Cameron v Woollahra Municipal Council

Category: Principal judgment

Parties: Andrew Cameron (First Applicant)
Vanessa Green (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
P Tomasetti SC and D Robertson (Applicants)
J Lazarus SC (Respondent)
Solicitors:
Harris & Company (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2026/00298643

Publication restriction: Nil

JUDGMENT

Introduction

1. On 13 April 2021, the Respondent, the Woollahra Municipal Council (the Council), granted a development consent to Mr Andrew Cameron (the First Applicant). The Development Consent was for the demolition of an existing building at land known as 35 Suttie Road, Bellevue Hill (the Property), and for the construction of a new dwelling.

2. The Development Consent was subject to a deferred commencement condition that it not operate until the Council was satisfied of certain matters: C****ondition A3.

3. Because of the COVID-19 Pandemic, legislative changes were enacted such that a period of “5 years after the grant of consent” was given to the Applicants to satisfy the Council about the “matter specified in the condition” before the Development Consent lapsed: s 4.53(6)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) (as it then relevantly was).

4. Condition A3 required the First Applicant (inter alia) to submit to the Council “revised stormwater plans” (the Plans) so that it could reach the required state of satisfaction referred to in the condition.

5. The Council is of the view that Condition A3 had to be complied with by 13 April 2026, or the Development Consent would lapse. The Council and the Applicants have differing views as to the construction of Condition A3; what state of satisfaction was required; and even when it was required.

6. It is not in dispute that all documents constituting the Plans were submitted to the Council by, at the latest, 30 March 2026.

7. It is not in dispute that, by 28 April 2026, the Council reached what it considers to be the necessary state of satisfaction concerning Condition A3.

8. However, the Council says the state of satisfaction was reached after the Development Consent had lapsed, which it says occurred on 14 April 2026. The Council says it did not reach the required state of satisfaction necessary by 13 April 2026, because the Plans were “not provided sufficiently in advance of the expiry date” for it to exercise its approval or assessment function: Council’s Written Submissions (CWS) at [6], [20], and [27]; Exhibit 3, Tab 15 p 92. The Council maintains that even though it subsequently assessed the Plans after 13 April 2026, and was satisfied with them, this cannot cure the fact that the Development Consent had already lapsed.

9. As I cannot on some discretionary basis simply give effect to the Development Consent, it is necessary to consider the precise terms of Condition A3, and of the legislative and regulatory scheme, in order to determine the outcome of these proceedings.

Procedural history and Applicants’ Summons

10. There are two Applicants in these proceedings. The First Applicant, and Ms Vanessa Green. I will refer to them collectively as the Applicants.

11. After reserving judgment, I noticed there was a small but not insignificant typographical error in prayer for relief 1 in the Applicants’ Summons, in that the wrong date was given for the grant of Development Consent. The parties reached a joint agreed position for the Summons to be amended by me in Chambers.

12. In their Amended Summons, the Applicants claim the following relief:

“1. A declaration that deferred commencement condition A.3 of development consent DA475/2021 granted by the respondent on 13 April 2021 (Consent) was satisfied by the applicants before 13 April 2026.

2. A declaration that the Consent has not lapsed.

3. A declaration that the Consent has commenced to operate.

4. Alternatively to prayer 3 above, an order that the respondent do all things necessary for the Consent to commence to operate.

5. Costs.

6. Such further or other orders as the Court considers necessary.”

13. The matter first came before me in the Friday list on 24 July 2026 for the hearing of a motion for expedition. The basis for the order for expedition was that the Applicants were paying about $40,000 per week in holding costs under a loan facility. Rather than formally granting an order for expedition, I listed the matter for final hearing at the earliest available date the Court had which suited the parties’ Counsel, which was the hearing date of 6 August 2026. At that hearing, the Applicants were represented by Mr P Tomasetti SC, and Mr D Robertson of Counsel, while the Council was represented by Mr J Lazarus SC.

14. The Applicants assisted me with written submissions and submissions in reply (AWS and Applicants’ Reply Submissions), and the Council also assisted me with written submissions.

Evidence

The Development Consent and other evidence

15. The Development Consent was determined with approval on 13 April 2021. As stated above, it is for the demolition of the existing building on the Property, and for the construction of a new dwelling.

