Hitchcock v Reed [2022] NSWLEC 81 | Case summary

Land and Environment Court (NSW)|2022-03-28|Before: Robson J

: Paula Hitchcock (Applicant) Genevieve Elizabeth Reed (Respondent) Representation: Counsel: A E Galasso SC with N M Eastman (Applicant) I Hemmings SC with H Grace (Respondent)

Solicitors: Hall & Wilcox (Applicant) Boskovitz Lawyers (Respondent) File Number(s): 2021/00189857 Publication restriction: Nil

Judgment

By summons filed 2 July 2021 in Class 4 of the Court's jurisdiction, Paula Hitchcock, the applicant, seeks a declaration that Development Consent DA 513/2010/1 granted by Woollahra Municipal Council ('Council') on 27 June 2011 and later modified on 31 March 2014 and 23 September 2015 ('Consent') for substantial alterations and additions and associated landscaping works to a dwelling house (known as "Boongaree") at 14 - 14A Pacific Street, Watsons Bay ('site') has lapsed; and an order restraining Genevieve Reed, the respondent and registered proprietor of the site, from taking any action in reliance on the Consent.
The respondent maintains that certain works undertaken in late 2015 and early 2016 at the dwelling house comprise physical commencement such that the Consent did not lapse on 27 June 2016 for the purpose of s 95 (now s 4.53) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') despite non-compliance with a number of conditions of the Consent. The applicant maintains that because of the respondent's failure to comply with these conditions, the works undertaken were not in accordance with the Consent and cannot be relied upon to constitute physical commencement.
For the reasons that follow, I find that the Consent has lapsed.

Background

An understanding of the background facts, most of which are uncontroversial, provides context to consider the primary issue being, as agreed between the parties, "[w]hether, on the proper construction of [the Consent] as modified, in order to prevent [the Consent] from lapsing on 27 June 2016, the respondent was required to comply with all of Conditions B.3, B.4, C.4, C.7, C.20, C.21, D.2 and D.4 prior to carrying out the [w]orks". The respondent concedes that if the Court finds that there was a need to comply with any or all of these conditions (hereafter, 'subject conditions') which the respondent accepts have not been complied with, then the Consent has lapsed.
The applicant is the registered proprietor of 12 Pacific Street, Watsons Bay, which is adjacent to the site.
On 27 June 2011, Council issued the Consent in respect of the site for development comprising "[s]ubstantial alterations [and] additions to a dwelling-house, the demolition of ancillary structures, landscaping works [and] a new swimming pool". The proposal involved substantial works including extensive demolition of structures with additional building which were estimated to cost approximately $3,000,000. The Consent was subject to conditions (detailed over 49 pages), eight of which are specifically raised by the applicant and will be considered more closely later in this judgment.
On 31 March 2014, the Consent was modified to provide for amendments to the proposed works comprising "internal and external modifications" including the replacement of two existing dormer windows on the northern side of the roof slope of the dwelling house by one larger central attic dormer window; the construction of two new dormer windows on the southern (harbour-facing) side of the roof slope of the dwelling house; the addition of a skylight; the reconfiguration of the ground floor rear yard (including construction of new stairs near the eastern boundary); and additional works (including a cabana, sauna and structures adjacent to the proposed swimming pool).
On 23 May 2015, the site ("Boongaree - house, interiors and grounds") was listed as a heritage item under the Woollahra Local Environmental Plan 2014 ('WLEP') which commenced on that day. Since the Consent was granted, the site was also listed within the Watsons Bay Heritage Conservation Area under the Woollahra Development Control Plan 2015 and the "2 storey Victorian weatherboard house" at the site was listed as a "contributory item" in relation to the heritage significance of the Pacific Street Waterfront precinct.
On 24 June 2015, as a result of concern regarding the possible lapsing of the Consent, the respondent's accredited private certifier sent an email to the respondent's architect, Nick Tobias of Tobias Partners, in relation to what was required to obtain a construction certificate for part of the works (being the "dormer window alterations" only) the subject of the 31 March 2014 modification to the Consent, in the following terms: "… from the original DA it appears the following will be required for a stage one [construction certificate] for the dormer only • B2 - ARCHIVAL RECORDING • C2 - COUNCIL FEES • D10 - HOME WARRANTY INSURANCE"
On 27 August 2015, the respondent applied for a construction certificate from the accredited private certifier for specific building work comprising "new dormer window [and] new internal stair[s]". On 28 August 2015, the respondent's heritage consultant, Zoltan Kovacs, submitted an "Archival Recording" to Council which satisfied Condition B.2 of the Consent which required an archival record of the building and landscape elements to be submitted "to the satisfaction of Council's heritage officer, prior to the commencement of any work and prior to the issue of a Construction Certificate".
A second application to modify the Consent, to increase the width of the northern dormer window by 400mm, from 1.8m to 2.2m, and associated minor internal modification to stairs, was approved by Council on 23 September 2015; and on 29 September 2015, Peter Standen of Partridge Structural, issued a "Structural Design Certificate" and "Certified Structural Drawing No 2014S0820 / S1-A & S2-A" containing construction notes and detailing the framing of the new dormer window.
On or about 9 November 2015, the respondent paid Council $104,091.29 in accordance with Condition C.2 of the Consent which required payment of certain levies and fees "prior to the issue of any construction certificate".
On or about 13 November 2015, the respondent obtained Home Warranty Insurance in relation to "Single Dwelling Renovations - Non-Structural" in respect of a (limited) building works contract in the sum of $60,000 which related to part of the works the subject of the modification applications dated 31 March 2014 and 23 September 2015.
On 16 November 2015, the accredited private certifier carried out a pre-commencement inspection and issued a construction certificate styled, "Stage One Construction Certificate" ('Construction Certificate'), which provided that it was in respect of "Stage One works only - demolition of two existing dormer windows… Construction of new dormer [on the northern side of the roof] and construction of internal stair" (being hereafter, 'Dormer Works').
Between 16 November 2015 and early 2016, the Dormer Works were undertaken and on 8 February 2016, the accredited private certifier issued a "Final Occupation Certificate" for the "Stage One" works which certified that "[t]he building is suitable for occupation for use in accordance with its classification under the Building Code of Australia"; and that the Dormer Works had "been completed substantially in accordance with the [Consent as modified] and [Construction Certificate]".
On 22 March 2016, the respondent's architect sent the accredited private certifier an email stating: "Can you please confirm that the [occupation certificate] has been lodged with Council and we have therefore 'activated' the [Consent] in perpetuity?"
Later that day, the accredited private certifier replied relevantly stating: "The [occupation certificate] has been sent to council. It was sent on the same day we issued the [occupation certificate]. The [Consent] was activated when the [Construction Certificate] was issue [sic] and work commenced."
27 June 2016 is the date on which the Consent would lapse unless building, engineering or construction work relating to the works approved under the Consent had been physically commenced on the site.
On 21 August 2020, the Consent was modified for a third time.
On 12 May 2021, the applicant, in response to notification from Council regarding a fourth modification application submitted by the respondent, sent an email to Council stating: "… We are unable to discern any evidence of physical commencement of the works on the site. More than that we are unable to discern the commencement of any works on the site. Kindly advise, as a matter of urgency, how this consent has not lapsed so that we may decide our approach with regard to the most recent modification regarding the tree."
On 12 May 2021, Council replied to the applicant's email stating: "In response to your concern, the applicant has submitted satisfactory evidence of the work having commenced in the form of an occupation certificate that has been issued for works completed."
On 2 July 2021, the applicant commenced these proceedings.
On 26 July 2021, the Consent was modified for a fourth and fifth time, in relation to removal of a tree, and in relation to the deletion of a condition relating to stormwater discharge, respectively
On 2 December 2021, the respondent lodged a further modification application in relation to the Consent concerning the internal and external configuration of the dwelling house and basement, modifications to the western and northern portion of the cabana, and construction of a new tunnel connecting the basement of the dwelling house to the cabana, which has not yet been determined by Council.
On 10 November 2021, the respondent lodged a new development application, independent of the Consent, for substantial alterations and additions essentially comprising a new dwelling house, new swimming pool and landscaping works, which has not yet been determined by Council.
The respondent admits that prior to completing the Dormer Works it did not: establish a "Tree Protection Zone" ('TPZ') in accordance with Condition B.3; submit to Council (for further assessment) a "Demolition and Construction Management Plan" in relation to the existing trees on or adjacent to the site in accordance with Condition B.4; apply to Council for "Road and Public Domain Works" under s 138 of the Roads Act 1993 (NSW) ('Roads Act') in accordance with Condition C.4; submit a "Soil and Water Management Plan" in accordance with Condition C.7; submit to Council (for approval) an "Amended Landscape Plan" in accordance with Condition C.20; submit to Council (for approval) an "Amended Stormwater Drainage Plan" in accordance with Condition C.21; engage a professional engineer (structural) to conduct a dilapidation survey and prepare a dilapidation report in accordance with Condition D.2; and apply for, obtain approval for, pay all fees for and implement a "Work (Construction) Zone" in accordance with Condition D.4.

