Dennes v Port Macquarie-Hastings Council

Land and Environment Court (NSW)|2018-06-21|Before: Preston CJ

Deferred commencement consent is granted

Mr Dennes owns land and wishes to erect a replacement dwelling house on flood prone land at 330 Koree Island Road, Beechwood. His application for development consent was refused by Port Macquarie-Hastings Council ('the Council') on grounds that the site is unsuitable because of the flood hazard, the development of the site is not consistent with the Council's Flood Policy 2015 and the development would result in an unacceptable risk to life and property.
Mr Dennes appealed against the Council's refusal to the Court. Commissioner Fakes upheld his appeal and granted development consent: Dennes v Port Macquarie-Hastings Council [2016] NSWLEC 1345.
Pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 ('EPA Act'), the Commissioner granted development consent subject to a deferred commencement condition which required: "(1) The proponent to submit to Council for approval a Flood Emergency Response Plan ('FERP') for the proposed development. The FERP must be determined to be satisfactory by Council".
As permitted under cl 95(3) of the Environmental Planning and Assessment Regulation 2000 ('EPA Regulation'), the deferred commencement consent specified a period of 12 months from the date of determination of the consent (orders were entered by the Court on 17 August 2016) within which Mr Dennes had to satisfy the Council as to the matter specified in the condition.

An applicant attempts to but does not satisfy the deferred commencement condition

As permitted under cl 95(4) of the EPA Regulation, Mr Dennes attempted, within the period of 12 months specified within the deferred commencement condition, to produce evidence to the Council sufficient to enable it to be satisfied as to the matter specified in the deferred commencement condition. Mr Dennes and his architect each submitted to the Council a Flood Emergency Response Plan dated December 2016 on or before 26 April 2017.
On 20 June 2017, the Council emailed Mr Dennes' architect and also wrote a letter to Mr Dennes advising that the submitted Flood Emergency Response Plan "is not capable of being supported in its current form" and "accordingly the deferred commencement condition on development consent DA 2014-539 is not satisfied."
Mr Dennes did not take any action in response to this notification from the Council to satisfy the Council as to the matter specified in the deferred commencement condition before the expiry of the period of 12 months specified for the deferred commencement condition (on 17 August 2017). One action that Mr Dennes could have taken was to appeal under s 97(3) of the EPA Act against the Council's decision that it was not satisfied as to the matter in the deferred commencement condition. Mr Dennes could have appealed against the Council's deemed decision of non-satisfaction 28 days after Mr Dennes had provided evidence as to the matter in the deferred commencement condition, which was on or before 26 April 2017 (see cl 95(6) of the EPA Regulation), or against the Council's actual decision of non-satisfaction notified on 20 June 2017 (s 97(3) of the EPA Act). But Mr Dennes did not lodge an appeal under s 97(3) before the expiry of the 12 month period specified for the deferred commencement condition on 17 August 2017.
Another action Mr Dennes could have taken, but did not take, was to apply for an extension of the specified 12 month lapsing period for a further year under s 95A of the EPA Act.
As a consequence, Mr Dennes failed to satisfy the Council as to the matter specified in the deferred commencement condition within the 12 month period specified (i.e. by 17 August 2017).

The applicant appeals under s 97(3) of the EPA Act

Mr Dennes did lodge an appeal under s 97(3) of the EPA Act against the Council's decision that it was not satisfied with the Flood Emergency Response Plan but not until 22 December 2017.
Mr Dennes seeks, through the appeal under s 97(3), for the Court to substitute for the Council's decision of non-satisfaction the Court's decision that the submitted Flood Emergency Response Plan is satisfactory and hence that the deferred commencement condition has been satisfied. Thereupon, Mr Dennes argues, the development consent would become operative.

