2 Phillip Rise Pty Ltd v Kempsey Shire Council

The Summons commencing the appeal

1. The Summons commencing the Company's appeal is in the following terms: DETAILS OF APPEAL 1 Pursuant to s 56A of the Land and Environment Court Act 1979, the Appellant appeals from the whole of the decision below. ORDERS SOUGHT 1 Appeal allowed. 2 The Orders of the Court below on 1 March 2022 be set aside. 3 The application for construction certificate CFT-78801 is approved and a construction certificate is issued in relation to part of the development 2 Phillip Drive, South West Rocks NSW 2431, being site clearing and preparatory works approved under development consent T4-91-95 for the establishment of a resort complex comprising 180 residential units together with commercial and administration complex. 4 The respondent to pay the applicant's costs of this appeal. 5 Such other orders as the Court deems appropriate. APPEAL GROUNDS 1 Given his findings that: a. acid sulphate soil testing was required by condition 38, b. acid sulphate soil testing was engineering work (Work) (at [47] and [52]), and c. the Work was carried out before the relevant date, the Commissioner should have found that the Work related to the development for which the consent had been granted and thus the consent had not lapsed. 2 The Commissioner erred in law in imposing an additional test not found in the statutory provision (at [52]) that it was necessary to find that the entity carrying out the acid sulphate soil testing had as its purpose that of complying with condition 38 of that consent before finding that those works related to the development for which development consent was granted.

Relevant statutory provisions

1. It is necessary to set out the element of the Court Act which provides the basis for the Company's appeal. The Company's appeal is, as earlier indicated, founded on s 56A of the Court Act. This provision is in the following terms: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) On the hearing of an appeal under subsection (1), the Court shall - (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. (3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.
2. As can be seen, such appeals are confined to ones on questions of law. Issues that were addressed in the decision of a primary decision‑maker (here Bradbury AC) concerning questions of fact, or mixed questions of fact and law, cannot provide a basis for such an appeal (unless such a decision is "legally unreasonable" so as to give rise to a question of law). This distinction between matters capable of founding an appeal and matters incapable of doing so is engaged for this appeal as it comprises, in part, the basis upon which the Council proposes that the Company's appeal should be dismissed.
3. In addition to the above provision of the Court Act, one provision of the Environmental Planning and Assessment Act 1979 (the EPA Act), as in operation as at the date of the Council granting its development consent on 24 February 1993, is also engaged. The provision, s 99 of the EPA Act, as at that date, was in, relevantly, the following terms: 99 Lapsing of consent (1) A development consent lapses: (a) 5 years after the date from which it operates, except as provided by paragraph (b), or (b) … (2) … (3) … (4) Development consent for: (a) …, or (b) …, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. (4A)-(11) …

Representation

1. The Company was represented by Mr R Lancaster SC, with the Council being represented by Mr M Seymour, barrister. Concise written submissions were provided on behalf of the parties. It will be necessary, later, to refer to, and/or quote from, those written submissions.

The hearing

1. The hearing of the Company's appeal was held on 12 December 2022. It was conducted efficiently, being completed in half a day.

The evidence

1. The evidence for the Company comprised its Appeal Book (Exhibit A) and a chronology covering the period from the date of granting the 1993 development consent (24 February 1993) to 28 March 2022 (the date of the Summons commencing this appeal being filed (Exhibit B)). The only other relevant date to be noted is that the borehole drilling, to which later reference is made, had been completed by 29 October 1994.
2. The evidence on behalf the Council comprised its Appeal Book (Exhibit 1) and a marked-up air photo plan of the site (Exhibit 2).

