Todbern Pty Limited v Hurstville City Council and Anor. [2003] NSWLEC 11

Todbern Pty Limited v Hurstville City Council and Anor. [2003] NSWLEC 11

Because cl 38 preserved s 103 of the unamended Local Government Act 1993, and s 103(4) expressly recognised extensions or renewals under s 107, s 107 was preserved for the relevant approval. In the context of s 107 there was no significant distinction between extending and renewing the duration of an approval. The Councils' purported six month extension therefore operated as a renewal granted on 28 August 2001, and the attempted six month limitation was ineffective because the approval then lapsed in accordance with s 103(1)(a), five years after that date.

Jurisdiction
Australia
Judgment Date
27 September 2002
Procedural Posture
Class 4 Proceedings for Declaratory Relief Concerning Building Approval BA 2015/99 / Ex Tempore Judgment on Amended Application
Outcome
Declaratory relief granted; no order as to costs by consent.
Legal Topics
['building Approval Lapse' 'extension or Renewal of Approval' 'savings and Transitional Regulations' 'declaratory Relief']
['planning and Environment Law' 'local Government Law'] ['building Approval Lapse' 'extension or Renewal of Approval' 'savings and Transitional Regulations' 'declaratory Relief']

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Procedural Posture

Class 4 Proceedings for Declaratory Relief Concerning Building Approval BA 2015/99 / Ex Tempore Judgment on Amended Application

Legal Issues

  1. 1 ['Whether s 107 of the Local Government Act 1993 remained available for the extension or renewal of the building approval by operation of cl 38 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 and s 103(4) of the Local Government Act 1993.' 'Whether there was a material distinction between an extension and a renewal under s 107 of the Local Government Act 1993 in the circumstances of the approval.' "Whether the Councils' purported six month extension was ineffective because the approval operated as if granted on 28 August 2001 and would lapse five years after that date."]

Ratio Decidendi

Because cl 38 preserved s 103 of the unamended Local Government Act 1993, and s 103(4) expressly recognised extensions or renewals under s 107, s 107 was preserved for the relevant approval. In the context of s 107 there was no significant distinction between extending and renewing the duration of an approval. The Councils' purported six month extension therefore operated as a renewal granted on 28 August 2001, and the attempted six month limitation was ineffective because the approval then lapsed in accordance with s 103(1)(a), five years after that date.

Court Disposition

Declaratory relief granted; no order as to costs by consent.

Orders

  • ["Declaration that by virtue of s 107(2) of the Local Government Act 1993, the first Respondent's decision to grant to the Applicant a renewal or extension of building approval BA 2015/99 dated 26 August 1999 after its expiry on 26 August 2001, as set forth in the first Respondent's letter to the Applicant of 28...