Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd - [2016] NSWLEC 122 - NSWLEC 2016 case summary — Zoe

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Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd

[2016] NSWLEC 122

Land and Environment Court (NSW)|2016-08-31|Before: Robson J, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-08-31

Before

Robson J, Mr J

Catchwords

[2009] NSWCA 160 Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228
[2011] NSWCA 308 Green v Kogarah Municipal Council (2001) 115 LGERA 231
[2001] NSWCA 123 Henry v Shellharbour City Council [2005] NSWLEC 378 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
[2000] NSWCA 44 Hoy v Coffs Harbour City Council [2016] NSWCA 257 Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124

Source

Original judgment source is linked above.

Catchwords

[2009] NSWCA 160 Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228[2011] NSWCA 308 Green v Kogarah Municipal Council (2001) 115 LGERA 231[2001] NSWCA 123 Henry v Shellharbour City Council [2005] NSWLEC 378 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498[2000] NSWCA 44 Hoy v Coffs Harbour City Council [2016] NSWCA 257 Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124(2013) 195 LGERA 23 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (2016) 215 LGERA 137[2010] NSWLEC 149 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 335[1998] HCA 28 Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252[2012] NSWLEC 17 Rowlane Investments Pty Ltd v Leichhardt Council (2013) 195 LGERA 9[2013] NSWLEC 60 Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528[2007] HCA 45 Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 Williams v Coffs Harbour City Council (2007) 155 LGERA 344

Judgment (33 paragraphs)

[1]

[2]

Introduction

Before the Court for determination is a separate question arising in each of two appeals brought pursuant to s 75L of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") in respect of the determination of the Planning Assessment Commission of New South Wales ("PAC") as delegate for the Minister for Planning pursuant to Pt 4A of the EPA Act. Both appeals relate to the PAC's approval of the application of Moorebank Recyclers Pty Ltd ("Moorebank") to construct and operate a material recycling facility ("MRF") at Lot 6 of DP1065574 at Newbridge Road, Moorebank NSW ("Site"). The two appeals to this Court are brought by the related entities Benedict Industries Pty Ltd and Tanlane Pty Ltd (together, "Benedict") in proceedings 2016/157848, and Liverpool City Council ("Council") in proceedings 2016/159652. Both sets of proceedings name Moorebank and the Minister for Planning as respondents.
On 26 July 2016, Sheahan J ordered that the following question be determined by a judge of this Court, separately from and prior to the hearing of the two proceedings which is set down for three weeks commencing 10 October 2016: "Whether building, engineering or construction work relating to the work the subject of Development Consent No. DA 1417/05 granted by Liverpool City Council on 29 June 2006 in respect of the property at Lot 6 in DP 1065574 was physically commenced for the purposes of s 95(4) of the Environmental Planning and Assessment Act 1979 prior to 27 June 2009."
In summary, the applicants in both proceedings have contended that the development consent granted by the Council in relation to DA 1417/05 for "bulk earthworks" granted to Moorebank on 29 June 2006 ("Consent") lapsed on 27 June 2009.
The sole question presently before the Court is whether the Consent has lapsed. Moorebank contends that the Consent has not lapsed because "building, engineering or construction work" which related to the Consent works was physically commenced prior to the lapse date of 27 June 2009. In summary, Moorebank relies upon (a) clearing of vegetation, (b) geotechnical works, (c) physical survey works and (d) road works carried out on the Site between April and June 2009.
The Minister for Planning has been excused from participating in the hearing of the separate question.
For the reasons set out below, the Court has concluded that engineering and construction works relating to the Consent works were physically commenced prior to 27 June 2009, and that the Consent has not lapsed.

[4]

