Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86

Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86

The removal, testing and validation of significant quantities of soil, as required by conditions of consent, constituted engineering work that had physically commenced prior to the lapsing date, satisfying the statutory test and preventing the lapsing of the development consent under s 95(4).

Parties
Applicant: Zaymill Pty Limited; Applicant: Maksim Holdings Pty Limited; Respondent: Ryde City Council
Jurisdiction
Australia
Judgment Date
01 May 2009
Procedural Posture
Civil / Ex Tempore Judgment; Application for Declaratory Relief
Outcome
Declaration made that development consent has not lapsed; costs reserved; exhibits may be returned.
Legal Topics
Development Consent, Lapsing of Consent, Physical Commencement of Works, Engineering Works
Planning Law Environmental Law Development Consent Lapsing of Consent Physical Commencement of Works Engineering Works

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Parties

Zaymill Pty Limited

Applicant

Maksim Holdings Pty Limited

Applicant

Ryde City Council

Respondent

Procedural Posture

Civil / Ex Tempore Judgment; Application for Declaratory Relief

Legal Issues

  1. 1 Whether development consent No 1024/2001 issued by Ryde City Council has lapsed pursuant to s 95(4) of the Environmental Planning and Assessment Act 1979
  2. 2 Whether engineering work relating to the approved development was physically commenced prior to the lapsing date

Ratio Decidendi

The removal, testing and validation of significant quantities of soil, as required by conditions of consent, constituted engineering work that had physically commenced prior to the lapsing date, satisfying the statutory test and preventing the lapsing of the development consent under s 95(4).

Court Disposition

Declaration made that development consent has not lapsed; costs reserved; exhibits may be returned.

Orders

  • Declaration that development consent No 1024/2001 issued by the respondent on 11 October 2002 for the construction of thirty-two dwellings on proposed lots one and three in subdivision of 1-13 Pennant Avenue, Denistone has not lapsed pursuant to s 95(4) of the Environmental Planning and Assessment Act 1979.
  • Costs are reserved. Any application for costs must be made by approaching the registry within fourteen days to obtain a hearing date for the hearing of a costs application, otherwise there will be no order as to costs.