16. The Development Consent was granted subject to a number of conditions. The condition at the heart of this case is the Condition A3, which is in the following terms:

“A.3 Deferred Commencement - (section 4.16(3) of the Act, clause 95 of the Regulation)

Development consent is granted subject that this consent is not to operate until the Applicant satisfies the Council, in accordance with the Regulations, as to all matters specified in this condition:

1. The submission of revised stormwater plans addressing the following:

a) It is noted from the submitted architectural plans and survey plan that the nature strip in Suttie Road slope away from the kerb and gutter. As such, the proposed stormwater piped connection to the street kerb by gravity is considered impractical due to insufficient cover across the nature strip. Roof water shall be connected to the proposed rainwater tank with overflow being directed to the absorption system.

b) The installation of rainwater tanks based on 60m3 of 1000m2 of site area shall be provided to comply with Chapter E2.2.9 of Council's DCP. In this regard, rainwater tanks with a minimum storage of 42.132m3 shall be provided for this development. Stormwater runoff from all roof area shall be directed to the proposed rainwater tank for non-potable uses such as toilet flushings, laundry devices and garden irrigations etc.

c) Full Calculation for the absorption system must be provided for assessment. Note that stormwater runoff from all paved, landscape areas and rainwater tank overflow is to be directed to the proposed on-site absorption system via a stormwater treatment system to minimise blockages. The size of the absorption trench system shall be determined for a 20 year ARI storm based on the absorption rate and the rainwater tank is to be assumed to be full and cannot be included as part of the absorption storage. The absorption system must be located at least 3 metres from the footing of any structures and property boundaries and be parallel to the contour.

If this is not achievable, Council may allow the absorption system to be located less than three (3) metres from the footing of any structures subject to certification from a qualified and experienced structural engineer certifying that there will be no adverse impacts to these structures.

Period within which evidence must be produced

The Applicant must produce evidence to Council sufficient enough to enable it to be satisfied as to those matters above within 365 days (1 year) of the date of determination.

Clause 95(4) of the Regulation:

“The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period*.”*

If the evidence is not produced within 365 days (1 year) of the date of determination this deferred commencement consent is of no effect, the consent does not operate and no Construction Certificate can be issued. No development can lawfully occur under this consent unless it operates.

Note: Nothing in the Act prevents a person from doing such things as may be necessary to comply with this condition. (See section 4.16(3) of the Act)

This consent does not operate until Council has acknowledged compliance with this condition in writing.

Note: Implementing the development prior to written confirmation of compliance may result in legal proceedings. If such proceedings are required Council will seek all costs associated with such proceedings as well as any penalty or order that the Court may impose. No Construction Certificate can be issued until all conditions including this condition required to be satisfied prior to the issue of any Construction Certificate have been satisfied.”

17. While the construction of Condition A3 is considered later in this judgment, it can be noted now that it provides that the consent “is not to operate” until the Applicants have satisfied the Council of certain matters. The Development Consent is nevertheless in effect: see, for example, Roberts v Blue Mountains City Council [2012] NSWLEC 2 at [33] per Pepper J.

18. Plans intended to address the matters in Condition A3 were sent to the Council by the Applicants’ architect on 4 March 2026: Exhibit 3, Tab 4 p 57.

19. A “Post Development Consent Referral” (an internal Council document) indicates that the Plans were referred to the Council’s Development Assessment Engineers on 5 March 2026: Exhibit 3, Tab 5 p 61. This document contains a note stating that the Plans were “to satisfy condition A3 - deferred commencement”. It further provides that “comments and recommended conditions are required within 14 days”.

20. On 22 March 2026 “Development Engineering” provided an internal response on the Plans (to Mr T Wong) which relevantly provided as follows:

“3. Assessment:

Comments have been prepared on the following:

a. Site Drainage comments

An assessment of the submitted stormwater plan has identified the following issues which must be addressed by the applicant prior to further assessment:

a) A full set of the stormwater plans showing the on-site drainage layout and sectional details of the rainwater tank and absorption system shall be submitted to Council for assessment. The proposed rainwater tank shall have minimum storage volume of 42.132m3. Only stormwater runoff from the roof areas shall be directed to the proposed rainwater tank for non-potable uses.

b) All absorption system must be located at least 3 metres from the footing of any structures and property boundaries. If this is not achievable, Council may allow the setback to be less than 3 metres subject to the certification from a qualified and experienced structural engineer certifying that there will be no adverse impacts to the structures within 3 metres of the absorption system.