… CONDITIONS The following conditions have been imposed to achieve the objectives of the relevant planning instruments and policies. A. THE DEVELOPMENT … 1. Development must be carried out generally in accordance with Development Application received 24 March 2005 and accompanying plans marked DA1417/05 (Ref: Asher McNeill & Partners Drwg No. 9226 flood 01 Amendment B dated 22 August 2005), except where modified by the undermentioned conditions. … B. OPERATIONAL MATTERS … C. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate; DEVELOPMENT DETAILS 9. Engineering plans will be required defining all physical works necessary on the site and adjacent to it. These plans are to be certified by Council or an accredited certifier. … VEGETATION MANAGEMENT PLAN 10. A Vegetation Management Plan shall be prepared that details measures to be undertaken for the future management of vegetation upon the portion of the property zoned 7 (c) Environmental Protection - Conservation. The Vegetation Management Plan shall be submitted to Council's Manager Sustainable Environment and Health for approval prior to issue of a Construction Certificate. … FLOODING … 16. There shall be multiple gaps in the perimeter mound on the southern and eastern boundaries of Area 2 identified on "Drawing No: 9226flood01" such that Area 2 is inundated by the 2% AEP flood. The total length of the gaps shall be no less than 30% of the total length of the southern, western and eastern boundaries of Area 2 identified on the plans prepared by Asher McNeil & Partners marked "Drawing No: 9226flood01". Amendments B dated 22nd April 2005. Details shall be submitted to Council's Floodplain Section prior to issue of a Construction Certificate. 17. The applicant shall produce and maintain an appropriate warning system and site Emergency response flood plan. The plan shall ensure the safe, orderly and timely evacuation of persons from the site without the need for rescue by the State emergency Service or other authorised emergency services personnel. Furthermore, the plan shall be consistent with any relevant flood evacuation strategy, Flood Plain [sic] adopted by Council or similar plan. 18. The applicant shall provide a sealed access driveway from the development to the public road where the site is to be accessed. ENVIRONMENT PROTECTION AUTHORITY … 22. A detailed groundwater assessment report shall be submitted to Council for approval by the Department of Environment and Conservation prior to issue of a Construction Certificate for the earthworks. D. PRIOR TO ANY WORK COMMENCING ON THE SITE The following conditions are to be complied with prior to any work commencing on the site. CONSTRUCTION CERTIFICATES 23. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans. NOTIFICATION 24. The applicant shall advise Council of the name, address and contact number of the Accredited Certifier, in accordance with Section 81A (4) of the Act. SITE FACILITIES 25. The following facilities shall be installed on the site: (a) Adequate refuse disposal methods and builders storage facilities. Builders wastes, marterials or sheds are not to be placed on any property other then [sic] that which this approval relates to. 26. Access to the site is to be provided only via the all-weather driveway on the property and is not to be provided from any other site, or location. (Refer to Council's Sediment & Erosion Control Policy) ENVIRONMENT 27. That no offensive noise" [sic] as defined under the Protection of the Environment Operations Act 1997, shall be created during earthwork activities associated from [sic] the site. 28. That no "water pollution" or "pollution of waters" as defined under the Protection of Environment Operations Act 1997, shall be created during earthwork activities associated with the site. 29. The applicant and/or builder shall prior too [sic] the commencement of work, install, maintain and implement adequate soil and sediment control measures and adopt suitable site practices to ensure that only clean and unpolluted waters are permitted to enter Councils stormwater drainage system during construction/demolition. Measures must include: a) Situation fencing; b) Protection of the stormwater & river system; and c) Site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place. 30. That drains, gutters, roadways and access ways shall be maintained free of sediment and to the satisfactory [sic] of Council. Where required gutters and roadways shall be swept regularly to maintain them free from sediment. Matter is not to be washed down into the drainage system. 31. No development shall take place within 40 metres of watercourses. …

[5]

