The Iron Gates ground
47 In Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc the Council had granted development consent for the subdivision of land on 20 October 1988. The subdivision was to take place in four stages. The development consent was subject to a condition, Condition 2, that the road proposed in an associated development application "be constructed in accordance with any conditions of consent imposed prior to the commencement of stage 1". Some work of clearing and removal of top soil was carried out on the land, which the owner of the land contended was commencement within s 99 of the unamended Act. The necessary terms of that provision have been set out earlier in these reasons.
48 Handley JA, with whom Mahoney JA and Rogers AJA agreed, said (at 134-5) -
"The work done on the subject land prior to 21 October was associated with stage 1 of the project. The judge held that condition 2 of the development consent prohibited any work on stage 1, including setting out the internal access road, until the external access road had been constructed. There was no dispute that the external access road had not been constructed. In these circumstances the judge concluded that the developer 'may not be permitted to rely on the work done on the subject site because it was done unlawfully in breach of condition 2'.
Senior counsel for the appellant did not challenge the construction of condition 2 accepted by the trial judge or question the validity of the condition. His submission to this Court was that the physical work done on the site in breach of condition 2 was nevertheless work 'relating to that development' for the purposes of 99(2)(a) , so that 'the development the subject of [the] consent' had been commenced in time.
The imposition of conditions on the grant of development consent is authorised by s 91 and such conditions are enforceable as if they were part of the Act: see ss 122(b)(iii), 123, and 125. In my opinion the work found to be engineering work which was relied upon by the appellant to save its consent from lapse was prohibited and illegal and the persons offending against that prohibition were guilty of offences against the Act for the purposes of s 125(1). It is not necessary in this case to explore the possible application of the principle that a person may not rely upon his own wrong: compare Alghussein Establishment v Eton College [1988] 1 WLR 587. In my opinion the work in question was not work 'relating to that development' for the purposes of s 99(2)(a) because it was prohibited by the consent, and therefore was not 'the subject of that consent' within s 99(1)(a)."
49 His Honour went on to note that the conclusion to which he had come had been reached by the courts in England on the corresponding provisions of the Town And Country Planning Act 1971 (UK), referring to Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35 at 41; Oakimber Ltd v Elmbridge Borough Council (1991) 62 P & CR 594 at 609, 616; and F G Whiteley & Sons Ltd v Secretary of State for Wales (1992) 64 P & CR 296. He cited a passage from the last of these cases in which it was said that if operations contravened the conditions "they could not properly be described as commencing the development authorised by the permission". His Honour concluded that the subdivision consent lapsed on 21 October 1991.
50 The reasoning of Handley JA was that the work on which the owner of the land relied was prohibited by the development consent and illegal. Being so prohibited and illegal, it was not work "relating to that development": it could not properly be described as commencing the development. It therefore could not be said that "the development the subject of that consent" had commenced. Why was the work prohibited by the development consent? On the construction of condition 2 accepted by the trial judge, and unchallenged on appeal, the condition prohibited any work on stage 1 until the external access road had been constructed. The external access road, being the road proposed in the associated development application, had not been constructed. So the prohibition stood, and was given effect because a breach of the unamended Act could be restrained (s 123) and was an offence (s 125), a breach of the unamended Act including a breach of a condition subject to which a development consent was granted (s 122(b)(iii)).
51 It will be noted that the reasoning involved a prohibitory effect of the condition of the development consent itself. Condition 2 in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc did not in terms prohibit work on stage 1. It said that the road had to be constructed before stage 1 could be commenced. The unchallenged construction of condition 2 was therefore important.
52 In Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 one of the issues was whether a development consent for the emplacement of coal refuse had lapsed. The material provision was s 99 of the unamended Act. The development consent had been granted on conditions which included that the owner of the land enter into a particular deed with the Minister "prior to the commencement of any work on the land in relation to the proposed development" (condition 9) and that an operations manual to do with the emplacement be prepared and submitted for the approval of the Council "prior to the commencement of construction of the proposed development" (condition 13). Neither of these things was done. The owner of the land relied on work it had carried out prior to the lapsing date by way of commencement of the development. It was held, by Stein JA and Hodgson CJ in Eq in separate reasons with Meagher JA agreeing with both, that the development consent had lapsed.
