Boral Resources (NSW) Pty Limited v Wingecarribee Shire Council

JUDGMENT:

• 10 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40570 of 2002

21 February 2003 Boral Resources (NSW) Pty Limited ACN 000 756 507 Applicant v Wingecarribee Shire Council Respondent JUDGMENT Introduction

1. The applicant claims a declaration that a development consent granted by the Court on 11 February 1991 has not lapsed. A development consent lapses five years after the date from which it operates: s 99(1), Environmental Planning and Assessment Act 1979, as in force in February 1996 - since re-enacted as s 95(1) in the Act as presently in force. The parties agree that the question of whether the consent has lapsed must be answered as at 11 February 1996, being five years after the consent was granted by the Court.
2. Section 99(4) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") as in force in February 1996 relevantly provides as follows: Development consent for: (a) the erection of a building, or (b) the subdivision of land, 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. (See now s 95(4), EP&A Act which is in the same terms.) The Relevant Facts
3. On 11 February 1991 the Land and Environment Court granted development consent as follows: Development consent be granted for the application to establish a hard rock quarry, processing area and the transportation of hard rock materials on the land specified in the application as amended and the provision of a quarry access road and freeway interchange generally in accordance with Exhibit 52 and subject to the conditions annexed hereto.
4. The "land specified in the application" is described in the environmental impact statement accompanying the development application which description is incorporated into development consent by condition 1 of the annexed conditions. It comprises "the project site" (being several parcels of freehold land and a Crown road reserve within the project site) and "the F5 Freeway interchange with Old Mandemar Road" (being certain freehold land owned by the Roads and Traffic Authority of New South Wales and a Crown road reserve).
5. Conditions 12 and 13 of the "conditions annexed" are particularly relevant: 12. The applicant and/or site operator may only during the construction stage and/or prior to the completion of the quarry access road gain vehicular entry to the subject land only by Greenhills Road and Compton Park Road. Thereafter all access shall be via the quarry access road. Under no circumstances is the applicant and/or site operator to use Old Mandemar Road for vehicular access. 13. Prior to any constructions works commencing at the quarry site or on land which is to contain the quarry access road the applicant and/or site operator shall complete the following works to the satisfaction of the Shire Engineer:- (i) The construction of a left turn land [sic] from Greenhills Road to Compton Park Road in accordance with figure 5.16 (copy attached) Guidelines to Engineering Practice "Intersection at Grade" (NAASR Guideline), together with the introduction of appropriate measures to improve sight distance at this intersection. (ii) The widening of the sealed section of Greenhills Road to provide for a minimum pavement width of 7 metres at the following curves: (a) from chainage 1350 to chainage 1450. (b) from chainage 1800 to chainage 2100, (c) from chainage 2150 to chainage 2350, and (d) from chainage 3400 to chainage 3800; and construct approximately 10 metres of transition at the Freeway underpass (chainage 2800). (iii) The replacement of the timber culvert on Greenhills Road with a concrete culvert to a minimum width of 8 metres and which will have a capacity to discharge a one in 20 year rainfall event. (iv) The construction of an 8 metre wide entrance to Compton Park Road from the temporary site access road, with allowance for a semi trailer to park off the road whilst opening the gate. (v) A visual pavement assessment shall be undertaken by Council's Shire Engineer and the applicant in the company of the expert prior to quarry construction commencing to establish a benchmark for comparison purposes. Following completion of the Freeway access a further visual pavement assessment shall be carried out by the two parties in the company of the expert to identify any work required to reinstate Greenhills Road and Compton Park Road to a similar state to which they were prior to the construction of the quarry commencing. In the event that the Council and the applicant cannot agree on the extent and the value of the repairs required to reinstate Greenhills and Compton Park Roads the matter shall be referred to the expert to determine the extent and the value of required repairs as an expert and the decision of the expert shall be binding upon the Council and the applicant. For the purpose of this condition the "expert" shall be an Engineer mutually agreed and appointed by the Council and the applicant and failing such agreement an Engineer nominated by the President for the time being of the Institution of Engineers Australia. The cost and fees of the expert shall be borne by the applicant.
6. Condition 22 of the consent states: "Prior to commencement of any physical work, an Environmental Management and Site Rehabilitation Plan shall be submitted for the consideration and approval of Council. …".
7. As required by condition 22, an Environmental Management Plan was prepared by R W Corkery & Co Pty Ltd. The works described in condition 13(i) are referred to therein as "Activity 1" and is described as the upgrading of the Greenhills Road/Compton Park Road intersection.
8. Condition 3 of the consent states: "No physical works shall commence until all relevant details, as required by the following conditions, are submitted and approved." Details for the works described in condition 13(i) were submitted to the council on 6 November 1995 and approved by the council on 28 November 1995.
9. The works described in condition 13(i) were commenced on or about 11 January 1996. On or about 31 January 1996 or 1 February 1996 the council inspected the engineering works. This is confirmed by a letter from the council dated 10 April 1996, signed by the Director of Environmental and Planning, which relevantly states: RE: CERTIFICATE OF PRACTICAL COMPLETION - ENGINEERING WORKS COMPTON PARK HARDROCK QUARRY - ACTIVITY 1, GREENHILLS ROAD Following a site inspection on 1 February 1996 Council accepts that the engineering works at the above development have reached the stage of Practical Completion.
