Reysson Pty Ltd v Roads and Maritime Services

THE DEVELOPMENT CONSENT 9The 1993 development consent is expressed in the notice of determination to be "in respect of the proposed subdivision to create 34 lots in four (4) stages of the land described as Lot 2 DP 623932 & Lot 1 DP 781520, Pacific Highway, Tweed Heads South". 10Condition 1 requires the development to be generally in accordance with four specified plans, described as "Figures 1 - 4 accompanying the Statement of Environmental Effects dated September 1992", and Draft Tweed Shire Council Development Control Plan No 16 ( Draft DCP 16 ). Figures 1 - 4 and Draft DCP 16 were thereby incorporated in the development consent. 11Figure 1 is a locality plan showing the Pacific Highway adjoining the subject land on its western boundary; zoning of the subject land and other adjacent or nearby land; and a proposed future lake on adjoining land to the north - east. Figure 2 is a contour survey plan. Figure 3 is a staging plan which shows lot dimensions. It bears the note: "Dimensions and areas are subject to survey". Figure 3 shows a 34 lot subdivision. Lots 1 to 33 are residential lots. Lot 34 is designated "future public open space" and has a relatively large area of 44 hectares. The stages depicted on Figure 3 are as follows: Stage 1 Construction of entrance road and creation of lots 1 to 12 Stage 2 Creation of lots 13 to 22 Stage 3 Creation of lots 23 to 32 Stage 4 Creation of lots 33 and 34

12Figure 4 is a plan of surface grading and drainage. On lot 34 (in stage 4) it identifies an existing open channel (tidal) connecting to the future lake and provides for a temporary basin to be connected to the existing channel by a temporary open drain. 13Figures 1, 3 and 4 depict conceptually, by dotted lines, a future roundabout adjacent to the access road to the subdivision and a slip road leading to the roundabout from the southbound lane of the Pacific Highway, which flanks the western side of the applicant's land. Figure 1 shows that the land on which the roundabout and slip road were proposed to be built was zoned 5(c) Special Uses (Arterial Road Reservation) Zone. Condition 29 provides: The 5(c) zoned land is to be dedicated as road in conjunction with Stage 1. 14Condition 9, on which the respondent primarily relies, is in the following terms: Under no circumstances shall engineering works commence prior to approval of the complete set of engineering drawings 15Condition 8 encompasses earthworks: Any proposed excavation or land filling operation must be carried out in accordance with plans approved by the Director, Engineering Services. These plans must be [sic] include contour details of the proposed excavation site (both before and after); fill levels and drainage paths. Sedimentation/erosion control measures should also be included. 16Condition 37 requires construction of the roundabout: The construction of the proposed roundabout and vehicle access to plans submitted to and approved by the Director Development Services. 17Other relevant conditions of the development consent include the following: 4. The construction of all roads, drainage and associated works to plans prepared by a Qualified Civil Engineer, submitted to and approved by the Director, Engineering Services. Plans to be accompanied by the prescribed assessment fee. ... 10. Certification by a qualified Engineer that the works have been performed under his supervision in accordance with the approved engineering plans and specifications. ... 28. Erosion/sedimentation and pollution control measures to be implemented in conjunction with all stages of the construction an [sic] completed subdivision. Full details to be submitted to and approved by the Director Development Services prior to release of engineering plans. ... 30. Details of the proposed source of fill to be submitted to Council prior to release of engineering plans. ... 33. The area included within proposed lots 1 to 33 to be filled to a minimum design flood level of RL 2.65 metres AHD. Full details of the method of retaining and draining the fill in close proximity of the existing canal to be submitted prior to the release of engineering plans. ... 40. The construction of a combined pedestrian/cycleway to the satisfaction of the Director Engineering Services. Details to be submitted with the engineering plans for Stage 1. 41. Where new State Survey and/or Permanent Marks are placed, a copy of the locality sketch relating to the marks shall be submitted with the linen plan of subdivision. 18I note that conditions 4, 8, 9, 37 and 40 all require engineering plans. 19In addition to the development being described as a development in four stages, a number of the conditions refer to the four stages or to Stage 1. Condition 2 specifies the linen plan fees payable for each stage. Conditions 17, 18, 19, 35 and 36 specify in relation to each stage the contributions payable for water supply headworks, sewerage headworks, under s 94 of the EPA Act, in accordance with Development Control Plan No 3, and for street tree planting. Conditions 29 and 40 refer to Stage 1. 20Accompanying the notice of determination were four standard forms, each referable to one of the four stages and headed "This form must accompany payment of fees to be paid to Council". Each form specifies amounts to be paid by way of contributions for the relevant stage to which it relates.

