Over our Dead Body Society Inc v Byron Bay Community Association Inc

A reference to - (b) the erection of a building includes a reference to: (i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or (ii) the placing or relocating of a building on land, or (iii) enclosing a public place in connection with the construction of a building, or (iv) erecting an advertising structure over a public road, or (v) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, and (e) the demolition of a building or work includes a reference to enclosing a public place in connection with the demolition of a building or work, and (f) the carrying out of development includes a reference to the use of land or a building, the subdivision of land, the erection of a building, the carrying out of a work, the demolition of a building or work or the doing of any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument. (iii.) the definition of "building work" contained in the EP&A Act, s 4(1), namely "building work" means any physical activity involved in the erection of a building;

the definition of "construction certificate" contained in the EP&A Act, s 109C(1), namely "a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in s 81A(5)" and the contents of a construction certificate as provided in Division 2 of Part 8 of the Environmental Planning and Assessment Regulation 2000.

Additionally, the competing submissions rely upon the recent decision of the Court of Appeal in Green v Kogarah Municipal Council [2001] NSWCA 123, a case involving the statutory lapsing of a development consent as provided in the EP&A Act, s 95.

The essential question that is raised by the competing arguments, I think comes down to this - whether in a situation such as the present where the approved development involves the demolition of parts of an existing building and their replacement by a new building, together with the alterations and additions to, and restoration of, the retained parts of the existing building, the carrying out of the physical works of demolition relevantly constitutes "the commencement of the erection of a building" within the meaning of the EP&A Act, s 81A(2).

The Applicant contends for an affirmative answer to this question on the basis that the demolition work was either an essential first step in the building process, or itself constitutes an essential aspect of the approved development being an "alteration" of the existing building. This contention is supported by decided cases dealing with statutory provisions concerning the lapsing of development consents - eg Green and earlier decisions both in Australia and England North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41 (NSW Land and Valuation Court); Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 (High Court of Australia) and London County Council v Marks and Spencer Ltd (1953) AC 535 (House of Lords).

If the principle established in these cases is held to be applicable to the construction and operation of the EP&A Act, s 81A(2), then the Applicant's argument must, I think, be accepted. 14. The Respondent's competing argument contending for a negative answer to the question that I have posed is founded upon the differentiation made by certain provisions of the EP&A Act (and s 81A in particular) between different aspects or limbs of the overall defined terms "development" or "the carrying out of development". In this respect, particular reliance is placed upon the following two different aspects or limbs of "development" comprising - (i.) the erection of a building; and (ii.) the demolition of a building,

noting that these aspects or limbs are separate and distinct concepts. Whereas they (together with other aspects or limbs of the defined terms "development" and "carrying out development") are collectively embraced by certain provisions of the EP&A Act (eg the pivotal s 76, s 76A and s 76B controlling the "carrying out of development"), they are not collectively embraced by other provisions of the EP&A Act which apply in terms to particular aspects or limbs (eg s 95 dealing with lapsing of development consents and s 81A dealing with the requirement for the obtaining of construction certificates).

Accordingly, the Respondent submits that when s 81A(2) prohibits without the obtaining of the requisite construction certificate "the commencing of the erection of a building", the prohibition is confined to that aspect or limb of the defined terms ("development" and "carrying out development") which comprises "the erection of a building", which concept does not include the separate and distinct concept of "demolition of a building".

Accordingly, the Respondent submits that on the facts of the instant case where only "demolition" works have been undertaken by or on behalf of the Respondent (without there being in existence any construction certificate), there has been no breach of s 81A(2) because that demolition work is not "the commencement" of "the erection of a building".

There are, I think, a number of difficulties encountered in the Respondent's argument, arising from the facts of the present case, namely - (i.) the approved development is complex inasmuch as it involves the demolition of parts of an existing building, together with the retention of other parts of the existing building with alterations, additions and restorations; (ii.) the development consent is an indivisible whole, albeit sufficient to sanction a number of aspects of the overall approved development; (iii.) in terms, the development consent does not adopt the term "demolition" but instead adopts the compound phrase "alterations and additions and restoration of existing building"; and (iv.) the degree of overlap between "demolition" of part of an existing building and "alterations or additions" to that building in a statutory context where "building" (as defined by the EP&A Act, s 4(1)) includes "part of a building and any structure or part of a structure": cf Shimizu (UK) Ltd v Westminster City Council (1997) 1AllER 481.

These are matters that I readily appreciate are more relevant to the application of the section in the present case, but they also have some relevance, at least as background facts, to the question of the proper construction of the EP&A Act, s 81A(2).

