Tovedale Pty Limited v Shoalhaven City Council [2004] NSWLEC 483

Reported Decision : 135LGERA 290 Notice to Appeal 24/09/04

Land and Environment Court of New South Wales

CITATION : Tovedale Pty Limited v Shoalhaven City Council [2004] NSWLEC 483 APPLICANT: Tovedale Pty Limited PARTIES : RESPONDENT: Shoalhaven City Council FILE NUMBER(S) : 40525 of 2004 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- Development consent for residential subdivision of land-whether consent has statutorily lapsed-whether survey works avoid lapsing LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 99(1)(a) Interpretation Act 1987, s 30(1)(b) Biwazu Pty Ltd v Cessnock City Council [2004] NSWLEC 411; Cariste Pty Ltd v Blue Mountains City Council (CA 40217/93 unreported 8 November 1996); CASES CITED: Hunter Development Brokerage Pty Ltd v Cessnock City Council [2004] NSWLEC 454; Richard v Shoalhaven City Council (2002) NSWLEC 11; Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170 DATES OF HEARING: 09/08/2004 DATE OF JUDGMENT: 08/30/2004

APPLICANT: Mr J Ayling SC SOLICITORS Kearns and Garside LEGAL REPRESENTATIVES: RESPONDENT: Mr J Webster SC SOLICITORS Morton and Harris

JUDGMENT:

31

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

28 August 2004

40525 of 2004 TOVEDALE PTY LIMITED v SHOALHAVEN CITY COUNCIL

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 By class 4 application filed on 7 May 2004, the Applicant seeks the following declaratory relief in relation to a development consent granted by the Respondent (the Council) on 28 September 1989 for the subdivision creating 54 residential lots of a 10 hectare parcel of land situate at South Nowra (the development consent) which the Applicant acquired in 1995: 1. A declaration that the development consent granted by the respondent for the subdivision of Lot 6 DP714802 and Lot 8 DP740045 at Old Southern Road, South Nowra ("the Land") under Council reference SF6559 has not lapsed. 2. A declaration that building, engineering or construction work relating to the development (subdivision) approved by SF6559 was physically commenced on the Land. 2 The declaratory relief claimed (which is opposed by the Council both on substantive and discretionary grounds) seeks to resolve a dispute which has existed between the parties since 1995 at the time that the Applicant acquired the subject land (and between the Council and the Applicant's predecessor in title since 1992) concerning the question whether the relevant development consent did or did not lapse on 28 September 1991 being the expiry of the two year statutory lapsing period prescribed by the Environmental Planning and Assessment Act 1979, s 99(1)(a) (the EP&A Act) as then in force. Section 99 (relevantly as at the date when the development consent was granted (ie 28 September 1989) and as at the date of the expiry of the two year statutory lapsing period prescribed by s 99(1)(a) (ie 28 September 1991), relevantly provided as follows: (1) A consent granted under this Division to a development application shall lapse— (a) unless the development the subject of that consent is commenced— (i)….within two years…of the date upon which that consent becomes effective…

… (2) For the purpose of subsection 1(a)— (a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work) of land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided)—that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies; or (b) where development comprises the use of any land, building or work (not being a use referred to in paragraph (a))—that development is commenced when the use of that land, building or work is actually commenced. 3 In the present case, it is common ground that the relevant statutory lapsing period expired on 28 September 1991 and that the adjudication on the disputed issue as to whether the relevant development consent did or did not lapse on that day is to be determined solely on the basis of the quoted provisions of s 99. In other words, the legislative history of s 99 that occurred subsequent to 28 September 1991 (the section was materially amended in 1993 by the Local Government (Consequential Provisions) Act 1993, which substituted a five year lapsing period and was repealed and replaced by s 95 by the Environmental Planning and Assessment Amendment Act 1997 which repealed the whole of the EP&A Act, Pt 4 (in which Part, s 99 was included) and re-enacted new Parts 4, 4A 4B and 4C). This is because the subsequent amendments and repeal of the EP&A Act, s 99 did not affect its previous operation: vide s 30(1)(b) of the Interpretation Act 1987. 4 Paragraph 7 of the Applicant's Points of Claim assert that the relevant development consent did not lapse by operation of the EP&A Act, s 99 by virtue of the following facts asserted in pars 5 and 6: 5. After grant of the consent but before 28 September 1991 building, alternatively engineering, alternatively construction work was carried out on the land: PARTICULARS (a) clearing of vegetation; (b) digging holes; (c) placement of permanent marks on or under the surface; (d) marking by means of pegs driven into the ground of centerlines of roads and principal drains and sewer lines; (e) placement of pegs to act as recovery marks; (f) observation and recording of levels of roads and drainage lines by surveyors. 6. During the same period information recorded in the field by surveyors, utilizing the information obtained as a result of the physical work particularised above, was provided to engineers who prepared engineering designs for roads, stormwater and sewerage reticulation on the land, in conformity with the consent. 5 The Council, in its Points of Defence answers these allegations by asserting— (i) the works particularised are not " physical works pursuant to s 99(2) "; (ii) the works particularised were undertaken for the purposes of obtaining approval under the Local Government Act 1919 which was preparatory to the carrying out of physical works upon the land; (iii) without admitting that the particularised works are relevantly building or engineering or construction works carried out on the land, such works were effected in relation to the design of proposed public roads and for the purpose of obtaining an approval under the Local Government Act 1919 . 6 The Council's Points of Defence raise an additional defence, namely whether the Court should, in the exercise of its discretion, refuse the relief claimed by the Applicant on account of the significant delay on the part of the Applicant in commencing these proceedings (some nine years having elapsed since the Applicant became aware of the Council's opinion that the development consent had lapsed on 28 September 1991). 7 This discrete defence is challenged by the Applicant on the grounds that there is no relevant discretion vested in the Court to refuse declaratory relief on the basis of the Applicant's delay in commencing the proceedings, if the Applicant otherwise proves its case that the relevant development consent did not lapse by virtue of the operation of the EP&A Act, s 99. 8 In the circumstances, I propose firstly to adjudicate upon the disputed question of whether the relevant consent lapsed on 28 September 1991 by virtue of the operation of the EP&A Act, s 99 (as relevantly in force). It is only if I conclude that the development consent has not lapsed that the Council's discretionary defence will become relevant and will require adjudication.

