Fabemu (No 2) Pty Ltd v Kiama Municipal Council

Land and Environment Court (NSW)|2023-07-10|Before: Moore J, Ms J

TABLE OF CONTENTS Introduction The pre‑trial mention The extension of the lapsing period in response to the COVID‑19 pandemic The relevant statutory provision The evidence The description of the site Mr Ward's affidavit The Council's proposed coastal walking track extension The Council's letter to the Company of 14 January 2022 Mr Gibbon's affidavit The Council's submissions The issues Introduction The hearings The 29 May 2023 hearing The 10 July 2023 hearing The boreholes are "engineering works" Introduction Ms Reid's submissions Consideration The unsatisfied conditions of consent Introduction General responses to the conditions (except condition 4) Condition 4 of the 2016 development consent Introduction Ms Reid's submissions concerning condition 4 Consideration Orders Annexure A Annexure B Annexure C Annexure D

Introduction

On 29 March 2023, Fabemu (No 2) Pty Ltd (the Company), commenced these Class 4 proceedings concerning a development consent granted by the Court as a consequence of orders arising from a s 34 conciliation conference agreement in 2016 (Robby Ingham Pty Ltd v Kiama Municipal Council [2016] NSWLEC 1490). The development consent granted approval, subject to conditions, for the construction of a dwelling at 242 Fern Street, Gerringong (the site). The Company is now the owner of the site.

The pre‑trial mention

The Chief Judge assigned the hearing of this matter to me and I held a pre‑trial mention of the proceedings on Monday 23 May 2023. On that occasion, I dealt, first, with the Company's Notice of Motion seeking to rely on the proposed Amended Summons. Having read the terms of the proposed amended relief and the affidavit of Mr Thomas Ward dated 15 May 2023 in support of the Notice of Motion (with there being no opposition to the motion as a consequence of the Council's submitting appearance), I was satisfied that it was appropriate that the leave sought be granted.
The pre‑trial mention then continued with Ms J Reid, counsel for the Company, handing up a copy of her written submissions in support of the relief sought (addressing matters in both the original Summons relating to the statute/regulation extension of the lapsing date and the issues underlying the Amended Summons).
Ms Reid indicated that, in summary, the basis upon which the Company sought the declaration in the terms proposed in the now Amended Summons was that engineering works had been undertaken on the site which satisfied the requirements of s 4.53(4) of the EPA Act so that the consent had commenced and, thus, had been rendered operative for the indefinite future.

The extension of the lapsing period in response to the COVID‑19 pandemic

It is not in dispute (and therefore requires no declaration in the form sought in the original Summons) that, as a result of legislative and regulatory responses to the COVID‑19 pandemic, the five‑year life of the consent prior to its original potential lapsing had been extended by a further two years so that the new lapsing date for the consent is 25 October 2023. The affidavit of Mr Thomas Ward (noted later) set out the legislative basis for this position at paragraphs 18 to 23 ‑ it is not necessary to quote those paragraphs. Ms Reid also addressed this in her written submissions.

The relevant statutory provision

The single provision in the EPA Act is that which, on the Company's case, gives rise to the potential non‑lapsing (commencement) of the 2016 development consent is s 4.53(4). This provision is in the following terms: 4.53 Lapsing of consent (1) … (2) … (3) … (3A) … (4) Development consent for - (a) the erection of a building, or (b) …, or (c) …, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

The evidence

The affidavit evidence relied upon by the Company was:

an affidavit of Mr Thomas Ward, a solicitor employed by the Company's legal representatives. This affidavit was deposed on 29 March 2023; and
an affidavit of Mr Charles Gibbon, a director of the Company. This affidavit was deposed on 23 May 2023. Mr Gibbon's affidavit had annexed to it three documents. These comprised a title search extract for the site; a copy of a letter from Mr Michael Dowd, the Council's Director of Engineering and Works, dated 14 January 2022; and a copy of a report from the Council's Director of Engineering and Works presented to the Council and adopted by it at a meeting of the Council held in June 2020. The terms of the second of these documents are later set out and a copy of the third document is reproduced as Annexure A to this decision.

It is to be observed that a copy of Mr Gibbon's affidavit was provided to the Council prior to its execution and filing. It is also to be observed that Ms Reid consulted the Council's solicitor (who was present in the Court as an observer during the hearing) and advised me that she had been informed that the Council did not wish to alter the state of its participation in the proceedings as a consequence of the terms of Mr Gibbon's affidavit.
The documentary evidence tendered on behalf of the Company comprised:

the folder of documents which had been exhibited to Mr Ward's affidavit. This bundle of documents became Exhibit A;
a copy of the factual written submissions on behalf of the Council (see [23]) became Exhibit B;
two images ‑ the first being an air photograph showing, in sufficient detail for it to be understood, the nature of the cliff line and coastal rocky platform at the foot of the cliff, whilst the second comprised an image depicting the cadastral boundaries of the site. These images became Exhibit C and are reproduced as Annexures B and C; and
during the course of her submissions, Ms Reid quoted a description of the site and of its topography taken from the Statement of Facts and Contentions prepared by the Council for the 2016 Class 1 proceedings leading to the grant of the development consent for the proposed dwelling on the site. A copy of that document was tendered (Exhibit D).

The description of the site

As noted above, Ms Reid read a description of the site that comprised portion of Exhibit D. It is appropriate to reproduce the element of Exhibit D to which she referred, as it provides some context for understanding the nature of the site and its relationship with the topography and the mean high‑water mark shown on the Survey Plan showing the borehole locations contained in Exhibit A, Tab 8. This plan is also appropriate to be reproduced and it is at Annexure D. The site description from Exhibit D is in the following terms: 2. THE SITE 2.1 The site of the proposed development is commonly known as 242 Fern Street, Gerringong and more particularly described as Lot 202 DP 1169384 (Site). 2.2 The Site is zoned predominantly E3 Environmental Management with a small area to the east zoned E2 Environmental Conservation and a very small portion to the north zoned RE1 Public Recreation. The proposed development is to be located on that part of the Site that is zoned E3 Environmental Management. 2.3 The Site is irregular in shape and has a total area of approximately 40.455 hectares. 2.4 The Site is currently vacant and consists mainly of cleared pasture land. Two category 3 watercourses are identified as entering the Site from the western and southern boundaries. 2.5 The Site sits atop a cliff and rock shelf abutting the Tasman Sea approximately 72 metres AHD and is undulating in its topography. A ridgeline runs from north‑west to south‑west to the centre of the Site before turning east towards Gerringong Point. The southern part of this ridgeline is at the approximate centre of the Site and meets two further ridgelines which curve to the south. The western side of the ridgeline and approximately half of the Site is gently undulating. To the east of the ridgeline, the Site falls steeply to the coastline. 2.6 The Site is bounded by vacant rural land to the north, the Tasman Sea to the east, occupied rural land to the south and Fern Street to the west.
The approved dwelling house development is one of unusual design, being in the shape of an annulus, semi‑sunk into the slope of the site, with its eastern edge being located, effectively, as a tangent to the foreshore building line. The dwelling is proposed to have 11 bedrooms (each with an ensuite bathroom) and basement parking for 19 vehicles. It is to be constructed with an access driveway, over 350 metres in length, leading from Fern Street to the entrance to the basement garage.
The approved driveway does not exit directly to Fern Street but is proposed to utilise an existing driveway access to Fern Street, located on the property immediately to the south of the site.