4. RECOMMENDATION

Council’s Development Engineer has determined that insufficient information has been submitted to enable an assessment of the proposal. The following information is required before any further assessment of that application can be undertaken:

1. The submission of revised stormwater management plans

2. The submission of structural certificate”: Exhibit 3, Tab 8 pp 67-68.

21. By email sent on 25 March 2026, the Applicants’ architect was advised that Condition A3 was “not satisfied”: Exhibit 3, Tab 9 p 69. The email attached a letter from the Council to the Applicants’ architect dated 24 March 2026, which contained the same text set out above from the development engineering referral response: Exhibit 3, Tab 9 pp 70-71.

22. By email dated 30 March 2026, the Applicants’ architect submitted several hydraulic drawings and a Certificate of Structural Review which provided (inter alia) as follows:

“…

• Please note, the water tank will have a minimum storage volume of 42,132m 3.

• Only stormwater runoff of the roof areas will be directed to the proposed rainwater tank for non-potable uses, Sellick Consultants have amended the stormwater drainage line types shown on the plans (picking up the roof water) to read RW (roof water/rainwater).

• SW – Stormwater will bypass the rainwater tank and go directly to the absorption tanks.

Please refer to the attached Certificate of Structural Review from Sellick Consultants… as response to query at item b) of council’s letter, this confirms there will be no adverse impacts to structures within 3 metres of the absorption system…

Please do not hesitate to contact me if any queries remain or if any further information is required”: Exhibit 3 Tab 10 pp 72-73.

23. It would appear that these new drawings and the certification were forwarded on to the relevant assessment engineer within Council on 31 March 2026: Exhibit 3, Tab 12 p 83.

24. On 9 April 2026, the Applicants’ architect sent an email to the Council (Carolina Gomes; Thomass Wong) asking “if there was anything further you required from us in relation to the items emailed in my previous email on 30 March… for Suttie Road?”: Exhibit 3, Tab 13 p 84.

25. It would appear that the further drawings and Certificate of Structural Review were not assessed by Council until 28 April 2026. Following assessment, Ms S Lin of the Council prepared a document dated 28 April 2026 and titled “Referral Response – Development Engineering”, which included the following recommendation:

“Council’s Development Engineer has reviewed the submitted documentation and determined that the deferred commencement condition A3 has been satisfied”: Exhibit 3, Tab 14 p 87.

26. Despite the state of satisfaction reached by 28 April 2026, on 9 July 2026, the Council wrote a letter to the Applicants’ architect which contained the following:

“… Further to Council’s letter dated 24 March 2026, which advised that Condition A.3 had not been satisfied, Council subsequently received the following documents via your email on 30 March 2026…

Following a review of the additional documentation, Council is satisfied that the relevant stormwater engineering requirements have been adequately addressed.

Notwithstanding the above, Council has formed the view that the development consent relating to DA475/2020/1 has lapsed.

By way of background, development consent was granted on 13 April 2021 subject to Condition A.3 (Deferred Commencement), which required the matters specified in that condition to be satisfied within 365 days of the date of determination before the consent could become operative.

Having regard to the temporary legislative amendments introduced by the NSW Government in response to the COVID-19 pandemic, the lapsing period applicable to this consent was extended. Accordingly, the relevant date by which Condition A.3 was required to be satisfied was 13 April 2026.

The following chronology is relevant:

• 4 March 2026 – Council received the initial documentation submitted in support of Condition A.3.

• 24 March 2026 – Council advised that the submitted information was inadequate to satisfy the requirements of Condition A.3.

• 30 March 2026 – Further information was submitted to Council.

• 13 April 2026 – The deferred commencement period expired.

• 28 April 2026 – Council completed its reassessment of the additional information. Although the documentation was ultimately found to be satisfactory, this assessment was completed after the expiry of the deferred commencement period.

In light of the above, Council’s position is that the information required to satisfy Condition A.3 was not provided sufficiently in advance of the expiry date to enable Council to determine that the condition had been satisfied before 13 April 2026. Consequently, the deferred commencement consent did not become operative and has now lapsed.

Accordingly, no development may lawfully be carried out pursuant to DA 475/2020/1”: Exhibit 3, Tab 15 pp 91-92.