9 Accordingly, in now proceeding to state the relevant facts (which are principally encompassed by the Statement of Agreed Facts (Exhibit 1) which the parties have very helpfully jointly prepared on the basis of the affidavit evidence that has been filed in the proceedings), I say nothing of the facts (or the evidence) that would be relevant to the issue raised by the Council's discretionary defence. B. THE RELEVANT FACTS 10 The Statement of Agreed Facts is in the following terms: 1. The Applicant is the owner of Lots 55 and 56 in Deposited Plan 808935 situated at South Nowra (the Land). 2. The Land was formerly known as Lot 1 DP791914. 3. The Land is situated in the Respondent's Council area. 4. On 28 September 1989 the Respondent granted development consent SF6559 for the subdivision for residential purposes of Lot 6 DP714802 and Lot 8 DP740045 (the consent). 5. The consent related to the Land. 6. Failing commencement, the consent would have expired on 28 September 1991. 7. The relevant provision for determining whether commencement occurred between 1989 and 1991 is section 99(2) of the Environmental Planning & Assessment Act (as it then was) which provides as follows: Where development comprises the erection of ,a building or the carrying out of a work or the sub-division (involving physical work) of land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided) - that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies 8. Prior to 1998 a plan of subdivision could not be registered at the Land Titles Office unless the plan was endorsed by with a certificate under s.327 of the Local Government Act 1919 9. The consent contained a number of conditions which required physical work to be undertaken before the plan of subdivision would be released by Council. These conditions include 4. The piping of drainage easement(s) to Council's requirements, including interallotment drainage where necessary 5. Removal of all dead trees, stumps, underscrubbing and grading where determined on site or to the satisfaction of the City Engineer. 7. Provision of sewerage service to all proposed lots in the subdivision, at the subdividor's expense, all to Council's requirements. A site for a sewerage pumping station with the provision for access and electricity supply to the pump station and rising mains will also be required. The actual location will be determined upon the submission of engineering plans indicating the sewerage reticulation layout. 11. The construction of new roads in the subdivision, with kerb and gutter, full width bitumen seal and necessary drainage to Council's requirements and as follows: - (a) The 18m road to have a carriageway of 8m. (b) The cul-de-sacs to have a 6m carriageway and 9.5m radius turning circle. (c) Construction of kerb, gutter and associated drainage, shoulder preparation and seal fronting proposed lots in Browns Road. The bitumen seal is to be a minimum of S metres wide and the existing open drain along Browns Road is to be fully piped from Old Southern Road to a point opposite the western boundary of proposed lot 1 shown on the attached plan. Engineering plans and pavement design criteria are required to be submitted for Council's approval. It will be the applicant's responsibility to check and ensure that the proposed works are not affected by Council's services. Any required alterations to services will be at the applicant's expense. (d) The construction of concrete/bitumen cycle paths 1.8m wide leading from the proposed cul-de-sac through to Old Southern Road (e) Threshold treatment to be provided at the entrance to the 2 cul-de-sacs with details being shown on engineering plans. (f) The submission of an overall landscape design plan to be encompassed throughout the subdivision indicating the type of landscaping to be carried out and the species of all trees and vegetation to be planted throughout the subdivision 18. All lots within the fringe area to be filled to R.L. 30.3 A.H.D. and graded to 1:2 having a minimum grade of 0.5%. All filling to be compacted to at least 95% standard proctor. The specification shall require the supervision of the filling works by a consulting engineer and the monitoring of any settlement over the subdivision during the construction and maintenance periods. On completion of the filling, the Subdividor is to submit an Engineer's Certificate confirming the satisfactory compaction of the filling and the suitability of the lots for the construction of dwellings. The result of test bores should be shown. 10. None of the physical work undertaken on the Land referred to in clauses 16, 17, 18, 19, 20, 21, 23, 24, 26, 27, 31 and 38 of this statement required any approval from the Respondent other than the consent. 11. The subdivision proposed the opening of public roads. 12. Section 327 of the Local Government Act 1919 prescribed the requirements for the opening of public roads. 13. The prescribed matters included the prior approval by Council to engineering roadwork, drainage and sewerage plans. 14. The obligation to comply with the requirements of the Local Government Act was separate to and independent of any obligation to comply with the requirements of any consent issued under the Environmental Planning & Assessment Act. 15. In October 1989 Allen, Price & Associates, Land & Development Consultant of Nowra (APA) were engaged by the then owners of the Land to prepare engineering plans for the road and stormwater drainage and sewer reticulation in connection with the subdivision of the Land. 16. On 6 November 1989 APA employees Gregory Elliott and Stuart Leslie attended the Land to traverse the Land for boundary fixation. This involved

16.1 clearing of a line of sight on the Land so that observations between marks placed in the ground could be made; and 16.2 placing marks in the ground at intervals of approximately 100 metres.

17. On 17 November 1989, Mark Egan, John Beggs and Stuart Tomlinson of APA did work on the Land involving:

17.1 the physical placement of pegs in the ground; 17.2 the clearing of underscrub and trees on or near the proposed centreline of the designed position of the road infrastructure of the subdivision; 17.3 observing measurements; both horizontal and vertical; and 17.4 locating marks placed and recorded.

18. Between 21 November 1989 and 23 November 1989 Mark Egan and John Beggs of APA undertook the levelling and observation of cross-sections of the centreline of roads to be known as Somerset Avenue and Hanover Close. This involved:

18.1 observing vertical and horizontal dimensions; 18.2 clearing the line of sight between the points denoting the centre line; and 18.3 clearing where the recovery pegs required for the construction of the roads were to go.

19. On 23 November 1989 Mark Egan and John Beggs of APA undertook vertical and horizontal observations at the intersection of Browns and Old Southern Roads, South Nowra so that a detailed design could be prepared for the proposed intersection. This involved:

19.1 clearing of vegetation along the line of sight from the theodolite to the optical prism and staff; and 19.2 placing of marks in the ground for reference purposes.