The facts

The Site is a rectangular block approximately 12.5 ha in size and zoned E2 - Environmental Conservation. It is surrounded by the Georges River to the east, bushland and residential areas to the west, a golf course to the south, and land owned by Tanlane Pty Ltd to the north. It is primarily accessed by way of a driveway that runs approximately 900m from Newbridge Road to the north, alongside the Tanlane Pty Ltd property. The Site was previously used for landfill, although filling ceased in 1979.
Three witnesses were called by Moorebank at the hearing: Mr Bevan Asher, a registered surveyor with Asher Consulting Pty Ltd ("Asher Consulting") who conducted survey works at the Site in May 2009, Mr Andrew Jackaman, a geotechnical engineer with the engineering firm Jeffery and Katauskas Pty Ltd ("J&K") who project managed geotechnical works between April and June 2009 and Mr Brent Lawson, a director of Moorebank. The Court received an extensive bundle of documents entitled "Physical Commencement of Earthworks Consent" which became Ex 1.
There is no evidence to suggest that any work was undertaken on the Site pursuant to the Consent prior to March 2009.
On 16 March 2009, Mr Lyall Dix of Dix Gardner Pty Ltd was appointed by Moorebank to certify the project and issue a construction certificate pursuant to the Consent. The construction certificate was issued on 19 June 2009. Mr Lawson's evidence was that he was personally present for much of the works conducted at the Site. The evidence at hearing was that between April and June 2009, the following occurred at or in relation to the Site: 1. on 16 and 17 April 2009, approximately 12,000m2 of vegetation was cleared by Concrete Recyclers Pty Ltd (the parent company of Moorebank) ("Clearing Works"); 2. on 21, 23 and 27 April 2009, representatives of Asher Consulting likely attended the Site and conducted unspecified survey works ("April Survey Works"); 3. on 28 April 2009, three boreholes were dug and two monitoring wells installed in each by J&K for the purposes of preparing a groundwater assessment report (groundwater samples were obtained from the wells throughout the course of May 2009) ("Geotechnical Works"); 4. in early May 2009, three representatives of Asher Consulting attended the Site to undertake survey works relating to the boreholes and the identification of the toe of a batter at the Site, and to physically flag the location of the batter using metal stakes (whilst this is stated in his affidavit dated 5 August 2016, Mr Asher deposed during cross-examination that the metal posts were installed simply to outline "Area 2", which in effect delineated the batter in any event) ("Asher Survey Works"); 5. on 5 May 2009, survey work was undertaken by J&K in relation to the locations of the boreholes at the Site ("J&K Survey Works"); 6. on 11 May 2009, an emergency response plan in relation to the Site prepared by Evans & Peck was provided to Moorebank; 7. on 4 June 2009, an environmental excavation management plan and an environmental site assessment in relation to the "Proposed Earthworks" prepared by Environmental Investigation Services (a division of J&K) ("EIS") ("Earthworks ESA") were both provided to Moorebank; 8. at some point prior to 18 June 2009, a flood plan was prepared by Asher Consulting and provided to Moorebank ("Flood Plan"); 9. in mid-June 2009, a vegetation management plan relating to the Site prepared by Footprint Green Pty Ltd was provided to Moorebank ("VMP"); 10. on 18 June 2009, the VMP, Flood Plan and Earthworks ESA were provided to the Council by Moorebank pursuant to conditions 10, 16 and 22 of the Consent respectively; 11. on 22 June 2009, a geotechnical investigation report relating to the floodway creation of stage 1 of the MRF prepared by EIS was provided to Moorebank; 12. on 25 June 2009, J&K excavated six test pits between 1.7m - 4.1m deep using a 30 tonne excavator, with the view to advising Moorebank on what groundwater barriers would be appropriate at the Site ("Test Excavation Works"); and 13. on 26 June 2009, some works were undertaken to seal approximately 30m of the driveway with crushed concrete using a hired bobcat ("Driveway Works").
Given the lack of evidence to the contrary, I find on balance that the above works did occur at the Site prior to 27 June 2009. As will be outlined below, the separate question turns on whether any of, or a combination of, the above works constituted the physical commencement of building, engineering or construction work relating to the substantive Consent works.

[7]

Moorebank's submissions

Moorebank accepted that the Consent lapsed on 27 June 2009 if it had not it engaged in works that met the criteria under s 95(4) of the EPA Act. Moorebank relied primarily on the judgment of Tobias JA in Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWLEC 169 ("Hunter") when interpreting s 95(4) of the EPA Act.
In submitting that the Consent had not lapsed, Moorebank relies upon (a) the Clearing Works, (b) the Geotechnical Works, (c) survey works generally, understood to refer to the April, Asher & J&K Survey Works (together, the "Survey Works") and (d) the Driveway Works. However, it does not rely upon a number of the reports and plans that were prepared during this period, and has confined its position only to physical works that were at least commenced at the Site.
Moorebank submitted that the following questions should be asked to determine whether s 95(4) of the EPA Act had prevented the Consent from lapsing: 1. Was the work relied on building, engineering or construction work? 2. If so, did it relate to the approved development? 3. If so, was it physically commenced on the land to which the Consent applied prior to the lapsing date?
With regard to the first question, Moorebank submitted that the term "engineering" should be read broadly to include geotechnical works, and potentially also include survey works to the extent that it is a necessary first step in the engineering or construction of a development prior to the commencement of substantial works.
With regard to the second question, Moorebank submitted that works relate to the Consent works if they are a necessary step or part of the process for undertaking the Consent works. Moorebank also submitted that whether works were "preparatory" was irrelevant if the works were otherwise related to the Consent works. Moorebank acknowledged, however, that such works could not be relied upon if they were not undertaken in accordance with the Consent.
With regard to the third question, Moorebank submitted that any such works would meet this criterion if the works involved an appearance of reality, and were more than a mere sham.
Moorebank accepted that Section C of the Consent (which includes conditions 9, 10, 16, 17 and 22) provided a number of conditions which must be complied with or addressed prior to the issue of any construction certificate. Similarly, it was accepted that Section D specified a number of conditions (such as conditions 25 and 29) that should be complied with prior to any work commencing on the Site.
With this in mind, Moorebank submitted that the following, either individually or collectively, constituted physically commenced engineering work that related to the Consent works: 1. the Geotechnical Works, which collected data that was used to complete the Earthworks ESA pursuant to condition 22, amongst other things; 2. the Clearing Works, which facilitated the drilling of the boreholes and provided for the safety of contractors whilst at the Site; and 3. the Survey Works conducted by various contractors to locate, identify and measure the depth of the three boreholes, and identify the location of the batter on the Site.
Moorebank also submitted that other works undertaken after the issue of the construction certificate on 19 June 2009 also constituted work under s 95(4) of the EPA Act. In particular, Moorebank submitted that the Test Excavation Works constituted engineering work related to the Consent works pursuant to condition 1 and Part E of the Consent, whilst the Driveway Works constituted construction work related to conditions 18 and 26 of the Consent.
Moorebank finally submitted that none of these works were unlawful in nature, and so could be relied upon.