The 1993 development consent

1. For the purposes of this appeal, two aspects of the 1993 development consent required to be noted. The first is that the 1993 development consent's notice of determination included, amongst the conditions of consent forming part of the determination, condition 38. Condition 38 is in the following terms: Further testing for the presence of acid sulphate soils shall be undertaken prior to the release of the building application and appropriate measures identified and implemented to obviate and [any] impact.
2. The question of whether or not this condition has been satisfied is critical to the present appeal.
3. Second, the conditions also contained a number of requirements that mandated that further information be provided to the Council before the consent could be acted upon ‑ these conditions, although needing to be addressed later, did not provide any basis upon which it could be concluded that the 1993 development consent might have lapsed.
4. It is to be noted that the testing undertaken in January 1995 (following the borehole drilling, which was completed in late October 1994) disclosed, relevantly, no presence of acid sulphate soil or potential acid sulphate soil on the site and thus, subject to the legal issues decided by the Acting Commissioner and forming the subject of this appeal, the requirement to prevent lapsing would have been satisfied. This was because the borehole drilling and testing of the material extracted from the borehole constituted engineering work for the purposes of s 99(4) of the EPA Act as earlier set out (Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169).
5. Setting aside the matters here requiring consideration, the 1993 development consent would therefore not have lapsed pursuant to the then applicable s 99(1)(a)(i) of the EPA Act.