INTERPRETATION OF DEVELOPMENT CONSENTS 21The broad aim of legal interpretation of any written instrument, including a development consent, is to give it effect, not to frustrate it; to oil its wheels, not to put a spanner in its works nor even grit in its oil; to give effect to the reasonable expectations it engenders. This amalgamates similar comments as to the purpose of contractual interpretation in extra - judicial writings of Lords Goff and Steyn noted by Lord Bingham in his book, Lives of the Law (2011) Oxford University Press at 296 - 297. The problem is to give practical effect to these laudable aims. 22Lord Blackburn was speaking of interpretation of written instruments generally, including statutes, when he said in River Wear Commissioners v Adamson (1877) 2 App Cas 743 at 763: My Lords, it is of great importance that those principles should be ascertained; and I shall therefore state, as precisely as I can, what I understand from the decided cases to be the principles on which the Courts of Law act in construing instruments in writing; and a statute is an instrument in writing. In all cases the object is to see what is the intention expressed by the words used. But, from the imperfection of language, it is impossible to know what that intention is without inquiring farther, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view; for the meaning of words varies according to the circumstances with respect to which they were used. 23A development consent is a consent to the world at large and is to be construed fairly and liberally in context according to its written terms but having regard to its enduring function as a document in rem: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23] ; Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273, 148 LGERA 439 at [35] - [36]. 24Documents accompanying an application for consent and other documents are not taken as incorporated in the consent unless incorporated expressly or by necessary implication: Winn v Director - General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [2]. 25As a development consent is a document in rem, "communications between the parties do not form part of the matrix relevant to construction...However, the Court can have regard to objective circumstances, including the physical circumstances, the plans accompanying the development application, and matters relating to title": Westfield Management Ltd v Perpetual Trustees Company Ltd [2006] NSWCA 245 at [41]. To this list there has been added "matters of zoning": Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242 at [31]. I take it that the inclusion in the list of "plans accompanying the development application" is dependent upon whether the plans are expressly or impliedly incorporated. However, if a development consent is meaningless or ambiguous without reference to the application plans, their incorporation may be readily implied. 26Development consents are to be construed not as documents drafted with legal expertise, but to achieve practical results. Conditions of development consents are intended to achieve something substantive, and should be construed if possible so as to give effect to that intention and to avoid uncertainty: Westfield at [36]; Baulkham Hills Shire Council v Ko - veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [96] - [100]; Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308, 183 LGERA 228 at [80]. 27These principles of construction of development consents identified in the decisions of the Court of Appeal cited above have been frequently applied in this Court: for example, in Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 39, 124 LGERA 90 at [29]; Neighbourhood Association DP 285249 v Watson [2008] NSWLEC 245 at [388] - [397]; Nambucca Valley Conservation Association Inc v Nambucca Shire Council [2010] NSWLEC 38 at [161]; Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2010] NSWLEC 10 at [46] - [56]; SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151, 175 LGERA 408 at [59] - [61]; Roberts v Blue Mountains City Council [2012] NSWLEC 2 at [53]; and CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (No 3) [2012] NSWLEC 6 at [77]. 28The words of a development consent have the meaning that the consent authority is objectively taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction (such as absurdity, repugnance or inconsistency), the purpose of the development consent or the canons of construction may require the words to be read in a way that does not correspond with the literal or grammatical meaning. Here I have applied to development consents principles of statutory construction expressed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [78] and Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) [1937] HCA 4, 56 CLR 337 at 371.

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.

