Davi Developments Pty Ltd v Leichhardt Council

By letter 13 May 1970, The State Planning Authority of NSW pursuant to the provisions of cl 43(1)(c)(i) of the County of Cumberland Planning Scheme Ordinance concurred in the proposal subject to conditions.

On 8 June 1970, the applicant for development consent Mrs Simari was advised by Council that the application appeared satisfactory subject to the requirements of Council's Health Office and that subject to conditions:- The approval would be otherwise in accordance with the particulars and information set out and described in your Development Application registered in Council's records as D.A. 3736 of 23 January 1970 and accompanying plans and any alteration, variation or extension of the use for which approval would be given would require further Town Planning approval from this Council.

On 20 August 1970, Architect Warren Firkin forwarded three copies of "amended typical floor plans" for consideration and "re-approval" to the council in response to the letter 8 June 1970. Mr Firkin also enclosed three copies of amended car park entry and exit levels for circulation to the relevant interested authorities. The letter concluded by asking for council's consideration of the amended documents and approval. In contradistinction to the plans lodged with the original application, the plans produced by Mr Firkin in August 1970 displayed a building comprising 35 units with 5 units on each of seven floors.

By further letter dated 7 December 1970 Mr Firkin lodged three copies of "the second amendment of car parking layouts" for the development and requested approval of the plans at the council meeting of 16 December 1970.

The consent which issued on 24 December 1970 indicated its approval in the express terms already set out earlier in this judgment, at [12]. 15 The plans lodged in support of the subsequent application made to council in 1971 were prepared for the applicant by Architect John Giles Bourke on behalf of Mrs Sumari. The plans lodged with the council on 23 November 1972 were prepared by K. K. Kwan and Associates Consulting Structural Engineers in conjunction with Giles Bourke and Associates. 16 Other than for the work carried out in or about December 1972, there is no direct evidence of any relevant further work carried out on the site, although Mr Novarti says that some work continued in 1973 and 1974. It is not specified. There is presently no building on the land. Correspondence with council in the subsequent years shows that there has been an ongoing dispute between the parties as to whether the work was ever substantially commenced. 17 The applicant claims that the proposed amendments will result in a development remaining substantially the same development as originally approved because the height, scale, bulk, building footprint and building envelope remain generally the same. It will be argued on the merits that the proposed deletion of one floor, an increase in ceiling heights and improvements to the architectural appearance of the building as well as the residential amenity of the development, justify approval of the application for modification. It is not in contention between the parties that any alleged improvements to the development are an irrelevant consideration for the purpose of determining whether the proposed development as modified is substantially the same development. I will return to the nature of the proposed amendments and alterations in due course as they require a careful consideration of the details of the original approval and a comparison with the plans lodged with the council in support of the current application. In order to complete this task however, it is necessary to ascertain what is the subject of any earlier approval for consent and whether the applicant is entitled to rely on that determination as current. 18 After perusing all of the documents I find that the decision by the council on 4 April 1972 was not inconsistent with the determination made on 24 December 1970 so that as a matter of construction, the building approved for erection ultimately was a seven storey residential flat building described in the drawings attached to the Development Application made in January 1970 in the form amended by Architect Firkin as depicted in the Bourke plans lodged in support of the building application and in accordance with the engineering detail in the Kwan plans. The critical approval which the applicant now seeks to modify is the consent granted on 24 December 1970. It lapsed two years later by dint of cl 41(5). 19 Three witnesses have given affidavit evidence on behalf of the applicant. Two of these witnesses were cross-examined by Ms Duggan. 20 The third witness Mr Fernando Algorry is a professional engineer who conducted an inspection of the subject site on 26 May and 16 June 2004 and observed that the following works were carried out on the site:- · erection of a perimeter fence to secure the site to the street boundaries; · demolishing of existing buildings · site clearing; · bulk excavation of site · surveys carried out to set out building and foundation pads; · excavation and completion of 13 pads for columns with concrete and reinforced steel in place. Pads for columns No. C2, C3, C4, C5, C6, C8, C9, C10, C12, C14, C15, C16 and C17 have been completed as provided in drawing No. 2 prepared by K.K. Kwan and Associates Engineers (Drawing Reference: 67: 72/7), which was approved by Leichardt Council.

