SURVEY WORK
29Before the lapsing date and after the development consent, much survey work relating to the development was necessary, and was carried out, in order to produce engineering drawings. It included the following:
(a)On 21 January 1993, the continuation of an external boundary survey of the land was undertaken by Mr Andrew Wyper of the applicant's surveyors, Brown & Pluthero Pty Ltd. The purpose was to identify and reinstate external boundaries and included the placement of markers to assist in calculating approved allotment layout for civil design and final linen plan preparation and for use in future survey control during the civil construction phase. Hand clearing of vegetation was also carried out as required to facilitate the survey.
(b)On 28 January 1993, an employee of Brown & Pluthero Pty Ltd, Mr Barry Sheppard, under Mr Wyper's supervision, undertook further survey work on the land. The purpose was to locate and level existing sewer manholes to identify services as a precursor to engineering design and allotment layout calculations.
(c)On 15 March 1993, Martin Findlater & Associates, the consulting civil and structural engineers employed by the applicant, wrote to Brown & Pluthero surveyors requesting additional field survey work be undertaken on Lot 2 DP 623932.
(d)On 23 and 26 March 1993, Mr Sheppard, under Mr Wyper's supervision, undertook survey work on the land to identify levels and batter detail adjacent to the Pacific Highway, further sewer detail, levelling of sewer manholes and other field survey work. On 26 March 1993, Mr Wyper also carried out field survey work on the land being further sewer location and levelling. This work was required in order to facilitate engineering design including the placement of roads and final lot boundary positions. Upon establishing the external boundary positions and the location of critical sewer manholes, lot calculations were carried out to determine final lot boundaries and dimensions.
(e)On 7 and 11 May 1993, Mr Sheppard, under Mr Wyper's supervision, undertook further field survey work to locate existing Telecom cables and provide levels of existing road alignment (kerb inverts and Pacific Highway overpass position). The purpose of this survey work was to facilitate civil design including the location of roads and other services required as part of the approved development.
(f)The survey works carried out during January, March and May 1993 made use of the survey marks placed during January 1993.
30The applicant submits that:
(a)by reason of this survey work, under s 99(4) engineering work relating to the subdivision physically commenced on the land to which the consent applied before the statutory lapsing date and the development consent therefore did not lapse; and
(b)the survey work did not offend the prohibition in condition 9 of the consent because "engineering works" in condition 9 does not include surveying work even though "engineering" work in the composite phrase in s 99(4) does.
31The respondent submits that:
(a)the term "engineering works" in condition 9 takes its meaning from "engineering...work" in the composite phrase in s 99(4);
(b)the survey work carried out before the lapsing date was thus "engineering works" within the meaning of condition 9; and
(c)therefore the survey work was unlawful and did not prevent lapsing since in fact "the complete set of engineering drawings" was not approved by the council before the lapsing date (or at all).
32In the context of the composite phrase "building, engineering or construction work" in s 99(4), "engineering" work includes realistic survey work: Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169, 63 NSWLR 124 at [83] - [88] per Tobias JA (with whom Santow JA and Stein AJA agreed):
83 In my opinion, the expression "engineering work" in its context of forming part of the composite phrase "building, engineering or construction work", should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. There can be no doubt that engineering as such can involve many different elements: relevantly with respect to a subdivision, it involves civil engineering work such as the design and (possibly) the construction of roads, sewerage systems, drainage and the like.
84 But once consent is granted for a subdivision, the implementation of that consent ultimately resulting in the construction of the subdivision roads, drainage and sewer lines as well as the laying out of the allotments in accordance with the approved layout, requires as a necessary first step in the engineering or construction of that subdivision, including the physical works contemplated thereby, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. This would accord with common sense and industry practice...
85 The carrying out of survey work to establish the correct location of these elements, in my opinion, is capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. Accordingly, it follows that the natural and ordinary meaning of the expression "engineering work" in the context relevant to the present issue is capable of including physical survey work of the nature and extent of that the subject of these appeals.
86 That is not to say that any survey work, albeit of a physical nature, would so qualify. Simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not, in my view, necessarily qualify. There is an element of fact and degree in each case. Although in Besmaw Pty Ltd Talbot J (at 436 [112]) observed that once Parliament had decided to delete the requirement of substantiality, there was little room for an argument that the works must not be de minimus, and that it was therefore reasonable to exclude any test of the degree and extent of the work under the present statutory regime, nonetheless the requirement that the relevant work relate to the approved subdivision requires a real nexus between them. In particular, the concept that the work must be "physically commenced", requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved: cf Besmaw Pty Ltd at 436 [111]....