Before adjudicating upon these competing submissions, I must pause to examine a matter that was commonly agreed between the parties, namely that in terms of the EP&A Act, development consent is required for the demolition of buildings and that that requirement was satisfied in the present case by the grant of the development consent. The parties' common assumption that development consent was required because of the terms of the LEP, is not in my opinion, a correct assumption. Although the matter was not argued, it is tolerably clear in my opinion that although the definition of "development" contained in the EP&A Act, s 4(1) includes "the demolition of a building", that definition was only inserted into the Act by Act No 152 of 1997 (the Environmental Planning and Assessment Amendment Act 1997) which came into force on 1 July 1998. That definition replaced the definition contained in the EP&A Act as originally enacted. The replaced definition did not include within the scope and ambit of the defined term "the demolition of a building": see Mulcahy v Blue Mountains City Council (No 2) (1995) 87 LGERA 422 where I held at 428 that the removal of barricades preventing access to a private road did not constitute "the carrying out of development".

The LEP which came into force on 22 April 1988 did not originally contain a definition of "development". However, where that word was employed in the LEP, the meaning of it was the same as the meaning of the term under the EP&A Act: vide the Interpretation Act 1987, s 11. When the LEP was amended by Byron Local Environmental Plan 1988 (Amendment No 58), it included within the definitions provided in cl 5(1) the following definition:

development has the same meaning as in the Environmental Planning and Assessment Act 1979.

The meaning of the term "development" under the EP&A Act as in force when the LEP was amended, was that provided in the definition (as reported in Mulcahy) that was to be replaced on 1 July 1998 when Act No 152 of 1997 came into force. However, although that Act had been assented to as at the date of the LEP, Amendment (ie on 6 March 1998), the Act had not commenced. Accordingly the LEP amendment adopting the definition of the term "development" contained in the EP&A Act adopted the then in force but now since replaced definition cf Black v Director General of Education (1982) 2 NSWLR 714 at 715/717.

The adoption by the LEP Amendment of the definition of "development" contained in the EP&A Act does not operate in an ambulatory fashion - rather, the adoption is that of the definition contained in the EP&A Act at the relevant time (ie when the adoption occurred by the LEP Amendment coming into force on 6 March 1998). The later commencement on 1 July 1988 of Act No 152 of 1997 inserting into the EP&A Act the substituted definition of "development" did not have the effect of altering the adoption by the LEP Amendment of the earlier and original definition of "development" contained in the EP&A Act: cf Leichhardt Municipal Council v Fridrich Constructions Pty Ltd (1984) 54 LGRA 82 and see the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, cl 29A.

The foregoing analysis establishes that the LEP does not include within its controls on the "carrying out of development" any control on the demolition of buildings. (In so concluding, I put aside the provisions of cl 18 to cl 22 (incl) of the LEP which deal specifically with items of environmental heritage, since it is common ground that the existing building on the development site is not governed by these special provisions). 24. However, although control of "demolition of a building" is not governed by the controls on the carrying out of development imposed by the LEP, cl 9 (or otherwise by the LEP save for the special provisions relating to "items of environmental heritage") the control of the demolition of a building is still enforced by the EP&A Act by virtue of the operation of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, cl 29 inasmuch as "the demolition of a building" is "a prescribed activity" (as defined by the Regulation, cl 3) which, within the meaning of subclause (1), is development that "may not be carried out except with development consent" within the meaning of subclause (3).

Thus, "the demolition of a building", being a "prescribed activity", may not be carried out except with development consent granted under the EP&A Act: cl 29(3) of the Savings and Transitional Regulation 1998. The extent of the control, in turn, depends upon the extent of the control that formerly existed under the Local Government Act 1993 in respect of Part A Item 2 of the Table to s 68 of that Act (which provisions were extensively amended and/or repealed on 1 July 1998 by the coming into force of Act No 152 of 1997).

In this respect, it is to be noted that the LG Act 1993 contained no definition of the words "demolish" or "demolition" but defined "building" as "including part of a building and any structure or part of a structure".

Accordingly, the extent of the control of the "demolition of a building" is to be ascertained by applying the ordinary meaning of the word "demolish" ("to destroy by disintegration of the fabric of; to pull or throw down; to reduce to ruin": Shorter Oxford Dictionary) to the extended meaning of the defined term "building": cf Shimizu (UK) Ltd.

It is only by the foregoing detailed and regrettably tortuous route that one safely arrives at a satisfactory substantiation of the parties' common assumption in the present case that development consent was necessary for the demolition of parts of the existing building situate on the development site.

