1 Appeal Against Council's Refusal of Applications to Extend the Lapsing Period and to Modify a Development Consent / Expedited Hearing and Determination of Appeal
Outcome
Appeal dismissed.
Legal Topics
['deferred Commencement Consent' 'lapsing of Development Consent' 'modification of Development Consent' 'extension of Lapsing Period' 'restriction as to User']
['planning and Environment Law'] ['deferred Commencement Consent' 'lapsing of Development Consent' 'modification of Development Consent' 'extension of Lapsing Period' 'restriction as to User']

Case Brief

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Procedural Posture

Class 1 Appeal Against Council's Refusal of Applications to Extend the Lapsing Period and to Modify a Development Consent / Expedited Hearing and Determination of Appeal

Legal Issues

  1. 1 ['Whether the deferred commencement development consent lapsed after 19 June 2016 because the applicants failed to satisfy the deferred commencement condition within the original specified period.' "Whether the Council's purported modification under s 96(2) of the Environmental Planning and Assessment Act 1979 validly extended the time to satisfy the deferred commencement condition." 'Whether the Court had power to extend the lapsing period under s 95A(2) or modify the consent under s 4.55(1A) after the consent had lapsed.']

Ratio Decidendi

The deferred commencement consent lapsed after 19 June 2016 because the applicants did not satisfy the Council as to the matter specified in the deferred commencement condition within the one-year period specified by the Council. The Council's purported modification under s 96(2) to extend that period to three years was legally ineffective, and the applicants did not apply under s 95A before the lapsing period expired. Because the consent had lapsed, there was no consent on which the applicants could rely for an extension under s 95A or a modification under s 4.55(1A), so the appeals had to be dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The respondent is to pay to the applicants the filing fees incurred by the applicants in commencing the appeal.']