21 An objection to the reading of his affidavit was withdrawn when Mr Hemmings agreed to limit its use solely to identify the pads with those shown in the Kwan plans. In this respect Ms Duggan notes that the excavation and completion of the thirteen pads was only checked by Mr Algorry for consistency with the Kwan plans without reference to the Firkin or Bourke plan. Mr Algorry was not required for cross-examination. 22 Mr Peter Novarti gave evidence that from early 1969 to March 2001 he lived in an adjoining property to the subject site. He observed that the demolition of the existing houses commenced in around June or July 1972. In an affidavit sworn on 29 September 2006, Mr Novarti states that he saw that excavation on the site was commenced in around November 1972 and that concrete was poured into the foundation in early December 1972. He recalls the latter date by reference to the "time when the Whitlam Government came into power". There is no dispute between the parties that the relevant election was held in November and that the new Government took office in early December. In cross-examination, he was definite that the work that he observed did not take place after December 1972. However, he conceded that it could have been as early as October. Not surprisingly, having regard to the expiration of time, Mr Novarti was not able to fix any exact dates for his observations. 23 Mr Tony Mazzarolo was employed as a supervisor by De Martin and Gasparini in the early 1970's. He resided at 83 Hubert St Leichardt from 1956 to 1976. His residence was near the subject site. De Martin and Gasparini is a company specialising in concrete works servicing the Sydney construction industry. The company supervised the pouring of the concrete for the pads or piers at the subject site. Mr Mazzarolo was not the supervisor for the subject site. However, in his affidavit Mr Mazzarolo observed that he regularly observed building works when he drove past the site almost daily on the way to projects in the city. He states that he observed works including pouring of concrete footings being carried out in the subject site prior to the Christmas break in late 1972. He explained that he discussed the works while in progress with the supervisor at the site during that period. 24 He was adamant that the work took place before the Christmas holidays that commenced in 1972 and that accordingly, they certainly occurred before Christmas Eve on 24 December that year. When pressed by Ms Duggan in cross-examination, Mr Mazzarolo was unable to identify the dates upon which he undertook any other specific activities at or about that time. Although agreeing that the passage of time made his memory hazy as to dates or times, he remained firm that to the best of his recollection it was the middle of December in 1972 that he made his observations of the concrete pour because it was at a time close to when he was leaving for holidays. He maintained no independent record, not did he make any inquiries in an attempt to confirm his recollection. 25 I have no reason to doubt that both Mr Novarti and Mr Mazzarolo were making a genuine effort to tell the truth about what they observed and when they saw it. Their evidence is the best, and only, evidence of the construction of the piers or pads. Apart from Mr Novarti who recalls that his young son fell into the hole, there is no direct evidence of how and when the excavation was carried out except to the extent that plans in evidence show that excavation was necessary preparatory to the making of the pier holes and that there was bulk excavation of the site evident when Mr Algorry inspected it in 2004. Substantial Commencement

26 The applicant does not rely on the demolition of the two houses on the site as commencement of the development. There is no specific evidence regarding the following works being undertaken after 23 November 1972 and prior to the lapse date on 24 December 1972:- · Provision of construction access · Erection of perimeter fence · Site clearing · Surveys 27 Although it is difficult to accept that the site, once it was excavated, was unfenced, as Mr Hemmings contends, there is no reliable evidence of the date the work was undertaken. The absence of evidence of the provision of construction access and the erection of a perimeter fence means, according to Ms Duggan, that the applicant is not able to satisfy the Court that these works were carried out lawfully in accordance with condition 9 of the building approval prior to the commencement of building works.

28 Mr Hemmings submits that if no safety fence had been erected over a 2.5 metre deep hole fronting a busy road, it is it reasonable to infer that council would have raised the issue before now. Mr Algorry observed there was a fence in 2004, and Mr Novarti gave evidence that there was virtually no work undertaken after December 1972. Mr Hemmings therefore invites the court to conclude that what Mr Algorry saw in 2004 was the result of what occurred in December 1972. 29 I am not prepared to draw that inference in order to support a finding of fact that a perimeter fence and access were constructed in accordance with condition 9 prior to the commencement of building or construction works. That could be fatal to the applicant's case because in order to constitute substantial commencement of development, the works relied upon must be lawful (see Irongates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132).