The evidence before the Acting Commissioner and his decision

1. It is next appropriate to set out how the Acting Commissioner approached the issues in contest in the hearing before him.
2. The Acting Commissioner considered that he was required to determine whether or not the 1993 development consent had lapsed. He was of the view that it was a necessary prerequisite to upholding the Company's appeal and determining that a construction certificate was appropriate to be issued for the building works for which the Company sought approval needed to be based on a development consent which validly subsisted to provide a foundation for such construction certificate.
3. For this purpose, the Acting Commissioner considered whether testing for (relevantly) the presence of acid sulphate soils across a wider area than the site (but including a borehole for such testing purposes on the site) satisfied the terms of condition 38 of the 1993 development consent.
4. The acid sulphate soil testing had been carried out for an oil company, Caltex Petroleum Pty Ltd (Caltex), the former owner of a larger area of land which included the Company's site. The testing undertaken by environmental consultants engaged by Caltex was required to be undertaken as a consequence of a groundwater contamination plume across the site travelling down gradient toward Salt Water Creek. The plume was located, in part, under the westerly portion of the site. Caltex was required to remediate the contamination caused by the plume using a remediation technique known as "air sparging".
5. Caltex required access to the Company's site in order to undertake the EPA‑mandated testing regime across the wider area for which it was required by that body.
6. By letter dated 7 June 1994 (prior to entry into the deed discussed below), the legal representatives of the then owner wrote to the solicitors representing Caltex. This letter is also in evidence as part of the papers behind Tab 6 of Exhibit A before me. It was also in evidence before the Acting Commissioner, comprising portion of the Applicant's Tender Bundle (Exhibit B) in the proceedings below. The relevant paragraph of that letter was in the following terms: Could you please provide, in detail, the methods, procedures and protocols (including testing sites) to be used in the confirmatory testing specifically proposed for Lot 504 to determine whether or not there are acid sulphate soils or potential acid sulphate soils in or on the relevant part of Lot 504.
7. The then owner of the Company's site, Chrisbeck Pty Ltd (Chrisbeck - the former owner), and Caltex entered into a deed which granted Caltex access to the Company's site in order to undertake testing on the site as part of the broader suite of testing Caltex was mandated to undertake. The deed between the former owner and Caltex was dated 30 September 1994. A number of elements of the deed require consideration in this appeal. First, it is appropriate to set out the terms of the recital to the deed. This recital reads: Chrisbeck has the benefit of, and intends to develop Lot 504 in accordance with the Lot 504 Development consent, and has agreed to permit Caltex to enter the Land, and Caltex has agreed to enter the Land, on the terms and conditions of this Deed.
8. The development consent mentioned in the recital to the deed set out immediately above is the development consent which has been the subject of the Acting Commissioner's consideration in the appeal dealt with by him. It is to be noted that cl 2 of the deed provided that Caltex was to pay the former owner an access fee of $140,000 for the right to access the site and to carry out the testing permitted by the deed.
9. The definitions in cl 2 of the deed defines the term "Works" as meaning "the works referred to in cl 3.1".
10. Next, it is appropriate to set out what the deed defines, relevantly, as the activities which Caltex was permitted to undertake on the site. These works were set out, relevantly, in cl 3.1 of the deed in the following terms: Chrisbeck hereby grants Caltex and any contractor or consultant engaged by Caltex to carry out the works (including without limitation Groundwater Technology Australia Pty Ltd), a non-exclusive license to enter the land by the access points for the purposes of carrying out the following works: • investigation to ascertain the extent and nature of any acid sulphate soils or potential acid sulphate soils in or on the land; • irrelevant; • irrelevant; • irrelevant; • conducting on the land transect drilling to an approximate average depth of 10 m at locations generally indicated on the transect drilling plan; • taking and testing samples from the transect drilling to ascertain the extent and nature (if any) of any acid sulphate soils or potential acid sulphate soils …; • irrelevant; • irrelevant.
11. Finally, the deed contains a confidentiality clause restricting the former owner as to the circumstances under which the former owner might be permitted to disclose information concerning the outcome of the testing to be undertaken by Caltex's consultants.
12. The deed also provided, in cl 4.1, that a copy of the report which would result from the testing to be undertaken on behalf of Caltex would be provided to the former owner.
13. Environmental consultants, Groundwater Technology Australia, carried out the testing on behalf of Caltex and produced a report dated January 1995.
14. Mr Malcolm Dale, a senior employee of Groundwater Technology Australia, supervised the carrying out of the testing that was undertaken for Caltex. Mr Dale gave evidence before the Acting Commissioner and a copy of his expert report forms part of the material behind Tab 6 of the Exhibit A in these proceedings. It is appropriate to set out what Mr Dale said at Sections 7.2.2 and 7.2.3 of his expert report. These were in the following terms: 7.2.2. Acid sulphate soil testing consistent with clause 38 Acid sulphate soil testing undertaken by GTA was in accordance with the deed of access between Caltex Oil and Chrisbeck Pty Ltd communicated to GTA via a letter WE910114.DRH: 11, dated 5 October 1994. GTA was not aware of the reasoning behind the acid sulphate testing request. 7.2.3. Acid sulphate soil testing As part of the access agreement for lot 504 communicated to GTA, only one borehole (DMW17) was proposed to be assessed for ASS. Another borehole (BMW 22) was also assessed for ASS in the CaLM land as per section 7.2.1 One borehole was considered sufficient at the time to assist the presence of ASS or PASS. The borehole would be sampled and tested at multiple levels to determine the depth of any potential ASS and would be a good indicator of the presence or absence of actual or potential ASS. If ASS or PASS was detected in the borehole, further sampling may have been required to determine the extent of any ASS or PASS. Previous testing by e.g. I of the former terminal land and number 64 Phillip Drive and mentioned in the procedures, suggested that acid forming soils were unlikely to be present on Lot 504. Testing for ASS and PASS by contaminated land consultants in the mid-1990s was not mainstream, however, acid sulphate risk soil mapping was published by the NSW Department of land and water conservation (including the soil conservation service) in 1995, and comprehensive guidance on acid sulphate soils was issued in 1998 entitled: acid sulphate soils assessment and guidelines NSW, acid sulphate soils management advisory committee, August 1998. Testing for ASS and PASS is now routine part of any environmental assessment may still only include sampling from one or two boreholes from the broader site sampling plan. Should ASS or PASS be identified an Acid Sulphate Management Plan would be required for any works program in accordance with the 1998 guidelines.
15. It is not in dispute that the borehole on what is now the Company's site was tested for acid sulphate soils and that this testing revealed no presence of acid sulphate soils or potential acid sulphate soils at the borehole that was sampled. The report disclosing this position was in evidence before the Acting Commissioner and was in evidence before me.
