Biwazu Pty Limited v Cessnock City Council

Land and Environment Court (NSW)|2004-08-26|Before: Cowdroy J, Wilson JJ, Mr J

Introduction 1 The applicant seeks a declaration that development consent no. 150/595/6 ("the consent") issued to it by the respondent ("the council") by notice dated 20 June 1995 ("the consent date") has not lapsed because there has been physical commencement of "work" within the meaning of s 95(4) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 2 Section 95(4) of the EP&A Act relevantly provides:- (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. 3 The consent was granted in respect of the subdivision into 29 lots of part of Lot 291 DP 811409 in Morgan Street, North Rothbury ("the land"), subject to conditions ("the conditions"). Neither the development application nor a complete copy of the consent has been tendered in evidence, but it is apparent that the subdivision required the construction of roadways, concrete kerbing and guttering, footpaths and drainage works. 4 The conditions required inter alia, the preparation of engineering plans and provided relevantly as follows:-

... Details plans, specifications and copies of the calculations, prepared by a qualified Civll [sic] Engineer, shall be submitted to and approved by the Director Works prior to commencement of subdivisional works. The plans shall show details of all necessary drainage easements through the site. Should the analysis show that flows off the site as a result of the development are unacceptably high then individual on-site detention may be necessary. … 9. The applicant shall construct forthwith the following works in Morgan Street from Rothbury Street to the southern extremity of lot 103 for a design width of 10 metres kerb to kerb in accordance with Council's standards and set out on a set of plans, four (4) copies of which are to be submitted to and approved by the Director Works prior to submission of a Building Application. A) Construct concrete kerb and gutter for the full frontage of the development. B) Construct and gravel road formation. C) Place 2 coat hot bitumen seal to full width of 4.5 metre formation. D) Topdress and turf footpath. E) Construct drainage works. … 11. The applicant shall construct all subdivisional works in accordance with Council's specifications and requirements. Engineering design plans shall be submitted to Council's Works Department for approval prior to commencement of any works on the site. The engineering design should be discussed with Council's Engineer prior to final preparation of the design plans. … 13. The applicant shall construct a Type A shoulder treatment at the intersection of Rothbury Street and Main Road 220 in accordance with Figure 5.21 Part 5 Intersections at Grade - Austroads 1988. Such works shall be completed in accordance with Council's standards for basic shoulder treatment and be included in the engineering design plans. All intersection works shall be completed prior to release of the surveyor's transparency for the 29 residential lots. 5 It is acknowledged by the applicant that no building or construction work has taken place on the land since the consent date. However the applicant maintains that it has carried out engineering work on the land following the consent date comprising the installation of surveyor's pegs and stakes. It submits that such work is sufficient to prevent lapsing of the consent as provided by s 95(4) of the EP&A Act. The factual issue 6 A factual issue has arisen which requires a determination whether any surveying or pegging work was in fact carried out on the land following the consent date. 7 Between 21 June 1995 and 29 July 1995 the applicant claims that it caused survey work to be undertaken for the further preparation of engineering plans for the development. On 29 June 1995 under instructions from the applicant, Oborn Professional Consulting Group ("Oborn") wrote to the Town Clerk of the council enclosing an "advance copy of engineering design drawings for your initial perusal and comment". The letter then detailed several issues for consideration and discussion between the parties and sought comment to enable completed engineering drawings to be submitted for approval. 8 On 9 August 1995 amended engineering design drawings were submitted to the council. These were prepared in response to the council's notes of comment dated 20 July 1995 and 24 July 1995 and subsequent to discussions held between the applicant and council officers. On 14 August 1995 Oborn submitted sketch plans relating to an easement between the adjoining lot and the land. 9 By letter dated 20 November 1996 the council advised that the engineering plans duly endorsed, "had been released on 21 November 1996 upon payment of the appropriate plan checking fees of $3,936." The letter advised that further amendments were necessary and thereafter detailed the precise matters requiring attention. 10 The council contends that there is insufficient evidence to establish that any survey work was carried out on the land after the consent date and further submits that survey work does not constitute "work" for the purpose of s 95(4) of the EP&A Act. Accordingly council submits that the consent lapsed on 20 June 2000, being five years from the consent date.

