Dr Cathy Sherry, Associate Professor of Law at UNSW
My reply would be ‘what does the planning law say?’ It varies from council to council. Where did the 90 days come from? If that is what the local planning law says, then it would be OK but if it is not consistent with planning law, then it is not. It will depend on the council area in which the building is situated.
Also, it depends on the state. NSW has s28 of the Environmental Planning and Assessment Act 1979. If a by-law is inconsistent with planning law, it will be overridden to the extent of inconsistency. But that is not the case in all states eg in the WA Byrne decision, the judge seemed to have no problem with the idea that a privately-made by-law could override a public planning consent. That seems untenable to me and is certainly not the law in NSW.