16. The transcript before the Acting Commissioner shows that the above matters were addressed by Dr Brunton who was representing the Company before the Acting Commissioner. He submitted (Transcript 22 December 2021, page 44, line 28 to page 45, line 1): Mr Dale has pointed out in his evidence, the mere fact that there was one well on the subject land was consistent with the practice in 1993 and 1995 of identifying and assessing the likelihood of the presence of acid phosphate soils. His opinion is that not only was it consistent with the practice in 1993, but it would also be the practice today. He says in section 2.7.2.3 of his report behind Tab 21 Exhibit B: "Testing for acid … 1998 guidelines". So we would submit that not only was he, in carrying out the testing in 1993 it was testing carried out as required by condition 3.1(a) of the access deed and that testing was required by the landowner, with respect, for the purpose of satisfying this consent condition and that is underscored by the letter of the landowner solicitor dated 7 June 1994 behind Tab 20, with a landowner sought from Caltex the detail of members (numbers) procedures and protocols, including testing sites to be used in the confirmatory testing specifically proposed for Lot 504 to determine whether or not any acid sulphate soils or potential acid sulphate soils in the relevant (not transcriber wall). So we would say the legal test has been met from the facts in this particular matter, and the contention of Council that there is not enough evidence to be satisfied that the works carried out by GTA related to the development cannot be sustained. Because that showed the works for acid sulphate soil testing at the forefront of the landowner's mind as it is proven by the correspondence; it's referred to in the title of the deed and is an express clause in the deed for requiring Caltex to do the very testing.
17. It is to be noted that, by letter in 2007, the Company's legal representatives provided a copy of this report to the Council in response to a request from the Council for further information as to whether condition 38 of the 1993 development consent had been satisfied in a fashion which would have prevented that consent from lapsing.
18. There is no direct evidence of consent being granted by Caltex pursuant to cl 14.1(b) of the deed for this purpose, but the necessary inference (accepted by the parties for the purposes of the proceedings before the Acting Commissioner and before me) is that such consent had been granted to the Company.
19. The Acting Commissioner formed the view that, before he could contemplate deciding whether to order the issuing of a construction certificate to the Company, he needed to be satisfied that the 1993 development consent had not lapsed. He invited the parties to address him on this point.
20. His conclusion, that the 1993 development consent had lapsed because condition 38 had not been satisfied, was based on his analysis of the circumstances surrounding the testing which had been undertaken by Groundwater Technology Australia for Caltex and whether it could be relied upon for the purpose of satisfying condition 38 of the development consent.
21. In this context, he explained his reasoning for concluding that condition 38 had not been satisfied at [51] to [54] of his judgement. It is appropriate, although somewhat lengthy, to set out these paragraphs in full, as they explain his reasons for reaching that conclusion - ones founded on why he considered condition 38 had not been satisfied had led to the lapsing of the 1993 development consent. The paragraphs are in the following terms: 51 The evidence clearly establishes that the acid sulphate soil testing carried out by GTA was carried out on the instruction of Caltex for the purpose of determining the presence of acid sulphate soils, as these would impact on the proposed method of remediating hydrocarbon contamination in the land. 52 I accept that acid sulphate soil testing is relevantly engineering work that is capable of constituting the physical commencement of development for the purposes of s 99(4) of the EPA Act. It is also well established that such work can relate to the development even if it serves more than one purpose: Hunter at [115]. However, I am not satisfied that the acid sulphate soil testing in this appeal was carried out for the purpose of complying with condition 38 of the Consent, and thus "relates to" the development the subject of the Consent. My reasons for coming to this conclusion are as follows: (1) Chrisbeck had no involvement in the design of the acid sulphate sampling protocol devised by GTA. If the testing was being done in part to satisfy Chrisbeck's obligations under condition 38, one might reasonably have expected that Chrisbeck would have indicated what its, or the Council's, requirements were in relation to that testing. (2) The Deed allowed Caltex, for a fee, to access Chrisbeck's land for the purpose of carrying out the acid sulphate soil testing but did not impose any obligation on Caltex to do any sampling or testing. Again, If the testing was being done in part to satisfy Chrisbeck's obligations under condition 38, one might reasonably have expected that it would have required Caltex to carry out the testing required for that purpose. (3) Chrisbeck did not provide the results of the testing to the Council until 2007, some 12 or 13 years after the testing had been done. (4) While the Deed makes reference to the existence of the Consent, it does not recite that the Consent required testing for acid sulphate soils or that the results of the testing to be done by Caltex would be relied on by Chrisbeck for the purpose of satisfying condition 38. (5) The confidentiality provision in the Deed meant that Chrisbeck could not provide the results of the acid sulphate soil testing to the Council except with the further agreement of Caltex. If Chrisbeck had intended to provide the acid sulphate soil test results to the Council to satisfy its obligations under condition 38, one might reasonably have expected to see its ability to do so, without the need for any further approval from Caltx, reflected in the terms of the Deed. (6) The only bore hole and well established by Caltex on the Site for the purpose of testing for acid sulphate soils, is located outside the area proposed to be developed under the Consent. This is a strong indicator, in my view, that the testing was done solely for Caltex's purposes and not also for the purpose of satisfying the requirements of condition 38. 53 Returning to the principles established in Hunter, in my view the Applicant has not demonstrated: (1) a "real nexus" between the acid sulphate soils testing carried out by GTA for Caltex and the additional testing required by condition 38 of the Consent; (2) that there is more than a merely notional or equivocal connection between the testing carried out by GTA and the testing required by condition 38 of the Consent; (3) a real relationship or connection between the testing carried out by GTA and the testing required by condition 38 of the Consent; (4) that the testing carried out by GTA was of the type required to satisfy the requirements of condition 38 of the Consent. 54 I have therefore concluded that the acid sulphate soils testing did not relate to the Consent. Accordingly, I find that the Consent lapsed on 24 February 1998. This finding is sufficient to refuse the construction certificate and dismiss the appeal. However, as the remaining jurisdictional pre-requisites were the subject of evidence and submissions, I will briefly set out my findings relevant to those matters.
22. Having concluded that condition 38 had not been satisfied, the Acting Commissioner then also proceeded to consider the further contention of the Council that had been advanced to him as a basis why a construction certificate should not be issued because the Company had failed to provide a range of information which was otherwise required to have been provided to the Council to permit this to happen.
23. It is sufficient, for present purposes, that this contention was dealt with by the Acting Commissioner. It is not necessary to set out his analysis on these points. It is also sufficient to note that he concluded that, had he been satisfied that the consent had not lapsed because of the failure to satisfy condition 38, he would have concluded that this second contention would not have prevented him from ordering the issuing of a construction certificate to the Company.