[9]

Preparatory works

Benedict's primary submission was that preparatory work, meaning work undertaken to meet conditions of the Consent that had to be met before the Consent works could start, could not be considered to relate to the Consent works. Rather, Benedict submitted that the conditions in Part C of the Consent relate to the issuing of a construction certificate, whilst the conditions in Part D were for the purpose of complying with preconditions before the Consent works could commence. In order for works to relate to the Consent works, those works must be a step in the carrying out of the actual development.
Benedict submitted that this was consistent with the reasoning in Hunter and Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123 ("Green"). In Hunter, Tobias JA considered whether the proponents had physically commenced works that related to a subdivision of land. His Honour, upon review of the findings of the primary judge, considered that the geotechnical and survey works undertaken by the proponents were an initiatory step in the process of subdividing the land. Benedict submitted that this could be distinguished, as the works relied upon by Moorebank were not "initiatory steps" in a continuum that would end with the completion of the Consent works because there were other unrelated preconditions that needed to be met. To say otherwise would lead the Court to find that the works had physically commenced when conducting any of the Consent works would violate the terms of the Consent.
Benedict also submitted that this construction of s 95(4) of the EPA Act was consistent with other provisions in the EPA Act, and in particular ss 81A(4) and 121B (item 16) of the EPA Act.
Section 121B(1) of the EPA Act relates to orders that can be made by consent authorities, and relevantly states: 121B Orders that may be given by consent authority or by Minister etc (1) An order may be given to a person by: (aa) the Minister or the Secretary…or (a) a council, or (b) any other person who exercises functions as a consent authority… to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
Item 16 of the table referred to in s 121B of the EPA Act relevantly provides: Item Column 1: To do what? Column 2: In what circumstances? Column 3: To whom? 16 To complete development that is subject to a development consent within such time (not being less than 12 months from the date of service of the order) as the consent authority considers reasonable, having regard to all relevant circumstances, including the nature of the development… The development has been commenced within the period specified in section 95 (1) but has not been completed within that period The owner of the land to which the development consent applies

[14]

Council submissions

The Council generally adopted the submissions of Benedict, although raised one further argument as an alternative to Benedict's primary submission.
The Council's sole additional submission concerned the proper construction of the Consent, and in particular the words "The following conditions are to be complied with prior to any work commencing on the site", which appear in the chapeau of Part D of the Consent.
The Council submitted that these words placed a temporal precedence on conditions 23 to 31, which together with the chapeau comprise Part D. The Council further submitted that given these clauses were predominantly targeted at protecting the nearby waterway, it was reasonable that they be undertaken before other works at the Site. It was submitted that these conditions should therefore be met prior to commencing any other works pursuant to the Consent, including all conditions in Part C (conditions 9 to 22).
The Council then submitted that the conditions contained in Part D that involved proactive works, namely conditions 25 and 29, had not been complied with. With regard to condition 29, the Council referred to the cross-examination of Mr Lawson by counsel for Benedict, and Mr Lawson's apparent admission that Moorebank had not carried out works pursuant to conditions 25 and 29.
The Council also submitted that condition 26, which relates to access to the Site, did not confer a right or place an obligation to build a driveway but rather provided instructions on how the Site was to be accessed. It was condition 18, found in Part C, which placed an obligation on Moorebank to construct a sealed driveway.
The Council further submitted that there may be further temporal precedence within Part D. The words at the beginning of condition 29 state that "The applicant and/or builder shall prior too [sic] commencement of work…". The Council submitted that these words meant that condition 29 should be complied with prior to all other proactive conditions in Part D, being condition 25 and, if the Court found that condition 26 did provide a proactive obligation, condition 26. It was submitted that this was consistent with the purpose of Part D, as it would mean that situation fencing would be constructed before a builder's storage facility, thus better protecting the waterway.
The Council, also relying on Green and Iron Gates, submitted that any works undertaken by Moorebank before complying with condition 29, or alternatively the proactive conditions in Part D itself, could not be relied upon as they were done in contravention of the Consent.
The Council finally submitted that the approach that relied upon Green and Iron Gates was the preferable approach, as it does not require the Court to reach judgment on vague and unclear terms, such as the "nexus" between the works undertaken and the Consent works.

