CARISTE PTY LTD and ANOR v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS [1996] NSWCA 92

2. Orders of the Land and Environment Court set aside.

3. Respondent's application to the Land and Environment Court dismissed with costs.
4. Respondent to pay the costs of the appellants of the appeal.

Clarke JA I agree with the reasons of, and the orders proposed by, Justice Simos.

Simos AJA This is an appeal from the decision of Pearlman CJ in the Land and Environment Court delivered on 19 April 1993.

As her Honour stated, there were two matters arising for decision in the case. The first matter required a determination of what constituted a development consent granted by the respondent, the Council of the City of the Blue Mountains ("the Council"), to the first appellant, Cariste Pty Ltd ("the First Appellant") on 23 November 1999. The second matter required a determination of the question whether that development consent had lapsed by virtue of s99 of the Environmental Planning and Assessment Act 1979 ("the Act"). That section of the Act provides generally that a development consent lapses unless the development the subject of that consent is physically commenced within two Years of the date of the consent.

As recounted by her Honour in her judgment the first appellant applied on 9 October 1989 for development consent in respect of a property ("the subject site") being part of Portion 26, Great Western Highway, Wentworth Falls, located on the southern side of the Great Western Highway at Bodington Hill, approximately three kilometres south of Wentworth Falls.

On 23 November 1989, the Council, pursuant to s92 of the Act, gave notice to the first appellant of development consent "to establish a Flora and Fauna Park" on the subject site, subject to certain proceedings. That development consent was the subject of proceedings in the Land and Environment Court in 1991 when the Coalition of Residents for the Environment Co-op Pty Ltd applied for orders

declaring that consent unlawful. On 24 April 1991 that application was dismissed. Subsequently, the Council resolved, on the application of the first appellant, to extend the period for commencement of development to a period of three years expiring on 23 November 1992.

In September 1991, the composition of the Council changed, and there was some evidence that from that point of time the relationship between the Council and the first appellant deteriorated. Her Honour stated that she did not think that this was relevant to the issues in the case, but mentioned it only to indicate that there was an obvious background to this litigation, which might help to explain the difficulties which had arisen between the parties.

On 5 November 1992, Mr Williams, an engineer engaged by the first appellant, wrote to the Council furnishing "engineering plans" for "the wet retention pond for the Flora and Fauna Park". Accompanying that letter was a plan entitled "Purification Lagoon - Plan and Details" bearing the number 92/165/03 and a plan of a catchment area for the subject site.

Subsequently a building application was lodged which was received by the Council on 16 November 1992. That building application was accompanied by a set of plans but has not been determined.

Prior to the receipt by the Council of the building application on 16 November 1992, Mr Williams and a contractor, Mr Nicholls, entered upon the subject site with vehicles and equipment, and carried out certain work. That work commenced on 12 November 1992. Work proceeded until 18 and 19 November 1992, at which time officers from the Council attended at the subject site, and, after inspecting the site in the company of the second appellant, directed that work be stopped. Subsequently, the current proceedings were commenced.

On 18 December 1992, her Honour granted an expedited hearing and ordered that the first and second appellants carry out some remedial work on the subject site, pending the final determination of the proceedings.

As stated by her Honour, the Council's case was that the development consent had lapsed because the works which were carried out on the subject site by the appellants were not a physical commencement of the works to which the development consent applied, because they were preparatory, and not a "commencement", or alternatively, those works were unlawful since they were works which did not form part of the development consent or were in breach of its conditions, or, alternatively, the works carried out were a sham.

THE MEANING OF THE DEVELOPMENT CONSENT (LOCATION OF MACROPHYTIC POND (PURIFICATION LAGOON))

In dealing with the first issue that arose, that is, as to the precise terms of the development consent, her Honour noted that accompanying the form of development application was a set of plans, comprising seven sheets, prepared by Tan and Nola Ezzy Pty Ltd ("Ezzy'') for the first appellant. Sheet 2 of 7 was the site plan. It was clear that this sheet 2 of 7 was as her Honour said, "wrong in terms of topography". It showed the subject site traversed by three watercourses, and it showed the main building to be erected on the subject site as lying between the two most northern of them. However, the true position was that there were only two, not three, water-courses traversing the subject site. As her Honour found, Mr Williams, for the first appellant, presumably aware of the correct topography, and presumably motivated by a desire to locate the main building between the two water courses as they were on the ground, showed the location

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of the main building on the plans submitted with the building application later lodged, further to the south and different from its location on sheet 2 of 7.

