Cando Management and Maintenance Pty Ltd v Cumberland Council

106 LGERA 243; [2019] NSWCA 26

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Development consent
3. › Duration or lapsing of consent
4. › Physical commencement of construction work within statutory period
5. › Whether clearing of shrubs constituted construction work relating to building the subject of consent
6. › Onus of proof for establishing criteria preventing lapse
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 95(4), 109B
1. Environment and Planning
2. › Development consent
3. › Duration or lapsing of consent
4. › Whether work must be in compliance with conditions of consent to 'relate to' the building
5. › Whether clearing of trees distinguished from clearing of shrubs
6. › Environmental Planning and Assessment Act 1979 (NSW), s 95(4)
1. Environment and Planning
2. › Land and Environment Court
3. › Jurisdiction and powers
4. › Discretionary powers under s 124
5. › Whether power to make orders extends to sanctioning and authorising breaches of Act
6. › Whether court may order works to be carried out without construction certificate
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 81A, 109H, 109M, 124

Quick Take

Practitioners advising on whether development consents have lapsed should note that the onus of proving compliance with consent conditions lies on the party asserting the consent has not lapsed, and that different types of site-clearing work (trees vs shrubs) may be treated differently depending on the conditions of consent.