[20]

"Engineering work"

It is well established that survey and geotechnical works can constitute "engineering work" for the purposes of s 95(4) of the EPA Act. In Hunter, a matter that involved the potential lapse of two separate development consents to subdivide land, Tobias JA made the following observations: [83] In my opinion, the expression "engineering work" in its context of forming part of the composite phrase "building, engineering or construction work", should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. There can be no doubt that engineering as such can involve many different elements…
His Honour continued to note at [88] that "engineering work" need only commence onsite, and does not need to make a material alteration to the land itself. His Honour found at [87] and [90] that survey and geotechnical works undertaken at the respective sites constituted "engineering work".
Whilst Hunter involved subdivision works, and the comments of Tobias JA were specifically made in relation to such developments, these principles have also been applied to "works" generally.
In Norlex, Pepper J considered a consent for the drilling and extraction of water from a natural spring, including installing the necessary facilities onsite. Prior to the lapsing date, the proponent extracted samples of water from the site for offsite quality testing and obtained an acoustic engineering report relating to the noise made by trucks entering and exiting the site.
Her Honour, after quoting Hunter at length, found at [94] that whilst the water pumped onsite for testing was not undertaken by professional engineers, it was done to further an engineering purpose, and as such the collection, testing and analysis of the water was "engineering work" that had physically commenced on the land. Her Honour similarly found at [98] that the works undertaken by the acoustic engineer were sufficiently analogous to that of the surveyors in Hunter to also constitute "engineering work".
In Zaymill, Biscoe J found at [12] that the removal and testing of approximately 130m3 of soil for the purposes of obtaining a remediation and validation report constituted "engineering work".
In Rowlane Investments Pty Ltd v Leichhardt Council (2013) 195 LGERA 9; [2013] NSWLEC 60 ("Rowlane"), Biscoe J found at [12] that the digging of boreholes for testing soil conditions and undertaking survey work in relation to a consent for the erection of a block of flats constituted "engineering work".
In JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535 ("JMS"), Lloyd J considered whether a consent to construct a large resort had lapsed. His Honour found at [22] that the survey work undertaken on the site was "engineering work" for the purposes of s 99(2) of the EPA Act as it then was (there is no difference in the phrasing between this section and s 95(4) of the EPA Act for the purposes of determining what constitutes "engineering work").
I consider that the approach adopted by Tobias JA in Hunter is therefore appropriate in cases concerning works as well as subdivisions, and that "engineering work" for the purposes of s 95(4) of the EPA Act includes all activities associated with, and forming a necessary part of, the discipline of engineering applicable to the works forming the subject of the given consent.

[21]

"Relating to"

The phrase "relating to" in the context of s 95(4) of the EPA Act has been the subject of much judicial discourse. Similar to the first question, the seminal discussion is to be found in the judgment of Tobias JA in Hunter. His Honour relevantly stated at [98]: …the erection of a dwelling begins with clearing of the site followed by its pegging out and then the digging of trenches for footings. It must logically follow that the erection commences with the first of those items. It matters not that neither the clearing of the site, its pegging out nor the digging of trenches involves the actual erection of the fabric of the building. So in the present cases, once it is accepted that the survey and geotechnical investigation work that was carried out was "engineering work", it must follow that that work, in the context of a development consent to a subdivision was, to adopt the words of McTiernan J in Owendale, "an initiatory step" in the process of subdividing the relevant land in accordance with that consent. Provided that "initiatory step" is a necessary part of that process that is all the statutory provisions require. Accordingly, whether one describes that step as preparatory is irrelevant.
His Honour then continued at [104]: I accept that the ambit of the expression "relating to" depends upon the context in which it appears…It involves, at the very least some real relationship or connection between the work and the subdivision in respect of which the consent has been granted. In my opinion, the required connection or relationship is satisfied if the relevant work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent.
This approach has been adopted in a number of subsequent cases, including JMS at [24] (Lloyd J), Norlex at [79] (Pepper J), Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (2016) 215 LGERA 137; [2016] NSWSC 155 at [99] (Kunc J), Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252; [2012] NSWLEC 17 at [32] (Biscoe J); Williams v Coffs Harbour City Council (2007) 155 LGERA 344; [2007] NSWLEC 440 at [7] (Pain J) and Henry v Shellharbour City Council [2005] NSWLEC 378 at [24] (Talbot J).
Importantly, in Hunter Tobias JA also found, at [111], that "there is no room in…s 95(4) for the concept of work which is merely preparatory". His Honour also found at [109] that even though work undertaken may not form part of the actual works consented to, "the carrying out of engineering work associated therewith and/or which was necessary to enable those works to be undertaken" constitutes works that "relate to" the development works.