10. Condition 26 of the consent states: 26. To ensure ongoing environmental management and to establish adequate operating conditions as the quarry proceeds, the operator of the quarry shall prepare and submit to Council, on an annual basis, a report on environmental management and related matters. …
11. As required by condition 26, R W Corkey and Co Pty Ltd, in April 1997, furnished to the council a document entitled "Compton Park Hard Rock Quarry - 1996 Annual Report". The report states that it has been prepared to comply with the requirements of condition 26 of the conditions of consent. The report states: "The construction works on Activity 1, the upgrading of the Greenhills Road/Compton Park Road intersection, was undertaken between the period 8th January and 8th February 1996". A detailed description of those works is then set out in the report.
12. The works described as Activity 1 and required by condition 13(i) do not form part of the applicant's land. The works were done to satisfy condition 12; that is, to provide access to the quarry site during the construction stage. The Parties' Submissions
13. The questions for determination are (i) whether the work carried out pursuant to condition 13(i) was "engineering or construction work relating to" the development; and (ii) whether it was "on the land to which the consent applies", within the meaning of s 99(4) of the EP&A Act as in force in February 1996.
14. The applicant submits that the answers to these questions are clearly in the affirmative. The works carried out were engineering works as that term is to be understood for the purposes of s 99(4); the works were physically commenced; they were commenced prior to February 1996; they were carried out pursuant to condition 13(i) of the consent; they were thus works "relating to" the development; and they were carried out on land to which the development consent applied. In the latter respect, it is submitted that the development consent involves a number of elements: it is not just a development to extract hard rock - it is a consent to do all the processes involved, including those required by the conditions of consent.
15. The council relies on the following submissions: (i) the building, engineering or construction work within the meaning of s 99(4) of the EP&A Act must relate to the building, subdivision or works for which development consent had been obtained; (ii) there is a distinction between preparatory work which operates as a precondition and work the subject of the development consent; (iii) the development comprised the quarry and the permanent access road, not work for the purpose of providing temporary access to the development; (vi) the works in the present case were not for the "development" but merely for the provision of a temporary means of access to enable the "development" to be carried out; (v) the land to which a development application "relates" must be land on which the specified development is proposed to be carried out; (vi) although the works were referable to the development consent, they did not relate to works for which development consent had been obtained; (vii) neither were the works commenced on the land to which the consent applied; (viii) condition 3 was not complied with because no physical works could be lawfully commenced until all relevant details required by all the conditions of consent had been submitted to and approved by the council, whereas only the details relating to the works required by condition 13(i) have been submitted to and approved by the council. References were made to a number of authorities which are said to support the council's submissions. Conclusions
16. It is convenient to consider, firstly, whether the works carried out pursuant to condition 13(i) was engineering or construction work "relating to" the work for which development consent had been obtained. In my opinion the answer is clearly "yes". The works do not relate to anything else.
17. As noted above, the council relies upon a number of authorities, but none of them really assist its case. In Iron Gates Developments Pty Ltd v Richmond - Evans Environmental Society Inc (1992) 81 LGERA 132 the Court of Appeal held that physically commenced engineering work carried out in breach of a condition of the consent was not work "relating to" the development within the meaning of s 99(4) of the EP&A Act. I do not see how this case assists the council. The work found to be engineering work which was relied upon to save the consent from lapse in that case was prohibited and illegal and so was not work "relating to" that which was the subject of the development consent. In the present case, however, the work was expressly required by condition 13(i) of the consent, and is thus clearly related to the development.
18. Auburn Municipal Council v F. N. Eckold Pty Ltd (1974) 34 LGRA 101 is relied upon for the submission that preparatory work necessary to be undertaken is not part of the development. In that case it was held that demolition work to enable the erection of a new building was not commencement of the new building. Again, this case does not assist the council, because the demolition work was not referred to in either the application or in the consent. As noted above, however, the work described in condition 13(i) of the present consent was expressly required as a condition of the consent.
19. In Smith v Wyong Shire Council [No. 3] (1984) 53 LGRA 170 the applicant, after receiving development consent for a residential flat building carried out some minor demolition work and some minor excavation work to determine what materials were likely to be encountered in the intended basement area of the building. It was held that this was preparatory work and was not done for the purpose of the erection of the building. Again, that is not the present case, where the work was expressly required as a condition of the consent.