The Council contests the Court's jurisdiction to determine the appeal

The Council disputes that the Court has jurisdiction to hear and determine Mr Dennes' appeal under s 97(3) of the EPA Act once the deferred commencement consent the subject of the appeal lapsed. The Council contends that the deferred commencement consent granted by the Court lapsed on 17 August 2017, by operation of s 95(6) of the EPA Act, when Mr Dennes did not satisfy the Council as to the matter specified in the deferred commencement condition within the 12 month period specified. The Council contends that, because of the lapsing of the deferred commencement consent, there is no matter as to which the Court could be satisfied which could cause the deferred commencement consent to operate. On an appeal under s 97(3), the Court exercises the functions of the consent authority to be satisfied as to the matter specified in the deferred commencement condition within the period specified in the condition. However, once a consent lapses by operation of s 95(6), any satisfaction of the Court as to the matter specified in the deferred commencement condition cannot cause the deferred commencement consent to operate.
The Council contends that the appeal must, therefore, be dismissed as there is no decision or order that the Court could make on the appeal that could cause the deferred commencement consent to operate.
In the alternative, if the Court does have jurisdiction, the Council contends that, on the merits, the Court would not decide that the Flood Emergency Response Plan submitted by Mr Dennes was satisfactory. Although the Council decided that the plan was not satisfactory because the plan did not comply with the Council's Flood Policy 2015 and other relevant policies or provide safe flood evacuation procedures, the Council did not press those reasons on this appeal, as the Commissioner had rejected these reasons when she determined to uphold the applicant's appeal and grant development consent. The Council did, however, press two points. First, the submitted Flood Emergency Response Plan does not disclose details of the author and demonstrate that the author is a suitably qualified hydrologic/hydraulic engineer with experience in flood assessment and management of land development proposals. The Council accepted that the plan could be amended to disclose those details of the author and his experience. Second, there is a direct contradiction in the submitted Flood Emergency Response Plan, which on page 11 states that occupants should not delay evacuation until road access is cut by flood water but then recommends that shelter be taken in the house if road access is lost. The Council contends that this inconsistency should be removed.

The parties' competing positions on the Court's jurisdiction to determine the appeal