Applicant's Evidence 11 The work allegedly performed by the applicant after the consent date is itemised in the affidavit of Mr Graham Walter Oborn sworn on 1 March 2004 and is described as follows:- a) The boundary survey to redefine the boundaries of Lot 103 DP 851505 and so as to establish the location of the centreline of the proposed roadways. b) The centreline of road no 1 was pegged with numbered stakes and identification tape at 15 metre intervals on the site of the work that had been previously cleared commencing at chainage 0 at the intersection of Morgan Street through to chainage 322.22 being the centre of proposed cul-de-sac. c) The road no 2 was pegged with numbered stakes and identification tape at 15 metre intervals from chainage 0 at the intersection of road 1 through to chainage 44.5 being the centre of the hammer head turning circle. d) The centreline of Morgan Street (unformed) was pegged with numbered stakes and identification tape at 15 metre intervals commencing at chainage 0 being the intersection with Rothbury Street through to the limited construction being chainage 195.

e) The survey levels were taken in the first instance to establish on site bench marks referenced to Australian Height Datum.

f) The centreline pegs as placed were levelled with cross section levels wee [sic] taken at 10 metre intervals on each side of the centreline.

g) Rear boundary pegs of proposed lots 2/3, 8-10, 16-21 and 22-24 were placed. Levels were taken on the aforesaid pegging together with intermediate levels at 15 metre intervals for the purposes of interallotment stormwater drainage, pathway and vehicular carriageway design purposes. h) The spot levels at 10 metre intervals were taken in grid formation over the areas proposed to be filled within proposed lots 12-14, 22-24 and 26-28, as well as within the adjoining property.

i) A detail survey of the adjoining downstream property was carried out in 10 metre grid formation for the purpose of design of the downstream drainage detention basin including levelling the inverts of all downstream existing stormwater pipes and structures.

j) A detail survey noting all existing road and service features was carried out at the intersection of Main Road 220 and Rothbury Street and at the intersection of Rothbury Street and Morgan Street. All such survey detail is shown on sheets 10 and 11 of the approved engineering design drawings.

Mr Oborn's affidavit was supported by the affidavits of two employees, namely Messrs Turner and Thompson, whose evidence is considered hereunder. 12 The oral evidence establishes that Mr Oborn, a surveyor and the principal of Oborn Consulting Group, surveyors, at all material times held a financial interest in the applicant. The applicant had purchased a farm and had subdivided it into three lots known as lot 101, lot 102 and lot 103. The land comprised lot 103 and it was the applicant's intention to further subdivide lot 103 into 29 lots. 13 In cross-examination Mr Oborn acknowledged that he had no records which related to any of the activities specified in the above particulars. His testimony was complied as the result of a reconstruction of the events which he believed occurred having considered the completed engineering plans. All records except those produced to the Court relating to the work done on the land have been destroyed. Accordingly the work allegedly performed as detailed in the affidavit is unsupported by documentary evidence and the exact times when such work was believed to have occurred were only inferred. 14 During the course of cross examination it became apparent that the dates when the itemised work was said by Mr Oborn to have taken place upon the land were uncertain. Mr Oborn maintained that survey work was carried out on the land "after the plans were lodged at the council on 29 June through to the date at which we got our first list of requisitions from the council." However, Mr Oborn was unable to confirm that any field work took place either before or after the consent date. 15 Mr Oborn had taken a close interesting the progress of the development application made to the council and had monitored its progress through the approval process. Following the lodgement of the development application, Mr Oborn examined a copy of the council's business paper which included the report of its senior town planner. The report was considered at a council meeting on 17 May 1995 and was deferred to enable a council inspection of the land on 26 May 1995. Subsequently the matter was referred to council on 7 June with a recommendation for its approval. 16 Mr Oborn was aware that council approved the application on 7 June 1995. He immediately instructed his employees to prepare engineering plans for the subdivision which required further site survey work. Mr Oborn acknowledged that between 7 June 1995 and 20 June 1995 office preparatory work was undertaken for the engineering plans. The engineering plans were lodged with council on 29 June 1995, namely within 9 days of the consent date. 17 Mr Ian David Turner, registered surveyor gave evidence that he was an employee of Oborn between 1992 and 1997 and deposed that he attended on at least 15 days "on a property at Lot 291 Morgan Street and Main Road 220, North Rothbury" during the period June 1995 to July 1995 "to complete survey work" and was assisted by two field hands, Brett Thompson and Gregory Moore. Mr Turner deposed:- In particular the survey work was effected by myself in accordance with my notes of time recording on work effected for my employer and this work is as follows:-