Relevant statutory provisions

27. Section 4.16 of the EP*&*A Act empowers a consent authority to grant consent, including with a “deferred commencement condition”. It is relevantly in the following terms:

4.16 Determination

(1) General A consent authority is to determine a development application by—

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

28. Section 4.20(1) provides that a development consent “has effect on and from the date it is registered on the NSW planning portal”. As mentioned above then, there can be a difference in time between when a consent has effect, and when it becomes operative, for example because of a deferred commencement condition.

29. The regulation referred to in s 4.16(3) was cl 95 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), which provided at the relevant time:

95 Deferred commencement consent

(1) A “deferred commencement” consent must be clearly identified as a “deferred commencement” consent (whether by the use of that expression or by reference to section 4.16(3) of the Act or otherwise).

(2) A “deferred commencement” consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.

(3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.

(4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.

(5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.

(6) If the consent authority has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the consent authority is, for the purposes only of section 8.7 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.

30. Section 4.53 of the EP*&*A Act concerns the “lapsing of consent”. It relevantly provided as follows:

4.53 Lapsing of consent

(1) A development consent lapses—

(a) 5 years after the date from which it operates if the development consent commences operation after the prescribed period, or

(b) 5 years after the date from which it operates if the development consent commences operation during the prescribed period, or

(c) 2 years after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before, and has not lapsed at, the commencement of the prescribed period.

…

(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within—

(a) 5 years after the grant of consent if the consent is granted after the prescribed period, or

(b) 5 years after the grant of consent if the consent is granted during the prescribed period, or

(c) 2 years after the date on which the development consent would otherwise have lapsed if—

(i) the grant of consent was before the commencement of the prescribed period, and

(ii) the development consent has not lapsed at that commencement.

(6A) A consent authority may reduce a period specified in subsection (6)(a) or (b) in granting development consent.

(6B) Subsection (6A) does not authorise a reduction to be made that would cause a development consent granted during the prescribed period to lapse within 5 years after the date on which it was granted.

…

(8) In this section—

prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.

31. It can be noted now that the five-year period introduced into ss 4.53(1)(b) and 4.53(6)(b) because of the COVID-19 Pandemic was not reflected in that part of Condition A3 concerning the “period within which evidence must be produced”, which gave 365 days (one year) for the provision of evidence to satisfy the matter in Condition A3. I will consider this issue later in the judgment as necessary, suffice to say that the Applicants submit that references in Condition A3 to “within 365 days (1 year) of the date of the determination” must be read as if they say “within 5 years of the date of the determination”: Applicants’ Note on COVID-19 Amendments at [8].

32. The Council disagrees with this, but has stated in its own submission on this issue that it “does not contend that any failure to provide evidence within the period specified in condition A3 caused the Consent to lapse”: Council’s Note on COVID Measures at [8].

Principles for construing conditions of a development consent

33. Conditions of a development consent “are to be construed, not as documents drafted with legal expertise, but to achieve practical results”: Westfield Management Limited v Perpetual Trustee Co**mpany Limite**d [2006] NSWCA 245 at [36] (Hodgson JA; Tobias JA and Basten JA agreeing).

34. In Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to D**eed of C**ompany A**rrangement) [2017] NSWCA 263 (Bunderra Holding**s), Payne JA summarised the principles governing the construction of development consents in the following terms at [158]:

“158 The principles relating to the construction of development consents were not controversial on the appeal. Those principles were explained by the primary judge at [62]-[63]. In particular, it was common ground that the following principles applied:

(1) the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 per Hope JA;

(2) a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23]; Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [4]: The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace at [41];

(3) a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160, at [105]; and

(4) as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [44]; Shell Co of Australia at 637.”

35. While a development consent then is to be construed on the basis of a “fair and liberal” reading of the rights it confers on the landowner, and so as “to achieve practical results”, it is still to be construed “in accordance with the same principles of statutory interpretation that are applicable to interpreting other legal documents”: J*.K.* Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23 (J*.K.* Williams) at [61] per Preston CJ. In J*.K.* Williams the Chief Judge said the following:

“61 Planning permissions are not in a special category requiring adoption of a completely different approach to their interpretation: Trump International Golf Club Scotland Ltd v Scottish Ministers at [2016] 1 WLR 85; [2015] UKSC 74 at [60], [66]. There is no general principle requiring laxity or flexibility in construing delegated planning legislation or statutory instruments, including development consents or approvals, nor do practical considerations permit a re-writing of delegated legislation or statutory instruments to meet what the court thinks is a permissible and practical outcome: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45]; Environment Protection Authority v Grafil Pty Ltd (2019) 238 LGERA 147; [2019] NSWCCA 174 at [257]-[261], [272].