Provisions of the Consent

The Consent is structured in sections (also variously referred to as "Parts"). labelled A through to J which detail the conditions, with each part having a primary heading and each condition having a discrete sub-heading.
Part A, headed "General Conditions", notes in Condition A.1 that the Consent is granted subject to the conditions that follow and provides in Condition A.2 various definitions including a definition, detailed below, of "Work for the purposes of this Consent…" (detailed at [32] below). Part A then lists (in Condition A.3) the approved plans and supporting documents.
The Consent thereafter provides parts labelled B through to J. The parts containing the subject conditions are - Part B, headed "Conditions which must be satisfied prior to the demolition of any building or construction"; Part C, headed "Conditions which must be satisfied prior to the issue of any construction certificate"; and Part D, headed "Conditions which must be satisfied prior to the commencement of any development work".
The specific conditions primarily relevant to the applicant's case, in Parts B, C and D, are detailed in the Consent as follows: "B. Conditions which must be satisfied prior to the demolition of any building or construction B.1 Construction Certificate required prior to any demolition Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the [EPA] Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a [accredited private certifier] and Notice of Commencement under the [EPA] Act. B.2 Recording of Heritage Items prior to any demolition A full archival record of the building and landscape elements to be demolished is to be submitted, to the satisfaction of Council's heritage officer, prior to the commencement of any work and prior to the issue of a Construction Certificate. The archival record is to be completed by a heritage consultant listed by the NSW Heritage Office or by another suitably qualified consultant who must demonstrate a working knowledge of archival principles. The archival record is to include: a) The submitted heritage report including the heritage assessment undertaken in accordance with the current guidelines of the NSW heritage office, the statement of significance, the dilapidation report and the reasons for demolition. b) A site plan at a scale of 1:200 (or 1:500 if appropriate) of all structures and major landscape elements including their relationship to the street and adjoining properties. c) Annotated measured drawings: floor plans, roof plans, elevations and at least one cross section, each at a scale of 1:100. d) Photographic archival records must be taken of the building, landscape or item in accordance with 'The Heritage Information Series, Photographic Recording of Heritage Items Using Film or Digital Capture 2006' published by the NSW Department of Planning Heritage Branch. The archival record must include: • Context Photographs- A recording of each site, place or movable item or collection in its context; • Relationship of Buildings on the Site to Each Other; • Individual Building or Structures- Photographs of each façade with details where appropriate including but not limited to: eaves, soffits, rainwater heads, downpipes, window reveals and sills, doorways and steps, and balustrades; • Internal Spaces- Images should be taken in a sequence to show all internal elevations, including floors and ceilings, where possible. Special attention should be placed on structural elements, fittings and any movable items. There should be three sets of the photographic report and film materials or digital materials. The following table summarises the lodgment details for photographic records, depending on which material is selected. It is satisfactory to supply one material only and digital material is recommended. … The full archival recording is to be submitted be to the satisfaction of Council's heritage officer prior to the commencement of demolition, works and prior to the issue of a Construction Certificate. The original will be retained by Council and a copy will be provided to the Woollahra Local History Library. These photographic records must be submitted to Council prior to the demolition or removal of any part of the building and landscape elements to be demolished. Note: The NSW Heritage Office Guidelines can be downloaded free of charge from http://www.heritage.nsw.gov.au/docs/info_photographicrecording2006.pdf B.3 Establishment of Tree Protection Zones Before the demolition of any building or construction, a Tree Protection Zone (TPZ) shall be established around the tree/s to be retained not less than the distance shown in the schedule below. … d) The Tree Protection Zone shall exclude the following activities, except as amended by the following conditions: i. Excavations and trenching ii. Modification of existing soil levels iii. Cultivation of the soil iv. Mechanical removal of vegetation v. Soil disturbance vi. Movement of natural rock vii. Storage of materials, plant or equipment viii. Erection of site sheds ix. Affixing of signage or hoarding to the trees x. Preparation of building materials xi. Disposal of waste materials and chemicals xii. Movement of pedestrian or vehicular traffic xiii. Temporary or permanent location of services, or the works required for their installation xiv. Any other activities that may cause damage to the trees e) Installation of ground protection specification as detailed in the Arboricultural Impact Assessment prepared by UTM, dated 14 July 2010 (1.2.2 Precautions in respect to temporary work - Ground Protection) within the Tree Protection Zones of Trees 16 and 21. B.4 Demolition and Construction Management Plan A Demolition and Construction Management Plan in relation to existing trees on/adjacent the subject site must be submitted to Council for further assessment. The plan must consider and make allowance for all construction operations which will be undertaken within the vicinity of existing trees. In particular the plan is to include: a) Drawings and method statement showing details of hoarding and scaffold construction and pruning required to accommodate hoarding and scaffolding b) Movement of heavy machinery, lifting cranes, Pier drilling gantry etc c) How trees will be protected from storage and movements of materials d) Site construction access, temporary crossings and movement corridors on the site defined e) Contractors carparking f) Phasing of construction works g) The space needed for all foundation excavations and construction works h) All changes in ground level i) Space for cranes, plant, scaffolding and access during works j) Space for site sheds, temporary latrines (including any drainage) and other temporary structures k) Space for sorting and storing materials (short and long term), spoil and fuel and the mixing of cement and concrete and l) The effects of slope on the movement of potentially harmful liquid spillages towards or into tree protection areas … C. Conditions which must be satisfied prior to the issue of any construction certificate … C.2 Payment of Security, Levies and Fees (S80A(6) & S94 of the Act, Section 608 of the Local Government Act 1993) The person(s) with the benefit of this consent must pay the following long service levy, security, development levy, and fees prior to the issue of any construction certificate, subdivision certificate or occupation certificate, as will apply. The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees. Specifically a. prior to the issue of a construction certificate, where a construction certificate is required; or b. prior to the issue of a subdivision certificate, where only a subdivision certificate is required; or c. prior to the issue of an occupation certificate in any other instance. … Building and Construction Industry Long Service Payment The Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payment Act, 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate. The Levy can be paid directly to the Long Service Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation's website http://www.lspc.nsw.gov.au/ or the Long Service Payments Corporation on 13 14 41. How must the payments be made? Payments must be made by: • Cash deposit with Council, • Credit card payment with Council, or • Bank cheque made payable to Woollahra Municipal Council. The payment of a security may be made by a bank guarantee where: • The guarantee is by an Australian bank for the amount of the total outstanding contribution; • The bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first [NOTE: a time limited bank guarantee or a bank guarantee with an expiry date is not acceptable]; • The bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; • The bank guarantee is lodged with the Council prior to the issue of the construction certificate; and • The bank's obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required. How will the section 94A levy be indexed? To ensure that the value [of] the development levy is not eroded over time by increases in costs, the proposed cost of carrying out development (from which the development levy is calculated) will be indexed either annually or quarterly (see table above). Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2009 sets out the formula and index to be used in adjusting the s.94A levy. Do you need HELP indexing the levy? Please contact our customer service officers. Failure to correctly calculate the adjusted the [sic] development levy will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate). Deferred periodic payment of section 94A levy under the Woollahra Section 94A Development Contributions Plan 2009 Where the applicant makes a written request supported by reasons for payment of the section 94A levy other than as required by clause 3.9, the Council may accept deferred or periodic payment. The decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider: • The reasons given; • Whether any prejudice will be caused to the community deriving benefit from the public facilities; • Whether any prejudice will be caused to the efficacy and operation of this plan; and • Whether the provision of public facilities in accordance with the adopted works schedule will be adversely affected. Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee where: • The guarantee is by an Australian bank for the amount of the total outstanding contribution; • The bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first [NOTE: a time limited bank guarantee or a bank guarantee with an expiry date is not acceptable]; • The bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; • The bank guarantee is lodged with the Council prior to the issue of the construction certificate; and • The bank's obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required. Any deferred or outstanding component of the section 94A levy will be adjusted in accordance with clause 3.13 of the plan. The applicant will be required to pay any charges associated with establishing or operating the bank guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any accrued charges are paid. … C.4 Road and Public Domain Works A separate application under Section 138 of the Roads Act 1993 is to be made to, and approved by Council prior to the issuing of a Construction Certificate for the following infrastructure works, which must be carried out at the applicant's expense: a) The existing crossing is to be fully removed and the footpath and K&G are to be reconstructed in accordance with Council's standard drawing RF3. b) The construction of a full width vehicular crossings having a width of 4.0m in accordance with Council's standard driveway drawing RF2B. c) A design longitudinal surface profile for the proposed driveway must be submitted for assessment. This is to ensure that vehicles to [sic] not scrape in accordance with AS2890.1. … … C.7 Soil and Water Management Plan - Submission & Approval The principal contractor or owner builder must submit to the Certifying Authority a soil and water management plan complying with: … Where there is any conflict The Blue Book takes precedence. The Certifying Authority must be satisfied that the soil and water management plan complies with the publications above prior to issuing any Construction Certificate. Note: This condition has been imposed to eliminate potential water pollution and dust nuisance. … … C.20 Amended Landscape Plan An amended Landscape Plan, prepared by a qualified Landscape Architect or Landscape Designer, in accordance with Councils DA Guide Annexure 8 and conforming to the conditions of this Development Consent is to be submitted to Council for approval prior to the issue of the Construction Certificate for further assessment. … C.21 Amended Stormwater Drainage Plan An amended Stormwater Drainage Plan, conforming to the conditions of this Development Consent is to be submitted to Council for approval prior to issue of the Construction Certificate. The plan must show the below ground rain water refuse tank and first flush gross pollutant trap positioned outside the TPZ (13.2m) of Tree 21. This infrastructure shall not be positioned within the TPZ of any tree to be retained. The stormwater drainage pipes within the Tree Protection Zones of trees to be retained shall be installed as detailed in the Arboricultural Impact Assessment prepared by UTM, dated 14 July 2010 (1.2.1 Install underground surfaces). D. Conditions which must be satisfied prior to the commencement of any development work … D.2 Dilapidation Reports for existing buildings Dilapidation surveys must be conducted and dilapidation reports prepared by a professional engineer (structural) of all buildings on land whose title boundary abuts the site and of such further buildings located within the likely "zone of influence" of any excavation, dewatering and/or construction induced vibration. These properties must include (but is not limited to) • 12 Pacific Street, • 16 Pacific Street, • The existing 2 storey component of the existing house at 14 & 14 A Pacific Street (the subject sites). The dilapidation reports must be completed and submitted to Council with the Notice of Commencement prior to the commencement of any development work. Where excavation of the site will extend below the level of any immediately adjoining building the principal contractor or owner builder must give the adjoining building owner(s) a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s81A(2) of the Act not less than two (2) days prior to the commencement of any work. Note: The reasons for this condition are: • To provide a record of the condition of buildings prior to development being carried out • To encourage developers and its contractors to use construction techniques that will minimise the risk of damage to buildings on neighbouring land Also refer to the Dilapidation Report Advising for more information regarding this condition … D.4 Work (Construction) Zone - Approval & Implementation A work zone is required for this development. The principal contractor or owner must apply for, obtain approval for, pay all fees for and implemented the required work zone before commencement of any work. The principal contractor must pay all fees associated with the application and occupation and use of the road as a work zone. All Work Zone signs must have been erected by Council to permit enforcement of the work zone by Rangers and Police before commencement of any work. Signs are not erected until full payment of work zone fees. … … D.9 Building - Construction Certificate, Appointment of Principal Certifying Authority, Appointment of Principal Contractor and Notice of Commencement (s81A(2) of the Act) The erection of the building in accordance with this development consent must not be commenced until: a. a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited Certifier, and … …"
The Consent further provides: Part E, headed "Conditions which must be satisfied during any development work"; Part F, headed "Conditions which must be satisfied prior to any occupation or use of the building"; Part G, headed "Conditions which must be satisfied prior to the issue of any Subdivision Certificate"; Part H, headed "Conditions which must be satisfied prior to the issue of a Final Occupation Certificate"; Part I, headed "Conditions which must be satisfied during the ongoing use of the development"; and Part J, headed "Advisings".
The Consent contains the following definition of "Work" (in Condition A.2): "a. the use of land in connection with development, b. the subdivision of land, c. the erection of a building, d. the carrying out of any work, e. the use of any site crane, machine, article, material, or thing, f. the storage of waste, materials, site crane, machine, article, material, or thing, g. the demolition of a building, h. the piling, piercing, cutting, boring, drilling, rock breaking, rock sawing or excavation of land, i. the delivery to or removal from the site of any machine, article, material, or thing, or j. the occupation of the site by any person unless authorised by the occupation certificate."