Thereafter Mr Turner's affidavit repeated verbatim the items of work listed in Mr Oborn's affidavit as set out in paragraph 11 above. 18 In cross-examination Mr Turner acknowledged however that such records did not commence until 21 July 1995. Further, such records referred to work carried out in the office for the preparation of engineering plans and that such work was not physical work performed on the land. Mr Turner had no independent recollection of the dates when fieldwork was performed either on the land or on adjoining land for the purpose of construction of the intersections. He believed that such work would have been carried out after the consent date. However Mr Turner explained that his belief was predicated upon the premise that Mr Oborn would not have been prepared to undertake survey work of a detailed nature until consent had been granted, lest the work be "sacrificial". 19 No independent records supported Mr Turner's understanding, and it became apparent from his answers that he had no accurate recollection of the dates when the work upon which the applicant relied was in fact carried out. He acknowledged that he did not really remember whether any work was done on the land between 20 June 1995 and 29 June 1995, but believed that it was "highly likely". His belief was only predicated upon the assumption that Mr Oborn would not have undertaken survey work unnecessarily. 20 Mr Brett John Thompson, a civil supervisor assisted Mr Turner in undertaking field work. He prepared engineering plans and specifications with Mr Oborn and attended at the council's offices when discussions occurred concerning the proposed subdivision. 21 Mr Thompson's affidavit repeats, virtually verbatim, the same work as referred to in the affidavits of Messrs Oborn and Turner. In cross examination Mr Thompson agreed that he could not remember whether the work referred to, either on the land or on the intersections was in fact carried out after the consent date. Mr Thompson maintained a very detailed record of all work which he performed for Oborn, from which he prepared timesheets to enable payment of his remuneration. The records show that he spent considerable time on the engineering plans in April, May, June, July and August 1995. In contrast to work performed by Mr Thompson for Mr Oborn on other jobs, no field work was specified as being undertaken by him in relation to the land. In oral evidence Mr Thompson said that he may not have included field work if it were of a minor nature. 22 Mr Mark Dannenberg, an earthmoving contractor, provided an affidavit for the applicant, but the applicant initially chose not to rely upon his evidence. Instead his affidavit was first relied upon by the council and he was cross examined by the applicant. On the second day of the hearing Mr Dannenberg was called as a witness to provide oral evidence for the applicant. 23 Mr Dannenberg deposed to a quotation which he prepared in August 1995 for earthworks on the land, and to certain test pits which he excavated. He also said that he had been requested by Oborn to supervise removal of debris from the land, and that such work was completed by Mr Paul Myers using a traxcavator. His affidavit states that he observed the surveyor's pegs in the centre line of the roadway within the proposed subdivision. 24 Mr Dannenberg gave evidence of the observations he made of the land during three site visits. Initially he stated that his first visit to the land in March 1995 was to clear the land for the proposed subdivision. On that visit there he observed stakes with ribbons attached marking the centreline of the proposed road. His second visit took place in June 1995 for the purpose of digging test pits with geotechnical engineers. On this visit he again observed the surveyors stakes on the land. In chief Mr Dannenberg originally said that his final visit occurred in August 1995, and that on this occasion he observed boundary pegs along the rear boundary of the land indicating the site of a drainage retention basin. He also noticed that there were surveyor's pegs with stakes beside them marking the centreline of the proposed road. After 25 May 1995 Mr Dannenberg visited the site to undertake a preliminary quotation for road construction and saw survey pegs. At that stage he did not have a sufficiently detailed set of engineering drawings to have the final quotation prepared. These were supplied to him by August 1995. 25 In cross examination Mr Dannenberg said, in contrast to his evidence in chief, that his first visit about 20 March 1995 was undertaken for the purpose of digging the test pits and on that occasion he observed the stakes with survey ribbons which he believed marked the centreline of the road. Mr Dannenberg then said that between 9 May 1995 and 27 May 1995, he arranged for the removal of rubbish or debris from the land. Mr Dannenberg was able to identify such work by refreshing his memory from invoices and plant hire dockets submitted by his subcontractor, Mr Myers. He agreed that he could not be certain of the date of his final visit, which he agreed was after 25 May 1995. 26 The council has submitted that Mr Dannenberg's evidence, together with Mr Myers' invoices establishes that the pegging of the land was conducted prior to the consent date, and that Mr Dannenberg in fact carried out his work at an earlier time than stated in his affidavit.