The appellants contended before her Honour that, upon the true construction of the development consent, it was clear that the main building was to be erected between the two watercourses, and that that was clear

from the documents which accompanied the development application, although it was not clear from the s92 notification of consent. There was no application to the Council to modify the development consent under the provisions of s102 of the Act.

In that situation, her Honour found it necessary to have regard to the development application itself and the documents, which by necessary implication were incorporated into that consent, in order to determine the true meaning of that development consent.

Her Honour found that the documents which, by necessary implication, formed part of the development consent, and could be considered for the purpose of resolving the question of what precisely was consented to, were the form of development application itself, the accompanying seven plans prepared by Ezzy, the statement of environmental effects of Don Fox Planning and Associates dated November 1987, and the addendum of Ezzy and attached Plan of Frank M Mason and Co Pty Ltd.

Her Honour then found that the subject of the development consent was a "Flora and Fauna Park" including a large main building (sheets 1, 3 and 4 of 7), located in the position depicted on sheets 2 and 6 of 7, and ancillary structures such as a sewerage pump line, a macrophytic pond (or purification lagoon) and car parking area, as well as ancillary buildings such as hospital, staff and public amenities (sheet 3 of 7). Her Honour held that the statement of environmental effects of Don Fox Planning Pty Ltd did not affect this general outline nor did the addendum of Ezzy and the accompanying plan.

It was submitted before her Honour on behalf of the present appellants, inter alia, that the development consent should be construed as having been granted in respect of a main building located between the actual physical locations of the two watercourses rather than In respect of the main building located by reference to the boundaries of the subject site as shown on sheet 2 of 7, in which the two watercourses had been shown in positions which did not accord with their actual physical locations, and in which a third watercourse which did not exist at all had been shown, and which would have meant that the main building would have been built above one of the two actual water courses on the subject site.

Her Honour noted that counsel for the first and second appellants had argued before her that there was an inconsistency on the face of the plans themselves, as shown clearly on a comparison of sheet 2 of 7 with sheet 6 of 7. It was conceded, on behalf of the Council, that the Council was not seeking a declaration that the development consent was void for uncertainty. It was submitted that a comparison of sheet 2 of 7 with sheet 6 of 7 showed clearly that the main building was to be located between two watercourses, with the result that there was an inescapable inference that the main building was to be located further to the south than shown on sheet 2 of 7 so that it would be sited between the two watercourses as they existed in fact.

Her Honour held, however, that there was no ambiguity on the face of it in the comparison of sheet 2 of 7 with sheet 6 of 7. Her Honour held that sheet 2 of 7 was the location plan and showed the main building located between two watercourses. Her Honour held that so did sheet 6 of 7, and that it could not be

said from sheet 6 of 7 that it was clear that the main building was to be located further south than the location depicted on sheet 2 of 7. Her Honour agreed with the submission of counsel on behalf of the present respondent, that all of the features of sheet 2 of 7 and sheet 6 of 7 were consistent, namely, the position of two watercourses, the entrance roadway, the main building between two water-courses, the macrophytic pond, the transmission easement and the sewer line.

Her Honour held that although it was permissible to have regard to the natural features of the subject site to assist in interpreting the development consent, that did not assist her in doing so. The present appellants submitted that the topography of the subject site made it clear that the main building was located between the two watercourses, and that it was always the position that the main building would be physically located in relation to a white-tipped tomato stake and a power pole standing on the subject site in the positions shown on the survey of John N Brown, leading to the result that the position would be as depicted in the building application plan of Mr Williams numbered 92/165/03.

Her Honour rejected these submissions, holding that the location of the main building on the plans accompanying the development application could only be derived from its location on those plans in relation to the boundaries. In her Honour's view so much was clear from condition 15 which was in the following terms:-

"15. The location and design of the main building shall be in accordance with the plans submitted, ensuring that the structure is a minimum 100m from the highway property boundary, and that the height of the building (to rooftop) does not exceed highway road level at the point of the entrance gate (ie maximum height of 12m above natural ground level)."

Moreover, her Honour held that no tomato stake was shown on those plans, and reference to the power pole took the matter no further, since the power pole shown on sheet 2 of 7 as being to the east of the main building, was depicted also in a wrong position, according to the second appellant's evidence.

Counsel for the appellants argued before her Honour that, having regard to the nature of the subject site, it was an inescapable conclusion that, were the building located as shown in sheet 2 of 7, it would be over one of the watercourses as shown by a survey of John Bowden and Co. Accordingly, it was argued, that in construing the development consent with knowledge of the nature of the subject site, it followed that the location of the building was not likely to be as shown on sheet 2 of 7. Her Honour rejected this submission on the basis that there was nothing in the relevant documents to indicate the physical nature of the watercourse such as its dimensions, and that therefore there was nothing to show that the building could not be built over it.