53 Stein JA said (at 256) that the conditions were clear, and that compliance with them was a precondition to work commencing on the site. After citing from Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc, his Honour said (at 257) -
"Although this case was decided in 1992, it is my respectful opinion that the interpretation of the provision, included in the statute in 1979, was obvious. That is, that work done unlawfully under the consent cannot count as commencement to prevent the lapsing of a consent under s 99. Applying Iron Gates means that none of the work done on the site from July 1984 up to November 1985 can be taken into account. That work was performed in breach of the consent because it occurred before either condition 9 or 13 were complied with. Both conditions were required to be complied with prior to the commencement of any works on the land. As I have said, they were preconditions to any work taking place on the site.
It must follow that the consent lapsed on 9 November 1985 pursuant to s 99 of the Act because it had not been physically commenced within two years."
54 Hodgson CJ in Eq said (at 262-3) -
"In my opinion, if there is a requirement that one do X before one does Y, this normally means one is required not to do Y until one has done X; so that if one in fact does Y before doing X, there is a breach of the requirement which can be characterised both as 'failing to do X before one did Y' or as 'doing Y in circumstances where one had not previously done X'; and there is a breach of the requirement under the latter description just as much as the former.
There may however be some cases in which a requirement to do X before one does Y is not fairly interpreted as a requirement not to do Y until one has done X: for example, if it is plain between the giver and receiver of the requirement that if, for whatever reason, the receiver does not do X before the expected time comes to do Y, the receiver should nevertheless go ahead and do Y. As one instance of this, if a parent says to a child 'tidy your room before you go to school', both may understand very well that if the room is not tidied before the proper time for going to school, the child should nevertheless go to school at the proper time. In such a case, the failure to tidy the room would be a breach of the requirement, whereas going to school at the proper time would not be, even if the room had not then been tidied. If the proper time for going to school was 8 am, the instruction would be interpreted as a requirement to tidy the room before 8 am and not as a requirement to refrain from going to school at 8 am if the room was not then tidy. By contrast, an instruction by a parent to a child to 'finish your homework before you watch television' would most likely be understood as meaning 'do not watch any television until you have finished your homework'.
In the case of both condition 9 and condition 13, I think it is clear as a matter of construction that Kembla was required to refrain from commencement until it had done what those conditions had required. There is no basis in the consent or in the circumstances for any suggestion of a common understanding that commencement was to go ahead at some expected time, even if these things had not been done by them. On the contrary, having regard to the significance of the requirements, and the difficulties that could arise (and in the case of condition 9 at least, did arise) if they were not attended to before commencement, the terms of the consent and the circumstances in fact confirm that Kembla was required not to commence before complying with the requirements of condition 9 and condition 13.
Accordingly, as found by Stein JA, all work done by Kembla was unlawful, and the Iron Gates principle applies."
55 Section 95(4) of the Act (1999) is in different terms from s 99 of the unamended Act. It does not speak of work "relating to that development", instead speaking of work "relating to the building, subdivision or work". It does not speak of commencement of "the development the subject of that consent", instead speaking of the physical commencement of building, engineering or construction work "on the land to which the consent applies". These differences do not, in my opinion, detract from the application of the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. If the building, engineering or construction work in question was prohibited and illegal, it was not work "relating to the building, subdivision or work", that is, the building, subdivision or work the subject of the development consent; it could not properly be described as commencing the building, subdivision or work the subject of the development consent.
56 The Act (1999) contained provisions equivalent to ss 122(b)(iii), 123 and 125 of the unamended Act, see its ss 122(b)(iii), 123 and 125. Accordingly, on the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc if the activities were prohibited by the development consent and illegal, the appellant's development consent was not saved from lapsing.