62 A condition of consent or approval is to be interpreted by asking “what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, and overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense”: Trump International Golf Club Scotland Ltd v Scottish Ministers at [34].”

36. Nevertheless, if a condition of development consent gives rise to uncertainty or ambiguity, that is the responsibility of the consent authority granting consent. As stated by Else-Mitchell J in Ryde Municipal Council v The Royal Ryde Homes and Another [1970] 1 NSWR 277; (1970) 19 LGRA 321 at p 324:

“Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.”

37. Against the background of these governing principles, the parties’ submissions and Condition A3 can be considered.

Submissions

Applicants’ submissions

38. The Applicants submit that because of temporary amendments made to the EP&A Act during the Pandemic, they had a period of five years, or until 13 April 2026, to satisfy the Council as to Condition A3: Applicants’ Written Submissions (AWS) at [6]. The Council has the same view.

39. In the AWS, the Applicants placed most significance on these words in Condition A3:

“Period within which evidence must be produced

“The Applicant must produce evidence to Council sufficient enough to enable it to be satisfied as to those matters within [5 years] of the date of determination.

…

If the evidence is not produced within [5 years] of the date of determination this deferred commencement consent is of no effect …”: AWS at [25].

40. The Applicants say that the period of one year should in effect be five years. Leaving that issue aside, the Applicants submit that “what is required to comply with the condition is that the Applicant must produce evidence to Council… which is sufficient enough to enable C**ouncil to be satisfied as to the matters specified in c**ondition”: AWS at [26].

41. Relying on this, and cl 95(3) and (4) of the EPA Regulation referred to at [29] above, the Applicants submit that the Council “could have drafted Condition A*.*3 so that it was not satisfied unless and until Council was satisfied that the evidence provided had addressed the matters in the condition”: AWS at [31]. Instead, the Applicant submits that Condition A3 is drafted in such a way that it “simply requires the provision of “evidence” sufficient to “enable” Council to be satisfied as to those matters within the 5 year period. It does not require Council’s determination as to the satisfaction of those matters within the *5-*year period”: AWS at [31].

42. As I understand the Applicants’ submission, they place importance on the words “in accordance with the regulations” in s 4.16(3) of the EP&A Act. The EPA Regulation in turn (see [29] above) speaks to the “period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied” of the matters it must be.

43. In other words, the Applicants submit that what was required from Condition A3 was merely for them to produce “evidence to Council… sufficient to enable it to be satisfied as to [the] matters” outlined in Condition A3: Applicants’ Reply Submissions at [5(b)].

44. At [6] of the AWS, the Applicants make the following submission:

“As a result of the temporary amendments made to the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) during the COVID-19 pandemic, the time to satisfy Condition A.3 was extended to a period of 5 years after the Consent was granted, that is, until 13 April 2026.”

45. This can only be read as a submission that the Applicants had “until 13 April 2026” to “satisfy Condition A3”. However, at [30] of the AWS, this submission is made:

“Given that the Condition is drafted in conformance with clause 95(3), then clause 95(4) is applicable to determine whether an applicant has satisfied the condition. Clause 95(4) requires only that the relevant evidence “must be produced within that period” by the applicant. Clause 95(4) does not deal at all with the consent authority’s state of satisfaction as to the relevant matters based on the evidence submitted to it by the applicant. Rather, that is dealt with in clause 95(5), which does not impose any time limit on the consent authority determining whether or not it is satisfied as the relevant matters. Plainly, when clauses 95(4) and (5) are read together, the consent authority can reach the requisite state of satisfaction after the expiry of the relevant period” (emphasis added).

46. I take from this that ultimately the Applicants contend that the Council “can reach the requisite state of satisfaction after” 13 April 2026. This does not seem to be entirely congruent with Order 1 sought in the Amended Summons, where a declaration is sought that Condition A3 “was satisfied… before 13 April 2026”: (emphasis added) see [12] above.