Her Honour concluded that the development consent which was granted to the first respondent located the main building and the macrophytic pond and related structures in the position shown on sheet 2 of 7.

Her Honour then considered the second of the two matters arising for decision in the case, namely, whether there had been a physical commencement of the development within the meaning of s99 of the Act.

That section, so far as material, provides as follows:-

"99(1) A consent granted under this Division to a development application shall lapse-

(a) unless the development the subject of that consent is commenced -

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(i) except as provided in subpara(ii) - within 2 years (or, if the consent authority so approves in accordance with subs(3), 3 years) of the date upon which that consent becomes effective in accordance with s93 of 101(9) (in this section referred to as the 'prescribed date'); or

(a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work) of land (including, where applicable, the subsequent use. of that building when erected, that work when carried out, or that land when subdivided) - that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies;..."

Her Honour stated that in this context the "true test" to be applied was the test propounded by Cripps J (as he then was) in Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170 at 176, which test contained three elements:-

"(1) The work must be relevantly building, engineering or construction work;

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

Her Honour held that Cripps J had considered that various observations of the High Court in Day v Pinglen Pty Ltd and Ors (1981) 45 LGRA 168 at 175 were relevant in determining whether the relevant nexus or relation between the work done and the development consent had been established. Those factors for consideration were whether detailed drawings had been prepared, tenders called, or a contract let or whether the work was "a job in itself'. In addition other factors to be considered were whether the work had been done on the particular sites to which the development consent applied, or whether the work was done unlawfully in breach of a condition of consent. In her Honour's view the relevant test in the present case was: did the work relevantly relate to the development the subject of the consent?

Her Honour then proceeded to consider the evidence as to what works had in fact been carried out on the subject site. Her Honour found on the evidence that the works which had been carried out on the subject site were as follows:

"(1) The major work was the excavation of a dam, intended to be the macrophytic pond. A trench was excavated to a depth of about | 1/2 m, and for a length of about 35 metres and a width of up to 5 or 6 metres. Topsoil was stripped from an adjoining area, and the topsoil and excavated soil were stockpiled. According to Ex 8, the location of this work was south of the location of the macrophytic pond in sheet 2 of 7.

(2) A brick pen was partly constructed in a location adjacent to where the macrophytic pond was shown on sheet 2 of 7. Small trenches were laid in concrete, and about 15 to 16 courses of bricks to a height of about 1 1/2 m were laid. The structure was intended to be a reptile nit.

(3) Concrete footings and a hole were constructed in the location of the main building as shown on sheet 2 of 7.

(4) A 6 x 8m dam had been excavated adjacent to the gravel pit in the south west corner of the subject site, intended to be for a bird lagoon.

(5) A backfilled trench had been excavated, running across the southern boundary of the subject site into adjacent land. PVC pipe 50mm wide had been laid and connected to a hole (at the northern end) of approximately 2m x 2m, the hole intended to be for a sewer holding tank.

(6) A siltation fence and barriers had been erected adjacent to the access track on the northern side of the subject site."

Her Honour then referred to conditions 28 and 32 of the development consent which were in the following terms:-

"28 Full design details and cross-sections of the purification lagoon are to be submitted to Council prior to its construction. The lagoon must be extended in both northerly and southerly directions for a sufficient distance, to fully trap and process all run-off from the development site, including sediment and run-off from all access roads and vehicle parking areas. In this regard, small dams across the two flowlines are necessary, and details of cross-sections, capacity, freeboard, batter slopes, revegetation and detailed spillway designs (with trash racks) are necessary, and must be designed for a | in 20 year storm intensity.

32 No construction of the buildings, roadways or carparks is to begin until the purification lagoon, with amendments, is constructed, planted to macrophytes and is operational".

In relation to condition 32 her Honour held that it operated to prohibit the carrying out of excavation and the laying of pipes and bricks until the macrophytic pond had been installed and become operational. Her Honour agreed with the submission on behalf of the respondent that that interpretation followed from the word "construction", and that, in her opinion, the works referred to in para(2), para(4) and para(5) above were carried out in breach of condition 32. Her Honour held that those works were, moreover, not works which were specified in the development consent, nor were they referred to in the documents accompanying the development application. Accordingly her Honour held that they were not works which had the relevant relation to the development consent to satisfy the applicable tests.