[22]

Preparatory works

I do not accept the submission that works conducted to either obtain a construction certificate or comply with some other precondition to the development cannot "relate to" the development works. Section 95(4) of the EPA Act states clearly that the "engineering…work relating to the…work" commenced on the site prior to the lapsing date is sufficient to prevent a development consent from lapsing. The Consent works are only able to be pursued to the extent that their preconditions, whether a construction certificate or otherwise, are met by the proponent. Meeting these conditions is a necessary step if the Consent works are to be undertaken, and so compliance with these preconditions represents an "initiatory step" as outlined by Tobias JA in Hunter. As such, works undertaken in relation to these preconditions may still represent works "relating to" the Consent works.
I also reject the submission that Hunter can be distinguished from the present matter. In Rowlane, which involved the erection of a building, Biscoe J found at [12] that geotechnical and survey works conducted in compliance with two conditions that had to be complied with "prior to the issue of Construction Certificate" and "for the issue of a Certificate" were related to the development works. In Norlex, which concerned a consent for the drilling and extraction of spring water, Pepper J found at [103] that acoustic testing completed to ensure compliance with a consent condition regarding sound levels also constituted related works. Works that are required by development consents can be considered as necessary steps towards to development works, and therefore be related to those development works. Whether such a case involves a subdivision or other works is of no consequence.
The submissions regarding ss 81A(4) and 121B (Item 16) of the EPA Act similarly do not assist the respondents. As recently outlined by Bathurst CJ in Hoy v Coffs Harbour City Council [2016] NSWCA 257 at [52]: …the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context, which includes the general purposes and policy of the provision in question…
Section 95(4) of the EPA Act is clear in its meaning. For present purposes, it states that the Consent does not lapse if engineering or construction work relating to the Consent works were physically commenced on the Site before 27 June 2009. There is no need to have recourse to its context.
However, if I am wrong on this point, s 81A of the EPA Act can immediately be discounted in any event. Section 95(4) of the EPA Act relates to a substantially wider range of developments, and so should not be constrained in its operation by another section which deals only with subdivision and the erection of buildings. This context does not assist in determining its scope.
The same applies to s 121B (Item 16) of the EPA Act. It was open to the legislature to draft s 95(4) of the EPA Act to state that a development consent would lapse unless the consent works had been commenced. However, it did not do so, and drafted the legislation to state clearly that works "relating to" the Consent works were sufficient. As such, it can be inferred that the intention of the legislature was that any potential gap should exist, given the substantial differences in language used in both sections.
I therefore am of the view that preparatory works, such as the Clearing, Survey and Geotechnical Works, could potentially be related to the Consent works.

[23]