The Council's position

I will start with the Council's position. The Council contends that, as a matter of fact, Mr Dennes failed to satisfy the Council as to the matter in the deferred commencement condition within the period specified of 12 months from the date of determination of the consent (that is, by 17 August 2017). Although Mr Dennes provided a Flood Emergency Response Plan to the Council, the Council decided that it was not satisfied as to the matter specified in the deferred commencement condition (that the Flood Emergency Response Plan was satisfactory). The Council notified Mr Dennes that it was not satisfied as to the relevant matter by letter to Mr Dennes dated 20 June 2017. The Council submits that the letter of 20 June 2017 was notification to Mr Dennes for the purposes of cl 95(5) of the EPA Regulation that the Council was not satisfied of the matter specified in the deferred commencement condition.
Thereafter, Mr Dennes did not produce any further evidence to the Council sufficient to enable the Council to be satisfied as to the relevant matter. The Council never decided that the Flood Emergency Response Plan submitted by Mr Dennes was satisfactory. The Council did not notify Mr Dennes under cl 95(4) of the EPA Regulation that it was satisfied as to the matter specified in the deferred commencement condition. As Mr Dennes had not satisfied the Council as to that matter, the Council did not give notice to Mr Dennes under cl 100(4)(b) of the EPA Regulation of the date from which the consent operates.
Accordingly, the Council submits that Mr Dennes did not satisfy the Council as to the matter specified in the deferred commencement condition within the 12 month period specified (i.e. by 17 August 2017).
The Council submits that it is important to note that the matter specified by the deferred commencement condition is the Council's determination that the Flood Emergency Response Plan submitted by Mr Dennes is satisfactory. It is not sufficient for Mr Dennes to merely submit a Flood Emergency Response Plan, regardless of whether Mr Dennes considered it to be satisfactory. The Council itself must make a determination that the submitted Flood Emergency Response Plan was satisfactory. The Council never did make that determination that the submitted plan was satisfactory.
In this circumstance, the Council submits that s 95(6) of the EPA Act operated to cause the deferred commencement consent to lapse. Section 95(6) provides: "Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified."
This statutory provision causes a deferred commencement consent to lapse if the factual event in s 95(6) occurs. The factual event is the applicant failing to satisfy the consent authority as to the matter specified in the condition within the applicable period, either five years from the grant of the consent or any shorter period specified by the consent authority. In this case, the factual event occurred. Mr Dennes failed to satisfy the Council as to the matter specified in the deferred commencement condition within the specified 12 month period from the date of determination of the consent. On the occurrence of that factual event, s 95(6) caused the deferred commencement consent to lapse.
The Council referred to Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237; [2005] NSWLEC 737 at [32], [36] and [41] and Reid's Farm Pty Ltd v Murray Shire Council (2010) 182 LGERA 1; [2010] NSWLEC 127 as supporting this statutory consequence of lapsing upon the factual event in s 95(6) occurring.
The Council submits that once the deferred commencement consent lapsed, there is no decision or order that the Court can make on an appeal under s 97(3) of the EPA Act that could cause the consent to operate.
First, once the deferred commencement consent lapsed, there is no effective consent upon which Mr Dennes can rely for the purpose of making an appeal under s 97(3) or in respect of which the Court can make a decision as to whether Mr Dennes has satisfied the matter specified in the deferred commencement condition of the consent. The Council submits that "there must, at the time the appeal was commenced, have been some matter which, if the Court were satisfied as to that matter, would cause the deferred commencement consent to operate." The Council submits that there is no such matter because the deferred commencement consent had already lapsed by the time the appeal was commenced.
Second, even if the Court were to decide that the Flood Emergency Response Plan submitted by Mr Dennes was satisfactory, and hence that the deferred commencement condition could be satisfied, any such decision would not cause the deferred commencement consent to operate from the date of such decision. This could only occur if the deferred commencement consent had not lapsed. A deferred commencement consent that has not lapsed has effect but no sphere of operation: Roberts v Blue Mountains City Council [2012] NSWLEC 2 at [33]. The deferred commencement consent only commences to operate if and when the applicant satisfies the deferred commencement condition within the time period specified for satisfying that condition. If the deferred commencement condition is not satisfied within the time period specified, the deferred commencement consent will lapse. The deferred commencement condition can never be satisfied at a later point in time because satisfaction of the matter specified in the condition would not be achieved within the time period specified for satisfying the condition.
The Council submits that any decision of the Court on the appeal under s 97(3) that the matter specified in the deferred commencement condition would not be a decision made within the 12 month period from the date of determination of the consent (i.e. by 17 August 2017) and could not cause the deferred commencement consent that had earlier lapsed to again have effect or to operate.
This was the decision reached in Roberts v Blue Mountains City Council. Pepper J found that the deferred commencement condition in that case had not been fulfilled within the five year period specified for satisfying the condition and at the expiry of that period the deferred commencement consent had lapsed. As a consequence, the appeal under s 97(3) of the EPA Act must be dismissed (at [63]).
The Council submits, therefore, that the appeal should be dismissed.