Findings 27 On the balance of probabilities the Court could not be satisfied that any of the field survey work occurred upon the land after the consent date. The affidavit evidence of Messrs Oborn, Thompson and Turner, the critical portion of which relating to the work allegedly performed after the consent date was apparently drafted in virtually identical text for each deponent, was unsatisfactory and did not withstand scrutiny. It was apparent that each witness could not swear that field survey work was performed either on the land or adjoining land after the consent date. 28 Mr Oborn was aware that council approved the applicant's development application on 7 June 1995 and he immediately instructed his employees to prepare engineering plans for the subdivision. Such work required further site survey work. Mr Oborn acknowledged that office preparatory work was undertaken for the engineering plans with the result that such plans were virtually completed by the time the Notice of Determination was issued on 20 June 1995. 29 Mr Oborn's recollection was compiled from events which were only assumed and is unreliable. For example, Mr Oborn deposed that the pegging of the proposed road took place only after the consent date. However in cross examination he conceded that he was not sure when the stakes marking the centreline of the proposed road had been installed and acknowledged that this work could have been undertaken prior to the consent date. Additionally Mr Oborn deposed that the field work was carried out under his supervision by Mr Turner who was assisted by Mr Thompson. Mr Turner's evidence establishes that Mr Oborn rarely attended on the land for the purpose of supervision but may have attended to monitor progress. Mr Turner also said that Mr Moore provided the primary assistance to him when undertaking the field work. 30 The evidence of Mr Dannenberg, when read in conjunction with the invoices of Mr Myers, establishes that when test pits were excavated prior to consent date, survey stakes were already installed on the proposed roadway by the end of May 1995 Mr Dannenberg saw surveyor's pegs installed. Accordingly Mr Oborn's evidence cannot be relied upon to establish that any pegging work took place only after the date of the consent. Nor can the same evidence of Messrs Turner and Thompson as contained in their affidavits be accepted. 31 Mr Turner has no independent recollection that any work referred to in his affidavit was performed after the consent date on the land to which the consent related, but merely that work was performed. The Court cannot be satisfied that his reconstruction of the events lead to the conclusion that field survey work on the land was undertaken following the consent date. Mr Turner's assumption that Mr Oborn would not have incurred expenditure on survey work prior to the grant of consent because it might have been wasted is insufficient for the Court to be satisfied that the pegging work on the land took place after the consent date. Mr Turner's evidence was that much of his field work was assisted by Mr Thompson and Mr Moore. Mr Moore did not testify and no explanation was provided for the fact that he was not called to give evidence.

32 Mr Thompson's oral evidence establishes that he had no independent recollection of the dates when he undertook work on the land. His records show that he was industrious in the preparation of engineering plans, but do not record that he undertook any field work. His explanation that minor field work might not be recorded is difficult to reconcile with the fact his work records are detailed to 25 minute time periods, and despite their specificity, no field work, as distinct from work on the engineering plans, is recorded. Such evidence is also inconsistent with Mr Turner's evidence that he was assisted after the consent date by Mr Thompson as a field hand. 33 Accordingly the onus of proof requiring the Court to be satisfied that physical field survey work upon the land occurred after the consent date has not been discharged. 34 The applicant acknowledges that the evidence with respect to the time period in which field survey work carried out upon the subject work is equivocal. However it submits that the evidence establishes that certain pegging work was carried out on the adjoining land after the consent date. Such work related to a retention pond and to roadway intersections required by condition No. 9 of the consent. The applicant also submits that it undertook survey work at the intersection of Main Road 220 and Rothbury Street or Morgan Street and Rothbury Street after the consent date. Such submission is made because council required work to be done at the intersections and previously no survey work had allegedly been undertaken on adjoining land. Accordingly the applicant submits that since such work was required to be carried out as part of the consent, it is immaterial that it was not performed on the land. The applicant claims that such work qualifies as work for the purpose of s 95(4) of the EP&A Act. 35 On the basis of the above findings, the Court is not prepared to draw the inference that any work was performed after 20 June 1995 on adjoining lands. There is no cogent evidence, either documentary or viva voce which clearly establishes that on the balance of probabilities field survey work as distinct from office work was necessarily undertaken after the consent date for the purpose of complying with council requisitions. The tender of the plans showing survey work at the intersection of the roadways does not establish that field survey work relating thereto was necessarily performed only after 20 June 1995, nor can the Court draw the inference that any work was undertaken solely because of a council requisition. Evidence would be required to establish that in fact the work relied upon was carried out. The vague statements by the witnesses are insufficient to discharge the burden of proof.

The issues of law 36 Regardless of the determination of the factual issue, even if the survey work as described had been performed after the grant of consent, the applicant could not, as a matter of law, succeed in its application for two reasons. Firstly, the placement of pegs or stakes per se is not "engineering work" for the purpose of s 95(4) of the EP&A Act. Secondly conditions precedent to the performance of any work on the land or the adjoining land were not satisfied.

Nature of the work relied relied upon 37 The work allegedly carried out on the land and relied upon by the applicant for the purpose of s 95(4) EP&A Act was the pegging of the land, which it claims constituted "engineering work". It relied upon the decision of this Court in Richard and Ors v Shoalhaven City Council [2002] NSWLEC 11. In that decision the Court found that survey work consisting of the placing of survey marks, together with removal of small trees and shrubs, was adequate to satisfy the requirements of s 95(4) of the EP&A Act. 38 The present circumstances are factually distinguishable from those in Richard. The only evidence of work allegedly performed on the land is the placement of pegs and stakes in the soil. The placement of survey pegs or stakes alone did not require consent of council. Further, there is no evidence that the placement of pegs or stakes was essential for the preparation of the engineering plans. 39 Although the use of dictionaries by a court to ascertain the meaning of a word may not provide a definitive definition, resort to such source may provide assistance in the absence of any judicial interpretation: see House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498. The Macquarie Dictionary (3rd edition) defines "survey" relevantly as follows:-

to determine the form, boundaries, position, extent, etc., of, as part of the earth's surface, by linear and angular measurements and the application of the principles of geometry and trigonometry.

The definition of survey contained in s 3 of the Surveying Act 2002 provides as follows: survey , when used as a noun, means an activity that includes any of the following: (a) the taking of measurements of distance, height, depth, level or direction in relation to land, including the air space above land and the subsurface below land and including land covered by water, (b) the insertion of survey marks in or on any land, (c) the recording of any measurements so taken and the location of any survey marks so inserted, (d) the collating of any measurements and locations so recorded, (e) the preparation of plans or other documents (whether in writing or in electronic form) to illustrate the results of any such measurements or the location of any such survey marks, but does not include any activity involved in mapping or the preparation of navigational charts or any other activity declared by the regulations not to be a survey.