20. On 24 November 1989 Mark Egan and John Beggs of APA attended the Land concerning the survey of the site for a proposed sewerage pumping station. This work involved the clearing of land so that levels of the location of the sewer main could be observed for design purposes. 21. On 27 November 1989 Mark Egan and Leslie Thomas of APA went to the Land and observed levels along the rear boundary and the western traverse stations to determine ground heights for landfill design contour purposes. 'This involved the clearing of vegetation to determine those ground heights. 22. On 28 November 1989 APA forwarded to Clyde Poulton, a Nowra real estate agent, an advance sale plan relating to part of the Land showing 17 lots. 23. On 29 November 1989 Stuart Leslie and John Beggs of APA attended the Land for work connected with preparation of a plan of survey over the Land. This work involved the physical marking by placing pegs in the ground of the lot to be excised from Lot 1 DP791914 and observations so that a plan of survey could be prepared. 24. Late in 1989 part of the Land was slashed for promotion to the public for sale purposes. 25. In December 1989 lots in a proposed subdivision of the Land were first offered for sale with Clyde Poulton as real estate agent. 26. On 23 January 1990 Mark Egan and Stuart Tomlinson of APA attended the Land and leveled the centerline marks placed along Browns Road to determine ground heights for road design and drainage purposes. This work involved clearing of vegetation. 27. On 14 and 15 February 1990 Leslie Thomas, Stuart Tomlinson and Gregory Elliott of APA attended the Land in relation to road design works. At that time, they: 27.1 cleared the vegetation along the centerline of proposed roads being Somerset Avenue and Hanover Close; and 27.2 levelled centerline marks which had been placed to locate the proposed roads.

28. On 6 March 1990 APA lodged road, drainage and sewer design plans for the subdivision with the Respondent. 29. On 12 April 1990 the Respondent granted approval pursuant to s.331(2) of the Local Government Act 1919 for subdivision roadworks. 30. On 4 May 1990 amended sewer design plans were lodged with the Respondent by APA. 31. In May 1990 an area of the Land was cleared and temporary marks were placed in the ground to locate the boundaries of 17 lots. A second advance sale plan was prepared for promotion to the public for sale purposes. 32. On 30 August 1990 the Respondent informed APA that Council would require the land for the sewer pumping station to be transferred to it in fee simple as a condition of the release of any sewer plans. 33. On 29 November 1990 a plan of subdivision of the Land to create Lots 55 and 56 was finalized by Stuart Leslie of APA (the two lot plan of subdivision). It was intended that Lot 55 be the site of the proposed sewerage pumping station. 34.The two lot plan of subdivision did not provide for the opening of a public road. 35. On 8 February 1991 the Council Clerk's Certificate pursuant to s.327(7)(b) of the Local Government Act 1919 was endorsed on the two lot plan of subdivision. 36. On 8 February 1991 the two lot plan of subdivision was released to APA. 37. On 3 April 1991 the two lot plan of subdivision was registered as DP 808935. 38. On 30 April 1991 Mark Egan and Stuart Tomlinson of APA went to the Land and placed pegs in the ground to denote the centerline location of the sewer main in Browns Road. This involved the clearing of land so that levels could be observed. 39. On 17 May 1991 APA lodged amended sewer design plans with the Respondent. 40. On 19 July 1991 the Respondent granted approval pursuant to s.331(2) of the Local Government Act 1919 to the subdivision sewerage works. 41. Lot 55 DP808935 has never been transferred to the Respondent in fee simple or otherwise and remains in the ownership of the applicant. 11 In amplification of the abovementioned facts, it is necessary to note some further relevant facts which are deposed to in the affidavit evidence of Ms Kerry Rourke, the Council's Senior Development Planner, and of Mr Ernest Panucci, Registered Surveyor and Director of Allen Price and Associates which was commissioned by the former owners of the subject land on 3 November 1989 to act as consultants in respect of the then recently approved subdivision of the land. 12 The approved subdivision layout was shown on an amended plan that had been suggested by the Council in response to the submission of the subdivision application (that had been accompanied by a sketch plan depicting the proposed residential subdivision). A copy of the approved plan is annexed hereto and marked "A". It shows three proposed internal subdivisional roads branching off Browns Road, an existing but unconstructed public road.

13 According to the documentary evidence, the Council's approval of the subdivision as notified in the Council's letter dated 28 September 1989 was relevantly a development consent granted under the EP&A Act subject to 23 specified conditions.