Mr Ward's affidavit

Relevant paragraphs of Mr Ward's affidavit are appropriate to be reproduced. References in it to the location of identified documents in Exhibit A are omitted. The relevant paragraphs were in the following terms: Background 1.‑3. … 4. On 25 October 2016, the Court in appeal proceedings No. 2016/00151976 granted development consent to DA 10.2015.77.1 for the construction of a residential dwelling at 242 Fern Street Gerringong (the Premises). 5. The conditions of the Consent are structured under various sub‑headings included "Prior to Commencement of Works" "Civil Engineering Design" and "Prior to Occupation". Engagement of PMI Engineers 6. On 30 August 2021, I sent email correspondence to PMI Engineers in relation to this matter. 7. On 1 September 2021, I received correspondence from PMI Engineers in response to my correspondence of 30 August 2021. 8. Annexed to the report from PMI Engineers was a marked‑up plan of the Premises showing the proposed location of a number of bore holes. 9. On 8 December 2021, I sent email correspondence to PMI Engineers attaching a copy of the Geotechnical report and Survey Report. 10. On 19 January 2022, I received email correspondence from PMI Engineers providing a further report in relation to this matter. Engagement of a Geotechnical Engineer 11. On 1 October 2021, I sent email correspondence to Terra Insight Technical Engineers in relation to undertaking geotechnical investigations in relation to this matter. 12. On 5 December 2021, I received email correspondence from Terra Insight enclosing the Report on Geotechnical and Pavement Investigations. 13. The report detailed that seven (7) boreholes were excavated on the Premises and that the location of the boreholes were determined and staked on site by a surveyor prior to the investigations being undertaken. Engagement of a surveyor 14. On 19 October 2021, I sent email correspondence to Allen Price & Scarratts regarding undertaking surveying works in relation to this matter. 15. On 17 November 2021 I received email correspondence from Allen Price & Scarratts attaching a copy of a survey in relation to this matter. Correspondence with Kiama Municipal Council 16.‑17. … Amendments to the law relating to lapsing of development consents 18.‑23. …

The Council's proposed coastal walking track extension

In mid‑2020, the Council considered a report from its Director of Engineering and Works and adopted the recommendations contained in that report. The report is Annexure A.
For present purposes, it is sufficient to note that the report addressed the potential for, and processes necessary to seek implementation of, extending the coastal walking track which existed, linking Kiama and Gerringong, to encompass its further southward extension to Gerroa. For present purposes, it is sufficient to set out the terms of the recommendations contained in that report, recommendations which were adopted by the Council meeting to which the report was presented. These adopted recommendations were in the following terms: RECOMMENDATIONS That Council: 1. adopts the preferred route concept for the future extension of the Coastal Walking Track between Boat Harbour, Gerringong and Black Head, Gerroa. 2. lodges an application for funding with the NSW Government under the Coastal Lands Protection Scheme for land acquisition and track implementation based on the concept proposal.

The Council's letter to the Company of 14 January 2022

By letter dated 14 January 2022, Mr Dowd, the Council's Director of Engineering and Works, wrote to the Company concerning the Council's proposal to extend the coastal walking track to Gerroa. It is appropriate to reproduce the terms of the text of this letter in its entirety: Proposed Coastal Walking Track Extension ‑ Gerringong to Gerroa As you may be aware, the establishment of the Coastal Walking Track (CWT) between Kiama and Gerringong has proven to be extremely popular with high visitation and usage by locals and visitors alike. At its September 2020 meeting Council considered a report on the feasibility of extending the walking track from Gerringong to Black head at Gerroa to complete the missing link along the coastline. The proposed concept route, which passes through or adjacent to your property was subsequently endorsed by the Council at that meeting. I have attached a copy of this report, which includes a plan showing the indicative concept route. Council considered an additional report at its August 2021 meeting relating to the proposed community engagement process for the project. In line with this adopted process, as a property owner directly or adjacently affected by the proposed walking track concept route, I would like to discuss Council's proposal with you and to gain you initial feedback on the proposal including the potential acquisition of land (if applicable to your property}. As you can imagine, the process of progressing this project will be a long and thorough one and I am committed to actively engage with you and other affected land owners throughout the process to support mutual understanding or issues and opportunities presented by the project to enable it to progress collaboratively. The September 2020 Council resolution included approval for Council to apply for funding for the proposal. No application has been made yet as our application would only be made after consultation with land owners such as yourself. As part of Council's early discussions with the State Government, Council and potential funding agency representatives would like to undertake an on‑site walk along ‑ the route in the near future to see first‑hand the potential for the proposal. While we would walk along existing public reserves where available, there may be some instances where access across private land may be required. Either as part of our initial discussion or separately, I will contact you in the near future once the planned site walk is confirmed to seek your permission to access your land, if required. I would like to invite you to contact me on telephone 4232 0525 or via email at council@kiama.nsw.qov.au to arrange a mutual convenient time to have our initial discussion about the project and I look forward to working with you as the planning for the proposal progresses.