Mr Dennes' position

Mr Dennes did not directly address whether the deferred commencement consent had lapsed. Instead, Mr Dennes sought to establish why the appeal under s 97(3) of the EPA Act was in time and why it was not open to the Council to argue on the appeal that the consent had lapsed.
As to the first, Mr Dennes submits that an appeal under s 97(3) may be lodged within six months after the consent authority notifies the applicant of its decision. Mr Dennes submits that there was neither a decision nor a notice of a decision.
As to a decision, Mr Dennes submits that the Council's letter of 20 June 2017 did not give notice of a decision that the Council was not satisfied as to the matter specified in the deferred commencement condition. Mr Dennes submits that "while the 20 June letter states that the FERP did not satisfy the deferred commencement condition and gives reasons for why the Council was not satisfied with the FERP, it also invited the applicant, through his flood consultant, to contact the Council to discuss the Council's concerns with the FERP. On a fair reading of the 20 June letter, the invitation extended to the applicant's flood consultant to contact the Council suggests that the Council was prepared to discuss the reasons for refusing the FERP with the applicant's flood consultant and to potentially resolve the matter pending further discussions".
Mr Dennes referred to the invitation in the 20 June 2017 letter for Mr Dennes' flood consultant to discuss the Council's concerns by contacting two named Council officers. Mr Dennes' flood consultant, Mr Bewsher, took up that invitation and telephoned on 20 July 2017 one of the Council officers noted in the letter. Mr Bewsher was told that "Council would never agree to a FERP for this property, irrespective of how it is worded. Consequently, the matter will have to go back to Court."
Mr Dennes submits that in the circumstances the Council's "decision" was merely a procedural determination and not a substantive decision: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337. If it is only a procedural determination, the Council has not discharged its function as the consent authority to determine whether the Flood Emergency Response Plan satisfied the deferred commencement condition. The Court, on the appeal, can determine whether the plan is satisfactory because it has the same powers and functions as the Council under s 39(2) of the Land and Environment Court Act 1979.
As to notice, Mr Dennes submits that notification to the applicant of the decision appealed against is a precondition to the commencement of the six month period in s 97(3) of the EPA Act, within which an applicant is to lodge the appeal with the Court. Mr Dennes submits that he was never formally notified of the Council's decision that it was not satisfied of the matter specified in the deferred commencement condition (that the Flood Emergency Response Plan was not satisfactory). The 20 June 2017 letter was sent by post to the site address of the land. However, the letter was never received by Mr Dennes because he lived at a different address in Port Macquarie. The land was vacant and uninhabited.
Because no notice of the decision was given to Mr Dennes, he submits that the six month period for lodging the appeal under s 97(3) never started to run. This means that the Court has jurisdiction to hear and determine the appeal as it is not possible for an appeal to be lodged out of time in circumstances where the time for lodging the appeal never started to run.
As to the second, Mr Dennes submits that it is not open to the Council to contend that the Court does not have jurisdiction to hear the present appeal based on the fact that the deferred commencement consent has lapsed. Mr Dennes did all on his part that he could have done to obtain compliance with the deferred commencement condition by submitting a satisfactory Flood Emergency Response Plan within 12 months of the date of determination of the consent. Mr Dennes submitted that the reason why the Council did not determine that the Flood Emergency Response Plan was satisfactory was because the Council had determined to obstruct the development. The failure to comply with the deferred commencement condition was the failure of the Council to give the approval of the Flood Emergency Response Plan to which Mr Dennes was entitled, relying on Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1; [2002] NSWCA 404 at [36], [37].
Mr Dennes submits that Mr Bewsher, Mr Dennes' hydraulic engineer, prepared the Flood Emergency Response Plan in accordance with the judgment of the Commissioner and the terms of the consent. Mr Dennes submits that: "The work undertaken by the Applicant's hydraulic engineer on the FERP accorded with the specific terms of the development consent issued by Commissioner Fakes on 17 August 2016, save that the Council failed to issue an approval under Condition A(1), the duty to which was imposed by the development consent (Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1 at 12). The work undertaken on the FERP was done in accordance with the consent save for the technicality that Mr Gardiner failed to give an approval which the consent required him to give (Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1 at 12)."
Mr Dennes submitted that the deferred commencement condition did not authorise the Council to frustrate the development by refusing to approve the Flood Emergency Response Plan on the grounds that the development was inappropriate on the flood prone land, referring to Detala Pty Ltd v Byron Shire Council at [31]. Mr Dennes submitted that the contents of the submitted Flood Emergency Response Plan had been previously determined to be satisfactory by Commissioner Fakes and accorded with the guidance she provided for the amendment of the plan. Mr Dennes submitted that, on the Flood Emergency Response Plan being amended in accordance with the Commissioner's guidance, the Council's task was to give effect to the development consent granted by the Commissioner by determining that the submitted Flood Emergency Response Plan was satisfactory for the purposes of the deferred commencement condition.