ROUNDABOUT WORK 48Figures 1, 3 and 4 (incorporated in the 1993 development consent) show by dotted lines a future roundabout next to the vehicle access road to the subdivision and a future slip road leading to the roundabout from the Pacific Highway. The roundabout and slip road are shown conceptually without any design details, in contrast to the internal roads and lots shown within the subdivision. At the time of the 1993 consent, the roundabout and slip road were on that part of the applicant's land zoned 5(c) Special Uses (Arterial Road Reservation): see [ 13 ] above. Condition 37 requires the construction of "the proposed roundabout and vehicle access". 49Those Figures also show the existing Darlington Drive running from the existing Laura Street to the south of the subject land along its western boundary to the roundabout, and thence under the Pacific Highway. Therefore the proposed roundabout would service not only the proposed subdivision vehicle access but also Darlington Drive and Laura Street. 50Condition 37 does not preclude obtaining a further development consent for the roundabout if that is necessary. Conditions of consent may require things to be done that require further development consents or approvals. I consider that was the case with the roundabout given that it was only shown conceptually in the 1993 consent Figures. 51In May 1997, before the lapsing date, the council resolved to grant conditional development consent to itself to construct the roundabout and the slip road, and completed construction of the roundabout in December 1997. Condition 3 of the 1997 roundabout consent required the road to be dedicated as a public road. In June 1997 the council also granted development consent to itself for the subdivision of that part of the land zoned 5(c) on which the roundabout and slip road were proposed. This latter 1997 subdivision consent related to fulfilment of condition 3 of the 1997 roundabout consent. On the same day the council wrote to itself stating that all conditions of its 1997 subdivision consent had been fulfilled. 52All this was the result of an agreement between the council and the applicant prior to the 1997 consent to the effect that the applicant would transfer its 5(c) zoned land (or part of it) to the council in return for the council constructing the roundabout, to the applicant's design, and a slip road to the roundabout from the Pacific Highway. Under the agreement the cost of construction of the roundabout was set off against the sum payable to the applicant for the land. So the applicant effectively paid for its construction. 53A council report leading to the 1997 consent described the background as follows: A development application has been received for roadworks at lot 2 DP 623937 Minjungbal Drive, Tweed Heads South. The proposal involves the construction of a slip lane off the south bound lane of the Highway and a roundabout to link with Darlington Drive and to the existing road to Laura Street. The roundabout will also provide access to future development on Lot 2 DP 623937. Development consent has been granted for a subdivision of Lot 2 DP 623932 and Lot 1 DP 781520 (S92/118) into 34 lots over 4 stages. This consent was granted on 21 January 1993 and has not yet been implemented. Condition 37 of this consent requires construction of a roundabout to access this site. If this consent is not implemented, the roundabout will still be required to access the site for any future development. 54The applicant submits that: (a)Section 99(4) applied to the roundabout work because - (i)all that it required was that the work relate to the subdivision, not that it be carried out pursuant to the 1993 development consent which authorised the subdivision; and (ii)the land on which the roundabout was constructed was "land to which the consent applies", as required by s 99(4), notwithstanding that it was transferred to the council before the roundabout was constructed. (b)Construction of the roundabout thus constituted commencement of the development under the 1993 development consent and therefore under s 99(4) that consent did not lapse. It is irrelevant whether the roundabout shown in the 1993 consent required a further consent because: (i) it was work which was required for the purpose of the subdivision development; (ii) it was required by the 1993 consent to be carried out; and (iii) the applicant designed and paid for it. It does not matter that the council happened to construct it, apparently because of the convenience of doing so in conjunction with the slip road. (c)Construction of the roundabout was not subject to condition 9 of the 1993 consent because it is only referable to the subdivision whereas the roundabout is external to the subdivision. (d)Alternatively, if condition 9 applied to the roundabout, then the 1997 roundabout consent was inconsistent with condition 9 because it contained no condition equivalent to condition 9. It therefore impliedly modified the 1993 consent by deleting condition 9 on the principle of implied variation or repeal of an earlier instrument to the extent necessary to resolve a conflict: Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at [4]; (e)Condition 37 of the 1993 consent was satisfied when the council granted the 1997 roundabout consent. 55The respondent submits that s 99 did not apply to the roundabout work for the following reasons: (a)The roundabout was not authorised by the 1993 development consent, therefore carrying out the roundabout works in 1997 pursuant to a different consent was not commencement of the 1993 consent. (b)Secondly and alternatively, if the 1993 development consent did authorise the roundabout, then: (i), the roundabout work involved engineering work, and was subject to condition 9, which was not complied with because there was no approval of the complete set of engineering drawings; and (ii) condition 37 was not satisfied because no plans for the roundabout were approved by council officer designated therein. 