20. In Drummoyne Municipal Council v Lebnan & Ors (1974) 131 CLR 350, Gibbs J (Barwick CJ, Stephen and Mason JJ agreeing) held (at 360) 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". Gibbs CJ went on to say, however, that the test to be applied is "whether the work or development the subject of the approval or consent has been begun by the performance of some substantial part of that work or development" (at 361). The requirement for "substantial" commencement no longer applies. In the present case the work done satisfies the test. It is work the subject of the development consent which was begun - the consent clearly extends to and includes the work described in condition 13(i).
21. In Liverpool City Council v Home Units Australia Pty Ltd (1973) 28 LGRA 28, Hutley JA said (at 33) that: … the commencement must be some positive unequivocal step indicating that the building for which consent or approval has been obtained has actually been commenced; in other words, that some work has been done on the site which is referable to and only referable to the particular building or structure that has been approved; in that sense it emphasises that the commencement must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement.
22. Hutley JA went on to express the view, however, that even preparatory work done on the site can be part of the unequivocal step indicating that the building has been commenced. His Honour said (at 34): The distinction between preparatory work and other work is that work leading up to the making of the building contract is preparatory work, work which is part of the contract to erect is not preparatory work.
23. Most developments have a physical context and an environment extending beyond the applicants' land and in that way relate to matters external to the applicants' land: Bell v Minister for Urban Affairs and Planning & Anor (1997) 95 LGERA 86 at 100; Captain Cook Cruses v North Sydney Council [2002] NSWLEC 243.
24. In the present case, what has been done is work which is essential for the construction of the quarry and is not mere preparatory work. Such work relates to the construction of the quarry. It does not relate to anything else.
25. The next question is whether the work was "on land to which the consent applies". The council relies upon North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, 91 LGERA 352. The council relies upon this case also in support of its submission that the land to which condition 13(i) applies is not land to which the development consent relates. In that case a development application had been made for land the access to which was by a right of carriageway over an adjoining parcel of land in different ownership. The Court held that the development application was for consent only to a development to be carried out on the applicant's own land and the development application related solely to the applicant's own land. It does not seem to me that this case assists the council. No works were proposed on the right of carriageway in that case. This is to be contrasted with the facts of the present case, in which works expressly required by the development consent were to be constructed on the roads providing access to the quarry site.
26. In my opinion the answer to the question is clear. The "land to which the consent applies" is all land upon which works required by and authorised by the consent are to be carried out. The works described in condition 13(i) are works both required by and authorised by the development consent. Such works were thus to be carried out on land to which the consent applies. Although the development application did not specify such land as either the land affected by the proposal or as land specified in the application, the conditions of the consent extend to include the land described in condition 13(i). Moreover, no construction work could be carried out at the quarry site unless and until the works on the land described in condition 13(i) were carried out.
27. A further question, which arose during the hearing, turns on the meaning to be given to condition 3 of the development consent, which states: "No physical works shall commence until all relevant details, as required by the following conditions, are submitted and approved".
28. A large number of the conditions of development consent which follow condition 3 require the submission to and approval by the council of details of the particular works to which such conditions refer.
29. As noted above, the council submits that condition 3 requires the submission to and approval by the council of all relevant details required by all the conditions of the consent before any physical works can be commenced. In my opinion, however, condition 3 is only directed to the particular physical works to which the subsequent conditions are directed. That is, condition 3 must be applied in a practical and commonsense way. The condition is not directed to all such conditions in the aggregate but only as they arise. To hold to the contrary would achieve no purpose. There would be no purpose in submitting to and obtaining the approval of the council details of particular works which are not to be constructed until several months, or even several years, have passed. This view is reinforced by the word "relevant" in condition 3. The only details that would be "relevant" are those for which works are to be next carried out. In the present case the only "relevant" details were those relating to the works described in condition 13(i). The fact that this must be the intention of condition 3 is confirmed by the fact that a number of the conditions of the consent expressly require the submission to and approval by the council of details prior to the commencement of the works to which the condition relates.
30. It follows that the Court should make the following declaration: The development consent granted by the Land and Environment Court on 11 February 1991, a copy of which is attached to this declaration, has not lapsed.
31. It would also follow that there should be an order that the council pay the applicant's costs. Since the question of costs was not argued, however, it is appropriate to reserve that question.

                              I hereby certify that the preceding 31 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
                              Associate
                              Dated: 21 February 2003

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