57 It is convenient first to refer to condition 3 of the development consent, concerning the submission of a building application, to which much of the argument in the appeal was directed. The appellant submitted that condition 3 was not in truth a condition, but simply a reminder that a building application was necessary; that if condition 3 was in truth a condition, it was not a condition the imposition of which was authorised by s 91(3) of the Act (1995); that the condition had been satisfied according to its terms, because a building application had been lodged on 8 April 1997 even though it may have been withdrawn; that on the proper construction of the development consent the condition did not have the effect of prohibiting the carrying out of the development if it was not satisfied; and that in any event the activities did not fall within any prohibition which might be found on the proper construction of the development consent.
58 I do not think it necessary to address this array of arguments in relation to condition 3. The last two submissions were in substance taken up in relation to other conditions, to which I now go. It is there that the outcome of the appeal sufficiently lies.
59 For the other conditions of the development consent, it is enough to refer to condition 10 concerning tree protection and condition 17 concerning silt protection devices. They were expressed as conditions to be satisfied prior to the commencement of any site works and prior to commencement of land clearing and construction works respectively. The language was the same as that in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning.
60 In my opinion conditions 10 and 17 were conditions which, as a matter of construction of the development consent, had the effect of prohibiting the commencement of any site works and the commencement of land clearing and construction works. To adopt the analysis by Hodgson CJ in Eq in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning, their requirements to do X before doing Y amounted to requirements not to do Y until X had been done. There was therefore a prohibition, indeed there were two prohibitions. If the conditions were not satisfied and the activities on which the appellant relied fell within the prohibitions, on the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc the appellant's development consent lapsed notwithstanding the activities.
61 Condition 17 may or may not have been satisfied. The sediment control fence or silt fence said by a council officer to be satisfactory did not necessarily constitute provision of silt control devices in the vicinity of the building site as required by the condition. This was not really investigated at the trial and was not the subject of an express finding, although the tenor of what Cowdroy J said in the second passage from his reasons earlier set out was that silt retention measures had not been provided as required.
62 I put condition 17 aside, and turn to condition 10. It is plain that there were trees on the site outside the footprint of the second dwelling as cleared in March 1999, and that they were not enclosed with protective fencing as required by condition 10. Cowdroy J inferentially so held, see the same passage from his Honour's reasons, and the fact is clear. If the activities were site works, therefore, they were prohibited. On the ordinary meaning of the phrase, I consider that they were site works. The objective of condition 10 was that the trees on the site should be protected while any work was carried out, and that called for protection from the beginning and at least from when the clearing and excavation was carried out early in March 1999. On the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc, then, the appellant's development consent lapsed notwithstanding the activities.
63 The respondent submitted that there was an alternative basis for prohibition of the activities, a basis otherwise taking up the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc and leading to the same result. On the facts in that case, it was said, when the owner of the land commenced stage 1 by carrying out the physical work of subdivision it did so without development consent, because although development consent had been granted the carrying out of the development was conditioned on the happening of an event, namely, the construction of the road. Quite apart from a prohibition by the development consent itself, there was a prohibition because the development could only be carried out with development consent and in accordance with any conditions of the development consent, see s 76 of the unamended Act (which remained as s 76 of the Act (1995) set out earlier in these reasons). So in the present case, as the argument related to condition 10 of the development consent, if that condition had not been satisfied and the activities were carrying out development within s 76 of the Act (1995) or s 76A of the Act (1999) (it did not matter which was taken), because they were the erection of a building, the subdivision of land or the carrying out of a work, the activities were prohibited and illegal.
64 This alternative basis still required that the activities were site works, since the carrying out of the development had to be conditioned on the happening of an event, as related to condition 10 the provision of tree protection, prior to the commencement of any site works. It differed from the basis in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc in that the development consent did not have to contain a prohibition within itself - it was enough that the activities were not authorised by the development consent.