The deferred commencement consent has lapsed

I find that the deferred commencement consent granted by Commissioner Fakes on 17 August 2016 has lapsed. Mr Dennes failed to satisfy the Council as to the matter specified in the deferred commencement condition within the period specified of 12 months from the date of determination of the consent (i.e. by 17 August 2017).
It was necessary but not sufficient for Mr Dennes to have provided evidence to the Council to enable the Council to be satisfied as to the matter specified in the deferred commencement condition. Mr Dennes provided an amended Flood Emergency Response Plan to the Council that he considered to be satisfactory and in accordance with the guidance provided by the Commissioner. But the mere submission of the Flood Emergency Response Plan to the Council did not satisfy the deferred commencement condition. The deferred commencement condition expressly requires the Council to determine that the Flood Emergency Response Plan is satisfactory. Hence, the deferred commencement condition can only be satisfied if and when the Council determines that the Flood Emergency Response Plan submitted by Mr Dennes is satisfactory. This never occurred. To the contrary, the Council decided on 20 June 2017 that the Flood Emergency Response Plan submitted by Mr Dennes "is not supported" and that "accordingly, the deferred commencement condition…is not satisfied."
As a matter of fact, therefore, Mr Dennes failed to satisfy the Council as to the matter specified in the deferred commencement condition within the 12 month period specified. Section 95(6) of the EPA Act operated to cause the deferred commencement consent to lapse upon the expiry of the specified 12 month period (on 17 August 2017).
Once the deferred commencement consent lapsed, there was no effective development consent upon which Mr Dennes could rely for the purposes of making his appeal under s 97(3) of the EPA Act seeking for the Court to substitute its decision of satisfaction for the Council's decision of non-satisfaction as to the matter specified in the deferred commencement condition of the development consent. An analogous finding was made in Hilltop Planners Pty Ltd v Great Lakes Council (2003) 127 LGERA 333; [2003] NSWLEC 214 at [50] that once a development consent lapses, there is no consent upon which an applicant can rely for the purposes of making an application under s 96 of the EPA Act for the purpose of modification of that consent.
There was also no effective development consent in respect of which the Court on the appeal under s 97(3) could make a decision as to satisfaction of the matter specified in the deferred commencement condition that could make the lapsed consent operate. Even if the Court were to decide that the Flood Emergency Response Plan submitted by Mr Dennes was satisfactory for the purposes of the deferred commencement condition, that decision would not have been made within the period specified for satisfying the deferred commencement condition of 12 months from the date of determination of the consent (i.e. by 17 August 2017). The Court's decision, therefore, could not alter the occurrence of the factual event in s 95(6) (the applicant failing to satisfy the consent authority as to the matter specified in the deferred commencement condition within the 12 month period specified) that triggered the lapsing of the deferred commencement consent.
As there is no decision that the Court can make on the appeal under s 97(3) that can revive the lapsed consent and cause it to operate, the appeal should be dismissed. I note that the same conclusion was reached in Roberts v Blue Mountains City Council at [63] that, as the deferred commencement condition had not been satisfied within the period specified and the consent had thereby lapsed, the appeal under s 97(3) must be dismissed.
The submissions of Mr Dennes as to the jurisdiction of the Court are not an answer to these conclusions that the deferred commencement consent has lapsed and the Court cannot on the appeal under s 97(3) revive that consent and cause it to operate.
The submissions of Mr Dennes regarding the appeal under s 97(3) being within time are not to the point. The Council did not contend that the Court lacked jurisdiction to hear the appeal because Mr Dennes had appealed out of time. The Council's jurisdiction point is that Mr Dennes cannot appeal under s 97(3) with respect to a consent that has lapsed. It is, therefore, strictly unnecessary to determine Mr Dennes' argument whether the appeal is within time. But as Mr Dennes has raised this argument, I will indicate why the reasons he gives for his conclusion are not correct, but the conclusion may still be correct for different reasons.
