Young & Anor v Warringah Shire Council

Land and Environment Court (NSW)|1995-05-12|Before: Cowdroy J, Mr P

The applicant has not complied with the requirements of s 81A(4) of the EP&A Act. The notice to commence subdivision work was given to the council on 12 May 2000 three days before the expiry of the consent. A letter attached to the construction certificate endorsed by the council on 12 May 2000 states as follows:- At least 2 days prior to work commencing on site, Council must be informed, by the submission of Form 7 of the Environmental Planning and Assessment Regulation 1998, of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence.

Such letter is reflective of the statutory requirements of ss 81A(4)(b) and 81A(4)(c) of the EP&A Act. Accordingly, all work relied upon by the applicants does not satisfy the requirements of s 81(4). Such work was unauthorised by the consent and was contrary to the EP&A Act and therefore cannot be regarded as work in fulfilment of a consent: see Iron Gates.

In summary the Court finds that:- (i) The works undertaken on the lots are not preparatory, and comprise work within s 95(4)(c) of the EP&A Act; (ii) Such work was carried out without the mandatory certificate required by s 81A(4) of the EP&A Act and is therefore not work which can be relied upon for the purpose of s 95(4)(c) of the EP&A Act for the reasons given in Iron Gates, Coalcliff Colleries and Green .

Accordingly the Court finds the applicants' claim for relief must be refused.

The Court therefore orders:- 1. The application be dismissed. 2. Exhibits be returned. 3. Costs reserved.

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 : Young & Anor v Warringah Shire Council [2001] NSWLEC 208 APPLICANT Young & Anor PARTIES : RESPONDENT Warringah Shire Council FILE NUMBER(S) : 40069 of 2001 CORAM: Cowdroy J KEY ISSUES: Development Consent :- work purported to be carried out in commencement of development consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 81A, s 95(4) Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Ors (1999) 106 LGERA 243; Green v Kogarah Municipal Council (2001) NSWCA 123 ; CASES CITED: Iron Gates Developments Pool Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170 DATES OF HEARING: 4/9/01 DATE OF JUDGMENT: 09/07/2001

(1999) 106 LGERA 243

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