There is one further preliminary matter that I must refer to, namely the purpose of the statutory requirement for the obtaining of a construction certificate in respect of an approved development (ie a development which is the subject of the grant of development consent). The concept of "certification of development" as is now provided in the EP&A Act, Pt 4A was not introduced into the statutory regime until 1 July 1998 when Act No 152 of 1997 came into force. As I have earlier mentioned, one of the significant legislative changes introduced by that Amending Act was the abandonment of the necessity for obtaining a separate approval under the Local Government Act 1993 for the erection of a building and approval for other allied matters eg the demolition of a building. Instead of the complementary or supplementary approval processes concurrently operating under the Local Government Act 1993 in addition to the requirement of the EP&A Act for the obtaining of development consent for the carrying out of development, Act No 152 of 1997 introduced a system of "certification of development" as contained in Pt 4A together with the subsidiary or ancillary provisions contained in Parts 4B and 4C. The various types of certificate referred to in s 109C(1) had counterparts under the Local Government Act 1993 but they were repealed by Act No 152 of 1997.

This change marked a very significant change in the concurrently operating statutory planning control regime and the local government approvals regime (where those dual regimes had operated continuously since the introduction in 1945 of town planning legislation, as a separate part of the Local Government Act 1919, namely Pt XIIA).

Section 81A provides the vital and pivotal bridge or link between the provisions of the EP&A Act dealing with the grant of development consent (eg s 76, s 76A, s 76B and s 80) and the provisions of the Act providing for the "certification of development" (notably Pt 4A, Pt 4B and Pt 4C).

Section 81A(1) provides that development consent for the erection of a building "is sufficient to authorise the use of the building when erected for the purpose for which it was erected etc". This provision essentially re-enacted without material change the EP&A Act, s 91(4) as originally enacted.

Section 81A(2) forbids "the commencement" of "the erection of a building" until a construction certificate "for the building work" has been issued and s 81A(4) contains a similar prohibition on the commencement of "subdivision work".

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land .

The Environmental Planning and Assessment Regulation 2000 contains in Pt 8 comprehensive provisions relating to the "certification of development". However, it contains no provisions dealing with demolition.

This Regulation commenced on 1 January 2001 (cl 2) and repealed the Environmental Planning and Assessment Regulation 1994 (cl 286(1) with savings and transitional provisions being contained in subclauses (2) and (3)).

The repealed Regulation had also contained (in Parts 7A, 7B and 7C) extensive and similar provisions to those contained in the now current Regulation in respect of the "certification of development", introduced into that Regulation in consequence of the enactment of Act No 152 of 1997.

In the present case I have been content to assume that the application made by the Respondent for the issue of the requisite construction certificate has been made under the current Regulation (which came into force just two weeks after the development consent was granted). However, nothing turns on that assumption, in that the position is not materially different if the replaced Regulation applies.

The purpose of a construction certificate is to certify that work that is completed in accordance with "specified plans and specifications" will comply with the requirements of the regulations referred to in s 81A(5): see s 109C(1)(b). This is to ensure that there comes into existence before approved development is commenced, the requisite detailed plans and specifications of the approved building or subdivision (which plans would normally be expected to be far more comprehensive than the development application plans) so that they are checked in relation to the requirements of the Regulation and are certified as complying with those requirements.

Having established (i) that the development consent granted the requisite authority inter alia for the demolition of part(s) of the existing building; and (ii) the purpose of the provisions of the EP&A Act dealing with the "certification of development", it is now possible to give my adjudication upon the competing submissions made in the present case.

In my judgment, the demolition work undertaken by or on behalf of the Respondent relevantly infringed the prohibition contained in the EP&A Act, s 81A(2) inasmuch as that demolition work (which was undertaken without there being in existence a construction certificate) relevantly constituted "the commencement" of "the erection of a building" in accordance with the development consent. I shall now state my reasons for so concluding, confessing at once that I initially found the relevant question to be a difficult one to answer.

Although, as was properly conceded by Senior Counsel for the Applicant in the course of argument, s 81A imposes no obligation for the obtaining of a "construction certificate for building work" in a case where the relevantly approved development is "the demolition of a building" per se, the position is otherwise in a case, such as the present, where the approved development comprises a complex of physical activities involving the demolition of parts of an existing building and the retention of other parts of that building with alterations and additions thereto and with restoration thereof.

In the latter type of situation (ie as with the present case), it is neither logical nor feasible nor necessary to separate out any of the various physical activities which collectively comprise the approved development. Indeed, to separate out, as the Respondent's argument would have it, that aspect comprising the demolition of parts of the approved development, would be to introduce artificial and unworkable distinctions.

The correct interpretive result, in my judgment, must be acutely cognisant of (i) the very practical and important purpose sought to be achieved by the provisions of the EP&A Act dealing with "certification of development"; and (ii) the very practical subject dealt with in those relevant provisions. A construction of s 81A that produces uncertainty or undue complexity or undue artificiality in the operation of the relevant provisions is clearly not a result that promotes the clear purpose of the provisions of the EP&A Act dealing with the requirements for "certification of developments". With respect, the Respondent's attempt to maintain in the construction of s 81A an immutable differentiation between those aspects of "development" that comprise "the erection of a building" on the one hand and "the demolition of a building" on the other, in the present case involving a complex approved development would, in my opinion, produce considerable uncertainty and difficulty in the operation of the provisions of the EP&A Act in respect of "the certification of development".