The time period for commencing an appeal under s 97(3) of the EPA is "6 months after the consent authority notifies the applicant of its decision". Notification of the decision of the consent authority can actually be given, under cl 95(5) of the EPA Regulation, or be deemed to have been given, under cl 95(6) of the EPA Regulation. Mr Dennes' argument focus on the first, but not the second type of notification.
If the consent authority makes a decision, the consent authority is required to notify the applicant whether or not it is satisfied of the matter specified in the deferred commencement condition: see cl 95(5) of the EPA Regulation. The giving of that notice triggers the start of the six month appeal period in s 97(3) of the EPA Act. Mr Dennes argues that the Council did not in fact make a decision that it was not satisfied as to the matter specified in the deferred commencement condition. The "decision" referred to in the Council's letter of 20 June 2017 was "equivocal" and merely a procedural determination, not a substantive decision. But even if it were to be a substantive decision, Mr Dennes argues that the Council did not give him notice of the decision. The sending of an email to Mr Dennes' architect who was no longer engaged by Mr Dennes and the sending of a letter to Mr Dennes' land which was vacant and uninhabited did not constitute notice to Mr Dennes. Hence, Mr Dennes argues, the Council has not notified Mr Dennes of its decision under cl 95(5) of the EPA Regulation and the six month period for lodging an appeal under s 97(3) of the EPA Act has not started to run.
This argument suffers from a number of difficulties. First, I find that the decision referred to in the Council's letter of 20 June 2017 is a decision that the Council was not satisfied as to the matter specified in the deferred commencement condition and not merely a procedural determination.
Second, I find that the Council's letter of 20 June 2017 to Mr Dennes did constitute notice to Mr Dennes of its decision that it was not satisfied of the relevant matter (under cl 95(5) of the EPA Regulation).
Third, I find that this notice was given to Mr Dennes. Under s 153(1)(a) of the EPA Act, notice may be given to an individual by delivering it to him or her or sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under the EPA Act or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business. Mr Dennes' land was an address specified by him for the giving of notices or service of documents, being the address in Council's Name and Address Register to which rates notices for the land are sent, according to Mr Gardiner, the Council's Development Assessment Planner, in his affidavit evidence.
A notice sent by prepaid post in accordance with s 153(1)(a) is deemed to have been given at the time at which the notice would be delivered in the ordinary course of post (s 153(2) of the EPA Act). There was no evidence what this period would have been, but the parties agreed as a fact that it would be at least two days.
The consequence is that Mr Dennes was notified of the Council's decision and the six month appeal period under s 97(3) began to run on the date the Council's decision was notified, which would be at least 22 June 2017. This would mean that Mr Dennes' appeal under s 97(3), which was filed on 22 December 2017, would have been commenced within the six month period.
Mr Dennes' argument did not address whether the appeal period under s 97(3) was triggered by the deemed notification of the Council's decision. Under cl 95(6) of the EPA Regulation, if the Council had not notified Mr Dennes of its decision within a period of 28 days after Mr Dennes produced evidence to the Council as to the matter specified in the deferred commencement condition (as Mr Dennes argues), the Council is, for the purposes of an appeal under s 97(3) of the Act, taken to have notified Mr Dennes that it was not satisfied as to the matter specified in the deferred commencement condition on the date on which that period of 28 days expired. Mr Dennes' architect provided the amended Flood Emergency Response Plan by email to the Council on 26 April 2017. Mr Dennes may have provided a hard copy of the plan "previously" to the Council (i.e. before 26 April 2017). This would mean that, for the purpose of determining whether an appeal under s 97(3) of the EPA Act can be lodged, the Council is taken to have notified Mr Dennes of its decision that it was not satisfied as to the matter specified in the deferred commencement condition 28 days after, at the latest, 26 April 2017, which would be 24 May 2017. The six month appeal period under s 97(3) would have started to run on that date. Mr Dennes' appeal, commenced on 22 December 2017, would be outside the six month period from this starting date.