Evidence

The parties provided a document styled "Joint Statement of Agreed Facts" dated 25 March 2022 ('SOAF'). Although the SOAF referenced a number of documents contained in an extensive bundle filed 25 March 2022, the Court was informed that the SOAF was tendered without the referenced documents except where discretely tendered.
The Court was also provided the following documents: "Development Consent No. 513/2010 Notice of Determination" dated 27 June 2011; "Notice of Determination of DA 513/2010/2" dated 31 March 2014; "Site Plan - Roof Plan", "First Floor Plan - Garage Attic Plan", "Attic Floor Plan", "North Elevation" and "South Elevation" plan prepared by Tobias Partners dated 23 September 2015; letter from Council to Tobias Partners dated 23 September 2015; the affidavit of Nikki Akbari (engineer) affirmed 21 January 2022 which exhibited documentation in relation to the Dormer Works comprising time entries for work done at the site, correspondence and architectural drawings exchanged between the respondent's architects and engineers, photos and notes of observations taken by Ms Akbari to assist her preparation of civil engineering drawings, sketches of works, certified drawings, and a Site Inspection Report; and a geotechnical report dated 10 February 2010 prepared by Jeffery and Katauskas Pty Ltd styled "Geotechnical Investigation for Proposed Alterations & Additions at [the site]".

Applicant's position

The applicant submits that, as a result of the respondent's non-compliance with the subject conditions, any works carried out on the site prior to 27 June 2016 pursuant to the Consent (including all modifications) do not constitute physical commencement for the purposes of s 4.53(4) of the EPA Act, because they were not in accordance with the Consent and are therefore unlawful, with the effect that the Consent lapsed on 27 June 2016, being five years from the date of the Consent, pursuant to s 4.53(1)(a); and that s 20(2)(c) of the Land and Environment Court Act 1979 (NSW) confers on the Court jurisdiction to declare that the Consent has lapsed and to restrain the respondent from carrying out any works in reliance on the Consent.
The applicant submits that, in circumstances where the respondent accepts that the specified conditions had not be complied with prior to undertaking the Dormer Works and before 27 June 2016 (the lapsing date), whether the Consent has lapsed can be determined by determining whether, on the proper construction of the Consent, Condition B.1 required all of the conditions within Part C and Part D of the Consent to be complied with prior to any demolition.
In support of this position, the applicant directs the Court to the headings to Parts B, C and D of the Consent; and to Conditions B.1, B.3, B.4; Conditions C.1 to C.21, particularly C.4, C.7, C.20 and C.21; and to Conditions D.1 to D.11, particularly D.2 and D.4. Those headings to Parts B, C and D, and the primary conditions to which the applicant drew attention to, are extracted at [30] above.
The applicant submits that there is no ambiguity as Condition B.1 required "all conditions in Part C and Part D" of the Consent to be complied with prior to any demolition, meaning the respondent was required to comply with Conditions B.1, B.3 and B.4 prior to the demolition of any building or commencement of any construction work; Conditions C.4, C.7, C.20 and C.21 prior to obtaining any construction certificate; and Conditions D.2 and D.4 prior to commencing any work.
In relation to the headings within the Consent, the applicant submits that the Consent is an environmental planning instrument ('EPI') because it is made under the WLEP (which itself is an EPI) and therefore must be construed in accordance with ss 3 and 35 of the Interpretation Act 1987 (NSW) (Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 3) [2018] NSWLEC 193 ('Muswellbrook') at [169]; MLC Properties v Camden Council (1997) 96 LGERA 52 ('MLC Properties'); Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 ('Abrams')) meaning that the headings within the Consent form part of the Consent. The applicant emphasises that the respondent was required to comply with the conditions within Part B "prior to the demolition", Part C "prior to the issue of any construction certificate", and Part D "prior to the commencement of any development work". Nonetheless, the applicant submits irrespective of the headings, Condition B.1 is the "prescription" for compliance with all of the conditions within Parts B, C and D.
The applicant submits that the respondent was required to comply with Conditions B.3 (concerning the establishment of TPZs) and B.4 (concerning a demolition and construction management plan) before commencement of "any" building or construction work where materials were being delivered to, and lifted and stored on, the site, and scaffolding constructed; as well as Conditions C.7 (concerning a soil and water management plan), C.21 (concerning an amended stormwater drainage plan); and, further, D.2 (requiring a dilapidation survey and report). Specifically in relation to Condition D.2, the applicant submits that it was plainly worded and provided good reason to ensure a dilapidation report was prepared to ensure neighbours had a satisfactory baseline and notice of commencement before any development work was undertaken.
The applicant submits that construing the Consent as the respondent contends (where the respondent picks which construction certificate certain conditions apply to) would constitute a dangerous approach to planning law, and produce an infelicitous result, in that it would hand proponents power to decide when and what conditions of development consents apply to them; and asks, if Condition D.9 did suggest there were to be multiple construction certificates as the respondent submits, why does Condition D.9 not contemplate multiple construction certificates and the "latitude" to be given to conditions that only apply to each construction certificate? The applicant further submits that if the respondent really considered that the consequences of the conditions of the Consent to be impractical, the respondent should have sought to modify the Consent to vary the conditions, although the applicant submits that the only impracticality is the respondent's attempt to do as "little [work] as possible" to commence the Consent and the conditions cannot be interpreted differently because the respondent elected to undertake only the Dormer Works).
The applicant submits that where the respondent contends that some conditions are expressed in terms of the specific work they relate to (such as Condition C.4, which the respondent submits applies expressly to "infrastructure works" comprising footpaths, causeways and driveways), the Court would find that the other conditions (which do not express specific works to which they relate) apply broadly to the development.
The applicant also submits that the respondent is incorrect in its "common sense" construction of Condition C.4 (noted at [53(3)] below) because s 139 is not expressed as an application to the roads authority as the respondent contends, rather s 139 of the Roads Act is about the power to grant consent to works related to public roads either on the initiative of the road authority or on the application of any person, and therefore, s 138 (not s 139) is the section (as Condition C.4 provides) under which an application is made to the roads authority for a construction certificate in relation to the "infrastructure works".
In response to the respondent's submission (noted at [53(5)] below), that stormwater and landscaping matters are unrelated to the Dormer Works, the applicant submits that, like the common sense of seeking levies and fees (Condition C.2) and heritage archival records (Condition B.2) before undertaking the Consent, it is common sense to require compliance with Conditions C.20 and C.21 prior to undertaking works.
The applicant further submits that the Court cannot adopt the respondent's "qualitative" approach to construction; and that it is wrong at law, and as a matter of construction, to construe the Consent conditions as excluding the later Dormer Works modifications on the basis that the conditions existed prior to the Dormer Works.
The applicant refutes the respondent's submissions first, that the applicant proposes a strict literal interpretation; second, that the Consent is "infelicitously" drafted (where the applicant contends that the conditions are clear despite some typographical errors, and that there is therefore no scope for "an interpretive task"); and third, that the Dormer Works are minor (where the applicant submits that it is apparent that new steel beams were needed for bracing, and these materials required delivery to, and scaffolding and lifting at, the site).