Mr Gibbon's affidavit

Mr Gibbon's affidavit was prepared in response to my expression of concern at the pre‑trial mention that there was no evidence explaining what was regarded by the Company as supporting the necessity for the Company to seek a declaration in the terms set out in the Amended Summons. The terms of Mr Gibbon's affidavit are set out below (it is also provided with contextual background by the above material from the Council's processes): 1 I am a Director of the Applicant. 2 The Applicant purchased the property at 242 Fern Street, Gerringong (being Lot 202 in DP1169384) (the Premises) in June 2019. Annexed hereto and marked "A" is a copy of Transfer AP350302. 3 On 14 January 2022 I received correspondence from the Respondent in relation to a proposed Coastal Walking Track Extension ‑ Gerringong to Gerroa. A copy of this correspondence, which included an earlier Council resolution from September 2020 is annexed hereto and marked "B". 4 I am not aware of any formal surveying works being undertaken by the Respondent on the Premises in relation to the location of the proposed walking track and understood that the progression of the track was dependent (in part) upon funding being obtained from the State Government. 5 I Have not had any formal discussions with the Respondent in relation to the walking track, however I understand the specific location of the track is not yet settled and may not necessarily follow the coastline and may in parts cross further inland. 6 The dwelling house approved by the Land and Environment Court is a luxury dwelling and has been sited to take advantage of the spectacular views and the privacy afforded by the large lot. I am aware that if a part of the Land is compulsorily acquired by the Council for the purpose of the coastal walk that I would be compensated for that land, however impacts on privacy to the proposed dwelling may not be mitigated and cannot be compensated. 7 Progressing the construction of the dwelling represents a significant investment to the company and I am uncomfortable authorising that expenditure without knowing the location of the proposed coastal walk. When the location of the coastal walk is known, I intend to review whether it would be prudent to seek a modification of the subject development consent to ensure that the dwelling has an appropriate setting and any privacy impacts of the coastal walk are mitigated. 8 The original approval was obtained through the Land and Environment Court and took considerable time and resources to obtain. I am concerned that waiting for the Council to confirm the location of the coastal walk will mean that the benefit of the development consent may be lost and the process will need to be commenced from the beginning with no certainty that the next decision maker would grant the development consent.

The Council's submissions

I have earlier noted that the Council has filed a submitting appearance, except as to costs, in these proceedings. However, on 24 May 2023, the Council's legal representatives filed written submissions which provided background information concerning the relevant historical matters potentially engaged for consideration in these proceedings. The position adopted by the Council in this regard is, in my assessment, entirely consistent with the position addressed in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 where a public authority provides appropriate and limited assistance to a decision‑maker ‑ generally of a purely factual nature ‑ without advocating any position for or against the proposal requiring to be addressed in the proceedings. The submissions provided for the Council reflect this conventional approach. These submissions are appropriate to be set out in full: Background 1. Development Application No. 10.2105.77.1 (DA) was lodged with Council by Robby Ingham Pty Ltd (DA Applicant) on 16 April 2015. 2. The DA sought development consent for "proposed principal dwelling, secondary dwelling, tennis court and pavilion, rural shed, stables and farm dams also indoor swimming pool" at 242 Fern Street, Gerringong (Land). 3. On 17 November 2015, the Council resolved that the DA should be refused. 4. The DA Applicant commenced an appeal in the Land and Environment Court against Council's refusal of the DA on 27 November 2015. 5. The parties participated in a conciliation conference under section 34 of the Land and Environment Court Act 1979 on various dates between 21 April 2016 and 29 September 2016. An agreement was reached between the parties and, on 25 October 2016, Commissioner Brown made the following orders:1 (a) The appeal is upheld; (b) The Applicant is granted leave to rely on the amended plans and updated supplementary documentation listed in Condition 1 of Annexure "A"; (c) The Applicant is to pay the Respondent's costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (d) Development Application 10.2015.77.1 for a residential dwelling at 242 Fern Street, Gerringong (being Lot 202 DP1169384) is approved subject to the conditions contained at Annexure "A". (Consent) 6. On or about 28 February 2022, the Applicant's solicitor wrote to Council asking Council to confirm the development has been physically commenced.2 7. On 15 March 2022, Council officer, Brendan Leo, responded to the Applicant's solicitor as follows:3 As you are probably aware, Council has no legal authority to declare or confirm that any development consent has been physically commenced or otherwise as this is a matter for the Land and Environment Court. This email should not be construed as support or otherwise concerning the physical commencement of the subject development consent. 8. The Applicant subsequently commenced these proceedings on 30 March 2023. 9. On 15 May 2023, the Applicant filed a motion seeking leave to amend its Summons. The Council, through its solicitors, advised the Applicant's solicitor that amended declaration did not change its position in the proceedings (that is, Council maintains its submitting appearance under Rule 6.11 of the Uniform Civil Procedure Rules 2005). Council's Role in the Proceedings 10. Council has filed a submitting appearance in these proceedings (save as to costs). 11. The Council submits that the facts and circumstances in these proceedings are distinguished from those in PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 (PAG Services). 12. Unlike in PAG Services, prior to the Applicant commencing these proceedings, Council was not requested or required to perform any function or exercise any power under the Environmental Planning and Assessment Act 1979 (EPA Act) to which the question of whether the Consent had lapsed (or whether engineering work had been physically commenced on the Land to which the Consent relates) was relevant or needed to be determined by the Council before exercising any function or power. For example, the Applicant has not lodged a modification application nor has the Council been asked to approve any plans pursuant to any conditions of the Consent. 13. Council maintains that, absent the exercise of any relevant function or power, there is no general requirement or power in the EPA Act for a consent authority to confirm or declare whether a development consent has lapsed. That is consistent with the decision of Biscoe J in Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council [2009] NSWLEC 142 at [10]: In my opinion, the council could not be compelled, nor was it under an obligation, to underwrite that advice by confirming that it was correct. The council was entitled to take no position, as it ultimately did, without being at risk as to costs. Although I do not doubt that that the council's position was a matter which the applicant took into account when deciding to commence the proceedings, I do not think that the conduct of the council prior to commencement of the proceedings should sound in costs. The proceedings having been brought, the council filed a submitting appearance save as to costs. At the end of the day, the applicant was engaged in a process of managing this particular development risk. It appears to have managed the risk prudently, including by bringing these proceedings, but I see no reason why the council should become the financier of that aspect of the applicant's risk management by being required to pay the applicant's costs. 14. Further, even if Council had confirmed the Consent had not lapsed (or that engineering work has physically commenced on the Land to which the Consent applies), any decision of the Council would not prevent a third party from commencing proceedings under section 9.45 of the EPA Act. It is a matter for the Applicant to manage that particular development risk.4 15. In the circumstances, the Council considers it appropriate to have filed a submitting appearance but, notwithstanding this, provides the following submissions to assist the Court. Council's Submissions 16. The onus is on the Applicant to prove, on the balance of probabilities, that engineering work has been physically commenced on the Land to which the Consent relates and that, therefore, the declaration sought in the amended Summons should be made. 17. The Council does not seek to contradict any of the matters raised in the Applicant's submissions filed on 22 May 2023. 18. Based on the factual information provided in the Affidavit of Thomas Ward sworn 29 March 2023, the Council does not consider there is any additional information relevant to the Court's consideration of whether engineering work has been physically commenced on the Land to which the Consent relates. 19. For the reasons outlined above, the Council submits to the Court's determination about whether the declaration sought by the Applicant should be made.