Her Honour also held that the works referable to the macrophytic pond also did not have sufficient nexus or relation to the development consent. Her Honour held that there was no evidence that at the time work was carried out, that is, on 12 November 1992 and the days following, detailed plans had been prepared. Her Honour held that on 5 November 1992, Mr Williams wrote to the Council enclosing only one relevant plan, numbered 92/165/03, which was a site plan only, and neither it nor his letter contained full engineering details. More detailed plans were submitted with the building application on 16 November 1992, but this was after work had started on the subject site. Moreover, her Honour held, that no tenders had been called nor had any building contract been let. She noted that in cross-examination the second appellant stated that he had engaged the contractor, Mr Nicholls, on an hourly basis to perform work under the direction of Mr Williams, and that no survey work had been done to peg out the perimeter of the pond, nor to assist in determining the extent of excavation already done or required. In addition to these factors, her Honour held that the work was done at the wrong location, because it was not the location of the macrophytic pond as shown in the development application. Accordingly her Honour held that the work in relation to the pond had no sufficient nexus or relation to the development consent.

Her Honour noted that counsel on behalf of the appellants had submitted that this conclusion could not be drawn because of the wording of condition 28. It was submitted that having regard to the reference in condition 28 to the construction of "small dams across the two flowlines", it was clear that, in relation to the topography of the subject site, the macrophytic pond could only be located where it was-shown on Mr Williams' plan 92/165/03. Her Honour did not accept this

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argument on the basis that it took out of context just one element of condition 28, but in her Honour's view that condition had to be read as a whole and as drafted by Council officers, not by lawyers. Her Honour held that what condition 28 required was full details of design, taking into account all the matters specified in its terms. Her Honour held that when work commenced on the subject site, no such details had been furnished to the Council and furthermore, read as a whole, condition 28 was neither an acknowledgment of nor authority for relocation of the macrophytic pond from the position described in the development application.

Her Honour concluded that the development the subject of the consent had therefore not been commenced and that accordingly the development consent had lapsed.

SUBMISSIONS ON APPEAL AS TO THE MEANINQ OF THE DEVELOPMENT CONSENT (LOCATION OF MACROPHYTIC POND (PURIFICATION LAGOON))

As stated earlier, her Honour's conclusion in relation to the development consent which was granted to the first appellant, was that it was a consent which located the main building and the macrophytic pond and related structures in the position shown on sheet 2 of 7, by reference to the boundaries shown on that sheet, rather than by reference to the actual physical location of the two watercourses shown on that sheet in incorrect locations.

On the hearing of the appeal it was submitted on behalf of the appellants that her Honour was in error in finding that the development consent which was granted to the first appellant, located the macrophytic pond in the position shown on sheet 2 of 7 by reference to the boundaries shown on that sheet. It was submitted on behalf of the appellants that condition 28 of the development consent had the effect that the development consent had been granted in respect of a macrophytic pond located in a position where it would trap the flow from both of the two watercourses. It was conceded that if regard was had only to the plans which formed part of the development application, that by reason of the errors in sheet 2 of 7, there was room for debate about what was the proposed location for the macrophytic pond. If the pond was to be located by reference to the physical features shown on the plans, it would not be correctly located relative to the boundaries of the site as shown on the plans. Conversely, if the pond were to be located by reference to the boundaries of the site as shown on the plans, it would not be correctly located relative to the physical features of the subject site, in particular, the two watercourses.

It was submitted that, whatever the plans may have shown, condition 28 had the effect of removing any ambiguity so far as the location of the purification lagoon was concerned. It was submitted that condition 28 required the lagoon to be of a size and in a location in which it fully trapped and dammed all the flow along the two flow lines. This was said to follow from the following words contained in condition 28:-

".. The lagoon must be extended in both northerly and southerly directions for a sufficient distance, to fully trap and process all run-off from the development site, including sediment and run-off from all access roads and vehicle parking areas. In this regard, small dams across the two flowlines are necessary..."

DECISION (LOCATION OF MACROPHYTIC POND (PURIFICATION LAGOON))

In my opinion, those words do, on their true construction, plainly convey, according to their ordinary and natural meaning, that consent is being given to a lagoon of such a size and in such a location that it will have the effect required by that condition, namely, the effect of fully trapping and processing all run-off from the subject site (including sediment).

On the other hand, there may be more than one location for a lagoon which would have that effect, and condition 28 does not specify any particular location, but it appears that no point was taken by the respondent before her Honour, and no point was taken before this Court by way of submitting that the dam which was excavated and intended to be the purification lagoon was not in a location permitted by condition 28. Moreover, as stated above, it was conceded on behalf of the Council, that it was not seeking a declaration that the development consent was void for uncertainty. Accordingly, in my opinion, if the work done on behalf of the first appellant was in respect of a proposed purification lagoon which satisfied the requirements of condition 28 as to which there was no issue, the respondent cannot now be heard to say that it was not in a location permitted by condition 28.