Respondent's position

The respondent contends that, on the proper construction of the Consent, there was no requirement to do any of the things listed in Conditions B.3, B.4, C.4, C.7, C.20, C.21, D.2 and D.4 before carrying out the Dormer Works; it would be impractical if the respondent was required to comply with all the conditions in Part C and Part D before carrying out the Dormer Works; and such an interpretation would be contrary to the clear intent and purpose of the conditions. As such, physical commencement did occur before the date on which the Consent would have lapsed; and that the Court would therefore dismiss the applicant's summons with costs.
The respondent submits that a common sense and practical interpretation of the Consent must prevail because the Consent is "infelicitously drafted", and a literal interpretation would be inappropriate, in that the Consent appears to have been adapted from a template without the accuracy or precision of a legal document; is drafted by planners rather than lawyers, evident, for example, by the fact that defined terms are used but not defined, and defined but not used, within the Consent; and is designed to achieve a planning outcome.
The respondent further submits that the conditions must be construed in the context in which the Consent was issued, being the substantial demolition, excavation and construction works which did not originally include the Dormer Works; that the Dormer Works were not added to the Consent until 31 March 2014 (and modified on 23 September 2015); and that the Dormer Works are "relatively minor" in comparison to the works required to carry out the whole of the development.
The respondent submits that, despite the applicant's contention that the terms "all" and "any" are clear, it is the terms "demolition", "construction certificate", and "development works" within Parts B, C and D of the Consent that are unclear, and these terms should be resolved in the respondent's favour pursuant to Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2008] NSWLEC 181 at [171], [175]-[176]. Nevertheless, the respondent submits that the words "all" and "any" demonstrate that the Consent recognises different construction certificates were required for different components of the development and as such the conditions did not specifically address the Dormer Works which the respondent describes as "minor"; and that it must be accepted that the Consent can be implemented by construction certificates which are relevant to the carrying out of a number of staged and discrete works.
The respondent submits that the reference to "the demolition of any building or construction" in the heading to Part B (and within Condition B.3), "any demolition work" within Condition B.1, and "any work" within Condition B.2 should be construed as referring to the substantial demolition works contemplated by the Consent as originally granted, rather than the Dormer Works; the reference to "any construction certificate" in the heading to Part C should be construed, as a matter of common sense and practicality, as referring to any construction certificate relating to works to which the particular condition is relevant; and the reference to "development work" in the heading to Part D should be construed as referring to the development work that was originally approved, particularly the excavation works.
The respondent submits that it is therefore common sense that the subject conditions raised by the applicant are irrelevant to the Dormer Works carried out because they were intended to apply only to the substantial demolition and construction works associated with the development initially approved. For example, the respondent points to the fact that the "Arboricultural Impact Assessment" prepared by Urban Tree Management Australia Pty Ltd ('UTM') dated 14 July 2010, which the respondent submits appears to be the basis for Condition B.3 (and is a listed approved plan in Condition A.3), was prepared prior to the inclusion of the Dormer Works and therefore the reference in Condition B.3 to "demolition works" could not be associated with the Dormer Works.
In summary, the respondent submits that it would be absurd, impractical or otherwise in conflict with common sense for the Consent to require the respondent to establish a TPZ (Condition B.3); prepare a demolition and construction management plan (Condition B.4); obtain consent relating to the surface of a public road under the Roads Act (Condition C.4); submit a soil and water management plan to Council (Condition C.7); submit for approval to Council an amended landscape plan (Condition C.20); submit for approval to Council an amended stormwater drainage plan (Condition C.21); prepare a dilapidation report (Condition D.2); or implement a work zone (Condition D.4); before undertaking the Dormer Works because: 1. Condition B.3 is a protective measure which only applies to works that may damage the roots of specified trees, and it could not be said that the minor internal Dormer Works required a TPZ as the TPZ would serve no planning purpose. 2. Condition B.4 provides for a specific plan where there were concerns about construction operations within the vicinity of existing trees on or adjacent to the site. Because the Dormer Works would not have any such impact, a common sense and practical interpretation would find that the plan was not required. 3. Condition C.4 should be interpreted expressly as relating to the issuing of a construction certificate for "infrastructure works" comprising the removal of an existing crossing and footpath, construction of a new crossing and footpath, and construction of a driveway. Because the Dormer Works have nothing to do with a public road and associated "infrastructure works", an application under s 138 of the Roads Act was not necessary to achieve physical commencement; and it would be impossible to comply with a strict interpretation of Condition C.4 because it is s 139, and not s 138 (which the respondent submits concerns prohibited types of works), of the Roads Act which relates to applications to the roads authority. Therefore, Condition C.4 must be construed according to common sense. 4. It is a common sense interpretation that the requirement for a soil and water management plan (Condition C.7) only applies to the substantial works (such as excavation) which require the elimination of potential water pollution and dust nuisance issues, not the minor Dormer Works. 5. The Dormer Works on the second storey of the dwelling house have nothing to do with landscaping or stormwater drainage matters addressed by Conditions C.20 and C.21 respectively, where the Dormer Works did not require the carrying out of landscaping and did not involve underground works proximate to a tree. 6. The "Geotechnical Investigation" report prepared by Jeffrey and Katauskas Pty Ltd dated 10 February 2010 (which in the respondent's submission is expressly incorporated into the Consent pursuant to Conditions A.1 and A.3) makes clear that Condition D.2 was directed toward the proposed excavation of a basement to a depth of three metres (below the level of immediately adjoining buildings), and it is directed towards issues of vibration, dewatering and excavation which were not applicable to the Dormer Works. 7. The Development Application Assessment Report dated 21 March 2011 makes clear that Condition D.4 (requiring a work zone) is required for the purpose of the excavation phase of the development, rather than the minor Dormer Works which did not require a work zone.
The respondent further notes that it has complied with Condition C.2 (which it submits is an "express" obligation) upfront prior to commencing any work by paying Council $104,000, being the total for levies and fees required to be paid for the "millions of dollars' worth of work" comprising all the works the subject of the Consent, rather than a lesser amount that would be applicable to the estimated $60,000 worth of Dormer Works. The respondent also points to the wording of Condition D.9 and submits that it recognises that multiple construction certificates would be issued for discrete parts of the development.