Construction of the Consent

I also do not accept the submissions of the Council regarding the proper construction of the Consent. The principles in relation to the interpretation of development consents were recently summarised by Pepper J in Nash Bros Builders Pty Ltd v Riverina Water County Council (No 2) [2015] NSWLEC 156: [140] The principles of construction of development consents are well known and may be summarised as follows: 1. consents are to be construed, "not as documents drafted with legal expertise, but to achieve practical results" (Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 at [36] per Hodgson JA, Baulkham Hills Shire Council v Ko veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [96]-[100] and Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 at [80]); 2. consents are to be construed fairly and liberally, with the meaning of their text to be determined objectively, having regard to the context in which the consent was issued, and taking into account the fact that, unlike a contract, a consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as for the applicant (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23] and [37]-[41] per Mason P, Stein and Giles JJA agreeing and K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [23] per Meagher JA); … 5. the words of a development consent have the meaning that the consent authority is objectively taken to have intended them to have. Ordinarily that meaning will correspond to the grammatical meaning, but not always. The context of the words, the consequences of a literal or grammatical construction (such as absurdity or inconsistency), the purpose of the development consent, and orthodox cannons of construction may require an alternative interpretation (Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252; at [28] per Biscoe J).
The Consent has not been drafted with legalistic precision, given the language used, lack of correct punctuation and various typographical errors including those found in conditions 17, 25, 27 and 29. It also appears to have been derived from a template, as condition 24 requires Moorebank to comply with s 81A(4) of presumably the EPA Act, which relates only to subdivision developments and is irrelevant to the subject Consent works. As such, the Consent should clearly be construed using common sense, rather than in a legalistic manner.
With this in mind, the submission that Part D should be performed before all other parts of the Consent cannot be sustained. It is clear from the context that the words "prior to any work commencing" refers to the Consent works, rather than the preparatory works in Parts C and D. For example, condition 23 refers to the required terms of a construction certificate. It is not possible to lawfully obtain a construction certificate without undertaking some preparatory works under Part C. As such, if terms had to be inserted into the construction certificate before it could be legally issued, this would place an immovable bar to actually progressing the Consent works. Further, conditions 24, 27, 28, 30 and 31 place ongoing obligations on Moorebank, and as does condition 26 as outlined below. Whilst these could be met prior to any works taking place, they must also be complied with whilst the works are being undertaken and potentially after the works are completed. These conditions could therefore not be met "prior" to any works commencing. Finally, condition 29 requires that Moorebank adopt "suitable site practices" to manage soil and water pollution. It would not be possible to responsibly do so without at least some works being undertaken onsite to determine what would be suitable. The Earthworks ESA provided to the Council pursuant to condition 22 (in Part C) includes recommendations as to what groundwater issues should be managed carefully during the course of the development. As such, condition 22 should likely be complied with before measures are taken under condition 29. The same logic applies to the submission that condition 29 should precede all other conditions in Part C.
I therefore find that the Consent should not be construed in a manner that requires that conditions in Part D be performed prior to all other conditions. Rather, each condition should be construed on its own merits in a practical manner.

[24]

Unlawful works

It was common ground that unlawful works could not be relied upon as works "relating to" the Consent works. As outlined by Giles JA in Green at [55]: …If the building, engineering or construction work in question was prohibited and illegal, it was not work "relating to the building, subdivision or work", that is, the building, subdivision or work the subject of the development consent; it could not properly be described as commencing the building, subdivision or work the subject of the development consent.
Benedict claims that conditions 18, 25, 26 and 29 all constituted preconditions that were not met prior to the lapse date, and so any substantial development works conditional on the completion of these conditions (such as the Test Excavation Works) cannot be relied upon by Moorebank.
With regard to condition 18, the evidence suggests that approximately 30m of crushed concrete was laid down on 26 June 2009. There is no evidence that any other attempts were made to "provide a sealed access driveway from the development to the public road", other than the existing driveway. The chapeau to Part C required that this be addressed or complied with prior to the issue of a construction certificate. Whilst not explicitly stated, it is implied by reference to condition 26 that a sealed driveway needed to be constructed at least immediately prior to the Consent works commencing onsite to allow proper access.
There is no evidence to suggest that the existing driveway constituted a "sealed access driveway". The fact that Moorebank constructed a 30m stretch of crushed concrete road at the entrance to the driveway suggests on balance that it was probably not sealed. There are also concerns as to whether the laying of 30m of crushed concrete met the condition to provide a "sealed" driveway from the "development to the public road". This, however, is of little consequence. Given that the evidence suggests that the driveway was not "sealed", and that it was potentially only partly sealed on 26 June 2009, the Test Excavation Works undertaken on 25 June 2009 were unlawful as they were conducted before a sealed access driveway of any length was provided.
It is therefore not necessary to consider whether conditions 25, 26 or 29 were met by Moorebank. However, in the event that I am incorrect about condition 18, I will outline my findings regarding each.
As submitted by the Council, condition 26 does not constitute a precondition as alleged by Benedict. The condition refers to "the all-weather driveway", which given the evidence of Mr Lawson appears to refer to the existing driveway. The condition also relates conceptually to how access will be given to the Site, rather than requiring the construction of a driveway. Condition 26 therefore places an ongoing obligation similar to conditions 23, 27, 28, 30 and 31, and does not need to be met before other works can be undertaken, rather simply observed whilst they are being undertaken.
With regard to condition 25, I accept Moorebank's submission that the obligation to provide such facilities and disposal methods was qualified by the word "adequate". It is clear that at least some builders' storage facilities and refuse disposal methods would have been necessary at least whilst the Test Excavation Works were undertaken. These were substantial works that involved a 30 tonne excavator digging holes between 1.7m - 4.1m deep. In cross examination, Mr Lawson conceded that no builders' storage facilities had been provided, as Moorebank did not "think they were needed". This is consistent with the satellite photographs apparently taken in November 2009 that comprise Ex A, which show a range of building and other materials strewn across the western and north eastern parts of the Site. No evidence was adduced in relation to refuse disposal methods. Given that it would have been appropriate for at least some builders' storage to be present onsite, and that none has been provided, I find that Moorebank was similarly in breach of condition 25 when it undertook the Test Excavation Works.
With regard to condition 29, I similarly acknowledge that Moorebank was only under an obligation to provide "adequate" soil and sediment control measures, and adopt "suitable" site practices with regard to stormwater egress. However, the condition also states that "measures must include" the three subconditions, which provide a minimum benchmark for what is "appropriate" and "suitable". I note that subcondition (b) does not require any specific behaviour. However, I find that subcondition (c) poses the same issues for Moorebank as condition 18, as whilst it may have be fulfilled by the completion of the Driveway Works, these occurred after the Test Excavation Works. I also find on balance that subcondition (a) has not been met. Whilst I acknowledge that Mr Lawson only admitted in cross examination that situation fencing had not been installed "prior to June 2009", rather than prior to 27 June 2009, there was no evidence to suggest that any such fencing had been installed, and no such fencing can be seen in the satellite photographs comprising Ex A.