87 Subject to the issue of whether the relevant work was merely preparatory and, if so, whether that disqualified it from preventing the lapsing of the consent, in my opinion the physical survey work carried out by Tovedale (and which his Honour found to have occurred prior to the lapsing date) was neither notional nor equivocal. In fact, his Honour did not suggest to the contrary. Equally, there can be no doubt that that work was physically commenced. I appreciate that Cowdroy J in Biwazu Pty Ltd found that for engineering work to be physically commenced on the land there had to be a "material alteration of the existing circumstances". It would appear that this expression by his Honour was intended to require a material change to the land as a consequence of the physical impact due to the commencement of the relevant work. The difficulty with this construction is that the statutory provision only requires the relevant work to be "physically commenced": it need not continue, let alone be completed: see Besmaw Pty Ltd at 430 [83]; 436 [111] - [112)]. Furthermore, as Tovedale submits, the statutory concept requires only some application of labour which manifests itself on the land. I am unable therefore, to endorse Cowdroy J's approach.
88 ...the only statutory requirement is that the relevant work is commenced upon the land in a physical sense ...What is to be distinguished is work which is not physically commenced on the relevant land but is off - site work such as design and planning work.
...
98. ...once it is accepted that the survey and geotechnical investigation work that was carried out was "engineering work", it must follow that that work, in the context of a development consent to a subdivision was..."an initiatory step" in the process of subdividing the relevant land in accordance with that consent. Provided that "initiatory step" is a necessary part of that process that is all the statutory provisions require. Accordingly, whether one describes that step as preparatory is irrelevant.
33Tobias JA at [80] approved the decision of Talbot J in Richard v Shoalhaven City Council [2002] NSWLEC 11 that "physical work on the land involving the application of surveying skills resulting in the taking of levels, placing of pegs, the removal of vegetation and the establishment of permanent survey marks including the centre points of an approved subdivision road were part of the engineering work required for the establishment and construction of the subdivision", and therefore operated to prevent lapsing.
34The only questions under s 99(4) are: (a) was the work relied on building, engineering or construction work? (b) if so, did it relate to the approved development? (c) if so, was it physically commenced on the land to which the consent applied prior to the lapsing date?: Hunter at [111]; followed in JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535 at [18] per Lloyd J.
35Hunter has often been applied in this Court. For example, in JMS at [22] Lloyd J held that survey work which included the pegging of a site constituted engineering work. In Henry v Shellharbour City Council [2005] NSWLEC 378 at [33] - [34] Talbot J held that a pilot study comprising a survey and significant physical works was engineering and construction work relating to the establishment of an approved compensatory wetland development for the purpose of s 95(4). In Norlex Holdings Pty Ltd v Wingecarribee Shire Council [2010] NSWLEC 149, 177 LGERA 261 at [89] and [96], Pepper J held that the extraction of spring water for testing and the conduct of acoustic tests on the extraction pumps were initiatory steps (analogous to survey work) so as to constitute "engineering" work and prevented the lapsing of a development consent under s 95(4).
36Works which otherwise fall within the former s 99(4) (and the current s 95(4)) do not prevent lapsing of a consent if the work was not lawfully conducted, for example if a precondition to the doing of the work has not been satisfied: Iron Gates Developments Pty Ltd v Richmond - Evans Environmental Society Inc (1992) 81 LGERA 132 (CA) at 134 - 135; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243 at [66], [96] - [97]; Green v Kogarah Municipal Council [1999] NSWLEC 256 at [32]; Green v Kogarah Municipal Council [2001] NSWCA 123, 115 LGERA 231 at [48] - [50]; Besmaw Pty Ltd v Sutherland Shire Council [2003] NSWLEC 181, 127 LGERA 413 at [159] - [165]; Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404, 133 LGERA 1 at [44] - [46]. This is relevant to condition 9 of the consent.
37Iron Gates was concerned with an earlier version of s 99 (set out in Iron Gates at 133) than the version with which this case is concerned (set out above at [ 3 ]). The earlier version of s 99(2) seems to have been to substantially the same effect as the later and relevant s 99(4). However, the earlier version of s 99(1) provided that a development consent shall lapse "unless the development the subject of that consent" was commenced within a specified time. The quoted words were omitted in the later version of s 99(1) with which this case is concerned and in the current s 95(1). This omission suggests that it ceased to be necessary for the work relied on to have been the subject of the development consent in issue, and that it became sufficient that the work related to the development the subject of that consent. That is consistent with Hunter : see [ 34 ] above.