14 There is no direct evidence that separate subdivision approval under the Local Government Act 1919, Part XII (LG Act) was granted in respect of the approved subdivision either at the time the development consent was granted or later. It is common ground that such additional approval was required by virtue of the provisions of the LG Act, s 327 which relevantly provided: 327. (1) Subject to the provisions of this Act a public road shall not be opened, and in a case where a subdivision provides for the opening of a public road land shall not be subdivided until— (a) an application in respect thereof accompanied by plans and specifications thereof has been approved under this Act; and (b) the roads have been constructed and drained to the satisfaction of the council in accordance with the approved application, plans, and specifications, and with any conditions attached to any such approval; (c) the applicant has placed in the road permanent survey marks in the position and manner and of the character prescribed; and (d) the town or shire clerk has certified that: (i) the requirements of this Act (other than the requirement of the registration of plans) have been complied with; and (ii) in the case of a subdivision (being a subdivision that provides for the opening of a public road) of land that is wholly or partly within: (A) the area of operations referred to in Part 4 of the Water Board (Corporatisation) Act 1994; or (A1) the area of operations within the meaning of Part 5 of the Hunter Water Board (Corporatisation) Act 1991; or (B) a Water Supply Authority's area of operations, within the meaning of the Water Supply Authorities Act 1987 , a certificate of compliance has been issued under section 73 of the Water Board (Corporatisation) Act 1994, section 50 of the Hunter Water Board (Corporatisation) Act 1991 or section 27 of the Water Supply Authorities Act 1987, as the case requires, in respect of the subdivision; (e) a plan of the road or of any subdivision containing the road (such plan bearing the signatures of all necessary parties, a statement containing such particulars as may be necessary to identify the title to the land comprised in such plan, and the aforesaid certificates) has been registered in the office of the Registrar-General. 15 The LG Act 1919, s 331(1) provided for the making of an application under Part XII and Ordinance 32 (made under the LG Act, Part XII) contained detailed provisions in respect of (i) the making of an application for approval to subdivide land including the opening of a new road (cl 2) and (ii) the obtaining Council's Clerk's certificate under s 327 (cl 3). Section 331(6) precluded the grant of approval to an application relating to a development that may only be carried out with development consent under the EP&A Act, unless that consent had already been granted or that consent and the approval were granted concurrently. 16 Clause 2 of Ordinance 32 prescribed the following requirements in respect of the plans and specifications to accompany the application, paragraphs (a), (c) and (d) providing as follows: (a) With each application for approval to the opening of a new road and with each application for approval to a subdivision involving the opening of a new road, the applicant shall submit four copies of the plans (including sections) and specifications. ………….. (c) The plans shall show— (i) the position of each proposed new road, and its relation to the existing roads of the area; (ii) longitudinal sections, with levels at intervals not exceeding 1 chain, showing the proposed grade of each new road, and the depth of cutting and filling proposed to be done thereon; (iii) a typical cross section of each new road showing the proposed width and convexity of carriage-way, width and slope of footway, details of the proposed construction of kerbing, guttering, and footway, and any proposed arrangement of tree planting; (iv) the provision proposed to be made for drainage (with levels, gradients, and dimensions of proposed drains, if any), and the drainage reserves proposed to be provided; (v) the conduits if any) proposed to be placed in the roads in compliance with section 325 of the Act; (vi) the proposed treatment of junctions or intersections of roads to comply with section 325 of the Act; (vii) the shape and approximate dimensions of each separate parcel in the subdivision; (viii) the existing and proposed means of access to each separate parcel; (ix) the amount of land proposed to be provided as a public reserve. Provided that if the Council so requires the plans shall also show— (i) contour lines or spot levels indicating the general contour of the surface of the subdivision; (ii) topographical features which will restrict the full use of any parcel in the subdivision; (iii) existing buildings or other permanent improvements in the subdivision; (iv) easements or proclamations which will restrict the full use of any parcel in the subdivision; (v) the exact relationship of the subdivision to the surrounding lands: Provided that this requirement may be satisfied by a small scale plan. (d) The specifications shall state in detail particulars of the matters required to be shown on plans, and shall define fully the methods to be followed and materials to be used in carrying out the work of construction. 17 Clause 2(e1) of Ordinance 32 provided the opportunity for an application for approval under Part XII to be made without the requisite details and specifications accompanying the application, but subject to a condition that "construction of such roads and drains shall not be commenced until full details….of the design and construction thereof have been submitted to and approved by the council". 18 I mention these requirements of Ordinance 32 made under the LG Act, Part XII because they relevantly operated when the development consent was granted and throughout the two year statutory lapsing period that is relevant to that development consent and provide the relevant legal matrix for an evaluation of the various actions undertaken by the landowner's consultant culminating in the grant of the requisite approvals under the LG Act, Part XII in respect of the subdivision that had been approved by the development consent.

19 In this respect, it is apparent that the sketch plan (both in its original and amended versions) accompanying the subdivision application that received development consent did not satisfy the requirements of cl 2(c) of Ordinance 32 for detailed plans to accompany an application for approval under the LG Act, Pt XII to a subdivision and even if by some remote chance the development consent also operated to grant subdivision approval under the LG Act, Pt XII the requirements of cl 2(e1) of Ordinance 32 would have applied. However, neither party submitted (nor was there any evidentiary support for any such submission) that the development consent also operated as a subdivision approval under the LG Act, Pt XII and if such approval was ever granted, it must have occurred subsequent to the grant of the development consent.

20 Although there is no direct documentary evidence of the grant of the Council's approval under of the LG Act, Part XII to the subdivision lot layout, there is direct documentary evidence of the grant by the Council of approval to (i) the subdivision roadworks; and (ii) the subdivision sewerage works. (It may be that these approvals either separately or collectively implied the grant of approval under the LG Act Pt XII to the subdivision layout but it is not necessary to resolve this question). The roadworks were approved by the Council on 12 April 2000 and the sewerage works were approved by the Council on 19 July 2001. In the case of each separate approval, the Council's written notification of approval noted that the approval had been granted "under Part XII Section 331(2) of the Local Government Act" and that the approval was current for 2 years "before which time the construction works should be completed". Included within the Council's endorsement of its approval on the relevant plans, the subject of each of these separate approvals is a reference to the LG Act, s 335 which relevantly provided in subsections (1) to (3) inclusive as follows: 335. (1) Any approval given under this Part shall lapse at the end of two years from the date thereof, or such longer period as may be fixed in the approval, if the requirements of this Part have not been complied with in respect of: (a) the construction and draining of roads; and (b) the giving of security; and (c) the making of payments to the council in respect of the making, draining, and marking of roads. (2) The council may if good cause be shown grant an extension or renewal of such approval beyond such period.

(3) Subsections (1) and (2) shall apply to any extension or renewal under this section as if such extension or renewal were an original approval. 21 It is common ground that the following the grant of these separate approvals under the LG Act, Pt XII there has been no construction of the approved roadworks or sewerage works, and it would appear that the approval for the roadworks would have lapsed conformably to the operation of the LG Act, s 335. (That section did not, in terms, apply to the approval of the sewerage works.) 22 According to par 37 of Mr Panucci's affidavit following the grant of the Council's approval to the sewerage works no further work (physical or otherwise) was carried out on the land in relation to the development consent "because the developer was waiting for the Council to attend to the construction of the necessary sewerage pumping station on lot 55. (T)he council never allocated any funds for that work to commence. (T)he developer did not wish to expend money on construction of roads and other infrastructure because the lots could not be sold without sewerage reticulation". This evidence presumably explains why the subdivision was not carried out following the grant of the requisite approvals under the LG Act, Part XII.