47. The Applicants placed reliance on a decision of Robson J in Painters Lane Developments Pty Ltd v Central Coast Council (No 2) [2025] NSWLEC 105 (Painters Lane).

48. In Painters Lane, Robson J was required to construe two deferred commencement conditions which were in the following form:

“3 The Consent was granted subject to two deferred commencement conditions, being Condition 1.1(a) and Condition 1.1(b), which relevantly provide:

“1.1. This consent does not operate until the following have been satisfied

a) The Applicant shall prepare and provide to Sydney Trains for approval/certification the following items:

i. Geotechnical and Structural report/drawings that meet Sydney Trains requirements. The Geotechnical Report must be based on actual borehole testing conducting on the site closest to the rail corridor.

ii. Construction methodology with construction details pertaining to structural support during excavation. The Applicant is to be aware that Sydney Trains will not permit any rock anchors/bolts (whether temporary or permanent) within its land or easements.

iii. Cross sectional drawings showing the rail corridor, sub soil profile, proposed basement excavation and structural design of sub ground support adjacent to the rail corridor. All measurements are to be verified by a Registered Surveyor.

iv. Detailed Survey Plan showing the relationship of the proposed developed with respect to Sydney Trains easement and rail corridor land.

v. If required by Sydney Trains, an FE analysis which assesses the different stages of loading-unloading of the site and its effect on the rock mass surrounding the rail corridor.

...

b) The submission of the following to allow the applicant to gain permission to undertake sewer relocation work:

i. Written permission and deed of agreement to enter the site and construct the sewer location is to be obtained from the owners of No. 333-337 Mann Street.

Evidence must be produced to the consent authority sufficient to enable it to be satisfied that above conditions have been complied within Twelve (12) months of the date of this approval, otherwise this consent will lapse.

...” (Emphasis added.)”: Painters Lane at [3].

49. Having considered the governing principles for construing development consents, his Honour said this about the deferred commencement conditions before him:

”35 Leaving aside my view that neither Condition 1.1(b) nor (as will be seen) the Deed itself is an eloquent example of the draftsman’s art, bearing in mind the observations in each of Sunland at [56]-[57]; Canny at [71]; Taylor at [38]-[39]; and Esso at [52] referred to above, it is clear that Condition 1.1(b) calls for the provision of “evidence” sufficient to “enable” Council to be satisfied that a “[w]ritten permission and deed of agreement” to enter the neighbouring land has been obtained from the “owners of ... 333-337 Mann Street.”

36 Condition 1.1(b) is written in the present tense and was drafted in circumstances where Council had an option to employ language which creates a more specific requirement (as it did in Condition 1.1(a)).

37 I find that Condition 1.1(b) does not require Council’s discrete determination that the Deed was satisfactory (and I find, as noted below, that the Deed is “satisfactory”) and, as such, there has been sufficient compliance with Condition 1.1(b) by the provision of the Deed on 18 March 2021.

…

45 As such, I reject Council’s contention that Condition 1.1(b) required a state of satisfaction or approval by Council (pursuant to s 4.16(3) of the EPA Act) which was not reached on the present facts. Such an interpretation of Condition 1.1(b) is not available applying the ordinary principles of construction, because nothing in the text, context or purpose of Condition 1.1(b) justifies an equivalent state of satisfaction to that suggested by Council. To the extent that Council submits that the Court cannot cause Condition 1.1(b) to operate because the Consent has lapsed per s 4.53(6) of the EPA Act, I disagree because this reasoning is circular and represents a misunderstanding of the declaratory relief sought by Painters, namely, that Condition 1.1(b) was satisfied on 18 March 2021 (before the lapsing date of the Consent) and that therefore the Consent is operational and has not lapsed”: Painters Lane at [35]-[37], [45].

Council’s submissions

50. Leaving aside the period within which evidence had to be “produced” to satisfy the Council of the matters in Condition A3 (which I will come back to), it is the Council’s contention that the following words in Condition A3:

(a) “this consent is not to operate until the applicant satisfies the Council, in accordance with the regulations, as to all matters specified in this condition…”; and (b) “this consent does not operate until Council has acknowledged compliance with this condition in writing”

are a clear textual indication that the Council has an “approval function” in respect of the material submitted with the condition: CWS at [20].

51. Further, and at the heart of the Council’s submission, is the contention that on the proper construction of Condition A3 the state of satisfaction required is not merely the production of evidence prior to the lapsing of the development consent that might be capable of satisfying the Council of something at a date after this. What has to occur is that the Council must be satisfied as to the matters 1(a), (b), and (c) in Condition A3 (see [16] above) before the Development Consent has lapsed: CWS at [29]. That is, the Council needed to be satisfied, on or before 13 April 2026, that Plans had been submitted to it “addressing” each of 1(a), (b) and (c) in Condition A3.

52. In the Council’s submission, nothing in cl 95 of the EPA Regulation can alter the clear text of Condition A3, which requires satisfaction as to the Plans “addressing” certain matters (1(a), (b), and (c)). Clause 95 is simply a “machinery provision” (T27.45), and cannot overcome the lapsing period prescribed in s 4.53(6) of the EP&A Act.

Consideration

53. While, as the Applicants point out, on their view Condition A3 sets a time period for the provision of evidence to satisfy Condition A3 of five years – that is, up until 13 April 2026, being the day before the Development Consent would lapse – this in my view does not change the clear wording at the start of the condition as to what it is, precisely, that the Council has to be satisfied of.

54. In my view what the Council had to be satisfied of, through Condition A3, was that the Applicants had produced “revised stormwater plans” that address the following:

“a) It is noted from the submitted architectural plans and survey plan that the nature strip in Suttie Road slope away from the kerb and gutter. As such, the proposed stormwater piped connection to the street kerb by gravity is considered impractical due to insufficient cover across the nature strip. Roof water shall be connected to the proposed rainwater tank with overflow being directed to the absorption system.

b) The installation of rainwater tanks based on 60m3 of 1000m2 of site area shall be provided to comply with Chapter E2.2.9 of Council's DCP. In this regard, rainwater tanks with a minimum storage of 42.132m3 shall be provided for this development. Stormwater runoff from all roof area shall be directed to the proposed rainwater tank for non-potable uses such as toilet flushings, laundry devices and garden irrigations etc.

c) Full Calculation for the absorption system must be provided for assessment. Note that stormwater runoff from all paved, landscape areas and rainwater tank overflow is to be directed to the proposed on-site absorption system via a stormwater treatment system to minimise blockages. The size of the absorption trench system shall be determined for a 20 year ARI storm based on the absorption rate and the rainwater tank is to be assumed to be full and cannot be included as part of the absorption storage. The absorption system must be located at least 3 metres from the footing of any structures and property boundaries and be parallel to the contour” (emphasis added).

55. What was required by Condition A3 in my view was the attainment by Council of a state of satisfaction that the Plans addressed 1(a), (b), and (c) as outlined above. This is a subjective, “mental state” of satisfaction: see Casa and Others v City of Ryde Council (2009) 172 LGERA 348; [2009] NSWLEC 212 at [67]-[70] per Pepper J.

56. In other words, prior to the agreed date between the parties when the Development Consent would lapse (14 April 2026), Council had to form a mental state of satisfaction not only that the Plans had been produced, but that they addressed the matters in subparagraphs 1(a), (b), and (c) of Condition A3. That state of satisfaction as to whether the Plans addressed 1(a), (b) and (c) could only be reached from a consideration as to the contents of the Plans. It could not be reached merely on the submission or production of the Plans.

57. At [8(c)] of the Applicants’ Reply Submissions, they contend as follows:

“(c) In the present case, the “matter specified” in Condition A.3 was the submission of revised stormwater plans which addressed the three matters specified in the condition. Therefore, the requisite “satisfaction” of the consent authority for the purposes of s 4.16(3) and s 4.53(6) was merely satisfaction that the applicant had submitted such revised plans. That is, the applicants would have “satisfied” the consent authority as to the matter specified in the condition upon the submission by the applicants of such revised plans” (emphasis added).

58. I agree with the first sentence of this submission. The difficulty I have though in relation to the relief sought by the Applicants is that for the Council to be satisfied that the Plans “addressed the three matters specified in the condition”, it had to look at and consider the Plans to determine this and reach the required state of satisfaction. This did not happen until 28 April 2026, by which time the Development Consent had lapsed by reason of s 4.53(6)(b) of the EP&A Act (see [30] above). If the requisite state of satisfaction had not been reached by the Council on or before 13 April 2026, I do not see how it can be reached after this date given what is provided for in s 4.53(6)(b).