Introduction

During the course of the hearing, I raised three matters with Ms Reid that now require to be addressed.
The first issue was whether or not, given the fact that I was satisfied that the consent could not lapse prior to 25 October 2023, it would be premature to consider whether the consent had commenced as a consequence of the borehole drilling works.
The second issue arising for consideration related to the nature of the borehole drilling activities and their relevant characterisation for the purposes of s 4.53(4) of the EPA Act.
The third issue was whether there was anything in the conditions attached to the 2016 development consent which would act to prevent reliance on the geotechnical borehole drilling if it otherwise satisfied the technical requirements of s 4.53(4).

The 29 May 2023 hearing

I have earlier noted that, at the pre‑trial mention, Ms Reid had handed up her written submissions on all the issues then potentially involved for consideration in these proceedings. It is to be observed that these written submissions comprehensively addressed the matters which then appeared necessary to be addressed. The giving of leave to rely on the Amended Summons, however, when coupled with her written submissions and the material in the affidavit of Mr Ward, removed the necessity for me to consider whether or not the lapsing date had been extended until 25 October 2023. The material provided on this point demonstrated, clearly, that this had occurred as a result of the legislative/regulatory responses to the COVID‑19 pandemic.
It is appropriate to note that, in her oral submissions, Ms Reid took me through all the remaining relevant matters that she had addressed in her written submissions. Given the comprehensive nature of her written submissions, much of what requires to be considered can be addressed by setting out the relevant portions of those written submissions. These are addressed in the relevant later part of this judgment. To the extent that one other matter arose during the course of the 29 May 2023 hearing, that is addressed immediately below.
During the course of her oral submissions relating to the nature of the works which are relied upon in the Company's seeking a declaration that the development consent has commenced, Ms Reid took me to a number of photographs in the Geotechnical and Pavement Investigation Report by Terra Insight dated 5 December 2021. This report is behind Tab 7 of Exhibit A. At folios 84 to 86, the report reproduces a number of photographs (including ones of the activity undertaken on the site in the drilling of the boreholes upon which the Company relies). Although there are several depictions in these photographs of the auger used for this purpose, there is no more than a partial depiction of a small element of a vehicle utilised for this purpose.
As a consequence, during the course of the hearing, I had an exchange with Ms Reid about the specifics of the vehicle potentially arising in the context of condition 4 of the 2016 development consent. Condition 4 is in the following terms: The developer must provide a traffic control management plan complying with the design requirements of the Roads and Maritime Services (RMS) "Traffic Control at Work Sites" manual. The traffic control management plan must be designed by an RMS accredited designer and must be provided to and approved by Council prior to the commencement of any works.
It is not now necessary to reproduce the terms of that exchange but I made it clear how I had intended to address that matter if, in the context of my consideration of condition 4, details of the Roads and Maritime Services Guidelines (RMS Guidelines) mentioned in the condition had warranted detailed consideration in light of the nature of the vehicle and equipment which had been used for the drilling of the boreholes. That exchange was at page 14, line 9 to page 17, line 12 of the transcript of 29 May 2023.
During the course of my judgment preparation, after rereading Ms Reid's written submissions and reading the transcript of the hearing, I concluded that the issue of prematurity did not arise. I also concluded that I did not need to know details of the borehole drilling equipment, or the RMS Guidelines mentioned in Condition 4 of the 2016 Conditions of Consent (although it will later be necessary to address condition 4 in detail).
As a consequence, on 13 June 2023, I had my Associate send an e‑mail to the legal representatives of the parties (it being sent to the Council's representatives for information only). That e‑mail was in the following terms: Dear Parties His Honour has asked me to advise you that, after a rereading of the written submissions on behalf of the Applicant and the transcript of Ms Reid's oral submissions, he has concluded that the question of whether or not it would be premature to determine if the development consent has commenced no longer arises. His Honour proposes to proceed to determine the matter on questions of general principle arising out of the written and oral submissions made on behalf of the Applicant. In particular, in that context, his Honour has reconsidered the matters he raised with Ms Reid concerning whether or not he should have details of the vehicles and plant which carried out the borehole drilling and whether his Honour needs to know the terms of the RMS guidelines adverted to in condition 4 of the development consent. His Honour is presently of the view that, for the purposes of the matters he needs to address in his consideration of matters of general principle, he does not require that information. His Honour has also asked me to advise that if, in light of this communication, the Applicant wished to be heard further on any matters of general principle, his Honour is happy to provide, in the next several weeks, a brief morning opportunity for this to occur. His Honour is prepared to make himself available at 8.30 am for such a short hearing should the Applicant consider that that is desirable. If so, would you please advise me by the close of business Wednesday 14 June 2023 what dates in the following fortnight might be convenient to the Applicant for such an 8.30 am hearing to take place?
The legal representatives of the Company advised my Associate that the invitation to make further submissions on matters of principle was accepted. As a result, a further, short hearing was scheduled for 10 July 2023 to provide the opportunity for this to occur.

The 10 July 2023 hearing

At the 10 July 2023 hearing, Ms Reid made further oral submissions (reflecting what she had addressed orally on 29 May 2023 and in her written submissions) concerning matters of principle necessary to be considered for determining whether or not the development consent had commenced in the fashion proposed for the Company.
The geotechnical exploration works relied upon by the Company, she submitted in summary, were clearly activities falling within the concept of "engineering works". Thus, she proposed I should conclude that s 4.53(4) of the EPA Act was satisfied and the consent had commenced.

Introduction

It is clear that that for which the Company now holds the 2016 development consent is for the erection of a building. It can be seen, from the earlier set out terms of s 4.53, that "engineering works" carried out prior to the lapsing date and in a fashion otherwise consistent with the terms of the consent will cause the consent to commence and thus avoid lapsing.