Another six month appeal period could have commenced to run if the Council did actually notify Mr Dennes of its decision. I have found that the Council did notify Mr Dennes by letter dated 20 June 2017, which would have been received by 22 June 2017. Mr Dennes' appeal, which commenced on 22 December 2017, would be just within this appeal period.
I find, therefore, that Mr Dennes' appeal under s 97(3) is within time, although for different reasons than those given by Mr Dennes. However, this finding that Mr Dennes' appeal is within time does not provide an answer to the problem of the deferred commencement consent having lapsed before the appeal was commenced. For the reasons I have given earlier, there was no effective development consent in respect of which the appeal could be made or in respect of which the Court could make an order that would cause the consent to operate.
Mr Dennes' submissions that it is not open to the Council to contend that the consent has lapsed are also flawed. Mr Dennes relies on the decision of Detala Pty Ltd v Byron Shire Council. The facts of that decision are quite different and the reasoning is not applicable to the present case.
In Detala Pty Ltd v Byron Shire Council, the issue was whether an operative development consent had lapsed. In an attempt to prevent the development consent lapsing, the appellant had carried out certain minimal physical works, including clearing of trees and vegetation, in the last days of the lapsing period of five years under s 95(1) of the EPA Act. The Council contended that, notwithstanding this work, the consent nevertheless lapsed. One reason was that the work was not done in accordance with the consent and was therefore not work "relating to the building, subdivision or work" for the purposes of s 95(4) of the EPA Act that would prevent the consent from lapsing. In particular, the Council contended that the work was done in breach of condition 23 of the consent, which provided that no tree was to be cleared in contravention of the tree preservation order applicable to the land and any trees required to be removed were to be shown on a plan for the approval of the Council prior to any work commencing. The applicant did not seek the Council's approval under the tree preservation order for the removal of the trees that it cleared or obtain the approval of the Council of a plan showing the trees to be removed before it removed the trees.
The Court of Appeal (Davies AJA with whom Handley JA and Santow JA agreed) held that the appellant did not need to obtain the Council's approval under the tree preservation order in order to remove the trees. The grant of the development consent by the Court constituted the grant of approval under the tree preservation order to the removal of such vegetation as was necessary to carry out the development (at [25]). The appellant did not breach condition 23 in this regard by clearing the trees in order to physically commence the development.
The grant of consent to remove the trees was subject to the condition that a plan showing the trees which required removal for the purposes of the development be provided to and approved by the Council prior to the work commencing. The approval of the plan by the Council was a "technicality". The Court had already approved the removal of such trees as was necessary for the carrying out of the development; the approval of the Council to remove these trees was not required by the condition. The only approval of the Council that was required by the condition was the administrative task of approving the plan showing the trees which the Court had approved to be removed.
In these circumstances, the Court of Appeal held that "it would be wrong to hold that the work done by the appellant [the removal of the trees which the Court had approved to be removed] was not work 'relating to the building, subdivision or work' for the purposes of s 95(4) of the EPA Act" (at [36]). The failure to comply with the requirement in condition 23 for the submission to and approval by the Council of a plan showing the trees which required removal was "the failure of the Council…to give the approval to which the appellant was entitled" (at [36]). The Court held that "the work that was done was done in accordance with the consent save for the technicality that [the Council] failed to give an approval which the consent required him to give" (at [37]).
Accordingly, the Court of Appeal rejected the Council's argument that the work done of clearing the trees was not work "relating to the building, subdivision or work" for the purposes of s 95(4) so as to prevent the consent from lapsing.