Moreover, the Respondent's argument does not satisfactorily come to terms with the obvious overlap between the two concepts relevant to the present case, of "demolition of parts of an existing building" and "alterations and additions to and restoration of, other parts of the existing building" cf Shimizu; and North Sydney Municipal Council v Pielor Pty Ltd (1981) 43LGRA 184.

Accordingly, the Respondent's attempt to maintain a clear and fixed differentiation between those two aspects of the defined term "development" is not, in my respectful opinion, sustainable in a case like the present where it can be said alternatively with equal clarity and cogency that the approved development involves (i) "the demolition of parts of the existing building"; and (ii) the "alteration of the existing building".

Indeed, in these circumstances, I am satisfied that the very physical activity of demolition of parts of the existing building (that the Respondent exclusively relies upon) is at the very same time, the same act of "altering" that building (the latter description falling squarely within the extended concept of "the erection of a building" provided in the EP&A Act, s 4(2)).

In so concluding, I do not for a moment discount the fact, much emphasised by the Respondent's argument, that s 81A(2) in terms refers to the "commencement of the erection of a building" and s 81A(5) authorises regulations "concerning the issue of certificates for the erection of buildings and the subdivision of land". Thus, in terms, the section is silent on the matter of "demolition of a building".

However, I think the key to the proper construction of s 81A(2) lies in the concept of "commencement" of the erection of a building. It is that activity (ie commencement) that is proscribed without the prior issue of the requisite construction certificate for "the building work" (a term that in my opinion is sufficiently wide to comprehend "demolition work or activity").

In my judgment, in a case such as the present, where the approved development involves an overall complex of physical activities (including the demolition of parts of an existing building, also aptly described as the "alteration" of that building) it is reasonable to conclude, as I do in the present case, that the carrying out of the demolition work relevantly "commenced" the erection of the approved building.

In so concluding, I think that the decided cases that I have earlier cited dealing with statutory provisions for the lapsing of development consents, can be helpfully invoked and applied in the task of construing the meaning and effect of s 81A(2).

In the Marks and Spencer case, the House of Lords was concerned with a statutory expression "any works for the erection or alteration of a building" contained in earlier English town planning legislation. The House adopted the argument advanced for the company -

that the phrase works for the erection…of a building means , in relation to the present case, the totality of the physical works upon the site necessary to carry out their building project, as authorized in 1938, beginning with the work of demolition and ending with the completion of the building.

in preference to the Council's competing argument that the statutory words "refer only to building operations of a constructional nature and not to operations consisting in demolitions or in the clearance of the site".

The Australian cases that I have earlier cited are consistent with the approach adopted by the House of Lords in Marks and Spencer.

Very recently Giles JA, in giving the judgment of the Court of Appeal in Green has reviewed the earlier authorities before expressing the following views at par 70 and par 71:

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 fishpond 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…

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.

I would respectfully adopt the approach taken by Giles JA in the present case by finding as a fact that the demolition works undertaken by or on behalf of the Respondent relevantly 'commenced the erection of the (approved) building" within the meaning of the EP&A Act, s 81A(2).

In leaving the decided cases on the statutory lapsing of development consents, I would note in particular the leading judgment of Gibbs J (as he then was) in Lebnan where at 360, his Honour appears to have clearly accepted the proposition that the demolition of existing buildings in order to clear the site for new development could have constituted the commencement of the approved development (if the approval had extended to demolition).

Unlike the facts in Lebnan, in the present case the development consent does of course authorise the demolition of parts of the existing building (alternatively expressed as I have held as "alterations to the existing building"). Accordingly, I consider my factual conclusion in the present case to be supported by Gibbs J's dicta in Lebnan.

I am relieved that the construction of s 81A(2) that I have adopted (and which is supported by both a literal and a purposive interpretive approach) has the obvious virtue of ensuring that there is certainty and clarity in both understanding and applying the requirements for the obtaining of construction certificates, with the resultant benefits to both planning administrators and developers.

For all the foregoing reasons, I would hold that there has been a relevant infringement of the EP&A Act, s 81A(2).

That holding is sufficient to uphold the Applicant's claim to declaratory relief in its amended form Consequently there is no need to consider the original claim to relief other than to say that no attempt was made to establish a relevant breach of the development consent and there is no basis for making any such finding. A breach of the EP&A Act, s 81A(2) is relevantly discrete from any finding of any breach of the development consent.

The question of the final form of relief is reserved as is the question of costs with liberty to restore on five days' notice.

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