Fyvit Pty Limited v. Gosford City Council [1998] NSWLEC 102

The evidence of Mr Jeffery and Mr Cowley was adduced to prove that the engineering plans satisfy the description of the plans required to be submitted by condition 11. Mr Jeffery and Mr Cowley each deposed to their opinion that the plans that they had respectively prepared dealt with sediment and erosion control, nutrient control and stormwater run-off, and each of those plans was prepared in accordance with the publication "Urban Conservation and Sediment Control". Neither Mr Jeffery nor Mr Cowley were cross-examined, and, as I have said, the council adduced no evidence. I accept, therefore, that the engineering plans satisfy the description of plans required to be submitted by condition 11.

Mr Cotter deposed to conversations which he had had with various council officers. The applicant claims that some of those conversations establish that the engineering plans have in fact been approved by the council. The relevant evidence is as follows:

Conversation between Mr Gary Lofts, a council officer and Mr Cotter on 17 July 1998:

"Cotter: OK, I'd like to have the approved Sedimentation Control Plan. Do you have them?

Lofts: I'm not sure that I have them with me. I'll have to locate the file and let you know this afternoon.

Cotter: The sediment plans were submitted on 5 June 1998 and we believe they are approved and would like them released. You do have them don't you?

Conversation between Mr Phil Coon and Mr Rod Burrough, both council officers, and Mr Cotter on 17 July 1998:

"Cotter: I'd like to confirm that you have the stormwater plans and that you are happy with them.

Coon: Yes I have all the plans and they seem to be fine. I may just have to add a few standard conditions to the general notes on plan number HPD1/93-1. Do you mind?

Cotter: So, Phil, you are happy with the stormwater plans and do not need any more details?

Further conversation between Mr Lofts and Mr Cotter on 17 July 1998:

"Cotter: Gary have you been able to find the approved Sediment Control Plans yet?

Lofts: I haven't had a chance however I asked Phil Coon and he said he hasn't got them."

Mr Cotter annexed to his affidavit some correspondence between the council and the applicant. One letter, dated 26 May 1998, contained a request by the council to the applicant for further information encompassed in some 42 items. Item 1 dealt with the design and details of sediment and erosion control. In a later letter, dated 16 June 1998, the council advised the applicant that, amongst others, item 1 had been "assessed and accepted".

Mr Cotter was cross-examined at some length about the nature of the development the subject of the development consent. He said that it was a large development and some excavation was required. (I note that the engineering plans show the site to be a sloping one). He conceded that some of the structures delineated in the engineering plans required further detail. He said that a building application had been lodged, and acknowledged that council had been taking the usual steps in assessing it. He confirmed that the building application had not yet been determined.

Finally, Dr Flick formally admitted on behalf of the applicant that an inspection of the council file revealed that it did not contain any evidence that the engineering plans had been the subject of a resolution of the council.

In my opinion, condition 11 contemplates the lodgment, processing and approval of the engineering plans as part of the building application approval process. Hence, the reference to "approval" of the council is a reference to the building approval.

I reach that conclusion from a consideration of the purpose of condition 11, the context in which it appears, and the language used. Condition 11 is a condition of development consent in respect of a large development upon a sloping site. In those circumstances, the question of the possibility of adverse impact from erosion, sediment transfer and stormwater run-off bears greater significance than usual. The purpose of condition 11 is to mitigate that adverse impact. Hence, condition 11 requires control of erosion and minimisation of downstream sediment transfer both during and after construction, and the appropriate collection of stormwater run-off from all roofed and paved areas.

That context underlies the requirement for plans which provide "... full details for both short term control during construction and establishment, plus the ongoing operation of the system". The context also explains why condition 11 provides for the engineering plans "... to be resubmitted with the building application ...". The council needs to be satisfied that adverse impact will not occur. That can only be assessed in the light of the proposed construction because the controls are to apply after construction as well as before. The council can only satisfy itself of the mitigation of impact in the course of an assessment of the proposed building works, because the detail of those building works bears upon the possibility of impact.

In that context, too, the last sentence of condition 11 can be understood. No preparatory works are to be carried out on the site until the council has "approved" the engineering plans. That stricture is obviously designed to mitigate adverse impact.

It follows therefore, that I reject Dr Flick's submission that the "approval" required by condition 11 is merely a mechanical task to be undertaken by the council after the engineering plans are lodged. It is not, as he contended, simply a part of the development approval process that the Court left for the council to attend to when the engineering plans were before it.

Nor does condition 11 contemplate some separate council approval. It would be unusual for a council to approve aspects of a development in a piecemeal way, although no doubt it could be done. But it would need clearer language than the language of condition 11. Indeed, the reference to the re-submission of plans "with the building application" indicates a contrary intention.

Furthermore, I do not accept that the council has, in any event, approved the engineering plans. The conversations between Mr Cotter and the council officers do not constitute council approval. Those who were questioned by Mr Cotter obviously believed that they were being questioned about the whereabouts of the engineering plans, not that they were being asked to approve them or at least to confirm their approval. That conclusion is not disturbed by the letter noting that the engineering plans had been "assessed and accepted", nor by Mr Cotter's evidence, in cross examination, that normal practice involves the assessment of various aspects which are then put aside whilst the remainder of the assessment process takes place. The letter to which I have referred is council's reply consequent upon further information being lodged by the applicant in response to the council's request. In that context, it is merely an acknowledgment that the information has been accepted as satisfying the request. And Mr Cotter's ev idence merely reflects the approval process, it does not establish an approval of the engineering plans independent of the whole building application approval process.

Dr Flick asserted that, if the Court were to hold that approval of the engineering plans contemplated by condition 11 was part of the building approval, it would amount to an illegitimate extension of the statutory requirement for building approval. He submitted that some of the matters set out in the engineering plans would not, individually, require building approval under s 68 of the Local Government Act 1993, and hence a construction of condition 11 which requires building approval in respect of them would be beyond the requirement of s 68.

In my opinion, that contention misconceives the nature and effect of condition 11. It does not purport to require building approval for works which would not require such approval under the statute (even if the engineering plans contained such works). Rather, its effect is to require the assessment of sediment and erosion control and stormwater run-off works, not in isolation, but together with building works as a whole.

The council has not yet completed its assessment of the building application, and I do not understand the applicant to be seeking an order in the nature of mandamus to compel it to complete that assessment and to grant or withhold building approval. I do not deal, therefore, with the submissions put by Dr Flick in relation to the circumstances in which an order in the nature of mandamus might lie.

In accordance with the foregoing reasons, the application must be dismissed. I make the following formal orders:

2. The applicant must pay the costs of the council as agreed or as assessed.

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.