Ms Reid's submissions

I have earlier noted, at [30], that Ms Reid took me through the detail set out in the Terra Insight report concerning the drilling of the boreholes on the site. It is not necessary to repeat what was there noted. In the context of this activity, Ms Reid turned to address the question of whether or not this activity constituted "engineering works" for the purposes of s 4.53(4) of the EPA Act.
In her written submissions, Ms Reid noted, at paragraph 20, that "engineering work" is not a term defined in the EPA Act. However, she cited the observations of Tobias JA in Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 (Hunter Development Brokerage) at [83] to [86] where his Honour said: 83 In my opinion, the expression "engineering work" in its context of forming part of the composite phrase "building, engineering or construction work", should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. There can be no doubt that engineering as such can involve many different elements: relevantly with respect to a subdivision, it involves civil engineering work such as the design and (possibly) the construction of roads, sewerage systems, drainage and the like. 84 But once consent is granted for a subdivision, the implementation of that consent ultimately resulting in the construction of the subdivision roads, drainage and sewer lines as well as the laying out of the allotments in accordance with the approved layout, requires as a necessary first step in the engineering or construction of that subdivision, including the physical works contemplated thereby, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. This would accord with common sense and industry practice (as to which see [13] above). 85 The carrying out of survey work to establish the correct location of these elements, in my opinion, is capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. Accordingly, it follows that the natural and ordinary meaning of the expression "engineering work" in the context relevant to the present issue is capable of including physical survey work of the nature and extent of that the subject of these appeals. 86 That is not to say that any survey work, albeit of a physical nature, would so qualify. Simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not, in my view, necessarily qualify. There is an element of fact and degree in each case. Although in Besmaw Talbot J (at 436 [112]) observed that once Parliament had decided to delete the requirement of substantiality, there was little room for an argument that the works must not be de minimus, and that it was therefore reasonable to exclude any test of the degree and extent of the work under the present statutory regime, nonetheless the requirement that the relevant work relate to the approved subdivision requires a real nexus between them. In particular, the concept that the work must be "physically commenced", requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved: cf Besmaw at 436 [111].
With respect to the activities undertaken in preparing the survey reproduced at Annexure D, Ms Reid said, in her written submissions: 21 The engineering works relied upon by the applicant involve the physical investigative work required to prepare the construction drawings. The survey works were required to ensure that the boreholes were located in the precise areas of the internal road pavement and the location of the proposed dwelling to ensure that the construction drawings are prepared having regard to the subsoil conditions to ensure their structural adequacy. 22 Having regard to the nature of the preparatory engineering works completed and the broad meaning of the term 'engineering works', the works completed are properly characterised as engineering works for the purposes of s4.53 of the Act as they were preparatory to and necessary for the preparation of the construction certificate drawings.
Ms Reid explained the location of the boreholes which had been drilled, submitting that some were required for the purposes of obtaining geotechnical information necessary for the construction of the proposed driveway, whilst the remaining holes were necessary for the purpose of preparation of construction certificate plans for the building of the dwelling. She submitted that these works satisfied each of the tests that were set out by Tobias JA in Hunter Development Brokerage at [111] ‑ these tests being: (a) Was the work that is relied on to found physical commencement building, engineering or construction works? If so, (b) Did it relate to the approved development? If so, (c) Was it physically commenced on the land to which the consent applied prior to the lapsing date?
Ms Reid's written submissions set out, at paragraphs 17 to 20, why she proposed that the Terra Insight borehole drilling satisfied the first of the above tests described by Tobias JA. She said: The Works relied upon by the applicant to physically commence the development were engineering works 17. The applicant relies upon the affidavit of Thomas Allen Ward affirmed on 29 March 2023 (including Exhibit TAW‑1) as evidence in support of the making of the declaration sought. Relevantly, the applicant (through its agents and assigns) has completed the following 'engineering works': a. Seven boreholes were dug under the supervision of a geotechnical engineer on the Land on 3 September 2021: i. Four boreholes to 1.0m depth or refusal on shallower rock (where shallower) were dug along the proposed internal road to obtain information to prepare the pavement design; and ii. Three deep boreholes were dug around the location of the proposed dwelling to obtain information to inform the foundation design. b. A geotechnical assessment was undertaken, and a report prepared, on the basis of the borehole work which included laboratory testing and analysis of the material extracted from the boreholes and recommendations for the engineering design. c. A survey was obtained to confirm the locations of the boreholes relevant to the location of the proposed development on the Land to properly inform the design details for the construction certificate. 18. The boreholes were completed under the onsite, full‑time observation of a geotechnical engineer that observed the general site conditions. 19. The geotechnical and survey work were required as a first step in the performance of the engineering work to develop the construction certificate drawings required by conditions of consent 10, 13 and 15‑17 which provide: 10 A separate application for the On‑site Sewerage Management System must be submitted to and approved by Council under s 68 of the Local Government Act 1993 as amended prior to release of the construction certificate. 13 No building work is to commence until details prepared by a practising structural engineer have been submitted to and accepted by the Principal Certifying Authority for any reinforced concrete slabs, footings or structural steel. Civil Engineering Design 15 All flexible road pavements must be designed in compliance with the Austroads publication with Pavement Design for Light Traffic ‑ A Supplement to Austroads Pavement Design Guide). (ced005.doc) 16 The proposed pavement treatment must be identified and the design detail must be submitted to the Principal Certifying Authority for assessment and approval prior to the release of the Construction Certificate. (ced015.doc) 17 The developer must submit details of all civil engineering works, on engineering drawings, to the Principal Certifying Authority for approval prior to the issue of the Construction Certificate. (ced095.doc)
Ms Reid's written submissions next set out, at paragraphs 23 to 27, why she proposed that the Terra Insight borehole drilling satisfied the second of the tests described by Tobias JA. She said: The engineering works 'relate' to the approved development 23. The phrase 'relating to' in the context of s95(4) of the Act has been the subject of judicial consideration. In Hunter Developments, Tobias JA stated: …the erection of a dwelling begins with clearing of the site followed by its pegging out and then the digging of trenches for footings. It must logically follow that the erection commences with the first of those items. It matters not that neither the clearing of the site, its pegging out nor the digging of trenches involves the actual erection of the fabric of the building. So in the present cases, once it is accepted that the survey and geotechnical investigation work that was carried out was "engineering work", it must follow that that work, in the context of a development consent to a subdivision was, to adopt the words of McTiernan J in Owendale, "an initiatory step" in the process of subdividing the relevant land in accordance with that consent. Provided that "initiatory step" is a necessary part of that process that is all the statutory provisions require. Accordingly, whether one describes that step as preparatory is irrelevant. 24. Tobias JA further stated: I accept that the ambit of the expression "relating to" depends upon the context in which it appears…It involves, at the very least some real relationship or connection between the work and the subdivision in respect of which the consent has been granted. In my opinion, the required connection or relationship is satisfied if the relevant work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent. 25. Having regard to the engineering works relied upon by the applicant, it is clear that the works are not merely preparatory but were a necessary step to enable the works to be completed and the civil engineering designs for the construction certificate to be prepared. 26. The letter of 1 September 2021 prepared by PMI Engineers confirms that PMI Engineers (structural engineers) have been asked to prepare a structural design and appropriate certification to comply with conditions 13, 15, 16 and 17 of the Consent. The letter sets out the investigations that are required to be undertaken to inform the structural design and certification, which include confirmation of the soil conditions by a geotechnical engineer to establish: a. Allowable bearing capacities for foundation beams and an appropriate foundation design; b. Parameters dictating the design of basement retaining walls including soil unit weights, active, at rest and passive soil pressure coefficients and the location of water table, if applicable; and c. Evaluation of the subgrade to design the driveway pavement in accordance with the relevant standards. 27. The Terra Insight report of 5 December 2021 provides a detailed assessment of the ground conditions on the Land and the investigations that were undertaken by the geotechnical engineer.