56It is convenient to repeat [ 34 ] above that, according to authority, the questions under s 99(4) are: (a) was the work 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 at [18]. 57The roundabout work involved both engineering and construction work and physically commenced prior to the lapsing date. Two questions remain. First, did it "relate to" the 1993 approved development? Secondly, did it commence "on the land" to which the 1993 consent applied? 58As to the first question, in my opinion the approved development under the 1993 consent was the subdivision and not the adjacent roundabout; however, the roundabout work related to the approved development. The consent was expressed to be "in respect of the proposed subdivision to create 34 lots". The four Figures incorporated in the consent show the subdivision in detail and show the land on which the subdivision is located marked by solid lines. In contrast, the Figures show the roundabout and the slip road on the adjoining 5(c) zoned land owned by the applicant at the time of the 1993 consent marked conceptually by dotted lines without any detail. I consider that the roundabout is not part of the approved subdivision development but relates to it since the roundabout provides the approach to the access road and condition 37 of the 1993 consent requires construction of the roundabout and vehicle access to approved plans. 59The respondent's position is that the roundabout work did not commence "on the land to which the [1993] consent applies" as required by s 99(4). The respondent's reasoning is that (a) the 1993 consent applies to the land referred to in the notice of determination (Lot 2 DP 623932 and Lot 1 DP 781520) only insofar as the development for which consent has been granted is on that land; (b) that is expressly "subdivision to create 34 lots in four (4) stages"; (c) the roundabout and slip road are conceptually indicated not on that part of the land but on the adjacent part zoned 5(c) in the Figures incorporated in the development consent and that is where the roundabout work was actually carried out; and (d) therefore the roundabout work was not carried out "on the land" to which the 1993 consent applied. 60I do not accept the respondent's submission. As the applicant submits, the point is covered by the contrary authority of Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 39, 124 LGERA 90 . That was a case in which a condition of consent (condition 13(i)) to establish a quarry required the upgrading of an existing public road on land bordering Boral's land in order to improve access to the quarry site for construction vehicles to the satisfaction of the council engineer, before carrying out any construction works at the quarry site. The developer carried out those upgrades to the public road prior to the lapsing date. Lloyd J held that to constitute work "on the land to which the consent applies". His Honour's reasoning is set out at [26]: In my opinion the answer to the question is clear. The "land to which the consent applies" is all land upon which works required by and authorised by the consent are to be carried out. The works described in condition 13(i) are works both required by and authorised by the development consent. Such works were thus to be carried out on land to which the consent applies. Although the development application did not specify such land as either the land affected by the proposal or as land specified in the application, the conditions of the consent extend to include the land described in condition 13(i). Moreover, no construction work could be carried out at the quarry site unless and until the works on the land described in condition 13(i) were carried out. 61In my view, the condition in that case is analogous to condition 37 of the 1993 consent in the present case and similar reasoning applies. Therefore the land on which the roundabout was constructed was land to which the consent applies. 62I turn to the respondent's submission that the roundabout work was in any case not within s 99(4) because it was subject to and offended condition 9, which provides that "Under no circumstances shall engineering works commence prior to approval of the complete set of engineering drawings". The roundabout work involved engineering work and was carried out before a complete set of engineering drawings was approved. If condition 9 applied, then in accordance with the principles discussed above at [ 36 ] - [ 38 ], s 99(4) is inapplicable because the claimed commencement of the development is based on work that was unlawful. In my opinion, the "engineering works" referred to in condition 9 are the engineering works for the development the subject of the 1993 development consent. As discussed above, that development consent was for the subdivision; the roundabout was external to the subdivision; and the development consent was not a consent for the roundabout. Therefore, in my view, the engineering work for the roundabout was not for development the subject of the development consent and condition 9 was inapplicable to the roundabout work. 63In case I am in error, I turn to the applicant's submission that in any case condition 9 is inapplicable because it conflicted with the 1997 consent as no such condition appeared in the latter, and therefore condition 9 was impliedly repealed insofar as it applied to the development the subject of the 1997 roundabout consent. The submission is that the principle of implied variation or repeal in the event of conflict between successive statutes is applicable to successive development consents for the same work. I considered that principle in Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231, 179 LGERA 346 at [81] - [85]: 81 Conflicting provisions of a statute should be reconciled, so far as possible, on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language, the conflict must be alleviated, so far as possible, by adjusting the meaning of competing provisions to achieve the result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court to determine the hierarchy of provisions and which must give way to the other: Project Blue Sky at [70]; Wilson at [13]. 