23 The various works carried out on the subject land that are particularised in the Applicant's Points of Claim and in the Statement of Agreed Facts (Exhibit 1) fall within the following threefold description— (i) survey works required for the preparation of engineering plans for the subdivision roadworks; (ii) survey works required for the preparation of engineering plans for the subdivision sewerage works; and (iii) slashing of part of the land for the purpose of rendering these parts of the land more accessible for the purposes of sale. 24 The nature and extent of those works and their function and purpose are sufficiently described in the Statement of Agreed Facts and do not require elaboration. 25 However, it is necessary to refer to an intermediate action which was taken before the Council granted its approval under the LG Act, Pt XII for the subdivision sewerage works because of the Applicant's reliance upon this action as providing a discrete basis for avoiding the statutory lapsing of the development consent. This was the action which resulted in the creation out of the subject land, of a small lot comprising some 400 m2 which was intended to be the site of the sewerage pumping station required to provide sewerage services to the approved subdivision.

26 This small lot was created out of the subject land by the registration on 3 April 1991 of Deposited Plan 808935. That small lot is lot 55 and the other lot (lot 56) comprises the residue of the subject land. That Deposited Plan bears the endorsement of the certificate of the Council's Clerk that the requirements of the LG Act had been complied with in relation to the proposed subdivision. It was following the registration of this Deposited Plan that the Council granted approval under the LG Act, Part XII to the subdivision sewerage works. The approved sewer layout plan depicted lot 55 as the site of the pumping station and also depicted within the Browns Road reservation (that road being a public but unconstructed road) a small strip of gravel access to lot 55.

27 Paragraph 28 of Mr Panucci's affidavit identifies Condition 7 of the development consent as the reason for the preparation of the plan of subdivision creating the site for the required sewerage pumping station and states that the preparation of the plan of subdivision involved (i) the determination of the location of the pumping station site in consultation with the Council's officers; (ii) physically setting out and marking the area of the lot (which became lot 55 in Deposited Plan 808935); and (iii) "creation of an access track to the pumping station site".

28 It is to be noted that the Statement of Agreed Facts makes no reference to this "access track" and the affidavit evidence of persons engaged by Mr Panucci to undertake fieldwork does not contain any reference to the access track. The only reference to the access track that is found in the documentary materials is the depiction of the track on the approved sewer layout plan, where the track (which is of very minor dimensions) is located within the existing road reserve of Browns Road. Ms Rourke in par 46 of her affidavit refers to this access track as being located "along Browns Road".

29 Ms Rourke's affidavit evidence disputes Mr Panucci's evidence that the creation by Deposited Plan 808935 of lot 55 of the site of the pumping station emanated from condition 7 of the development consent. She identifies the requirement for the creation of a site for the pumping station to be transferred to the Council to the requirements stipulated in the Council's letter of 10 August 1990.

30 Moreover, she states that the sewer pumping station is in fact currently under construction in Browns' Road reserve. It is an agreed fact that lot 55 was never transferred to the Council.

31 Having regard to all of the foregoing considerations there is, in my judgment, no basis in the evidence to support a finding that the access track referred to in Mr Panucci's affidavit was relevantly physically undertaken on the land to which the development consent relates.

32 If it were relevantly physically undertaken, it was undertaken within the reserve of Browns Road and not upon the subject land.

33 Whereas I am prepared to find that the subdivision created by the registration of DP 808935 was an emanation from condition 7 of the development consent, it did not fulfil the requirements of that condition even partially, and ultimately the Council has not utilised the small lot for the accommodation of the required sewerage pumping station. I also find that the whole of the work undertaken on the subject land in respect of that emanation was survey work and was preparatory or ancillary survey work for the preparation of the plans showing the subdivision sewerage works, which works required, and obtained the grant of approval under the LG Act, Pt XII.

34 Other relevant ultimate findings of fact derived from the Agreed Statement of Facts will be stated in the next section of these reasons when determining whether or not the development consent lapsed. C. DID THE DEVELOPMENT CONSENT LAPSE ON 28 SEPTEMBER 1991? 35 The Applicant submits that the works undertaken on the subject land as particularised in the Statement of Agreed Facts before the expiry of the two year statutory lapsing period, qualify as (i) "building, engineering or construction work"; (ii) relating to the approved subdivision; (iii) that were "physically commenced on the land to which the consent applies" within the meaning of the EP&A Act, s 99(2)(a) and accordingly avoid the statutory lapsing of the development consent otherwise provided by s 99(1) of that Act. 36 In amplification of this submission, the Applicant submits as follows— (i) the " survey works " qualify as " engineering works ": see Richard v Shoalhaven City Council (2002) NSWLEC 11; (ii) even if it be found that the survey works were undertaken for the purpose of the preparation of engineering plans for the subdivision roadworks and subdivision sewerage works for submission for the Council's approval under the LG Act , Pt XII that fact does not exclude a finding that such works were also undertaken as required or contemplated by relevant conditions of the development consent (ie conditions 4, 11 and 16) and if that additional finding be made, such works necessarily " relate to " the approved subdivision; (iii) the survey works included physical work undertaken on the subject land; (iv) even if the survey work is held to be " preparatory " work in the sense that it was a necessary prelude to other work being done, the preparatory work remains part of the overall process of work done on the subject land which physically commenced the approved subdivision. 37 The Council's competing argument may be summarised as follows: (i) in a case such as the present where the approved subdivision involves physical work on the land, s 99(1) and (2) require the undertaking of relevant physical work on the subject land if the development consent is to avoid statutory lapsing; (ii) the works relied upon by the Applicant, being various survey works, do qualify as relevant " building, engineering or construction work….physically commenced on the subject land "; (iii) the survey work undertaken on the subject land did not require the grant of development consent under the EP&A Act or any other approval and accordingly, the undertaking of that survey work did not involve the physical commencement of relevant engineering, building or construction work " relating to " the approved subdivision; and (iv) the survey work was in truth merely preparatory work which was undertaken for the purposes of the preparation of engineering plans for the subdivision roadworks and subdivision sewerage works for submission to the Council for the purpose of obtaining the requisite approval under the LG Act , Part XII, and accordingly that work did not relevantly relate to the approved subdivision. 38 In my judgment, the Applicant has failed to establish its claim that relevant "building, engineering or construction works relating to the approved subdivision were physically commenced" on the subject land "within the meaning of s 99(2)(a) of the EP&A Act". It follows that the Applicant has not established that the development consent did not lapse on 28 September 1991 conformably to the operation of the EP&A Act, s 99 as relevantly in force. 39 In so concluding, I hold that the "survey works" undertaken on the subject land do not relevantly qualify as "building, engineering or construction works" for two separate reasons, namely— (i) survey work is not comprehended by the statutory expression " building, engineering or construction works "; and (ii) even if survey work were so comprehended, it was merely preparatory work which did not involve the physical commencement of relevant work on the subject land. 40 The legal basis for these two reasons is fully expounded in my recent judgment in Hunter Development Brokerage Pty Ltd v Cessnock City Council [2004] NSWLEC 454 which was published in the week following the hearing of the present proceedings. 41 At that hearing, the parties were aware that two judgments in this Court had recently been reserved in separate proceedings involving the Cessnock City Council where the common issue was whether a relevant development consent had or had not lapsed pursuant to the statutory lapsing provisions now found in the EP&A Act, s 95 (which in relevant respects is not materially different from s 99 of the original Act which is the applicable provision to the present case). Indeed, Senior Counsel for the present Applicant had appeared for the Cessnock City Council in those two cases.