Consideration

The first matter to be addressed, an uncontroversial one in the circumstances, is whether the drilling of the exploratory geotechnical boreholes is to be regarded as "engineering works", in the sense that that term was addressed by Tobias JA in Hunter Development Brokerage.
The first two of the tests posed by Tobias JA (noted at [42]) are satisfied. This is because, for the reasons advanced by Ms Reid, at the time those boreholes were drilled, they did satisfy those tests (although it is to be noted that, as a result of subsequent legislative amendment, they would no longer be so regarded).
The final test described by Tobias JA (Was it physically commenced on the land to which the consent applied prior to the lapsing date?) gives rise to two separate matters requiring consideration. The first of these is whether the activity physically took place prior to any potentially engaged lapsing date. Self‑evidently, the Terra Insight borehole drilling took place before the lapsing date as that date has not yet been reached.
The second matter, however, requires consideration of the effect (if any) of each of the unsatisfied conditions of consent in determining whether this activity can be relied upon for the purpose of satisfying the third test. This is addressed next.

Introduction

Having accepted that the drilling for the boreholes for the geotechnical sampling works undertaken by Terra Insight were "engineering works" in the fashion discussed by Tobias JA in Hunter Development Brokerage, what next requires consideration is whether or not there was anything in one or more of the unsatisfied conditions that had been attached to the development consent at the time of its being granted that prevents those "engineering works" from causing commencement of the consent.
The second matter is, therefore, to consider whether any of the unsatisfied conditions of consent act as a condition‑precedent barrier to concluding that the consent has commenced.
As earlier noted, the 2016 consent had a range of conditions attached to it. The first of the conditions lists the plans (primarily) and documents expressly incorporated in those conditions. It is to be noted that I have not sought to retrieve the Court's file for the 2016 decision from the Court's archives. This is because there is no document in the Table of Documents in condition 1 which is potentially relevant to the matters requiring consideration in these proceedings and nothing arose from Ms Reid's written or oral submissions which would cause me to have regard to any of the listed documents, save to the extent that they have been tendered on the Company's behalf as part of the documents in Exhibit A.
As Ms Reid noted at paragraph 37 of her written submissions: The Consent includes 49 conditions. Of relevance to the question before the Court are the conditions expressed as being required to be satisfied before the commencement of 'works', being conditions 4, 6, 7, 8, 11, 12, 13, 40. The real question is whether those conditions apply to the preparatory engineering works relied upon by the applicant for physical commencement of the Consent.
The terms of each of these unsatisfied conditions were set out in Ms Reid's written submissions. In each instance, her written submissions explained concisely why she proposed that these conditions did not give rise to any barrier to concluding that the development consent had commenced.
It is to be noted that the numbering of the extracted conditions is as appearing in her written submissions, rather than reflecting accurately the number of the referenced condition. Relevantly, her written submissions were in the following terms: 28. The letter of 19 January 2022 prepared by PMI Engineers confirms that the Terra Insight report and investigations are sufficient to inform the preparation of the structural design and certification required to comply with conditions 13, 15, 16 and 17 of the Consent. … 30. In Hunter Development, Tobias JA acknowledged that lapsing matters turn on questions of fact and degree, which is consistent with the Court's consideration of such matters, that undertake consideration of the proper construction of the Consent. Proper construction of the Consent …. Principles of construction 34. Development consents are rarely drafted with the degree of formal complexity usually found in documents prepared by lawyers and the need to construe them in a common sense manner has been recognised by the authorities. 35. The principles of interpretation of development consents were summarised by Pepper J in Nash Bos Builders Pty Ltd v Riverina Water County Council (no 2) [2015] NSWLEC 156: [140] The principles of construction of development consents are well known and may be summarised as follows: 1. consents are to be construed, "not as documents drafted with legal expertise, but to achieve practical results" (Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 at [36] per Hodgson JA, Baulkham Hills Shire Council v Ko veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [96]‑[100] and Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 at [80]); 2. consents are to be construed fairly and liberally, with the meaning of their text to be determined objectively, having regard to the context in which the consent was issued, and taking into account the fact that, unlike a contract, a consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as for the applicant (House of Peace Pty Ltd v Bankstown … 5. the words of a development consent have the meaning that the consent authority is objectively taken to have intended them to have. Ordinarily that meaning will correspond to the grammatical meaning, but not always. The context of the words, the consequences of a literal or grammatical construction (such as absurdity or inconsistency), the purpose of the development consent, and orthodox cannons of construction may require an alternative interpretation (Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252; at [28] per Biscoe J). 36. The conditions of the Consent are of some complexity as they contain imprecise language and random order. Consistent with the principles of statutory construction, the Consent must be construed as whole to give effect to the reasonable expectations it engenders using common sense rather than in a legalistic manner. …. 38. Condition 4 has not yet been complied with and is located under the 'General' heading in the Consent and requires: The developer must provide a traffic control management plan complying with the design requirements of the Roads and Maritime Services (RMS) "Traffic Control at Work Sites" manual. The traffic control management plan must be designed by an RMS accredited designer and must be provided to and approved by Council prior to the commencement of any works. (g130.doc) 39. Condition 4 clearly relates to any construction works to ensure that there is safe access and egress to the site. As a matter of logic, the condition does not apply to preparatory works as those works do not generate sufficient traffic to warrant a traffic control management plan. 40. Condition 6 has not yet been complied with and is located under the heading 'Prior to Commencement of Works' in the Consent and requires: 1 Building work must not commence until the Principal Certifying Authority for the development to which the work relates has been informed of: i The licensee's name and contractor licence number; ii That the licensee has complied with Part 6 of the Home Building Act 1989. In the case of work to be done by any other person, the Principal Certifying Authority: a Has been informed in writing of the person's name and owner builder permit number; or b Has been given a declaration, signed by the owner/s of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner‑builder work in Section 29 of the Home Building Act 1989. (pt005.doc) 41. Condition 6 is framed as applying precedent to the commencement of 'building works' and contextually relates to the construction of the dwelling. Condition 6 does not apply to the preparatory engineering works relied upon by the applicant in these proceedings. 42. Condition 7 has not yet been complied with and is located under the heading 'Prior to the Commencement of Works' in the Consent and requires: 2 The developer must lodge with Council a bond of $4,000.00, in the form of an unconditional bank guarantee or cash, prior to the commencement of any work, as security for new and remedial work associated with the development proposal and covering all work within the public roads administered by Council under the Roads Act 1993 and compliance with the submitted Waste Management Plan during the course of construction. The developer shall submit a dilapidation survey prior to commencement of any work within the road reserve. The bond shall be refunded in full subject to the following:‑ a There being no damage to the infrastructure within the road reserve. b Twelve (12) months has elapsed from the date of issue of the occupation certificate and/or subdivision certificate. c The submission and approval by Council of a waste compliance certificate, inclusive of supporting documentation (dockets/receipts) verifying compliance with the Waste Management Plan as provided to Council. (pt013.doc) 43. The requirement for a bond relates to the substantive works authorised by the Consent which might have the effect of causing damage to Council's infrastructure which is consistent with the terms of the condition which refer to the works 'during the course of construction'. Condition 7 does not apply to the preparatory engineering works relied upon by the applicant in these proceedings. 44. Condition 8 has not yet been complied with and is located under the heading 'Prior to the Commencement of Works' in the Consent and requires: 3 Work may not commence on the development until the following is carried out: a Detailed plans and specifications of the building must be endorsed with a Construction Certificate by Council or an Accredited Certifier; and b A Principal Certifying Authority (can be either Council or an Accredited Certifier) has been appointed; and c Council has been notified of the appointment of the Principal Certifying Authority; and d Council has been provided at least two (2) days' notice of the intention to commence work. Note: An application form for a Construction Certificate is attached. Should you require Council to issue this Certificate you should complete this application and forward it, together with plans and specifications, to Council for approval. You will find attached a form for the "Notice of Commencement of Building Work and Appointment of Principal Certifying Authority", which you are required to submit to Council at the appropriate time and at least two (2) days prior to the commencement of work. Should you appoint Council as the Principal Certifying Authority, relevant inspection fees will be required to be paid at the time of lodgement of this form. (pt020.doc) 45. Condition 8 applies to the construction works rather than the preparatory engineering works as it can only be complied with once those investigations have been completed and a construction certificate issued. The engineering works are precedent to the issue of the construction certificate and therefore condition 8 does not apply. 46. Condition 11 has not yet been complied with and is located under the heading 'Prior to the Commencement of Works' in the Consent and requires: 4 The developer must obtain a Construction Certificate prior to the commencement of any civil engineering works. (pt045.doc) 47. The condition does not apply to the preparatory geotechnical engineering works required to prepare the construction certificate documentation. 48. Condition 12 has not yet been complied with and provides: 5 A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: a Showing the name, address and telephone number of the Principal Certifying Authority for the work; b Showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours; and c Stating that unauthorised entry to the work site is prohibited. Note: Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. The sign will be provided by the nominated Principal Certifying Authority for the relevant fee. (pt060.doc) 49. Condition 12 clearly applies only to building work, subdivision work and demolition work which does not capture the nature of the work relied upon by the applicant in these proceedings.
Her written submissions did not address conditions 13 or 40.
She also briefly addressed these conditions during the course of her oral submissions. It is not necessary to quote from the transcript of this passage of her oral submissions.