82 In the absence of express words, partial repeal of an earlier statute by a later statute will only be implied on very strong grounds "for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other": Shergold v Tanner [2002] HCA 19, 209 CLR 126 at [34], quoting Saraswati v The Queen (1991) 172 CLR 1 at 17. Reading one "as subject to the other" means, I understand, that collision may be avoided by holding that the later statute, which is ex facie in conflict with the earlier statute, does not repeal but merely provides for an exception from the general rule contained in the earlier statute. 83 The question of conflict has been expressed in various ways: whether the two items of legislation can stand or live together, whether there is contrariety or direct conflict, whether they are irreconcilable: Shergold at [35]. 84 Conflict between statutory provisions can be present even where there is no direct contradiction between them. For example, where it appears, as a matter of construction, that special provisions were intended exhaustively to cover their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter: Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 720 per Gleeson CJ (Clarke JA agreeing at 731), quoting Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live - stock Corporation (No 2) (1980) 44 FLR 455 at 468 - 469 (Deane J). 85 Where there is conflict between Acts of the same legislature, courts endeavour to reconcile their texts. If they cannot do so, they resort to established canons of construction including priority to the law made later in time ( Goodwin v Phillips (1908) 7 CLR 1 at 7; Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 33 - 34) and priority to a more specific law over a more general law ( Smith v The Queen (1994) 181 CLR 338 at 348; Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20, 219 CLR 365 at [176]; Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130 at [106]: Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59, 220 CLR 472 at [100]). 64There is a question whether the regime for modification of development consents in the EPA Act is exhaustive such that there is no room for the application of this principle to conflicting development consents for the same work. Limited light is cast on the question by the principle that consent to use premises for one purpose does "not operate to determine, limit or revoke" an earlier consent to use premises for another purpose and, accordingly, the premises can be used for either purpose: Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433 per Hope J (NSWSC). An example was given in that case of an approval to use a shop as a greengrocer's shop and a subsequent approval to use it as a grocery. Those two uses obviously do not conflict. More problematic examples of uses which do conflict are conceivable, but it is unnecessary to explore them in the present case. That is because, in my view, there is no inconsistency or conflict that would enliven the principle assuming that it applies. The mere fact that the 1997 roundabout consent did not contain a provision equivalent to condition 9 does not mean that there was such an inconsistency or conflict. Condition 9 could nonetheless apply. If the applicant is making the same submission in relation to condition 37 of 1993 consent (which is unclear), I would reach the same conclusion. 65Finally, the respondent submits that condition 37 has not been satisfied. Condition 37 requires the roundabout to be constructed to approved plans: see [ 16 ] above. In my view, that approval is found in the council's 1997 roundabout consent. Although the council officer designated in condition 37 did not give that approval, the source of the officer's authority to approve was the council and for the purposes of condition 37 the greater includes the lesser. 66For these reasons, in my opinion, by reason of the roundabout work the 1993 consent has not lapsed.

EARTHWORKS 67It is apparent from the contour survey plan (Figure 2, which was incorporated in the development consent) that the land sloped and required cut and a very great amount of fill. In December 1997, shortly before the statutory lapsing date (in January 1998), the applicant submitted a complete set of engineering drawings for the whole project to the council for approval, and sought urgent approval for bulk earthworks as detailed on two of those drawings, which related to all four stages of the development except for Lot 34 (the large future public open space) in Stage 4. Before the lapsing date the council conditionally approved those two earthworks drawings (as amended) under Part 12 of the Local Government Act 1919. Condition 10 of this approval stated that compliance with the conditions of the 1993 development consent was required prior to the release of the linen plan of subdivision. In the dying days before the statutory lapsing date, the applicant commenced these earthworks. 68The earthworks involved engineering work on the land to which the consent applied and related to the subdivision. The applicant submits that therefore the earthworks met the requirements of s 99(4) and the consent has not lapsed. 69The respondent submits that the earthworks did not satisfy s 99(4) because they were in breach of condition 9 of the consent as they involved engineering works and there had been no approval of "the complete set of engineering drawings". 