42 Since delivery of my reserved judgment in Hunter Development Brokerage the other reserved judgment has also been delivered by Cowdroy J in Biwazu Pty Ltd v Cessnock City Council [2004] NSWLEC 411.

43 In that case, his Honour concluded at par 36, that as a matter of law, survey work involving the placement of pegs or stakes on the relevant land was not "engineering work" for the purpose of the EP&A Act, s 95(4). In elaboration of that holding, his Honour, after discussing a number of matters of statutory interpretation, expressed the following conclusions at pars 44 and 45: 44. Applying the above principles of statutory interpretation, the placing of pegs into the land as part of a survey did not result in a material change to the land. No physical impact upon the land in the nature of construction or engineering works for roads and drains was carried out, as envisaged by the consent. In such circumstances the survey work, by itself, cannot constitute engineering work for the purpose of s 95(4) of the EP&A Act. It follows that engineering work had not been commenced by the expiration of the five year period contained in s 95(1)(a) of the EP&A Act.

45. Such conclusions are consistent with the decision of Bignold J in Hunter Development Brokerage Pty Limited v Cessnock City Council [2004] NSWLEC 454. 44 In Hunter Development Brokerage, the principal issue ultimately in dispute in that case concerned the status, vis a vis the statutory lapsing provision, of works which were merely "preparatory works". Since this issue has again been keenly debated in the present proceedings, it may be helpful if I repeat here what I there said at pars 74 to 93 (inclusive): 74 As already noted, the principal issue in dispute in the competing submissions concerns the question whether the works were merely preparatory works and on that account do not relevantly qualify as engineering or construction work for the purposes of the EP&A Act , s 95(4) .

75 The question has yielded different answers in the decisions of this Court and although the question has been raised in two decisions that were appealed to the Court of Appeal, that Court's decisions in those appeals did not deal with the question, at least in any final or conclusive manner.

76 The Applicant's contention that the concept of preparatory work is foreign to s 95(4) is supported dicta of Talbot J in Noble House Corporation Pty Ltd v Sydney City Council (1999) NSWLEC 190 and Richard v Shoalhaven City Council (2002) NSWLEC 11 and some dicta of Giles JA in Green v Kogarah Municipal Council (2001) 115 LGERA 231.

77 In Noble House , Talbot J had to adjudicate upon the council's argument that the building work undertaken was a sham. His Honour said: 17. The council has made the issue of whether the work carried out is a sham the cornerstone of its argument. 18. The terms of s 99 itself need to be considered. 19. Pursuant to subs (4), development consent for the erection of a building does not lapse if building, engineering or construction work relating to the building is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section.

78 Notwithstanding his Honour's ultimate conclusion that the construction of a steel column was relevantly construction work relating to the approved building that was physically commenced, his Honour's judgment also contains the following enigmatic statement:

The excavation of the footings in the circumstances are properly to be regarded as preparatory work prior to construction. I am not prepared to rely upon the coring carried out prior to the relevant date and in respect of which concrete was poured after the relevant date as being relevantly a physical commencement of the building

79 In the result, I do not think the decision in Noble House demonstrates a total rejection of the concept of preparatory works in the operation of s 95(4) .

80 However in Richard , Talbot J's judgment on the issue is more decisive when he states: 9. The issue is whether within the meaning of cl 4 to s 95 of the EP&A Act (cl 4) engineering work relating to the subdivision was physically commenced by the works carried out on 13 May 1997, 23 May 1997, 21 January 1998 and 30 January 1998.

10. Let me say at the outset that whether the works are preparatory or not is not the question to be determined. That is a distinct question from the question of whether engineering work is physically commenced. The expression relating to preparatory work arose historically under the provisions of the Local Government Act 1993, prior to its recent amendments and in particular s 315. The present legislative regime speaks only of work being physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section.

11. As I pointed out in Noble House Corporation Pty Ltd v Sydney City Council [1999] NSWLEC 190, in a judgment delivered on 19 August 1999, there is no question of degree or extent of the work. If the work has physically commenced prior to the date on which the consent would otherwise lapse, then that is sufficient for the purposes of cl 4 to prevent the lapsing of the consent.

81 In Green , Giles JA's analysis of the trial judge's judgment includes the following passage at p 243/244: For the second ground, his Honour considered that the work on which the appellant relied was purely preparatory, and did not constitute building, engineering or construction work irrespective of its relationship to the proposed second dwelling. His Honour referred to a number of authorities on the concept of substantial commencement found in a more distant predecessor to s 95(4) of the Act (1999), s 315 of the Local Government Act 1919 (NSW). He noted that Cripps J applied such principle to the provisions of s 99 of the unamended Act in Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170.

