Rowlane Investments Pty Ltd v Leichhardt Council

EX TEMORE Judgment 1The applicant, Rowlane Investments Pty Ltd, seeks a declaration that a development consent D/2005/289 granted by the respondent, Leichhardt Council, for the demolition of existing buildings and the construction of a new residential flat building containing three units above basement parking at Lots 1 & 2 SP19170, 25 Ennis Street, Balmain has not lapsed. 2The council has filed a submitting appearance. The Court will only grant declaratory relief on the basis of evidence and submissions: Zaymill Pty Ltd v Ryde City Council [2009] NSWLEC 86 at [14]. 3The notice of determination of the development application is dated 19 March 2007 and states that the consent operates from 6 March 2007 and lapses on 6 March 2012. 4The development consent is subject to conditions including, relevantly, conditions 4 and 23: 4 A full structural design and Geotechnical Engineering report addressing the design of the proposed basement must be prepared. The design must address the following issues at a minimum: ... (f) Relevant geotechnical/subsurface conditions of the site, as determined by full geotechnical investigation. Engineering plans addressing the above . . . must be submitted to the Principal Certifying Authority prior to the issue of Construction Certificate. 23 An application must be made to Council for the issue of a Certificate fixing levels at the property boundary prior to the release of the construction certificate to ensure that the finished floor levels of the new structures or land adjoining the roadway satisfy Council's roadway design requirements. 5The applicant's case is that under s 95(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) the consent has not lapsed because engineering work relating to the building physically commenced on the land before the date on which the consent would otherwise have lapsed. That work is said to comprise physical work in the nature of geotechnical work and survey work. I accept the submission. 6Section 95 of the EPA Act relevantly provides: 95 Lapsing of consent (1) A development consent lapses 5 years after the date from which it operates. ... (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. 7Geotechnical work was carried out on the land between 1 and 5 March 2012. The resultant report noted that: The objective of the investigation is to provide information on the surface and subsurface conditions for design of the proposed development, and to address DA Approval Condition 4. 8The scope of physical work that was carried out can be seen from the report and its attached borehole test locations, borehole photographs and borehole logs. As a result of the geotechnical work, the report was able to make recommendations regarding earthworks, excavation, footings and retaining walls, and a basement construction sequence for the proposed development. 9Survey work was carried out on the land on 29 February 2012, from which a survey plan was completed dated 3 March 2012. The survey work was carried out to complete a survey plan showing existing levels along the street boundary of the land to enable satisfaction of the requirement in condition 23 of the development consent. 10The leading Court of Appeal decision on whether works fall within s 95(4) of the Act so as to prevent a consent from lapsing is Hunter Development Brokerage Pty Limited v Cessnock City Council; Tovedale Pty Limited v Shoalhaven City Council [2005] NSWCA 169, (2005) 140 LGERA 201. Tobias JA (Santow J A and Stein AJA agreeing) held that survey work and geotechnical work can be engineering works precluding a consent from lapsing. His Honour held at [83] - [88]: 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 (as to which see at 128 [13] supra). 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 minimis, 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]). Did the work in Tovedale Pty Ltd qualify? 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...Tovedale submits, the statutory concept requires only some application of labour which manifests itself on the land... 88 ...in my opinion the only statutory requirement is that the relevant work is commenced upon the land in a physical sense (as was clearly the position in the present cases). 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... 11Following Hunter, in Reysson Pty Limited v Roads and Maritime Services [2012] NSWLEC 17, (2012) 188 LGERA 252 I held that survey work carried out in order to produce engineering drawings (which would avoid non-compliance with a condition) were engineering works within the meaning of s 95 that avoided the lapsing of the consent. In Norlex Holdings Pty Limited v Wingecarribee Shire Council [2010] NSWLEC 149, (2010) 177 LGERA 261 at [89] - [90] Pepper J held that held that extraction, testing and analysis of spring water and acoustic work were engineering works which were carried out at least partially for the purpose of compliance with conditions of a development consent, and under s 95 avoided lapsing of the development consent. In Zaymill Pty Ltd v Ryde City Council at [12] I held that the taking away and testing of significant quantities of soil from the development site and investigations undertaken relating thereto prior to the lapsing date, required by a condition of the development consent, constituted engineering work and prevented the consent from lapsing under s 95. 12In the present case, the development consent was for the erection of a building on the lands. Geotechnical work and survey work had been physically commenced on the land before the date on which the consent would otherwise have lapsed. Those works related to the building on the land as can be seen through their linkage with conditions 23 and 24. I am satisfied that those works constituted engineering work within the meaning of s 95(4) of the EPA Act; that, consequently, the development consent has not lapsed; and that the declaration sought by the applicant should be made. 13The orders of the Court are as follows: (1)Declaration that development consent No. D/2005/289 granted by Leichhardt Council on 19 March 2007 for the demolition of existing buildings and the construction of a new residential flat building containing three units above basement carparking at Lots 1 & 2, SP19170, (No. 25) Ennis Street, Balmain has not lapsed. The exhibit may be returned. (2)Costs are reserved. Any application for costs must be made by approaching the registry within 14 days to obtain a hearing date for a costs application, otherwise there will be no order as to costs. (3)The exhibit may be returned. 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: 06 May 2013