70The applicant's reply is that: (a)condition 9 is inapplicable because it should be construed as applying to each phase (rather than each Stage) of the development, including bulk earthworks; (b)it would be absurd to read condition 9 as requiring approval of later subdivision plans before earlier subdivisions can be implemented; and (c)Condition 8 requires separate approval to be given for earthworks (as occurred in this case) to the exclusion of condition 9. Earthworks for the whole site, to which condition 8 applies, precede other work to be done in stages to which condition 9 applies. 71In my opinion, reading down condition 9 so that it applies only to each phase of the works, including bulk earthworks, is unjustified and does undue violence to its terms. The development consent refers to stages but not phases. It described the development as a staged development and there were explicit references to various Stages in conditions 2, 17, 18, 19, 29, 35, 36 and 40. The four Stages of the project were identified in Figure 3 incorporated in the development consent. None of those Stages was limited to earthworks. I do not even accept that condition 9 can be read down so as to be referable only to each Stage. Condition 9 refers to "the complete set of engineering drawings". It does not refer to the Stages. In contrast, condition 40 refers to "engineering plans for Stage 1" and condition 29 also refers to Stage 1. The contrast supports the conclusion that condition 9 is speaking of the complete set of engineering drawings for the whole subdivision, not just for individual stages. That conclusion is also supported by the consideration that other conditions (4, 8, 28, 30 and 40) all require engineering plans for distinct aspects of the subdivision work. Condition 9 pulls them together, as it were, by including (although it is not necessarily limited to) the plans referred to in those other conditions under the general description "the complete set of engineering drawings". Even if condition 9 can be read down so as to be referable to each stage (contrary to my opinion), that would be insufficient to support the applicant's case because a complete set of engineering drawings in relation to each stage was not approved prior to the earthworks. This is why the applicant is driven to submit that condition 9 is even more limited: that it applies only to each phase of the works. In my view, that is a step, if not two steps, too far. 72I do not accept the applicant's submission that it is absurd to read condition 9 as requiring approval of later subdivision engineering plans before the earlier subdivisions can be implemented. The applicant's reasoning is that (a) the Statement of Environmental Effects accompanying the development application stated that Stage 3 will be carried out after completion of the adjoining proposed lake which will be the subject of a separate development application; (b) this was sensible as the precise design of Stage 3 may have been affected by the terms of the lake approval; and (c) it was therefore impossible to have prepared engineering plans for the later stages of the subdivision until the lake proposal had been resolved. I leave aside the question of the permissibility of this argument given that it requires regard to be had to the Statement of Environmental Effects which was not incorporated in the development consent. Unlike the impossibility arising under condition 9 in relation to surveying (see [ 40 ]) above), in this instance I do not accept that the asserted impossibility has been established. First, the asserted impossibility is inconsistent with the fact that in December 1997 the applicant submitted the complete set of engineering drawings for all stages of the work to the council for approval. Secondly, there is no expert evidence of any such impossibility in relation to this technical matter. Thirdly, if the chronology had to be as the applicant submits, then it was possible to obtain approval of the relevant lake design prior to approval of the engineering drawings for the subdivision. Fourthly, if any difficulty in that regard in fact ever emerged, an application to modify the 1993 consent could be made. Finally, there was nothing inherently absurd or even not sensible about the apparent council policy in condition 9 that applicants obtain approval for the complete set of engineering plans at the outset. 73I do not accept the applicant's submission that condition 8 applied to earthworks to the exclusion of condition 9. Conditions 8 and 9 are different in ambit and concerned with somewhat different things and points in time. Condition 9 is general and operates to control commencement of all engineering "works" (plural). Condition 8, like condition 40, says nothing about commencement. Condition 8 is limited to excavation and land filling operations. It says they must be carried out in accordance with approved plans and specifies matters that must be included in those plans. In my view, conditions 8 and 9 are reconcilable and stand together. 74In my opinion, the earthworks were in breach of condition 9 because they were engineering works and they were carried out before a complete set of engineering drawings was approved. Therefore, in accordance with the authorities discussed at [ 36 ] - [ 38 ] above, they did not constitute commencement of the development within the meaning of s 99(4).

CONCLUSION 75I have upheld the applicant's claim that under the former s 99 of the EPA Act the development consent has not lapsed because of the surveying and roundabout works. I have rejected its claim that it has not lapsed because of the earthworks. 76Accordingly, I answer the preliminary question for determination as follows: Q. Whether development consent DA 92/118 granted by Tweed Shire Council on 21 January 1993 had, by 21 January 1998, lapsed within the meaning of the Environmental Planning and Assessment Act 1979 as the lapsing provisions of that Act then operated. A. No. 77The exhibits may be returned. The matter will be listed for directions before the List Judge on Friday 17 February 2012.

Amendments 15 February 2012 - Typographical error Amended paragraphs: 63 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: 16 November 2012