82 In the result, the Court of Appeal did not find it necessary to deal with this point, but Giles JA makes the following passing observation at 251 upon which the present Applicant places much reliance in support for its argument: I should add, however, that I have some doubt about his Honour's apparent acceptance of substantial commencement as a principle applied by Cripps J to s 99 of the unamended Act in Smith v Wyong Shire Council (No 3). Cripps J did refer to substantial commencement and cited from a number of decisions on s 315 of the Local Government Act 1919 (NSW). He did so, however, in the context of a submission that what had been done was not relevantly referable to that for which consent was granted. His Honour said (at 174-5) that, whatever might have been the position under that Act the matter is now regulated by s 99 . It is necessary to adhere to the language of (now) s 95(4) of the Act (1999), which speaks not of substantial commencement but of physical commencement.

83 Earlier, in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 the Court of Appeal found it unnecessary to determine whether work that the trial judge had held to be engineering work was unavailing to avoid statutory lapsing of the development consent on account of the contention that the work was only preparatory work.

84 In my judgment, it is clear that the question under present discussion is not the subject of any authoritative ruling and it is necessary that I examine the question as a matter of principle for myself, recognising of course that ultimately the answer lies in the proper construction of the statutory language.

85 I commence my consideration with the decision of Cripps J in Smith v Wyong , this being the first reported decision of this Court on the meaning and operation of the EP&A Act , s 99(1) and (2) (which was the legislative antecedent to s 95(1) and (4) and for present purposes employed materially the same language). In that case, the council in contending that the development consent had lapsed pursuant to s 99(2) , advanced a number of arguments, including the following bracket of arguments (which Cripps J at 176 considered were three ways of saying the same thing, viz that what was done was not relevantly referable to that for which consent was granted), namely: (i) the work done was preparatory to building work and preparatory work did not qualify to avoid statutory lapsing; (ii) although the work was engineering work it was not shown to have been referable to and only referable (or at least clearly and unambiguously referable to) the approved development because it was relevantly referable to the design of the basement for the proposed building; and (iii) the commencement was a sham inasmuch as it was not relevantly referable to the approved development at all but was carried out for the purpose of design.

86 At pp 176 and 177, Cripps J considered a number of the decided cases on the question whether development was ' substantially commenced " within a stipulated period to avoid lapsing, including the then recent decision of the High Court of Australia in Day v Pinglen Pty Ltd (1981) 148 CLR 289 concerning which decision Cripps J said at 178:

In Day v. Pinglen Pty Ltd (1981) 55 A.L.J.R. 416; 45 L.G.R.A. 168 that court said However, it remains necessary to consider, applying an objective test, whether, firstly, there was a commencement of the building work, and if so whether that commencement was substantial. There are some persuasive indicators pointing to a conclusion that there was no commencement of the building work in March 1977. There was, of course, the construction of a concrete slab. But the detailed drawings for the approved project had not been prepared. Tenders had not been called, and no contract had been let. The casual arrangement by which a builder, already engaged in another project for the owner, transferred some of his men on the site for three or four days that were necessary to complete the particular work to which he was assigned strongly suggests that this was an isolated work which had no real relation to the building work for which the approval had been given. The job was an end in itself. It was the construction of a concrete slab. Although the court was not prepared to disturb the trial judge's finding that the work had commenced, it concluded that there had been no "substantial" commencement. In my opinion, however, the observations of the High Court are apposite to the facts of the instant case. The owner used some of his men for a few days to do some isolated work that had no real relation to the erection of the residential fiat building in the sense referred to by the High Court. The job was an end in itself in that it was for the purpose of inspecting the site to determine the design of the basement. Although, as I have said, in appropriate circumstances excavation could amount to physical work preparatory to the commencement of the erection of a building, in this case the work was not done for that purpose.

What the section requires is that the development the subject of the consent is commenced within a period of two years. That commencement occurs when the building, engineering or construction work relating to the development the subject of the consent is physically commenced. In my opinion, there has not been established a sufficient nexus or relation between what was done by Mr Smith's employees in June 1983 and the development the subject of the consent, namely the erection of a six-storey residential fiat building. Accordingly, I refuse to make the declarations sought. Application dismissed. Applicant to pay respondent's costs of the proceedings.

87 It is apparent that in Smith , Cripps J was able to extract some principles from that part of the High Court's judgment in Day which concerned the question whether the development had been commenced (it was only if that question was answered affirmatively that the second part of the question concerning substantial commencement arose).

88 Similarly, it is apparent from the leading judgment of Gibbs J in the earlier High Court decision in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 that the concept of preparatory work was a meaningful response to the question whether development had commenced, when Gibbs J said at 360: The final question for decision is whether the work the subject of the approval and consent was substantially commenced within twelve months after 2nd November 1971. Clearly the work and development which s. 315 of the Act and cl. 38 (2) of the Ordinance require should have been substantially commenced is that to which the approval or consent itself refers, and it would seem to follow that work or development is not commenced when nothing more has been done than acts preparatory to the work or development which is the subject of the approval or consent. It may therefore be assumed, although it is not necessary to decide, that the demolition of the existing houses should not be regarded as a commencement of the work in the present case.

89 The decision of Connolly J in the Supreme Court of Queensland in Ex parte Dackfield Pty Ltd (1982) 49 LGRA 363 provides an apt illustration of how the decided cases on the statutory concept of substantial commencement of development can be usefully employed in the statutory context similar to the EP&A Act , s 95 where statutory lapsing of the approval of any building work was provided for if the building work is not commenced within a stipulated period.

90 At p 366, Connolly J extracted four principles from the decided cases on the statutory concept of substantial commencement of development, it being only necessary to notice the fourth principle which was stated in the following terms: Fourth, where a provision calls for substantial commencement of the work within a specified time, the work concerned is that to which the approval itself refers and work is not commenced when nothing more has been done than acts preparatory to the work which is the subject of the approval.

91 At p 366, Connolly posed the question whether that principle could be applied to the legislation that he was considering (which postulated commencement of building work within a stipulated period) noting that the question posed created difficulty. Ultimately, at 367, his Honour held that the principle did not apply to the circumstances of his case, stating: It is true that what was done was work preparatory to the erection of the building but having regard to the definition of building work such preparatory work as was done in this case was building work and it was approved and it was commenced.

92 In my judgment, given its obvious function and purpose in context with s 95, the statutory expression building, engineering or construction work relating to…..the building, subdivision or work is physically commenced on the land….. does not comprehend such works that are merely preparatory works to the physical commencement of the approved development.