In any event, even if the Council had taken that point, it would not have succeeded, because, in my opinion, on its true construction, condition 28, in its relevant context, has the effect that the development consent granted by the Council authorised a purification lagoon of sufficient size in any location which satisfied the requirements of condition 28. In this respect, the Council's conditions must, in my opinion, be accorded priority over the plans submitted with the development application, as being part of the Council's decision determining that application. Further, in my opinion, in relation to the purification lagoon, priority must be accorded to condition 28 over condition 15 which, relevantly, provides only that the "main building" should be located in accordance with the plans submitted, and does not refer to the purification lagoon.

It was not, as I understood it, argued on behalf of the respondent, that condition 28 required the lagoon to be one located as shown on sheet 2 of 7 but enlarged so as to fully trap all run-off from the subject site. In any event, even if such a submission had been or was made, in my opinion, that was not what was intended by the Council's use of the words it used in condition 28. In my opinion, on their true construction, the words used in condition 28 are apt to describe a purification lagoon in a location and of sufficient size to fully trap all run-off, and do not require a purification lagoon of a larger size than would be necessary for this purpose, not-withstanding the requirement that the lagoon must be "extended in both northerly and southerly directions for a sufficient distance to fully trap and process all run-off'. In my opinion, on their true construction, those words in the relevant context contemplate only a lagoon in a location and of a sufficient size to fully trap all run- off from the development site, and do not require any larger lagoon such as would be the result of extending in both a northerly and southerly direction a lagoon located as shown on sheet 2 of 7 by reference to the boundaries of the subject site.

I note also that the relevant words of condition 28 envisage two small dams being one for each of the two flowlines. This was, however, only in the context of the means by which the Council's principal objective as contained in the first sentence of condition 28 was to be achieved, namely, that the lagoon should be such as to fully trap all run-off. In those circumstances, a single lagoon having the

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equivalent effect of two small dams must be regarded as authorised by condition 28 and I did not understand it to be submitted to the contrary on behalf of the Council.

Accordingly, in my opinion, and having regard to condition 28, the development consent granted to the first appellant should be held to have been granted in respect of a purification lagoon located in the area of the actual excavation on behalf of the first appellant of the dam, intended to be that lagoon.

Counsel for the respondent Council also submitted in relation to the location of the purification lagoon that if it's location was to be determined by reference to condition 28, that that involved a modification of the development consent having regard to the location of the lagoon as shown on sheet 2 of 7.

In my opinion, however, it cannot be said, in the circumstances of the present case, that there was an existing consent in respect of a pond or lagoon located as shown on sheet 2 of 7 followed by a modification of that consent as contained within condition 28. Rather, in my opinion, there is only development consent locating the pond or lagoon in the location to be derived from condition 28 albeit considered in conjunction with, inter alia, sheet 2 of 7. In that context, as stated above, in my opinion, condition 28 must, in effect, prevail since it constitutes the Council's view as to the location of the pond or lagoon which must, as it were, take priority over whatever location may be deemed to have been shown in the documents relating to the development application.

Accordingly in my opinion, no occasion arose in the circumstances of the present case for the first appellant to have applied for a modification of any consent.

Before leaving this aspect of the case it should be noted that it was submitted on behalf of the appellants, that, in the proceedings before Hemmings J referred to above, the Council called expert evidence from Mr Crossley of Sinclair Knight and Partners, the effect of which was, inter alia, that the requirement of condition 28 that there should be "small dams across the two flowlines" could be satisfied by a single purification lagoon which dammed both flowlines and _ that, accordingly, such a purification lagoon satisfied the dam requirements of condition 28. This certainly seems to have been the effect of Mr Crossley's affidavit evidence before Hemmings J which was also in evidence before her Honour. That evidence was certainly consistent with the appellants' case before her Honour, but I am not satisfied that the proceedings before Hemmings J give rise to any issue estoppel or res judicata upon which the appellants can rely in these proceedings, having regard to the constitution of the earlier proceedings before Hemmings J, and to the issues which arose for his decision.

In those proceedings it was, apparently, also submitted on behalf of the Council that a lagoon in the location selected by Mr Crossley, being the location chosen by the appellants, would comply with the conditions of the development consent. However, in my opinion, it is not appropriate to rely upon the Council's position in relation to condition 28 and to the location of the lagoon in the proceedings before Hemmings J, as some kind of admission by the Council relevant to the question of the true construction of the development consent. In my opinion the Council's own view as to the nature and effect of the development consent, ultimately, cannot affect the true construction of that development consent, which is a question of law, or of mixed fact and law, for the Court.