The position advanced by the Company

1. The position advanced by Mr Lancaster for the Company concerning the required satisfaction of condition 38 within the relevant time period by the testing undertaken on behalf of Caltex was a comparatively simple one.
2. First, he noted that there was no dispute that the testing had been undertaken for Caltex in a timely fashion - thus not raising any issues of lapsing in this regard. In this context, it is to be noted that, although the results of the testing were first notified to the Council by letter from the Company's legal representatives to the Council in 2007, condition 38, in terms, did not mandate that the testing information needed to be provided to the Council - merely that the testing was required to have been undertaken.
3. The Acting Commissioner had formed the view that, for him to be satisfied that condition 38 was satisfied, the testing commissioned by Caltex and undertaken by Groundwater Technology Australia was undertaken for the purpose of satisfying the condition.
4. By approaching the matter in the above fashion, Mr Lancaster submitted, the Acting Commissioner had misdirected himself as to how he should understand the concept of purpose for the appropriate analysis of whether or not condition 38 had been satisfied.
5. The Acting Commissioner had, he submitted, understood "purpose" to mean the reason why the testing was undertaken. The Acting Commissioner's consideration of the "purpose" in the fashion undertaken by him misunderstood how he was to approach the question of compliance with condition 38 and, thus, the potential for lapsing of the 1993 consent.
6. The extent of the testing, both as to the substances encompassed by the laboratory testing of the samples that were taken by Groundwater Technology Australia and the location of the various boreholes sunk across the wider area than the Company's site encompassed by the Caltex testing scope was shown in the report provided to the Council in 2007. The report included the results from a relevant borehole on the Company's site.
7. Mr Lancaster submitted that the correct approach to the concept of "purpose" was not to ascertain why the testing had been undertaken, but to ask what had been sought to be achieved, relevantly, by the scope of the testing and the results from it. Considering the question of "purpose" on the "what" rather than the "why" basis meant, he submitted, that the results from the borehole within the Company site were what was relevant for the purposes of satisfaction of condition 38.
8. Mr Lancaster submitted that the critical point was that, as a matter of fact, one borehole on the Company's site had been tested for acid sulphate soils and none were found.
9. In this context, the fact that this borehole had been drilled on the Company's site and acid sulphate soils testing undertaken at a location consistent with the expected or known extent of the contamination which Caltex would be required to remediate, was sufficient, as a matter of scientific fact, to demonstrate that condition 38 had been satisfied, Mr Lancaster proposed.
10. This conclusion arose, Mr Lancaster submitted, because the "purpose" for which the testing commissioned by Caltex had been undertaken was to ascertain the extent of contamination at the locations where boreholes were sunk and determining, by laboratory analysis, what was or was not the presence of various potential contaminants (here relevant, the presence of acid sulphate soils or potential acid sulphate soils on the Company's site as required by condition 38).
11. Viewing the "purpose" of the testing commissioned by Caltex in this context, what motivated the commissioning of the testing (as had been considered by the Acting Commissioner in his analysis of the "purpose" of the testing as he construed it) was irrelevant. On this basis, he submitted that condition 38 had been satisfied, and that not only should the appeal be upheld, but I should order that a construction certificate be issued to the Company in order to permit it undertake the range of building works proposed as they were within the scope of the 1993 development consent which continued to subsist.