93 Accordingly, where the only relevant works are preparatory works they do not qualify to avoid the statutory lapsing of the development consent. 45 Since giving my judgment in Hunter Development Brokerage, I have recalled another decision of the Court of Appeal which has considered the operation of the EP&A Act, s 99 as relevantly in force in this case. This is the unreported decision in Cariste Pty Ltd v Blue Mountains City Council (CA 40217/93 unreported 8 November 1996) to which I think I should make some reference to complete the survey of decided cases that I undertook in the passages I have quoted from Hunter Development Brokerage when considering the question of "preparatory works" in the context of the statutory lapsing provisions of the EP&A Act. 46 In the leading judgment given by Simos AJA, his Honour at p 4 noted that the council's case at first instance (before Pearlman CJ in this Court) "was that the development consent had lapsed because the works which were carried out on the subject site by the appellants were not a physical commencement of the works to which the development consent applied, because they were preparatory, and not a commencement".

47 In Pearlman CJ's judgment at first instance (LEC 40227 of 1992 unreported 19 April 1993), the only reference to the notion of "preparatory work" is that at the outset of the reasons outlining the council's case and her Honour's conclusions that the development consent had relevantly lapsed pursuant to s 99 make no reference (one way or the other) to the notion of preparatory works. However, in the judgment of Simos AJA in Cariste holding that work done on the site did constitute physical commencement of such engineering and/or construction work, his Honour stated at p 26 that such work was, on the evidence, "more than merely preparatory, and was not simply a sham, notwithstanding that it may have been done only days before the lapse of the development consent…"

48 I think there can be little or no doubt that his Honour's references to the relevant works as being "more than merely preparatory" and "not simply a sham" are expressly derived from the judgment of Cripps J in Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170 which was cited by Pearlman CJ at first instance as propounding the "true test" for the meaning and operation of s 99 where that test contained the following three elements— (1) the work must be relevantly building, engineering or construction work;

(2) the work must relevantly relate to the development the subject of the consent;

(3) the development must physically be commenced. 49 This passage was cited in the judgment of Simos AJA with what I take as tacit approval by his Honour of Cripps J's decision in Smith v Wyong Shire Council (No 3). 50 In my opinion, the Court of Appeal's judgment in Cariste provides some additional support for the conclusions that I reached in Hunter Development Brokerage that works which are merely "preparatory works" to the physical commencement on the development site of building, engineering or construction works relating to the approved development, do not qualify as relevant works that avoid statutory lapsing.

51 In the present case, I would hold that the survey works relied upon by the Applicant are properly characterised and understood as merely preparatory works, since it is obvious that all of the survey works were undertaken for the purpose of preparing engineering plans for the subdivision roadworks and sewerage works (which works required the Council's approval under the LG Act, Part XII which approvals were duly obtained). 52 My conclusion that the survey work undertaken is properly to be understood as preparatory work does not strictly depend upon a finding urged by the Council that the survey work was undertaken solely for the purpose of preparing engineering plans for the subdivision roadworks and the subdivision sewerage works and as a prelude to obtaining the requisite Council approvals under the LG Act, Part XII, in preference to a finding urged by the Applicant that such survey work was additionally for the purpose of complying with the relevant conditions of the development consent.

53 This is because on the basis of either finding the survey work is nonetheless properly regarded as preparatory work to the physical commencement on the subject land of building, engineering or construction work relating to the approved subdivision.

54 However, it is a matter of legal significance that before the subject land could be lawfully subdivided, it was necessary that the proposed subdivision be granted development consent under the EP&A Act and additionally subdivision approval under the LG Act, Pt XII. In the present case, the landowner's consultant, as a very experienced surveyor, was obviously aware of the necessity to obtain both of the requisite approvals and it is clear that the survey work undertaken was undertaken after the grant of the development consent and before the grant of approvals under the LG Act, Pt XII and in this context it is equally clear that the survey work was undertaken for the purpose of obtaining the requisite approvals under the LG Act, Pt XII. So understood, it is also clear that the survey work was not only merely "preparatory work" but was two steps removed from the physical commencement on the subject land of "building engineering or construction work" relating to the approved subdivision, in the sense that after the development consent had been obtained it was first necessary to obtain the outstanding approval under the LG Act, Pt XII before the approved subdivision could be lawfully undertaken (including being commenced) on the subject land. 55 In view of the foregoing considerations, it is ultimately, and I so hold, clear that the survey works do not, and cannot, qualify as relevant works relating to the approved subdivision that were physically commenced on the subject land before the expiry of the two year statutory lapsing period. Accordingly, their existence does not avoid statutory lapsing of the development consent.

56 For similar reasons, I find that neither the registration of DP 808935 nor the survey work undertaken for that purpose qualifies as "building, engineering or construction work" relating to the approved subdivision that was physically commenced on the subject land. No such work was so physically commenced on the subject land and the work so involved from first to last was survey work which was merely preparatory work, and for that twofold reason, did not qualify as works that avoid the statutory lapsing of the development consent. 57 Finally, and for completeness (even though the Applicant's final address understandably made no reference to this matter), I find that the slashing work undertaken on those parts of the subject land which the then landowner desired to offer for sale in advance of the completion of the subdivision was not relevantly— (i) building, engineering or construction work; or (ii) any relevant work that related to the approved subdivision. 58 It too was merely preparatory work. Accordingly, its existence does not avoid the statutory lapsing of the development consent. D. CONCLUSIONS AND ORDERS 59 For all the foregoing reasons, the Applicant has failed to establish its case that the development consent did not lapse on 28 September 1991, pursuant to the EP&A Act, s 99 as relevantly in force. 60 Accordingly, the application for declaratory relief fails and must be dismissed with costs.

61 In view of my conclusion that the application must fail, there is no need for me to consider the discrete discretionary defence raised in the Council's Points of Defence based upon the Applicant's delay in seeking declaratory relief in respect of a matter that was in dispute between the parties since 1995.

62 Accordingly, I make the following orders— 1. The application is dismissed with costs. 2. The exhibits remain on the Court's file.

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