General responses to the conditions (except condition 4)

In paragraph 37 of her written submissions, Ms Reid nominated the eight conditions which she identifies as not having been satisfied prior to the carrying out of the borehole drilling activities upon which the Company relies. This paragraph of her written submissions is set out above at [52].
I now turn to set out my responses to her submissions on the conditions not yet complied with (other than condition 4 ‑ a condition requiring separate and more detailed consideration).
Condition 6, earlier set out, although in a part of the Conditions of Consent with the heading "Prior to commencing works", makes it clear that what is required by the condition is necessarily precedent to the commencement of building work ‑ what being engaged for the purposes of these proceedings not being building work for reasons later explained, this condition creates no barrier to granting the declaration sought by the Company in these proceedings.
Although condition 7 is expressed to need to be satisfied prior to the commencement of any work, a reading of that condition makes it clear that the matters that are engaged by the condition have no potential applicability to the undertaking of the works upon which the Company seeks to rely for present purposes. It cannot, therefore, act as a barrier to the granting of the declaration sought by the Company.
Condition 8 relates, clearly, to building works and, although couched in broad terms, cannot create a barrier to the carrying out of the borehole drilling upon which the Company seeks to rely.
Condition 11, as Ms Reid observed at paragraph 47 of her written submissions, cannot apply because the engineering works upon which the Company now seeks to rely were necessary prerequisites to the preparation of construction certificate documentation. For it to be held that condition 11 acted as a barrier to the carrying out of such necessary prerequisite works would be to impose a condition embodying the circularity of the type addressed by Joseph Heller in Catch‑22 - clearly, as in that novel, a position of absurdity.
Condition 12, as Ms Reid observed, only requires, as can be seen from its terms, satisfaction prior to the commencement of building work, subdivision work and demolition work, none of which were engaged prior to the borehole drilling activities upon which the Company relies.
Condition 13, although not addressed by Ms Reid, relates to building work and is clearly irrelevant for present purposes.
Although condition 40 is also nominated as part of the list of unsatisfied conditions, Ms Reid did not deal with that condition in her written submissions concerning the unsatisfied conditions. She did not address this condition, either, in her oral submissions.
However, it is unnecessary to set out the terms of this condition (a condition appearing in the part of the Conditions of Consent headed "Landscaping works"), as it deals with revegetation of portion of the building platform for the proposed dwelling and requires the preparation, submission and approval of a restoration works plan prior to the issue of a construction certificate. It clearly has no applicability in these proceedings.

Introduction

I have earlier set out Ms Reid's written submissions which addressed each of the conditions in the development consent which had not yet been satisfied and my conclusions as to the irrelevance of all of them save for condition 4.
For present purposes, a further, more detailed consideration is necessary to address condition 4, as I am satisfied that compliance with this condition is a mandatory, necessary prerequisite to the carrying out of any works (including the works relied upon for seeking the declaration in the Company's Amended Summons) as causing the consent to have commenced.
The conditions attaching to the 2016 development consent are structured in a series of Parts. There are a number of conditions of consent which have not yet been satisfied. These are in the following Parts:

General - conditions 1 to 5
Prior to commencement of work ‑ conditions 6 to 14
Civil engineering design ‑ conditions 15 to 17
Car parking and vehicle access ‑ condition 18
Stormwater management ‑ condition 19
Civil engineering construction ‑ conditions 20 to 22
Inspections ‑ condition 23
Building construction ‑ conditions 24 to 31
Erosion and sediment controls/soil and water management ‑ conditions 32 to 35
Landscaping works ‑ conditions 36 to 40.
Site facilities ‑ conditions 41 and 42
Prior to occupation ‑ conditions 43 to 49.