The position advanced for the Council

1. Mr Seymour advanced two bases upon which he submitted that the Acting Commissioner's decision should be sustained and the appeal dismissed. The two bases upon which he founded his submissions were significantly different.
2. The first of them was founded on a somewhat complex structure of submissions as to broader matters of statutory construction on what Mr Seymour proposed was the necessary mandated process governing applications for the issuing of construction certificates.
3. The second basis for sustaining the Acting Commissioner's decision was that the Acting Commissioner had been correct in how he had approached the issue of whether or not condition 38 had been satisfied.
4. I advanced the proposition to Mr Seymour that, if I was satisfied that the Company's position concerning how the testing undertaken by Caltex should be approached for the purposes of determining whether condition 38 had been satisfied was correct, such a conclusion rendered it unnecessary to consider the first basis for his submissions. Mr Seymour indicated that he accepted the validity of that proposition.
5. Although Mr Seymour comprehensively took me through the relevant elements of the Groundwater Technology Australia report and the deed between the former owner and Caltex which permitted the testing to be undertaken, it is unnecessary for me to address any of that detail.
6. He did so for the purpose of demonstrating to me, in his submission, that the approach which had been taken by the Acting Commissioner to understanding how the testing which had been undertaken by Caltex's consultants should be seen for the purposes of determining whether or not the testing satisfied condition 38 and, therefore, engaged s 99(4) of the EPA Act as at the relevant date. He submitted that doing so in the fashion he advanced demonstrated the correctness of the Acting Commissioner's approach.
7. Given that I have rejected his propositions and am satisfied that the "purpose" for which the testing was undertaken, relevantly, was to determine whether or not acid sulphate soils and/or potential acid sulphate soils were present in the borehole that was located on the Company's site, such an analysis is unnecessary.
8. Given that, for reasons later explained, I am satisfied that the Company's position now advanced concerning the satisfaction of condition 38 is correct and that there are no other impediments arising from the terms of the 1993 consent acting as a barrier to the issuing of a construction certificate to the Company, there is no need to consider whether or not Mr Seymour's first line of submissions based on matters of statutory construction are valid or not.
9. It is, therefore, not necessary to set out the detail of this more general basis advanced in support of the Acting Commissioner's decision, because it is rendered irrelevant by my finding that the 1993 development consent has not lapsed (as Mr Seymour had submitted, as earlier noted, would be the position).