65 The alternative reasoning gains support from the English cases cited by Handley JA in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. In particular in F G Whiteley & Sons v Secretary of State for Wales Woolf LJ said (at 302) -
"As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question; are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities. It is a principle which I would have thought made good sense since I cannot conceive that when section 41(1) of the 1971 Act made the planning permission subject to a condition requiring the development to be begun by a specified date, it could have been referring to development other than that which is authorised by the permission. The position is the same so far as regulation 7 and condition 11 are concerned. The mining operations to which the planning permission relates are those authorised by the planning permission, not those which are unauthorised, because they contravene conditions contained in the planning permission."
66 Handley JA cited all but the first sentence of this passage. While the basis for the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc involved the prohibitory effect of the condition of the development consent itself, the principle which his Honour thereby accepted extended the reasoning to prohibition because the development which the landowner claimed to have commenced was not "permitted by the planning permission read together with its conditions".
67 To my mind this is a more satisfactory basis for the reasoning. Even if a development consent on its proper construction amounts to a requirement not to do Y until X has been done, it is necessary to ask why the landowner is precluded from doing Y in the first place - why there can be imposed the precondition of doing X. The answer is that Y can not be done without consent, and the underlying prohibition is the prohibition on carrying out the development without consent.
68 The appellant responded that the activities were not carrying out development, for which consent was required. He sought to walk a fine line. The activities were not themselves carrying out development, he said, because they were not building work. He said that they were engineering work or construction work, so s 95(4) of the Act (1999) was fulfilled, but he eschewed the description of building work, it seems in part to avoid any suggestion that condition 3 of the development consent stood in his path but also to defeat the respondent's alternative basis. The appellant categorised the activities as engineering work or construction work preparatory to carrying out a development - pegging out, clearing, excavating for footings, digging drainage trenches, making provision for silt control - but not as themselves carrying out development.
69 Perhaps the appellant's response should have addressed erection of a building, not building work, as it may be that there is a difference between "building work" within s 95(4) of the Act (1999), relevant when considering lapse of a development consent, and "the erection of a building" part of the definition of development and the carrying out of development in the Act (1995) or the Act (1999), relevant when considering the need for development consent. Any distinction is blurred by the definition of building work in the Act (1999). Excavation for the footings of a building can constitute building, engineering or construction work for the purposes of lapse of a development consent (see for example North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41 at 45; Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 361; and as an illustration of ordinary usage, the engineer's letter to the respondent referring to the second dwelling as "under construction"). Can it, and the other of the activities, constitute erection of a building when considering the need for development consent?
70 The concept is carrying out development, relevantly erection of building, the act or process as distinct from the product of the act or process. In my opinion it would be unrealistic to sever work of the nature of the activities from later steps in the erection of the second dwelling on the appellant's land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work. The erection of the second dwelling would begin with clearing of the site, pegging out, and digging trenches for footings; then or at later times there would be silt control measures and the digging of trenches for drainage pipes. Clearing to make a garden or digging for a fish pond may not be erection of a building, but the totality of the activities and their purpose informs the nature of the activities: so in North Sydney Municipal Council v Middle Harbour Investments Pty Ltd Hardie J said (at 45) that "The laying of the foundation was the most important and substantial part of the work; it was fundamental to and the first essential step in the building process …".
71 In the present case the scope and purpose of the activities was the erection of the second dwelling. In my opinion, as a matter of fact, the activities were part of the erection of a building, and were for that reason carrying out a development. The appellant's response can not be accepted. On the respondent's alternative basis, because condition 10 was not complied with the activities were prohibited and illegal. The appellant's development consent lapsed notwithstanding the activities.
72 If this be incorrect, in my opinion the activities constituted carrying out of a work when considering the need for development consent. The definition of "development" in the Act (1995) included the carrying out of a work in, on, over or under the land and the definition in the Act (1999) included the carrying out of a work. As I have indicated, the concept of work, a work or the carrying out of a work is not greatly elucidated in other definitions. "Work" refers to something done to the land itself, the physical result of labour done on land (Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 24-5), but again attention must be focussed on the act or process. It is a question of fact and degree: in Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25, speaking of depositing filling on land, Street J said (at 31) -
"As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as 'work', and thus a 'development', within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a 'work'. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a 'work'. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance."