Casa v City of Ryde Council

Introduction 1 HER HONOUR: By way of second further amended summons filed in Court on 6 August 2009 the applicants seek a declaration that development consent 1143/2001 ("the development consent") for the development of 90/92 Western Crescent, Gladesville, New South Wales, ("the Property") is valid and subsisting and will lapse on 17 December 2009, unless it is commenced on or before that date.

Notice of Motion to Substitute Applicants 2 On the first day of the hearing, a notice of motion came before the Court seeking substitution of the applicant named in the originating process and subsequent pleadings, Orth Constructions Pty Limited ("Orth Constructions") ("the original applicant"), with Mr Richard Casa, Mr Phillip Casa, Mr Jim Bayeh and Ms Liliana Enza Bayeh ("the substituted applicants"). 3 The notice of motion was supported by an affidavit by Mr Daniel Tomasetti affirmed 27 July 2009, stating that Orth Constructions consented to the substitution. Further, Mr Tomasetti stated that the substituted applicants consented to becoming applicants to the proceedings, as did the respondent, City of Ryde Council ("the council"). 4 No explanation, however, was given in Mr Tomasetti's affidavit as to, first, why the substituted applicants had not been correctly named initially, and second, the nature of the relationship between the substituted applicants and the original applicant. 5 At the hearing of the notice of motion, counsel for the applicants informed the Court that the reason for the substitution was because, first, Orth Constructions no longer wished to bear the risk of the proceedings, and second, the substituted applicants were the owners of the Property. 6 Having been furnished with this explanation I made the order sought and substituted the persons named above for the original applicant. Issues 7 The question to be resolved in these proceedings is whether a development consent issued by the council to the applicants has lapsed. The applicants submit that the development consent will lapse on 17 December 2009. This is because on 30 July 2004 the applicants lodged with the council a landscape plan which satisfied the relevant deferred commencement conditions of the development consent, thereby enlivening the council's jurisdiction to determine whether the consent had become operative, which it did determine and which it notified to the applicants in writing as required on 17 December 2004. 8 The council contends that it validly exercised the power to determine whether the deferred commencement conditions were satisfied on or about 27 August 2002. It notified the applicants in writing that the development consent had become operative on that date, and therefore, the consent lapsed five years later on 27 August 2007. Further, to the extent that the council purported to write to the applicants on 17 December 2004 stating that the development consent was operative, it did so in error and in circumstances where its power had not been validly exercised.