It will be observed that the only possible effect upon land resulting from the activity of surveying is the installation of survey marks. 40 Section 95(4) of the EP&A Act requires "building, engineering or construction work relating to the building, subdivision or work" to be "physically commenced on the land". The Macquarie Dictionary (3rd edition) defines "physical" relevantly as follows:- 2. of or relating to material nature; material. 41 In Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner for Taxation (1981) 147 CLR 297 Mason and Wilson JJ (at p 320) stated:- The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. The rules, as D C Pearce says in Statutory Interpretation , p 14, are no more than rules of common sense, designed to achieve this object 42 Additionally, McHugh J in Kingston and Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 at p 242 said:- Words may give colour to each other, modifying their primary meaning, and causing the whole provision to have its own unique meaning. Likewise the general objects and purposes of the statute will give colour to the individual words, phrases and provisions sometimes modifying their ordinary meanings. 43 The literal meaning of the words "building, engineering or construction work" as used in s 95(4) of the EP&A Act with the juxtaposition of the word "engineering" between "building" and "construction" suggests that the engineering envisaged requires a material alteration to the existing circumstances. 44 Applying the above principles of statutory interpretation, the placing of pegs into the land as part of a survey did not result in a material change to the land. No physical impact upon the land in the nature of construction or engineering works for roads and drains was carried out, as envisaged by the consent. In such circumstances the survey work, by itself, cannot constitute engineering work for the purpose of s 95(4) of the EP&A Act. It follows that engineering work had not been commenced by the expiration of the five year period contained in s 95(1)(a) of the EP&A Act. 45 Such conclusions are consistent with the decision of Bignold J in Hunter Development Brokerage Pty Limited v Cessnock City Council [2004] NSWLEC 454. Conditions precedent 46 The Council submits that the work relied upon by the applicant, even if performed after the 20 June 1995, was allegedly performed before council had approved the engineering plans, contrary to condition No. 7 and condition No. 11 of the consent. Such conditions required engineering plans to be submitted to and approved by the council before the commencement of subdivisional works (condition No. 7) and prior to the commencement of any works on the site (condition no. 11). 47 The Court was referred to the decision of this Court in Young and Anor v Warringah Shire Council [2001] NSWLEC 208. In that decision the Court found that survey pegging of land and plumbing work comprised part of the work envisaged by the development consent. However since that work was wholly unauthorised until a formal building application had been approved, it did not constitute work for which recognition could be afforded pursuant to s 95(4) of the EP&A Act. Such decision accorded with well established principle: see Iron Gates Developments Pool Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Ors (1999) 106 LGERA 243; Green v Kogarah Municipal Council (2001) 115 LGERA 231; Besmaw Pty Limited v Sutherland Shire Council (2003) 127 LGERA 413. 48 The survey work relied upon was carried out in order to satisfy the council's conditions precedent to any physical work on the land. Such conditions, once fulfilled would have resulted in approval of the engineering plans. Such approval would have authorised physical works being carried out upon the land. As was found in Iron Gates, Green and Besmaw, any work performed in the absence of authorisation cannot be relied upon as constituting "work" for the purpose of the lapsing provisions. In the present circumstances condition No. 7 and condition No. 11 made it clear that no work was authorised until the council had approved the engineering plans. Accordingly any work performed prior to such approval could not qualify as work for the purpose of s 95(4) of the EP&A Act. 49 In so far as the applicant relies upon survey work which it claims was carried out in the area of the detention basin and at the intersection of Main Road 220 and Rothbury Street or Morgan Street and Rothbury Street, such work was performed on land other than that for which the development consent was granted. Lloyd J in Boral Resources (NSW) Pty Limited v Wingecarribee Shire Council (2003) 124 LGERA 90 determined that where work is carried out pursuant to a condition of consent on land other than the actual site upon which the development is proposed, the development consent extends to include that land. However in those proceedings Lloyd J had evidence that the work undertaken was carried out pursuant to an approved Environmental Management Plan. In this instance, the condition No. 9 and condition No. 11 stipulated that no works were to be undertaken until council had approved the engineering plans. Accordingly, since these plans were not approved until November 1996, any work said to have been undertaken in 1995 cannot be relied upon.

Costs 50 In the exercise of the Court's discretion pursuant to s 69 of the Land and Environment Court Act 1979 costs are usually awarded in favour of the successful party. Costs have not been argued, but prima facie the usual rule should apply and an order to this effect will be made subject to liberty to apply to vary such order. By this order the costs of a further hearing confined to costs may be avoided.

Orders 51 The Court makes the following declaration and orders:

a DECLARATION that development consent no. 150/595/6 issued to the applicant by the respondent on 20 June 1995 has lapsed because there has been no physical commencement of "work" within the meaning of s 95(4) of the Environmental Planning and Assessment Act 1979;

an ORDER that the applicant pay the respondent's costs of these proceedings unless an application is made to vary this order within 21 days of the date of such order;
an ORDER that the exhibits except for exhibit B be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Biwazu Pty Limited v Cessnock City Council [2004] NSWLEC 411 APPLICANT Biwazu Pty Limited PARTIES : RESPONDENT Cessnock City Council FILE NUMBER(S) : 40250 of 2004 CORAM: Cowdroy J KEY ISSUES: Injunctions and Declarations :- lapse of consent - no physical commencement of work as required by s 95(4) Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 95(1)(a), s 95(4) Land and Environment Court Act 1979, s 69 Besmaw Pty Limited v Sutherland Shire Council (2003) 127 LGERA 413; Boral Resources (NSW) Pty Limited v Wingecarribee Shire Council (2003) 124 LGERA 90; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Ors (1999) 106 LGERA 243; Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner for Taxation (1981) 147 CLR 297 Mason and Wilson JJ; Green v Kogarah Municipal Council (2001) 115 LGERA 231; CASES CITED: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; Hunter Development Brokerage Pty Limited v Cessnock City Council [2004] NSWLEC 454; Iron Gates Developments Pool Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Kingston and Anor v Keprose Pty Ltd (1987) 11 NSWLR 404; Richard and Ors v Shoalhaven City Council [2002] NSWLEC 11; Young and Anor v Warringah Shire Council [2001] NSWLEC 208 DATES OF HEARING: 20/07/2004; 21/07/2004 DATE OF JUDGMENT: 08/27/2004

(2003) 127 LGERA 413

(1999) 106 LGERA 243

(2001) 115 LGERA 231

At a glance

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