Detala Pty Limited v Byron Shire Council

(2002) 133 LGERA 1; [2002] NSWCA 404

NSW Court of Appeal

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Interrogate

Catchwords

1. Local Government
2. › Development consent
3. › Lapsing of consent
4. › Whether construction works commenced within statutory period
5. › Whether works in breach of condition or statutory requirement can activate saving provision
6. › Environmental Planning and Assessment Act 1979 (NSW), ss 95(1), 95(4), 81A(4)
1. Local Government
2. › Development consent
3. › Conditions of consent
4. › Tree preservation order
5. › Whether development consent impliedly incorporates approval under tree preservation order
6. › Meaning of 'prior to any works commencing'
7. › Whether condition precedent to all works or only works involving tree removal
1. Local Government
2. › Development consent
3. › Construction certificates
4. › Whether commencement of subdivision work without construction certificate renders work unlawful
5. › Whether s 81A(4) is mandatory provision
6. › Environmental Planning and Assessment Act 1979 (NSW), s 81A(4)
1. Estoppel
2. › Estoppel against statutory authority
3. › Whether council estopped from relying on absence of construction certificate
4. › Whether mandatory statutory provision can be circumvented by estoppel

Quick Take

Work commenced without a construction certificate required by s 81A(4) of the EPA Act cannot activate the saving provision in s 95(4) to prevent lapsing of development consent, even where the Council's own officers failed to mention the requirement. However, the Iron Gates principle (that work in breach of a condition is not work 'relating to' the development) may be distinguished where the developer has done all on its part to comply with a condition and the non-compliance results from the Council's own failure to grant an approval it was obliged to give.