The present case is, however, different both legally and factually. Legally, the provisions governing the lapsing of the consent are different. In Detala Pty Ltd v Byron Shire Council, the applicable provision was s 95(4) of the EPA Act governing the lapsing of an operative development consent unless work relating to the building, subdivision or work is physically commenced on the land within the specified period. In the present case, the applicable provision is s 95(6) of the EPA Act governing the lapsing of a deferred commencement consent unless the applicant satisfies the consent authority as to the matter specified in the deferred commencement condition within the specified period.
These different legal provisions have different factual triggers for the lapsing of the consent. The factual trigger under s 95(4), which prevents an operative development consent lapsing, is the undertaking of physical work relating to the building, subdivision or work. The factual trigger under s 95(6), which prevents a deferred commencement consent lapsing, is the applicant satisfying the consent authority as to the matter specified in the deferred commencement condition.
Hence, the factual findings of the Court of Appeal in Detala Pty Ltd v Byron Shire Council in relation to the factual trigger in s 95(4) are of no relevance or applicability in deciding whether the factual trigger in s 95(6) has or has not been satisfied in this case. In particular, the fact that Mr Dennes might have done all that he could on his part, by producing evidence to the Council, to enable the Council to be satisfied as to the matter in the deferred commencement condition (assuming this to be the case) is of no relevance to the factual trigger under s 95(6) of the EPA Act, regardless of whether it was relevant to the factual trigger under s 95(4) of the EPA Act in Detala Pty Ltd v Byron Shire Council. The factual trigger under s 95(6) is that the applicant must satisfy the consent authority as to the matter specified in the deferred commencement condition within the period specified. It is not sufficient for an applicant merely to produce evidence as to the matter specified in the deferred commencement condition to the Council; it is necessary that the Council determine that it is satisfied as to the matter specified in the deferred commencement condition.
The requirements of the deferred commencement condition in this case and of s 95(6) are, therefore, different to the requirements of the particular condition of the operative development consent in Detala Pty Ltd v Byron Shire Council and s 95(4) of the EPA Act.
The consequence is that any failure of the Council to determine that the Flood Emergency Response Plan submitted by Mr Dennes was satisfactory within the specified period (as Mr Dennes has argued occurred) does not and cannot prevent the deferred commencement consent from lapsing but instead actually causes the deferred commencement consent to lapse by operation of s 95(6) of the EPA Act.
For these reasons, the deferred commencement consent granted by Commissioner Fakes lapsed on 17 August 2017. The Court has no power on the appeal under s 97(3) to make a decision or order that could revive the lapsed consent and make it operate. The appeal should therefore be dismissed.
This outcome applies the law, but it is less than satisfactory. The Council's decision that it was not satisfied with the submitted Flood Emergency Response Plan was made for reasons that had been rejected by the Commissioner. The Council had argued before the Commissioner that the consent for the replacement dwelling on the flood prone land should be refused because the development was not consistent with the Council's Flood Policy 2015 and that site-specific Flood Emergency Response Plans were unacceptable. The Commissioner rejected these arguments.
In these circumstances, the Council ought not to have determined that the submitted Flood Emergency Response Plan was not satisfactory for the same reason that had been rejected by the Commissioner.
Nevertheless, Mr Dennes did have the remedy of appealing under s 97(3) of the EPA Act against the Council's decision that it was not satisfied with the Flood Emergency Response Plan. But he needed to have commenced the appeal and secured a decision of the Court that it was satisfied with the submitted Flood Emergency Response Plan before the expiry of the 12 month period on 17 August 2017. Unfortunately for Mr Dennes, he did not do this. As a consequence, the consent lapsed and the Court cannot now revive it or cause it to operate.

Orders

The Court orders that the appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2018

(2003) 127 LGERA 333

(2005) 143 LGERA 237

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