Consideration

1. The submissions made by Mr Lancaster to the effect that it is the scope of that which is carried out as potentially being capable of satisfying condition 38 rather than who carried out that activity and what, if anything, is to be understood of the reason why that activity was carried out are correct.
2. The consideration of what was required by condition 38 was clearly one to be approached on the basis of conventional statutory interpretation (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28) without any need to read additional words into the provision as might otherwise have been permitted if necessary (Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9).
3. Taking the narrow approach adopted by the Acting Commissioner that, in effect, any activity which would fall within the scope of s 99(4) of the EPA Act would be required to be carried out by, or directly on behalf of, the beneficiary of the consent at the time such activity took place is a position which involves, in my assessment, an impermissibly narrow interpretation of s 99(4). Indeed, to reach such a conclusion would have necessitated reading additional and unnecessary words into the provision.
4. On this basis, I am satisfied that the Company's appeal should be upheld.
5. In these circumstances, it is unnecessary to consider whether the Acting Commissioner should have addressed the question of what inference should be drawn from the paragraph in the letter from the legal representatives of the former owner to the legal representatives of Caltex during the course of the negotiation for the deed that permitted Caltex to undertake the testing ‑ a paragraph earlier set out at [22].
6. However, that the Company's case before me was not advanced on the basis of what should be inferred (if anything) from this correspondence also renders it unnecessary for me to consider it.
7. It is to be noted that the deed between Caltex and the former owner which permitted Caltex to undertake the testing on the Company's site as part of Caltex's testing across a wider area, the fact that the owner was identified as Chrisbeck is irrelevant for present purposes. This is because, if the 1993 development consent remains valid, it runs with the land and the benefit of relying upon it is currently held by the Company for the purposes of these proceedings.
8. It is here appropriate to note that, as the relief sought by the Company in its appeal was that I should order the issuing of the requested construction certificate to the Company, utilising the power to do so given by s 56A(2)(b) of the Court Act, if I concluded that condition 38 had been satisfied and the appeal should be upheld, I needed to also be satisfied that there was no other impediment to doing so. For this purpose, should it arise, I indicated to Mr Seymour that I would need to know whether or not the "insufficient information" contention that had been pleaded before the Acting Commissioner was now accepted by the Council as no longer standing as a barrier to the ordering of a construction certificate because the required additional information had been supplied to the Council.
9. Mr Seymour indicated he that he would need to have relevant Council officers contacted in order to determine what the current position with respect to those matters was. I directed that that information be obtained as soon as was practicable. After I reserved my decision, I was advised by the Council's solicitor (by e‑mail to my Associate) that: Council has now instructed that it has received the information of the kind in conditions 5 and 17 of the Consent. Accordingly Council would accept His Honour can issue a Construction certificate if he was otherwise to find the error.
10. As I have concluded that condition 38 was satisfied by the testing undertaken by Groundwater Technology Australia (even though undertaken pursuant to the deed between the former owner and Caltex) resulting in the 1993 development consent not lapsing, there now remains no impediment to me exercising the discretion available pursuant to s 56A(2)(b) of the Court Act and ordering that the appeal be upheld and that a construction certificate be issued to the Company.

Costs

1. Costs in appeals pursuant to s 56A of the Court Act ordinarily follow the event. There is nothing in these proceedings which would cause me to depart from that position. It is therefore appropriate to order that the Council is to pay the Company's costs of the appeal, the orders for which I have made provision in the directions, at [73] below, are to include an order to give effect to this costs outcome.

Return of exhibits

1. The orders for which I have made provision in the directions, at [73] below, are also to provide for the return of the exhibits to the party which tendered the exhibit.

Directions to give effect to my conclusion

1. As I understand the position, it is necessary that the terms of the construction certificate to be issued are made available through the NSW Planning Portal. In order to give effect to this as reflecting the outcome of this appeal, it is appropriate to direct that the parties confer and settle the terms of the orders necessary to achieve this outcome.
2. I therefore give the following directions: 1. The parties are to confer and, if agreed, provide settled orders to my Associate, in Microsoft Word format, to give effect to the conclusion that the appeal is to be upheld and a construction certificate as sought by the Company is to be issued to the Company; 2. Any settled orders are to be provided electronically to my Associate by the close of business on 29 March 2023; 3. If settled orders are provided to my Associate pursuant to (2), I will make orders in chambers to finalise the appeal; and 4. If the parties are unable to agree on the terms of orders to give effect to the outcome of these present proceedings as provided for in (1) and (2), the matter is listed for mention before me at 8.30 am on 30 March 2023 to permit me to resolve any matters remaining in dispute.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2023