Court rules against Council on Rise development
Published on 23 March 2023
The NSW Land and Environment Court has overturned the previous decision to refuse site clearing works at the location known as Rise Development on Phillip Drive in South West Rocks.
Council has been notified that the Land and Environment Court has issued the following orders in relation to the further appeal by the developers of the Rise Projects site on Phillip Drive South West Rocks:
- The appeal by the developer is upheld
- Council are ordered to work with Rise to draft an agreed Construction Certificate by 29 March so the Court can issue it.
- Council are to pay costs
This appeal overturns the original decision of the Land and Environment Court to refuse a Construction Certificate Application to undertake site clearing works.
Background
A development consent was lodged by a different individual for a tourist resort on this site (Lot 2 DP1091323) with Kempsey Shire Council in 1991. It was approved in 1993.
In late 2021 the current developer submitted an application to Council for a construction certificate to commence works on the site based on that 1993 approval.
Council did not issue a Construction Certificate on the basis that the developer did not adequately demonstrate they had substantially commenced work within the required five year timeframe of the 1993 development consent approval, as explained here.
The developer filed an appeal against this deemed refusal in the Land and Environment Court and the case was heard in December 2021.
The Land and Environment Court ruling, published on 1 March 2022, found in Council’s favour, declaring that the consent had lapsed and the application for a construction certificate be refused. The developers then appealed that decision in late March 2022. This was heard in court in December 2022.
That court ruling published on Wednesday 22 March 2023 overturned the March 2022 ruling, requiring Council to now issue a construction certificate for the 2021 application.