Consideration

Before considering the parties' submissions it is appropriate to canvass the legislative background and principles which I consider are applicable to the primary issue.
Section 95 (now s 4.53) of the EPA Act, which governs the lapsing of development consents, at the time the Consent was granted relevantly provided as follows: 95 Lapsing of consent (1) A development consent lapses 5 years after the date from which it operates. … (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, 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. (5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse. …
In Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169, the Court of Appeal held that there are three questions to be answered under s 4.53(4) (formerly s 95(4)) in deciding whether a consent has lapsed: first, is the work relied upon building, engineering or construction work; second, if so, does it relate to the approved development; and third, if so, was it physically commenced on the site to which the consent applied prior to the relevant lapsing date. In the present circumstances it is the second and, to a lesser extent, the third questions that require consideration.
For work to "relate to" the building, subdivision or work the subject of a consent, it must be in accordance with (or not prohibited by) the consent: Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231 ('Green v Kogarah') at [55] (Giles JA, Mason P and Ipp AJA agreeing); Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 at 135 (Handley JA, Mahoney JA and Rogers AJA agreeing). Work the subject of a consent which is unlawful or which does not "relate to" the building, subdivision or work the subject of the consent cannot be described as having "commenced", such that the development cannot be said to have commenced: Green v Kogarah at [55]; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 107 LGERA 243 ('Coalcliff') at [66]; Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26; (2019) 237 LGERA 128 ('Cando v Cumberland') at [92]-[96].
With the above matters in mind, as articulated by senior counsel for the respondent, if the Court determines that any or all of the subject conditions of the Consent were required to be complied with, the Dormer Works undertaken do not "relate to" the development for which the Consent was granted, the development has not been commenced, and therefore the Consent has lapsed. This raises a question of the construction of the Consent and the respondent accepts that if the Court took a "literal or legalistic" approach to interpretation, then the respondent would have been required to comply with the subject conditions of the Consent before the Dormer Works were undertaken.
Development the subject of a consent is defined and described by the instrument constituting the consent which ordinarily includes conditions of the consent (as a statutory instrument) which "may specify or regulate the manner and sequence of performance of the development": K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [15] (Meagher JA, Leeming JA and Sackville AJA agreeing). In the present circumstances, the extent of the development the subject of the Consent is clear.
The principles applicable to the construction of development consents are well-known and have been considered extensively: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 ('Allandale Blue Metal') at [42]-[48]; Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 ('Leda Manorstead') at [92]; The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275 ('Canny') at [59]-[65]; Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 at [34]-[35]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158].
The relevant principles were recently summarised by Preston CJ of LEC in J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23; (2021) 249 LGERA 109 ('J.K Williams') at [59]-[62], as follows: "[59] A development consent granted under Part 4 of the EPA Act or an approval granted under Part 3A of the EPA Act are to be construed having regard to the statutory provisions governing its grant (Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [268]) and "its enduring functions" of authorising the carrying out of the development or activity for which consent or approval was sought (Winn v Director-General National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [4]). The consent or approval speaks "according to its written terms, construed in context but having regard to its enduring function": House of Peace v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [37] and see [23]. The meaning of the language used in the consent or approval "is 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 between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant": K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at [23]. [60] It is permissible to look at the application seeking consent or approval and the documents and plans accompanying the application in order to determine the scope and operation of the consent or approval and the development or activity for which consent or approval was sought: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council at [57]-[59], [62], [80], [296]-[298], [302]-[305], [310] and [311]. [61] A consent or approval is to be determined in accordance with the same principles of statutory interpretation that are applicable to interpreting other legal documents. Planning permissions are not in a special category requiring adoption of a completely different approach to their interpretation: Trump International Golf Club Scotland Ltd v Scottish Ministers at [2016] 1 WLR 85; [2015] UKSC 74 at [60], [66]. There is no general principle requiring laxity or flexibility in construing delegated planning legislation or statutory instruments, including development consents or approvals, nor do practical considerations permit a re-writing of delegated legislation or statutory instruments to meet what the court thinks is a permissible and practical outcome: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45]; Environment Protection Authority v Grafil Pty Ltd (2019) 238 LGERA 147; [2019] NSWCCA 174 at [257]-[261], [272]. [62] A condition of consent or approval is to be interpreted by asking "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, and overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense": Trump International Golf Club Scotland Ltd v Scottish Ministers at [34]."
I note that the view that any ambiguity or uncertainty in a development consent condition should be construed against the consent authority who granted the consent has been widely considered (Leda Manorstead at [94]-[97]; Canny at [70]-[71]; Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 323-324); however, where I consider this view may be subject to some doubt (Sunland Group Limited v Gold Coast City Council [2021] FCA 1473; (2021) 158 ACSR 342 at [21], [58]; Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCATrans 367 at 126-127), and where it may not be strictly applicable to the present circumstances because Council is not a party to these proceedings and has not asserted any entitlement for relief against the respondent, I consider that any ambiguities in the text of a development consent (as a statutory instrument) should be construed according to the ordinary rules of construction and the principles of interpretation (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [99]), particularly in light of the context (which itself should not be confined to the immediate context supplied by the provisions in an instrument) and purpose of the text: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [27]-[31] (Bell P, Leeming JA and Emmett AJA agreeing). I also remain conscious that there is no specific principle requiring laxity or flexibility in construing a development consent and that practical considerations do not permit a rewriting to meet what the Court may think is a practical outcome.
Notwithstanding the above, I note, as Meagher JA explained in Allandale Blue Metal at [42] (and noted by Payne JA in Canny at [65]), the relevant principles concerning the construction of a development consent are more easily stated than applied.
While conscious of the manner in which the principles referred to above have been expressed and restated, I have also approached the interpretation of the subject conditions, both individually and collectively, by asking "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole": Trump International Golf Club Scotland Ltd v Scottish Ministers [2017] 1 All ER 307; [2015] UKSC 74 at [34] (Lord Hodge SCJ, with Lords Neuberger, Mance, Reed and Carnwath SCJJ agreeing); J.K. Williams at [62]).
Prior to considering the subject conditions of the Consent individually, a number of matters require consideration and comment, first, the effect of Condition B.1; second, the role of headings in the interpretation of the conditions; and third, the relationship between the extent of the Dormer Works and the extent of the works the subject of the original development application.
First, I find that Condition B.1, considered textually and contextually requires that a number (but not all) of the conditions in Part C and Part D, including those requiring the issue of a construction certificate, must have been satisfied prior to the commencement of the Dormer Works. Subject to my consideration of each of the subject conditions, a number of which I consider individually (that is, on their own wording) required compliance before the Dormer Works commenced, I am attracted to, and accept, the applicant's submission regarding Condition B.1, noted at [38]-[39] above, that Condition B.1 is, in effect, the "prescription" for compliance with the subject conditions in Part C and Part D.
Condition B.1 clearly provides that all conditions of Part C and Part D of the Consent, including the issue of a construction certificate (which from the heading to Part B, I consider to mean any construction certificate) are to be satisfied prior to any demolition work associated with an altered portion of, or extension to, an existing building; and it is apparent that the Dormer Works comprised at least demolition of the existing dormer windows associated with an alteration to the northern side roof of the existing dwelling house to accommodate a larger dormer window.