SUBMISSIONS ON APPEAL AS TO PHYSICAL COMMENCEMENT OF THE DEVELOPMENT

It now becomes necessary to determine whether there was physical commencement of engineering and/or construction work relating to the macrophytic pond or purification lagoon in the location determined by reference to the true construction of condition 28 as set out above, within the meaning of s99 of the Act.

The work done by the first appellant in this connection was described by her Honour in the following paragraph of her judgment:-

"(1) The major work was the excavation of a dam, intended to be the macrophytic pond. A trench was excavated to a depth of about 1 1/2 m and for a length of about 35 metres and a width of up to 5 or 6 metres. Topsoil was stripped from an adjoining area, and the topsoil and excavated soil were stockpiled...".

Her Honour found that "According to Ex 8 the location of this work was south of the location of the macrophytic pond in sheet 2 of 7", (as was the case) and, in view of her Honour's finding that the development consent did not authorise a macrophytic pond in the location where the work was done, it was her Honour's view that relevant work relating to the (approved) pond had not been physically commenced within the meaning of s99 of the Act.

DECISION AS TO PHYSICAL COMMENCEMENT OF THE DEVELOPMENT

In my opinion, however, having regard to my view that the development consent authorised a macrophytic pond or purification lagoon in any location which satisfied the requirements of condition 28, the work done by the first appellant in respect of that pond or lagoon, did constitute physical commencement of such engineering and/or construction work. I am also of the opinion that the work done in relation to the macrophytic pond as described by her Honour in para(1), as well as the work done in relation to the sewer line as described by her Honour in para(5) above, was, on the evidence, more than merely preparatory, and was not simply a sham, notwithstanding that it may have been done only days before the lapse of the development consent, and notwithstanding that no tenders had been called, no building contract let and no survey work done in relation to the pond. The evidence was that Mr Williams identified the relevant location of the proposed macrophytic pond and the work to be done for Mr Nicholls, the contractor, although it was conceded that a survey would ultimately be necessary to ensure that what was done accorded with the relevant plans.

Her Honour also held, however, that the work done by the first appellant relating to the purification lagoon did not relevantly relate to that pond or lagoon, also because it was done in breach of the requirement of condition 28 that detailed plans were to be submitted prior to the construction of the purification lagoon. The relevant provisions of condition 28 in this respect are as follows:-

"28. Full design details and cross-sections of the purification lagoon are to be submitted to Council prior to its construction... small dams across the two flowlines are necessary, and details of cross-sections, capacity, freeboard, batter slopes, revegetation and details spillway designs (with trash racks) are necessary...".

In this connection her Honour held, as stated above, that there was no evidence that, at the time the work was carried out, that is, on 12 November 1992 and the days following, detailed plans had been prepared. In particular, her Honour held that on 5 November 1992, when Mr Williams wrote to the Council, he enclosed

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only one relevant plan, numbered 92/165/03, which was a site plan only, and that neither that plan nor the letter contained full engineering details. Accordingly, the works did not relate to the development for the purposes of s99(2), and therefore did not constitute physical commencement of the development.

DECISION AS TO ALLEGED FAILURE TO COMPLY WITH CONDITION In my opinion, however, the letter from Mr Williams dated 5 November 1992, enclosing plan number 92/165/03, some two weeks before the work was commenced, did comply with the relevant requirements of condition 28, in that it did contain full design details and cross-sections of the purification lagoon together with details of cross-sections, capacity, freeboard, batter slopes, revegetation and detail spillway designs (with trash racks). That plan was not a site plan only, which did not contain full engineering details, but was an engineering plan with engineering design details. The only submission made on behalf of the Council in this connection before this Court was that the letter of 5 November 1992 and accompanying plan 92/165/03 did not comprise "full design details and cross-sections of the purification lagoon" "in circumstances where more detailed plans were submitted with the building application on 16 November, 1992". The submission of more detailed plans with the building application on 16 November 1992, as was the fact, was referred to by her Honour as having occurred after work had started on the subject site but, in my opinion, the fact that more detailed building plans were subsequently submitted containing even more detail is not inconsistent with the fact that the earlier letter of 5 November 1992 and the accompanying plan 92/165/03 did comply with the relevant requirements of condition 28 which, in my opinion, they clearly did.