30 Mr Hemmings complains that the Irongates point was not foreshadowed and hence his client was not aware of the need to prove compliance with condition 9. No directions were made regarding filing of Points of Claim or Points of Defence or service of a copy of written submissions before the hearing. However, the issues were clearly articulated and the applicant has been well aware of the council's position regarding whether there has been substantial commencement for many years. The requirement for any work relied upon to be lawful is a well established principle. (See further: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Others (1999) 106 LGERA 243). 31 It is not a matter of shifting onus whereby the council is required to establish that the work done was unlawful as a consequence of failure to comply with a condition. The issue is whether or not the work was done lawfully. Work done unlawfully under the consent cannot count as commencement to prevent lapsing of a consent (Coalcliff at [66]). The applicant has not proved on the balance of probabilities that the work of excavation occurred after condition 9 and 10 were satisfied. Mr Novarti agreed that the excavation could have occurred as early as October. That would have been in clear breach of condition 10 and hence unlawful. There is no first hand evidence one way or the other regarding compliance with condition 9. 32 The rules of evidence do not apply in Class 1 proceedings but where the Court is moved to determine legal issues in accordance with proved facts then it is appropriate to adopt the customary standards of proof applicable in civil proceedings. The applicant has the onus to prove its case. No application has been made for leave to bring further evidence in chief nor for an opportunity to bring evidence in reply to the Council's case. I propose to determine the issues on the basis of the evidence as it stands in accordance with the civil standard. 33 Assuming that the Court is prepared to infer that condition 9 was satisfied by the time the pier holes were dug and filled with concrete on the basis of Mr Hemming's submission, and that the work in that regard occurred during December 1972 before 24 December 1972, it would still be necessary to find that the work amounted to substantial commencement based on the evidence available to me. 34 The test is an objective one in the context of a proposed building effectively with nine levels including seven floors devoted to residential flats or units. 35 In Drummoyne Municipal Council v Page (1973) NSWLR 566, Jacobs P said that it is a question of degree in each case. On appeal (Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350) Gibbs J (as he then was) with whom four other members of the Court agreed, while dismissing the appeal, said at 361:- "However, to say that work has been 'substantially commenced' does not, in the natural meaning of those words, suggest that what has been done forms a large proportion of the whole work; something can be substantially commenced although it has not been substantially completed. For example, if, in the case of a large city building, work had been done that was in itself very extensive and costly, it would accord with ordinary usage to say that work had been substantially commenced, although what had been done formed only a small proportion of the whole work. The test to be applied for the purposes of s. 315 and cl. 38 (2) is whether the work or development the subject of the approval or consent has been begun by the performance of some substantial part of that work or development." 36 In Day v Pinglen Pty Ltd (1981) 148 CLR 289, the majority observed at 299 that:- A substantial commencement involves a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work has really commenced. 37 In that case the Court held that a concrete slab was not a substantial part of an approved work of six town houses. 38 The construction of the 13 piers were referable to, and as the evidence of Mr Algorry confirms, only referable to, the proposed building. Although numerically the piers observed by Mr Algorry are approximately one half of the total number proposed, taken in the context of the total building in my view they are not of such dimension that they carry the assurance that the work was really commenced. It on its face comprises a small component of the work. It was completed within a few days.

39 Moreover, although by the time Mr Algorry inspected the site there were 13 piers in place, there is no confirmation that they were all completed prior to 24 December 1972. Mr Novarti and Mr Mazzarolo refer only to "pouring of concrete footings" and "concrete…poured to the foundations." The Court is not able to conclude from that evidence whether all of the pads or piers were in place by 24 December 1972. 40 Nevertheless I can find that the piers did in fact form part of the approved work. Accordingly in that respect there was some commencement. However, I need to be satisfied that the work relied upon by the applicant was substantial commencement bearing in mind the statutory purpose identified by Jacobs P in Page and confirmed by the High Court in Pinglen. Namely, to require commencement within a limited time so that there will not be outstanding approvals of building applications and development applications with nothing more done for an indefinite period. The facts of this case demonstrate the wisdom of such a purpose. 41 I am not able to form the requisite view that the work was of a considerable amount (Day v Pinglen at p 299). There is no clear and definitive evidence of the extent to which resources were committed before the relevant date. Thus I cannot be assured that the work had really commenced by reference to the construction of the piers because I am not satisfied that the construction of the piers standing alone was a substantial commencement of the whole project. 42 The Court must be cautious when seeking to apply the facts of one case to another. In Day v Pinglen the High Court emphasised the importance of applying established principles according to the factual circumstances in each case. It was careful to enunciate the principles applicable to this case. 43 For example, the applicant seeks to draw some benefit from the factual finding by Cripps J in Elizabeth Securities Pty Limited, Joseph Michael Malouf and Phozzie Anthony Malouf and as Executors of the will of Naaman George Malouf deceased (No. 40041 of 1980 unreported). In that case the evidence showed the sinking of 74 piers at a cost of approximately $75 000. Although that cost was not a large sum of money when compared with the cost of the project as a whole it was nonetheless "extensive and costly" and was "of real importance or value". His Honour concluded at 14:- In my opinion and applying the test enunciated in Day's case, the sinking of nearly one-quarter of all the piers required for the project and one-third of those necessary to support a 16 storey office tower, was work of considerable amount and demonstrated a "commitment of resources of such proportions relative to the approved project to carry the assurance that the work (had) really commenced". 44 As I said earlier I do not have the benefit of the sort of detailed evidence of the type available to Cripps J in Elizabeth Securities that would enable me to make a proper assessment of the value of the importance of the work. Other cases based on their own facts lack utility for the same reason.