As considered below, although I have some doubt regarding the place and effect of Condition C.4, I am comforted in this view because Condition B.1, considered both literally and holistically, requires compliance with all conditions within Part C and Part D, and the separate headings to Part C and Part D and the specific conditions therein (except where conditions are otherwise express) relate to matters that are the type which naturally (and logically) require compliance prior to the issue of any construction certificate or the commencement of any work. This interpretation is harmonious with the conditions following Parts E, F, G, I and J (except Condition J.6) which relate to aspects that require compliance after work has commenced.
Secondly, in relation to the importance of headings, I accept, as the applicant submits, that the Consent is an (environmental planning) instrument and should be interpreted according to ss 3 and 35 of the Interpretation Act, such that the headings to each "Part" of the Consent form part of the Consent: Musswellbrook at [169]; MLC Properties at 58-59; Abrams at [35]-[36]. The respondent does not appear to refute this approach (and indeed makes submissions regarding the construction and effect of the headings).
Although not labelled as "Parts" or "Chapters", I find that the headings to Parts B, C and D are headings to "Parts" into which the Consent is divided and therefore can be taken to be part of the Consent: Interpretation Act, s 35(1)(a). I am comforted in this finding by the reference within Condition B.1 to "Part C and Part D". I note that this view does not extend to the discrete heading to each condition (hereafter, 'subheading'), since neither ss 34 or 35 of the Interpretation Act apply to headings to separate conditions within an instrument (Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181 at [43]); however, and although not determinative, I find that the subheading to each condition is part of the context to each condition and is relevant to my consideration of the meaning and purpose of each condition within the Consent as a whole. Even if that be wrong, my discrete findings below would remain the same, without reference to (and reliance upon) the subheadings.
Thirdly, although the Consent relates to substantial works (originally estimated at the time of lodgement of the development application to be nearly $3,000,000) and the Dormer Works were much less significant in terms of both cost and extent, such that the Dormer works were arguably "minor" (in a relative sense, as the respondent suggests), I do not accept the respondent's submission that the reference to "any building or construction" within the heading to Part B and particularly the reference to "any demolition work" within the wording of Condition B.1 itself must relate to the "substantial" demolition works contemplated by the Consent as originally granted. It is clear that the Dormer Works are now part of the works the subject of the Consent and, in my view, based upon the evidence of Ms Akbari, involved not insubstantial engineering, demolition, and construction works to existing structures on the site.
As such, I do not accept the respondent's submission that the interpretation (and application) of the subject conditions must proceed on the basis that the Dormer Works were not part of the development application, such that the Dormer Works were not part of Council's consideration and determination of the original development application. Although the context in which the Consent was issued is of some relevance, what must be discerned is the true meaning of the Consent as the unilateral act of Council, given its enduring function and in rem quality.
Despite this, I accept that the reference to "any construction certificate" in the heading to Part C does, on one view, contemplate discrete construction certificates for various works and I have taken that into account in my consideration of Conditions C.4, C.7, C.20 and C.21 below. Notwithstanding that, I do not accept the respondent's contention that Condition D.9 recognises that multiple construction certificates would be issued for different parts of the development, and I find that it is only when a condition is appropriately "express" that there may be a separate construction certificate (or works) to which that condition relates. In my view, the reference to conditions being satisfied before "any development work" in the heading to Part D (and, as considered below, the wording of Condition D.2, as well as "any work" in the wording of Condition D.4) is clear. Moreover, I find that it would be contrary to the principles of interpretation and a reasonable reading of the Consent to confine the operation of the conditions in Part D to only the work that was originally approved.
Although the respondent makes submissions in relation to what the expression "development work" (or similar wording) in the subject conditions connotes, it is clear that the definition of "work" (noted at [32] above) which appears in Condition A.2 includes the activities associated with the Dormer Works. Although accepting that it is not always appropriate to insert discrete definitions (for example "work") into broader wording (such as "development work" or "construction work"), and accepting that the words are used somewhat imprecisely, I note that the definition of "work" in Condition A.2 includes "the carrying out of any work"; "the use of any site crane, machine, article, material or thing"; "the storage of waste, materials, site crane, machine, article, material, or thing"; "the demolition of a building"; and "the delivery to or removal from the site of any machine, article, material, or thing…". In simple terms, "work" as defined, clearly includes the conduct or works associated with the Dormer Works which, in my view, would have involved the use of other parts of the site, the delivery and storage of materials (including for example steel beams) to the site, and demolition of the existing dormer windows.
With the above comments and findings in mind, I now move to consideration of the subject conditions. In relation to Condition B.3, to the extent that the respondent prays in aid a "practical" application of this and other conditions, it is clear that the purpose of the establishment of a TPZ (required by Condition B.3) is to exclude specific activities (as referenced in Condition B.3(d)) including "storage of materials, plant or equipment"; "preparation of building materials"; and "any other activities…" that may cause damage to trees. I consider that the wording is clear and that the condition has proper application to the Dormer Works which necessarily involved some of those activities, even if there was only a small chance of damage to trees that were otherwise to be protected. To this extent, I do not accept that it would be "absurd, impractical or otherwise in conflict with common sense" for the establishment of the TPZs before the demolition or construction comprising the Dormer Works as the respondent submits. As the applicant submits, I consider that the TPZs serve a planning purpose and that the respondent was required to comply with Condition B.3 before undertaking the Dormer Works.
In relation to Condition B.4 (which requires that a demolition and construction management plan which makes allowance for construction operations undertaken within the vicinity of existing trees on or adjacent to the site, be submitted to Council for assessment), although the condition does not indicate a time for compliance, I find that, reading the condition in context with the heading to Part B and the immediately surrounding conditions, it is more than reasonable to conclude that compliance was required prior to the demolition of any building or commencement of any construction work. Because Condition B.4 articulates the need, inter alia, for the plan to include details of hoarding and scaffolding; the protection of trees from material storage, sorting and movement; site access; and contractor carparking, I agree with the applicant's submission that Condition B.4 (like Condition B.3) required compliance before any building or construction work was undertaken on the site (and must make allowance for "all construction operations" undertaken in the vicinity of existing trees).
Further, I do not accept the respondent's submission, relying on the Arboricultural Impact Assessment dated 14 July 2010, that the Dormer Works would not have had any impact on the existing trees specified in that report. It is clear from the report (referred to in the Consent in Condition A.3 and noted in Condition B.3), that the construction works and activities (notwithstanding that they did not involve excavation) likely associated with the Dormer Works would have been undertaken within the vicinity of one or more of the specified trees. Further, looked at practically, the required plan would have provided an opportunity to determine what allowances may (or may not) have been required to manage the construction operations considering the nature of the Dormer Works. For those reasons, it is a sensible, rather than an absurd, interpretation that the respondent was required to comply with Condition B.4.
In relation to Condition C.4, although primarily captured by the "prescription" for compliance in Condition B.1 as noted above, I find, as submitted by the respondent, that Condition C.4 is drafted in express terms such that the requirement to make an application under s 138 of the Roads Act only applies to the issuing of a discrete construction certificate relating to "infrastructure works" comprising crossways, driveways and footpaths. As it is clear that the Dormer Works did not comprise the nominated infrastructure works, I find that the respondent was not required to comply with Condition C.4 prior to undertaking the Dormer Works. I find that this approach is harmonious with Condition J.15 which details the plans and materials required to accompany an application to carry out works on public roads.
