1 HIS HONOUR: The applicant, Lawrence Waterhouse Pty Limited, seeks a declaration that a development consent, granted by the respondent, Port Stephens Council, on 23 October 1973 has not lapsed on the ground that there has been substantial commencement of the development
2 The relevant facts are not really in dispute and are of a fairly limited nature. For that reason, I am prepared to deliver judgment now, so that the parties know where they stand, even though the judgment may not be as complete as would otherwise be the case.
3 The relevant facts commence in 1959, when the council granted a building approval for "7 flats" on the land comprising lots 15, 16 and 17 in deposited plan 15998, Magnus Street, Nelson Bay.
4 In 1968, the council granted a building approval for an additional four units, on the land. It appears that the residential flat building was duly constructed in accordance with the two building approvals.
5 In August 1973, a development application was lodged for "motel extension to flats". The development application describes the then existing development as "8 brick flats - 2 storeys".
6 On 23 October 1973, the council granted development consent, to the development application, for "additions of motel units". The consent states:
This consent becomes void if the development is not substantially commenced or the consent is not renewed within twelve (12) months from the date of this notification.
This approval relates to development consent only and a current Building Permit must be held before work commences on any structure.
7 On 4 September 1974, the council granted a twelve-month extension of the consent, so that the consent had to be substantially commenced on or before 4 September 1975 to save it from lapsing.
8 In the meantime, that is, before 4 September 1975, the council approved a strata plan, which was then registered in November 1974, being a strata plan of the existing residential flat building and creating a lot, lot 9, which was the lot upon which the additional motel units were to be constructed.
9 The evidence also shows that some work was done before the cut off date of 4 September 1975.
10 It seems that there was an existing gravel driveway servicing the residential flat building. According to the expert evidence of Mr B Moriatti, aerial photography demonstrates that this gravel driveway was concreted over, with additional parking spaces provided on each side. An aerial photo of 25 January 1976, shows the driveway had been by then covered with concrete, with concrete parking spaces on each side.
11 The applicant relies upon this concreting as being substantial commencement of the development, which was the subject of the consent granted on 23 October 1973 and which was the subject of the twelve-month extension granted on 4 September 1974. It is said that this provides not only access but car parking areas, which are part of the motel building, which was the subject of that consent.
12 I should observe that s 95(4) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") - which provides for the lapsing of a consent unless building engineering or construction work is physically commenced on the land, to which the consent applies - is a provision that does not apply in this case. That provision only applies to development consents granted under the EP&A Act. The consent in the present case was granted in 1973, and is a development consent granted under the Local Government Act 1919. It follows that the question is not whether or not building engineering or construction work was physically commenced but whether or not the work, the subject of the consent, was substantially commenced on or before the relevant date 4 September 1975.
13 In considering whether or not there has been substantial commencement of the work that was the subject of the development consent, a number of principles may be stated. These have been identified by the courts over a period of some years.
14 The first principle is explained by Hardie J in North Sydney Municipal Council v Middle Harbour Investments Pty Ltd [1964] NSWR 934; (1965) 10 LGRA 41 at 45:
The use of the adverb "substantially", in the context, in my view, emphasizes two points, or perhaps two different approaches to the one point. One is that the commencement must be some positive unequivocal step indicating that the building for which consent or approval has been obtained has actually commenced; in other words, that some work has been done on the site which is referable to and only referable to the particular building or structure that has been approved; in that sense, it emphasizes that the commencement must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement.
15 The next principle emerges from the decision of the High Court in Day v Pinglen Pty Ltd (1981) 148 CLR 289 in which the High Court said, at 299:
We come then to this question of substantial commencement. As has been said, it is a question of degree. The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount.
16 In that case, a concrete slab had been poured for a residential flat building and the High Court held that that did not amount, in the circumstances of that case, to substantial commencement.
17 The final authority to which I should refer is Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170, in which Cripps J said, at 178:
What the section requires is that the development the subject of the consent is commenced within a period of two years. That commencement occurs when the building, engineering or construction work relating to the development the subject of the consent is physically commenced.