The Presumption of Regularity 45 If I understand the submission by Mr Hemmings correctly, the Council should not have approved the Bird and Ashley plans in 1974 if it was not satisfied at that date that the 13 piers or pads constituted substantial commencement for the purpose of cl 42(5). The further consent was granted on 12 March 1974 in respect of amended engineering drawings that acknowledged and relied upon the existing pads consistent with the already approved plans. The argument is in my opinion not apposite to what the Court has to decide. 46 The presumption was summarised by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 as follows:-

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. 47 Firstly, I have not been persuaded that the approval of the plans in 1974 necessitated the relevant council officer being satisfied that substantial commencement had occurred. The issues dealt with by the plans related only to structural integrity and design and consistency with approved plans. The formal requirements of the administrative acts associated with the approval of the plans, if any did not extend beyond that consideration. 48 Secondly, I am not satisfied that in the ordinary course of business an approval of engineering plans raises a presumption that all other approvals have been obtained or that any other conditions precedent to the carrying out of the work have been satisfied. 49 The presumption that arises is that the approval is prima facie evidence that all that was done in the formal process of approval was done lawfully. It is not available to substantiate that any pre-existing circumstances or acts were lawful. The rebuttable presumption arises in relation to matters of form such as the authority to issue the approval on behalf of the council. The only presumption raised by the stamp of approval endorsed on the plans is that the officer who did so held the relevant authority and that everything the officer did in the process was done lawfully. (See discussion by Latham C.J. in McLean Bros and Rigg Ltd v James Grice (1906) 4 CLR 835).

Is what is proposed substantially the same as what was approved? 50 The question posed is one of fact. In North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 the Court of Appeal adopted a test of alteration without radical transformation so that it is essentially or materially the same. Mr Hemmings seeks to determine the answer by concluding that what is proposed by the modification is a residential flat building of approximately the same height with five (5) less units. It is still a residential flat building in essence. Ms Duggan submits that the question as posed fails to consider the necessary elements to determine whether the development remains substantially the same; namely the fundamental characteristics of that development and the qualitative and quantitative effects upon that character. (Moto Projects (No. 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298). 51 The comparison is to be made with the plans supporting the original development application as approved on 24 December 1970. This is a consequence of s 96(2) of the EPA Act that provides:- (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and… 52 The number of units will be substantially reduced from 42 to 30 and the unit mix throughout the building will be different. The number of residential floors will be one less and the internal layout of individual rooms has been changed. 53 The height of the main parapet is increased by 400mm with an architectural element arising above that for a further 500mm. The car parking layout is entirely different. A lift overrun has been removed. 54 The position of window openings and the design of the fenestration is comprehensively different. Balconies are provided at different elevations. 55 In general as I think Mr Hemmings concedes, the building has been redesigned from a style typical of the 1970's to meet the changed expectations in 2007. There has nevertheless been an attempt to maintain a consistency generally with the bulk and scale of the original proposed building. 56 In Moto Projects (No.2) v North Sydney Council (1999) 106 LGERA 298 Bignold J made some observations that still apply notwithstanding some clarification of other principles relating to applications for modification of development consents since that date. His Honour noted that the comparative task does not merely involve a comparison of the physical features or components of the original development where that comparative exercise is undertaken in some type of sterile vacuum. Rather, he said the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development was granted). 57 To modify is to alter without radical transformation so that it is essentially or materially the same or having the same essence. (North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 and Vacik v Penrith City Council (1992) LEC No. 10242 of 1991 24 February 1992 Stein J unreported). If I had to decide the question, I would be prepared to find that the fundamental characteristics and essence of the building will remain essentially the same. Some of the qualitative and quantitative effects will be different but not to the extent that the character will be changed in a material respect. 58 Accordingly, if the building had been substantially commenced within the meaning of cl 42, the Court would be in a position to proceed to assess the proposal on its merits. However, the Court could come to a different conclusion in the course of a hearing on the merits following a closer examination and enhanced understanding of the plans. That opportunity is not in prospect as the development has lost the benefit of any development consent and the application therefore cannot proceed. Conclusion 59 The applicant failed to discharge the evidentiary onus to show that the whole of the work relied upon as substantial commencement of the development was carried out lawfully. In addition, the only work that may have been completed after the engineering plans were lodged with council and before the date the development consent became void did not amount to substantial commencement. This finding has the consequence that the development consent granted on 24 December 1970 lapsed under the provisions of cl 41(5) of the County of Cumberland Planning Scheme Ordinance and is void. Therefore it is not open for the applicant to rely on the development consent to support an application made pursuant to s 96(2) of the EPA Act. The appeal is dismissed. Orders

1. The application is dismissed. 2. The application for modification of development consent No. 3736 is determined by refusal of consent.

3. The costs of determination of the preliminary issues are reserved.

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