38In Iron Gates a condition of a subdivision development consent prohibited any work on Stage 1 until the external access road had been constructed. Work on Stage 1 was claimed to have constituted commencement of the development. However, it was carried out before the external access road had been constructed. The reasoning in Iron Gates at 135 was that "the work in question was not work 'relating to that development' for the purposes of s 99(2)(a) because it was prohibited by the consent, and therefore was not 'the subject of that consent' within s 99(1)(a)". That reasoning cannot be applied to the later version of s 99 (and the current s 95) because, as I have noted, the words "the development the subject of that consent" no longer appear. However, in Iron Gates at 135 the Court quoted alternative reasoning, leading to the same result, of Woolf LJ in an English case that: "If the operations contravened the conditions they could not be properly described as commencing the development authorised by the permission. If they did not comply with the permission they constituted a breach of planning control and for planning purposes would be unauthorised and thus unlawful". Later, the Court of Appeal, in the context of the later version of s 99, preferred this alternative reasoning: Green v Kogarah Municipal Council [2001] NSWCA 123, 115 LGERA 231 at [65] - [67] per Giles JA (Mason P and Ipp AJA agreeing). This alternative reasoning applies to the present case.
39In my opinion, there are good reasons for concluding that the expression "engineering works" in condition 9 does not include survey work, notwithstanding that "engineering...work" in the composite phrase in s 99(4) does.
40First, if "engineering works" in condition 9 include surveying, then it is impossible to comply with condition 9 because the complete set of engineering drawings it requires cannot be produced until surveying is done, yet condition 9 prohibits surveying until the complete set of engineering drawings is produced. Catch 22.
41The respondent has no answer except to say that (a) the Court is not free to depart from the literal meaning of the words, however transparent may be the resulting stultification of condition 9; (b) the explanation may be that the council mistakenly assumed that no further survey work was required; and (c) the only possible way out for the applicant was to seek a discretionary order that condition 9 be amended through the modification machinery of the EPA Act or a merits appeal to this Court.
42I do not accept the respondent's submission. One shrinks from the extraordinary construction which it involves: that the council is taken to have intended to grant consent for work that was impossible without amending a condition of the consent. This would be a serious derogation from the grant. It is not sensible. Conditions of development consent should be construed if possible as intended to achieve something practical and substantive: see [ 26 ] above. The purpose of this condition was to fix an achievable condition precedent to commencement of engineering works. As Judge Learned Hand said in Cabell v Markham 148 F 2d 737 at 739 (1945):
Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
43I disagree that there can reasonably be attributed to the council a mistaken assumption that no further survey work was required, particularly having regard to the following:
(a)Draft DCP 16, which incorporated by reference in the development consent, contains many provisions relating to engineering work requiring survey work which could not reasonably be expected to be carried out until after development consent was granted;
(b)At the time, because the subdivision provided for the opening of a public road, s 327(1)(c) of the Local Government Act 1919 required the applicant to place "in the road permanent survey marks in the position and manner and of the character prescribed" (the prescription was in Ordinance 32 cl 5 to cl 9). There is an implicit reference to this requirement in condition 41 of the development consent; and
(c)Figure 3 incorporated in the development consent contains a note that "dimensions and areas are subject to survey".
44Secondly, the different purposes and contexts of s 99 and condition 9 suggest that "engineering works" in condition 9 do not include surveying work, even though "engineering" work in the composite phrase "building, engineering or construction work" in s 99 does include surveying work. Section 99(4) is a dragnet provision capturing all kinds of work that are likely to be relevant to demonstrating whether the development has in fact commenced. In contrast, condition 9 is a management condition to prevent works which by their nature require engineering drawings - roads, drainage, sewerage, water supply, etc - from being commenced without the council's prior approval of the complete set of engineering drawings. Survey work does not require engineering drawings, let alone approval of engineering drawings. It does not even require development consent.
45These considerations prompt a search for an alternative construction if one is available.
46An alternative available construction of condition 9, which I adopt, is that the council must be taken to have intended to authorise work necessary for compliance with condition 9: cf Detala at [25] - [26] endorsing Grand United Friendly Society v Parramatta City Council [2000] NSWLEC 207 at [48] - [50]. Hence, in condition 9 "engineering works" should be construed as not including survey work necessary to produce the engineering drawings which it requires. It does no undue violence to the language of the condition to assume that it was implicitly made subject to that provision, which alone makes the condition practicable. It would be unreasonable not to construe it in this way. If it is not so read, the result is really nonsense, for condition 9 is defeated unless there is attributed to the council an intention to grant consent for work that was impossible without amending the consent.
47Accordingly, in my opinion, under s 99 the survey work constituted commencement of the development and the development consent did not lapse.