Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 4:
1. By summons filed on 10 April 2024, Mr Mincong Huang (the applicant) commenced Class 4 proceedings in relation to development consent 795/2006/1 dated 26 June 2007 for "alterations and additions to existing garage/studio" (the 2007 development consent) at lot 24 in deposited plan 2538, also known as 6 Tivoli Avenue, Rose Bay, NSW (the property). The applicant is the registered proprietor of lot 25 in deposited plan 2538 which is to the immediate west of the property, also known as 8 Tivoli Avenue, Rose Bay, NSW.
2. Mr David Richard Charles Waterhouse (the first respondent) has been the owner of the property since on or about August 2021.
3. Between 2012 and 2024, the development consent has been subject to four modification applications. On 22 May 2023, the fourth modification application DA 795/2006/5 was lodged with Woollahra Municipal Council (the second respondent) (Council) pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). On 16 January 2024, Council by its delegate Mr Max Moratelli issued a notice of determination approving modification application DA 795/2006/5 (the 2024 modification).
4. The applicant seeks declarations and orders that:
1) the 2007 development consent lapsed pursuant to s 95 (as it then was) of the EPA Act (ground 1); and
2) in the alternative, that the most recent modification of the 2007 development consent, being modification DA 795/2006/5 approved by Council on 16 January 2024 (the 2024 modification) was not lawfully approved and is therefore invalid (grounds 2, 3 and 4)
5. On 30 June 2023, Mr Waterhouse sold the property to Mr Michael Clive Rothner (the third respondent). The settlement date is on or about 31 July 2025.
6. On 21 June 2024, the third respondent filed a submitting appearance.
7. On 3 July 2024, Council filed a submitting appearance. Council is and was at all relevant times a local council constituted under the Local Government Act 1993 (NSW).
8. The matter was heard before me on 14 November 2024.
Issues
9. The issues which arise for determination are as follows:
1) whether the 2007 development consent lapsed, that is five years after the date from which it operated: s 95 of the EPA Act which applied when the consent was granted;
2) if the answer to (1) is no and the development consent remains operative, whether Council granted the 2024 modification in breach of s 4.55(3) of the EPA Act;
3) if the answer to (1) is no and the consent remains operative, whether Council formed the necessary mental state of satisfaction, being the state of satisfaction when granting the 2024 modification that the development to which the development consent as modified by the 2024 modification related was substantially the same development for which the consent was originally granted: s 4.55(1A)(b) of the EPA Act; and
4) if the answer to (1) is no, whether Council's decision to approve the 2024 modification was manifestly unreasonable.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197cec251ddf0ba05ad8bbd3)
Disclaimer: Curated by HT Syndication.