It was further submitted on behalf of the Council that the requirement of condition 28 for "Full design details and cross-sections of the purification lagoon" required details of what was loosely described as the scientific operation of the lagoon, having regard to the fact that condition 28, in effect, also specified that the lagoon should fully trap and process all run-off from the subject site. In my opinion, however, what was required in that connection was set out in conditions 29, 30 and 31 which deal specifically with such matters. That being so, condition 28 cannot, in my opinion, be construed as, in effect, requiring the same material again, and the submission on behalf of the Council in this connection must be rejected.

It was submitted, on behalf of the Council, that the works carried out in relation to the macrophytic pond (purification lagoon) could not be relied upon by the appellants, as those works were, relevantly, building works which required building approval under the Local Government Act 1919, which approval had not been obtained prior to those works being carried out. Similar submissions were made in respect of the excavation and other work done in relation to the sewer line. In s304 of that Act it is provided, inter alia, that "building includes any structure or any part thereof'. No such submission was dealt with by her Honour in her judgment, and it is unclear whether any such submission was made in the court below. However, no objection was taken on behalf of the appellants to the submission being made to this Court.

It was submitted on behalf of the appellants that the works described above, carried out in relation to the macrophytic pond (purification lagoon), and in respect of the sewer line, did not constitute building works for the purposes of the Local Government Act 1919 and accordingly, building approval was not required for those works.

Counsel for the Council submitted that the work done by the first appellant by way of excavating for the "dam" intended to be for the macrophytic pond, as described in para(1) above, should be seen as a commencement of work in relation to that pond as described in the plans enclosed with the letter of 5 November 1992, which plans indicated that the finished pond was to include overflow pipes, outlet control structures, spillways and energy dissipators, which were all clearly structures within the meaning of the definition of "building" as including "any structure or part thereof" as contained in the Local Government Act. It was submitted, in effect, that although the work actually done in relation to the "dam" was limited to the excavation of a trench and the stockpiling of the excavated soil with topsoil from an adjoining area, and did not involve construction of any of those structures, the work done was by way of commencing the construction of a dam which, when completed, would contain all those structures. It followed, it was submitted, that the work done was by way of commencing a "building" within the meaning of the Act, for which building approval had not been obtained.

DECISION AS TO ALLEGED NECESSITY FOR BUILDING APPROVAL

In my opinion, however, since the work done in relation to the proposed pond was limited to excavation and stockpiling of the excavated soil and topsoil from an adjoining area, and did not involve commencement of work on any of the structures described above, the work done was not in respect of a "building" as defined, did not require building consent and was not unlawful. Notwithstanding that it was, no doubt, intended to incorporate those structures later, the actual work done, did not, in my opinion, involve constructing a "building" within the meaning of the Act, since, in my opinion, the "dam" actually excavated did not involve the construction of a "structure" within the meaning of the Act. In my opinion, the "dam" actually excavated in the present case was not a structure within the meaning of the Act because, it does not, in my opinion, fall within the ordinary, natural meaning of the word "structure", and because giving the relevant provisions a purposive interpretation, as is required to be done (see Mulcahy v Blue Mountains City Council (1993) 81 LGREA 302 at 305-308 per Mahoney JA), this particular dam, intended to be a macrophytic pond, to the extent to which it had been constructed in the particular circumstances of this case, prior to the lapsing date of the development application (23 November 1992) was not of such a kind or nature as was intended by the legislature to be regulated by the relevant provisions of the Act relating to "buildings", and which involve concern for such matters as, inter alia, drainage, ventilation, lighting, health and other matters inapplicable to that particular "dam".

Iam of the same view, and for the same reasons, mutatis mutandis, in respect of the back-filled sewer trench in which PVC pipe was laid. I am also of the view in relation to the sewer trench that, as submitted on behalf of the appellants, building approval was not required, on the basis that the sewer trench was not simply incidental to a building, but was rather a separate and independent requirement, being the subject of its own condition of development consent, namely, condition 40.

Accordingly, in my opinion, the work done as identified by her Honour in respect of the macrophytic pond (purification lagoon) was done in respect of such a pond (or lagoon) in a location authorised by the development consent, the relevant requirements of condition 28 in relation to the provision of relevant plans had been satisfied prior to the commencement of those works, and the works which had been carried out in respect of the proposed macrophytic pond

WRRISTE PTY LTD v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS (Simos AJAB

(purification lagoon) did constitute lawful engineering and/or construction works relating to the pond or lagoon which had been physically commenced within the meaning of s99 of the Act prior to the date of lapsing of the development consent.

The appellants also rely upon their excavation for a sewer line, as described in para(5) above, as constituting engineering and/or construction work relating to the development which had been physically commenced within the meaning of s99 of the Act prior to the date for lapsing of the development consent.