Thereafter follows comments under the headings "Reasons" and "Notes" (which notes provide advice to the beneficiary of the consent).
I repeat Condition 4. It is in the following terms: The developer must provide a traffic control management plan complying with the design requirements of the Roads and Maritime Services (RMS) "Traffic Control at Work Sites" manual. The traffic control management plan must be designed by an RMS accredited designer and must be provided to and approved by Council prior to the commencement of any works.
As can be seen above, condition 4 is in the Part of the conditions entitled "General". To the extent that a contextual inference may be drawn from the fact that condition 4 appears close to the commencement of the list of 49 conditions of consent, and under the heading "General", that it is intended that this condition is applicable to all activities contemplated to be undertaken pursuant to the development consent, I draw that inference. However, that inference is not to be given great weight as condition 3 requires the schedule of finishes to be provided to, and approved by, the Council prior to the release of the construction certificate.
During the course of my subsequent detailed consideration of the issues arising concerning condition 4 addressed below, I concluded that condition 4, and the fact that it has not been satisfied, as here explained, gives rise to an insurmountable barrier, on the basis of general principle, to me concluding that the consent has commenced.

Ms Reid's submissions concerning condition 4

It is, therefore, appropriate to set out again the terms of Ms Reid's written submissions concerning this condition. She said: Condition 4 has not yet been complied with and is located under the 'General' heading in the Consent and requires: 4. The developer must provide a traffic control management plan complying with the design requirements of the Roads and Maritime Services (RMS) "Traffic Control at Work Sites" manual. The traffic control management plan must be designed by an RMS accredited designer and must be provided to and approved by Council prior to the commencement of any works. (g130.doc) Condition 4 clearly relates to any construction works to ensure that there is safe access and egress to the site. As a matter of logic, the condition does not apply to preparatory works as those works do not generate sufficient traffic to warrant a traffic control management plan.
During the course of her oral submissions, Ms Reid addressed condition 4 in the following terms (Transcript 29 May 2023, page 13, lines 23 to 39): Relevantly, condition 4 is a condition of consent which is set out under the General heading, and you'll find that in exhibit A under tab 1 at the foot of folio 6, and it's at the top of folio 7, and that is, "the developer must provide a traffic control management plan complying with the design requirements of the Roads and Maritime Services Traffic Control at Work Sites Manual. The traffic control management plan must be designed by an RMS accredited designed and must be provided to and approved by council prior to the commencement of any works", and in the construction of that condition in the context of the whole of the consent, I say that the Court would construe that as a relating to the consent works rather than the preparatory works that are required by the geotechnical investigations to inform the civil drawings that I earlier took the Court's attention to.
Ms Reid then took me to the passage in the judgment of Robson J in Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122 (Benedict Industries), where his Honour considered, and adopted as appropriate, the discussion by Pepper J in Nash Bros Builders Pty Ltd v Riverina Water County Council (No 2) [2015] NSWLEC 156 (Nash Bros). The relevant portions of the judgment of Pepper J in Nash Bros concerning the approach to be taken to conditions of consent has been earlier set out in my extract from Ms Reid's written submissions. It is unnecessary to repeat them here.
Ms Reid submitted (Transcript 29 May 2023, page 13, line 44 to page 14, line 7): His Honour was construing a consent that related to some preparatory works of a different nature, and there were a number of conditions that were required to be complied with prior to any work commencing, and when his Honour construed the consent as a whole he found in that particular instance that the preparatory works were not intended to be included in the "any work" as those conditions were to be met prior to the work subject of the consent commencing, and in the particular circumstances of this case, when the intention of the relevant conditions are considered it is clear that the single traffic movement for the entry onto the site for the geotechnical works to be completed is not of a type or scale that would otherwise require traffic control at worksites to be part of a traffic control management plan for the site and that would rather be directed at the larger more substantial works that form part of the building or construction works.

Consideration

I am satisfied, for reasons which are set out below, that the failure to satisfy the terms of condition 4 of the development consent prior to the carrying out of the engineering works acts as an insurmountable barrier to those works being regarded as causing the consent to have commenced.
As Ms Reid explained in paragraph 29 of her written submissions, works that failed to comply with a relevant consent condition cannot not be relied upon as commencement of work approved by the development consent (Iron Gates Developments Pty Ltd v Richmond‑Evans Environmental Society Inc (1992) 81 LGERA 132).
As can be seen above, works can, as a matter of general proposition, be classified as being building, construction or engineering works. The proposition advanced by Ms Reid, with respect to condition 4, is that this condition should be read in a narrower sense than that which would arise if it was to be construed as requiring satisfaction prior to the carrying out of any works on the site. The terms of her submission in this regard have been set out above. I am unable to accept this proposition.
It is to be noted that the condition with respect to which Robson J was dealing in Benedict Industries was a condition in a specific and focused area of the relevant conditions of consent with which his Honour was engaged. In this respect, it is not appropriate, I am satisfied, to draw any general conclusion from that consideration of the specific condition in Benedict Industries for application to the present position here engaged for an early condition in the section of conditions of consent entitled "General".
The construction proposed for the access driveway proposed to serve the approved dwelling is one of a nature consistent with the roadway addressed by the Court of Appeal in Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240. The decision of Basten JA in those proceedings, at [85] to [98], makes it clear that the construction of such a road does not constitute building work and, therefore, does not require the issuing of a construction certificate by a principal consent authority to authorise the works necessary for that purpose.
There can be no doubt that the carrying out of works to create the driveway would necessarily involve significant movement by plant and equipment onto the property from Fern Street.
That fact, in conjunction with the fact that condition 4 occurs in the Part of the Conditions of Consent headed "General" causes me to conclude that a proper understanding of the framework of the conditions of the consent, and of condition 4 specifically, gives rise to the outcome that it was intended to be, as the heading implies, one of general (and therefore universal) application, requiring satisfaction prior to the carrying out of any works at all on the site.
It is in this regard that I have concluded that condition 4 of those conditions was required to be satisfied before any works were permitted to be carried out on the site (including the works now relied upon by the Company as demonstrating commencement of the consent).
The failure to satisfy condition 4 prior to the carrying out of the works upon which the Company relies for the purposes of seeking the declaration in its Amended Summons were works carried out in breach of condition 4, and therefore cannot have the effect proposed for the Company. That precludes any declaration being made that those works resulted in the consent commencing.

Orders

The Court orders that: 1. The Amended Summons is dismissed; 2. The application for a declaration that Development Consent 10.2015.77.1 dated 25 October 2016 for the construction of a dwelling at 242 Fern Street, Gerringong has commenced is refused; and 3. The exhibits are returned.

Annexure A Annexure A - meeting report - 22 Sep 20 (199441, pdf)

Annexure D 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: 21 July 2023

(2009) 167 LGERA 395

(2011) 183 LGERA 228

(2012) 188 LGERA 252

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Cases Cited (18)