It follows, I accept the applicant's submission that where certain conditions do not express the specific works (or construction certificates) to which they relate, those conditions apply broadly to all works (and construction certificates) the subject of the Consent, compared to conditions (like Condition C.4) which expressly apply to specified works.
In relation to Condition C.7, while I consider that this clause is unclear, it is tolerably clear that it does not apply only to substantial works (such as excavation) and that the wording should be understood to relate to any works. Although I was initially attracted to the respondent's contention that Condition C.7 only applies to substantial works which require the elimination of potential water pollution and dust nuisance matters, I prefer, based upon the wording of the condition (in addition to the "prescription" for compliance in Condition B.1), the applicant's position that Condition C.7 required the respondent to submit a soil and water management plan prior to being issued the Construction Certificate (or, as noted in the heading to Part C and the wording of Condition C.7, "any construction certificate") for the Dormer Works. I consider that this interpretation is consistent with the heading to Part C. In any event, this condition is not determinative in my consideration of the primary issue before me.
In relation to Conditions C.20 and C.21, although the respondent submits that the Dormer Works do not relate to the subject of Conditions C.20 and C.21, I do not agree. These conditions are not articulated as applying to specific works (unlike Condition C.4). Consistent with my finding above (at [80]), and of relevance to the gravamen of the respondent's position (not just in relation to Conditions C.20 and C.21), I accept the applicant's submission that the respondent's interpretation would invite a holder of a development consent to pick and choose which conditions of a development consent with which to comply, and that such an approach would harm the statutory and regulatory scheme of planning law. As such the conditions required compliance prior to the issue of the Construction Certificate for the Dormer Works.
Further, I do not accept that the words "any construction certificate" in the heading to Part C, or reference thereafter to "a", "any" or "the" construction certificate within the conditions are ambiguous such that the Court would construe Conditions C.4, C.7, C.20 and C.21 "against" Council (and effectively against the applicant in these circumstances - even assuming that such an approach is available, a matter about which I have doubt). I again consider that the text and context of Conditions C.20 and C.21, including the heading to Part C and the "prescription" for compliance in Condition B.1, make it appropriate to conclude that Conditions C.20 and C.21 required compliance prior to the issue of the Construction Certificate for the Dormer Works.
In relation to Condition D.2, even without recourse to Condition B.1 and the heading to Part D, I consider the wording of Condition D.2 is clear. Dilapidation surveys and dilapidation reports are well-known, and the reasonable reader of Condition D.2 would accept that, in a literal sense as well as practical manner, dilapidation surveys and dilapidation reports must be completed and submitted prior to the commencement of "any development work", and, where appropriate, provided to affected adjacent landowners.
Although the respondent directs the Court to the geotechnical report dated 10 February 2010 prepared by Jeffery and Katauskas Pty Ltd which refers to the proposed excavation of a basement to a depth of three metres, this does not in my view assist the proper construction of Condition D.2 which specifically requires a dilapidation survey and a dilapidation report "of all buildings on land whose title boundary abuts the site …", and even the following reference in the condition to "the likely 'zone of influence' of any excavation, dewatering and/or construction induced vibration", does not diminish the requirement that such reports must be completed and submitted to Council prior to all work related to the commencement of any development work. It is obvious that this condition is intended to provide a record of the condition of buildings prior to the development being carried out. It cannot be confined to :substantial" works not including the Dormer Works. I consider that Condition D.2, on its own wording (even without recourse to Condition B.1 or the heading to Part D), required compliance before undertaking the Dormer Works.
Condition D.4 provides that a work zone is required for the development before the commencement of "any work", and consistent with my finding above that the Dormer Works are clearly "work" under the definition within the Consent, I consider, not without some hesitation, that the respondent was required to comply with Condition D.4 prior to undertaking the Dormer Works. I consider that this interpretation is consistent with an ordinary reading of the heading to Part D (although I note that my finding would remain the same without reference to that heading). Although the respondent, in relation to Condition D.4, directed the Court to Council's Development Application Assessment Report, this is not in evidence, and I doubt that it would be able to be relied upon in any event.
Four further matters require comment. First, although the applicant submitted that the respondent sought to do as "little [work] as possible" in order to prevent the lapsing of the Consent, even if this be the fact, I have not taken this alleged conduct or intention into account in the interpretation exercise that I have undertaken.
Secondly, although it is sometimes appropriate to look at the development application including the plans and documents accompanying the application to determine the scope and operation of a development consent (and, as the respondent submits, the context in which the Consent was issued), and although I have had some reference to certain documents (namely, arboricultural and geotechnical reports), I am comfortable that the nature and extent of that which was the subject of the Consent (both before and after the relevant modifications) was clear. Even accepting, as I do, that the Consent related to a substantial development, and that this is relevant to context, I do not consider that this should be given any significant weight in the interpretation of the subject conditions. As I have noted above, the Court is not permitted to rewrite an instrument to accord with what may appear to be a practical outcome. I also repeat my comments at [82] above.
Moreover, although not determinative in my consideration, to the extent that my findings may appear harsh, I note (as the applicant submits), that if the respondent considered there to be an issue with the subject conditions applying to the Dormer Works, or if the respondent had wanted to undertake the Dormer Works without them being subject to the conditions of the Consent for the substantial works, an application to modify the Consent to amend the conditions of the Consent or to seek discrete development consent (potentially comprising less extensive conditions) for the Dormer Works could have been made: cf. Coalcliff at [67].
Thirdly, despite being relied upon by the respondent, I consider the fact that the respondent complied with Condition C.2 (which I note required payment "prior to the issue of any construction certificate") and has paid levies and fees in relation to the whole of the works and not simply an amount calculated by reference to the Dormer Works is of no assistance or relevance to the interpretation of the subject conditions.
Fourthly, although the language of some of the subject conditions (particularly Conditions B.4, C.7 and D.4) is not pellucidly clear; even accepting, and I have some doubt about this, that conditions attached to a consent may in some limited circumstances be construed having some flexibility (Leda Manorstead at [92(k)]) or practical application; and, keeping the principles noted above in mind, I am more than comfortably satisfied, particularly in relation to Conditions B.3, C.20, C.21 and D.2, that those conditions necessarily required attention (and compliance) prior to the Dormer Works being undertaken.
In conclusion, I find that the respondent was required to comply with Conditions B.3, B.4, C.7, C.20, C.21, D.2 and D.4 prior to undertaking the Dormer Works, but that it was not required to comply with Condition C.4. As a consequence, where the Dormer Works were undertaken not in compliance with a number of conditions of the Consent, each of which performs an important planning purpose, the Dormer Works were not in accordance with the Consent, cannot be said to "relate to" the development works the subject of the Consent, and cannot be described as having "commenced" the development the subject of the Consent. It is therefore appropriate to declare that the Consent has lapsed and to make an order restraining the respondent from taking any further action in reliance on the Consent.
Where each party seeks its costs should they be successful, but have not made submissions in relation to costs of the proceedings, I consider it appropriate to order the respondent to pay the applicant's costs in accordance with the ordinary rule that costs follow the event, unless an application is made for an alternate order by notice of motion before 20 July 2022.

Orders

The Court: 1. Declares that Development Consent DA 513/2010/1 granted on 27 June 2011 by Woollahra Municipal Council ('Consent') has lapsed. 2. Orders that the respondent, through herself, her servants and/or agents, be restrained from taking any further action in reliance on the Consent. 3. Orders that the respondent is to pay the applicant's costs of the proceedings unless a notice of motion seeking an alternate order in relation to costs is filed within 14 days of the date of this judgment.

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: 07 July 2022

(2013) 195 LGERA 182

(2009) 167 LGERA 395

(2019) 237 LGERA 128

(1999) 107 LGERA 243

(2001) 115 LGERA 231

(2021) 249 LGERA 109

(2001) 130 LGERA 508

(2019) 238 LGERA 147

Hitchcock v Reed

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (45)

Cited By (2)