The relevant work in this connection was described by her Honour as follows:-

(5) A backfilled trench had been excavated, running across the southern boundary of the subject site into adjacent land. PVC pipe 50mm wide had been laid and connected to a hole (at the northern end) of approximately 2m x 2m, the hole intended to be for a sewer holding tank."

In this regard her Honour held, as stated above, firstly, that the excavation for the sewer line was "not works which were specified in the development consent" on the basis that they were not referred to in the documents accompanying the development application. Her Honour held, secondly, that that work in relation to the sewer which had been done by the appellants could not be relied upon by them because it was work done in breach of condition 32, which operated to prohibit the carrying out of excavation and the laying of pipes and bricks until the purification lagoon had been installed and become operational. In this connection her Honour agreed with the submission of counsel for the Council that "this interpretation follows from the word 'construction'."

"32. No construction of the buildings, roadways or carparks is to begin until the purification lagoon, with amendments, is constructed, planted to macrophytes and is operational."

As to the first of these matters, it does appear, however, that the sewer line is clearly shown on sheet 6 of 7 where it is described as "PUMP LINE TO MWS and D BOARD SEWER".

In addition, condition 40 of the conditions of consent provided so far as material as follows:-

"40. The development shall be connected to the Water Board sewer in accordance with the provisions of Local Environmental Plan No 79 Local Environmental Plan No 79 provides that the Council should not grant consent unless:-

"(d) Any development is connected to the Water Board sewer "

It is, accordingly, in my opinion, plain that the works in relation to the sewer line were works specified in the development consent.

EXCAVATION OF SEWER LINE NOT PROHIBITED BY CONDITION 32

As to the second of these matters referred to by her Honour in this connection, it was submitted on behalf of the appellants that condition 32 did not operate to prohibit the carrying out of the excavation of the sewer line until the purification lagoon had been constructed, planted to macrophytes and become operational, since that excavation could not be described as "construction of the buildings, roadways or carparks" within the meaning of condition 32.

As stated above, her Honour came to the contrary conclusion having regard to the word "construction" as used in condition 32 and having regard not only to the carrying out of excavation, but also to the laying of pipes (in the sewer trench) and bricks. Her Honour held on this basis that condition 32 prohibited the

carrying out of the works described by her in para(2) (brick pen), para(4) (small 6 x 8m dam) and para(5) (sewerage trench and pipes).

In my opinion, the use of the word "construction" in condition 32 does not justify her Honour's acceptance of the submission of counsel for the Council. In my opinion, the words "buildings", roadways or carparks", are used in condition 32, not in any technical sense, but with their ordinary, natural meaning. In my opinion, the excavation of a back-filled trench in which PVC pipes had been laid, does not constitute that excavation to be a 'building, roadway or carpark" within the ordinary, natural meaning of those terms, notwithstanding that it may be arguable that such work involved "construction". Condition 32 does not prohibit anything that might be described as "construction" until after the purification lagoon is operational, but only prohibits construction of "buildings, roadways and carparks" until after the purification lagoon is operational.

Accordingly, in my opinion, condition 32 did not prohibit the excavation of the back-filled (sewer) trench in which PVC pipe was laid. Nor could it be argued that condition 32 prohibited the excavation of the dam intended to be the purification lagoon, notwithstanding that that may arguably, have involved *construction", since, by its own terms, condition 32 contemplated the completion of that lagoon prior to construction of buildings, roadways or carparks".

This view as to the meaning of condition 32 also accords, in my opinion, with what may be seen to be the purpose of that condition, namely, to ensure that the additional run-off likely to result from construction of buildings, roadways and carparks will be trapped by an operating lagoon as soon as it occurs. No additional run-off of any consequence would be contemplated as resulting from a sewer trench so that there would be no necessity to delay "construction" of such a trench until after the purification lagoon had become operative.

For these reasons, the appeal should, in my opinion, be allowed, the various orders made by her Honour set aside, and in lieu thereof there should be an order that the respondent's application be dismissed with costs. There should also be an order that the respondent pay the costs of the appellants of the appeal.

It should be noted that in so disposing of the appeal, the Court is not expressing any view as to the environmental and/or other merits of the proposed development on the subject site, which do not arise as a question for consideration in the appeal.

2. Orders of the Land and Environment Court set aside.

3. Respondent's application to the Land and Environment Court dismissed with costs.

4. Respondent to pay the costs of the appellants of the appeal.

Counsel for the appellants: PD MeClellan, QC, with PW Larkin Solicitors for the appellants: Abbott Tout Counsel for the respondent: DP Wilson