[28]

Asher Survey Works

The Asher Survey Works comprise three different parts: (a) surveying the toe of the batter, (b) placing pegs in the toe of the batter, and (c) surveying the location of the boreholes.
With regard to the survey taken of the toe of the batter, Mr Asher stated in his affidavit that these works were used to create a plan dated 7 May 2009 which shows the "bottom of batter" and the locations of the six stakes that were placed on the Site ("Batter Plan"). The Batter Plan itself is imprecise, and contains no scale or markers to assist the reader to discern where the toe of the batter is actually located. Mr Asher then testified in cross examination that the Batter Plan was the only plan that showed the locations of the stakes. Mr Lawson deposed in his affidavit that this plan formed the basis of three of the six test pits that were dug as part of the Test Excavation Works.
These survey works should be considered in conjunction with the placing of the stakes. As noted above, six stakes were placed into the ground at various points at the toe of the batter. During cross examination, Mr Asher denied that these stakes could be placed by "anybody", implying that some level of expertise was required. Further, whilst Mr Asher deposed in his affidavit that the stakes were placed "at the location of the bottom of the batter on the Site", during cross-examination he stated that the stakes were installed simply to outline "Area 2". However, given that Area 2 in the Batter Plan is bordered by the toe of the batter, this appears to have little impact on the matter generally.
I am of the view that identifying, marking and recording the toe of the batter constituted engineering work for the purposes of s 95(4) of the EPA Act. Whilst the Batter Plan is simplistic, and the process of placing stakes at either the toe of the batter or the edge of Area 2 not an intellectually difficult task, both involve tasks that are associated with the discipline of engineering, and are necessary when performing large scale earthworks.
However, I am also of the view that these works were not a necessary step in, or part of, the process required for completing the Consent works. There is no evidence before me which suggests that the placing of the stakes provided or would provide any assistance with any of the works onsite. They were placed either to delineate the toe of the batter or to mark Area 2, and do not appear to have any other function relating to the wider Consent works. In particular, no evidence was led to suggest that they were used when undertaking the Test Excavation Works.
Further, it is not clear what actual purpose the Batter Plan served, and in particular whether it was necessary to conduct the Test Excavation Works. The toe of the batter and Area 2 were delineated in the Flood Plan, which was first drafted on 27 July 2007, and was last amended on 23 April 2009, prior to the commencement of the Asher Survey Works. The Flood Plan also includes a great deal more detail than the Batter Plan, including various onsite levels. As such, and in spite of Mr Lawson's testimony, I find that there is insufficient evidence to say that these survey works were related to the Consent works.
A similar issue is posed by the Asher Survey Works that related to the borehole locations. As deposed by Mr Jackaman, J&K conducted their own surveys of the borehole locations. Further, whilst Mr Lawson states in his affidavit that he retained Asher Consulting to conduct these works, he does not state whether he received any plans or information in response to this request. Finally, the Earthworks ESA uses the J&K survey information, and does not include the survey plan drafted by Asher Consulting showing the locations of the boreholes. As such, whilst such survey work would clearly be engineering work given its relationship to the Geotechnical Works, I find that they did not form a necessary step in the process of developing the Consent works.
I therefore find that the Asher Survey Works were not related to the Consent works, and cannot be relied upon by Moorebank.

Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd

At a glance

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Judgment (33 paragraphs)

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