59. At [9(a)] of the Applicants’ Reply Submissions, the following submission is made:

“All that the Condition required Council to do was:

(a) first, confirm that the revised stormwater plans… submitted by Council were “sufficient” to enable Council to be satisfied that the revised stormwater plans had addressed the three matters specified in the condition”.

60. While I have treated “submitted by Council” to mean “submitted by the Applicants”, I cannot see how the Council could be satisfied that the Plans had “addressed the three matters specified in the condition” until 28 April 2026 when it actually gave consideration to what had been submitted. By this time, the Development Consent had lapsed.

61. I do not consider that Justice Robson’s judgment in Painters Lane helps the Applicants. The deferred commencement provision his Honour considered in that case (see [48] above) required the Applicant to “prepare and provide” certain items to the Council, as well as the “submission” of a deed of agreement. His Honour took the view that the condition required only the provision of “evidence” sufficient to “enable” the Council to be satisfied that “a “[w]ritten permission and deed of agreement”… had been obtained”. It did not require “Council’s discrete determination that the Deed was satisfactory”: Painters Lane at [35]-[37]. Condition A3 however, in my view, required the Council to reach a mental state of satisfaction that what was submitted to it addressed the matters outlined in 1(a), (b), and (c). As stated, this did not occur until 28 April 2026, after the time that the Development Consent had lapsed.

62. It is unfortunate, but in my view by reason of s 4.53(6)(b) of the EP&A Act, Development Consent had lapsed by the time the Council reached the state of satisfaction it needed to on Condition A3.

Five-year period for production of evidence

63. An issue arose in the case as to whether the Applicants had a period of only one year or five years to submit the Plans required under Condition A3. The condition itself says that “[t]he Applicant must produce evidence to Council sufficient enough to enable it to be satisfied as to those matters above within 365 days (1 year) of the date of de**termination”: see [16] above.

64. As previously indicated, s 4.53(6)(b) of the EP&A Act was amended during the COVID-19 Pandemic to give a period of five years after the grant of consent to satisfy a consent authority as to a matter specified in a deferred commencement condition before consent lapsed: see [30] above.

65. Clause 95 of the EPA Regulation (see [29] above) was not similarly amended.

66. As stated above, the Applicants contend the two references in Condition A3 to “within 365 days (1 year) of the date of determination” must be read as “within five years of the date of determination”, otherwise “Condition A.3 is beyond power and invalid”: Applicants’ Note on COVID-19 Amendments at [8]. Reliance for this submission is placed on Pepper J’s decision in Norman v Central Coast Council [2022] NSWLEC 120 (Norman).

67. The Council contends that in Norman, her Honour was only considering a consent that purported to reduce the period for compliance with a deferred commencement condition, not the period for the submission of any evidence: Council’s Note in Reply on Norman at [2].

68. The Council contends that the relevant amendments to the legislative provisions referred to above concern the lapsing of development consents, but not the period within which evidence must be provided: Council’s Note in Reply on Norman at [4].

69. There may be force in the Council’s submissions, at least in relation to Norman, but it is not necessary for me to resolve this argument. That is because I have reached the conclusion that it is clear from the text of Condition A3 that to satisfy that condition it was necessary not only for the Applicants to submit the Plans, but for the Council to be satisfied that those plans addressed items 1(a), (b), and (c) in Condition A3. As explained above, this did not occur until after Development Consent had lapsed by reason of s 4.53(6)(b) of the EP&A Act.

Conclusion and orders

70. For the above reasons, the Applicants’ Amended Summons must be dismissed.

71. Ordinarily, in a Class 4 proceeding like this, costs follow the event. However, in case either party wishes to make a submission as to the costs order that I should make, I will defer making an order as to costs for a period of seven days from the date of this judgment. If either party wishes to contend for an order for costs that is other than “the Applicants are to pay the Respondent’s costs of the proceedings as agreed or assessed”, they are to notify my Associate by email within seven days as to what costs order is sought. If this is done, I will make orders for the provision of short written submissions, and I will decide the issue of costs on the papers. The orders I make for now are as follows:

72. The Applicants’ Amended Summons is dismissed.

73. Costs are reserved for a period of seven days from the date of this judgment.

**********