Smith v Wyong Shire Council

Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124 Jones v Sutherland Shire Council (1979) 40 LGRA 323 CASES CITED: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 Sharp v Hunters Hill Council (2002) 120 LGERA 155 Williams v Coffs Harbour City Council [2007] NSWLEC 440

APPLICANT Mr G Newport LEGAL REPRESENTATIVES: SOLICITOR Law and Planning RESPONDENT Submitting appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 Her Honour: In this matter the Applicant seeks, inter alia, the following relief: 1. A declaration that development consent, as modified, to Development Application No 1107/04 for the erection of residential flat buildings at 30-36 Toowoon Bay Road, 17A-21 Kitchener Road and 11 Centennial Avenue, Long Jetty ("the Consent") has been physically commenced in accordance with section 95(4) of the Environmental Planning and Assessment Act 1979.

2 There is no contradictor as Wyong Shire Council (the Council) has filed a submitting appearance and did not appear today. The development consent for development application 1107/04 expired if not commenced on 13 September 2007. There is no automatic entitlement to a declaration and the applicant must demonstrate to the Court that it is appropriate that one issue; see Jones v Sutherland Shire Council (1979) 40 LGRA 323, Williams v Coffs Harbour City Council [2007] NSWLEC 440.

3 The Applicant filed an Amended Points of Claim which stated that, inter alia:

1. On 13 September 2004 the Council granted development consent to DA 1107/2004 to permit demolition of existing site improvements and the erection of residential flat buildings at 30-36 Toowoon Bay Road, 17A-21 Kitchener Road and 11 Centennial Avenue, Long Jetty (the lands).
2. The consent was modified on 6 September 2005 to extend the date the consent would lapse unless physically commenced pursuant to s 95A of the Environmental Planning and Assessment Act 1979 (the EPA Act). The consent was extended until 13 September 2007.
3. On 14 June 2007 the Applicant lodged a Class 1 appeal against the Council's deemed refusal of the s 96 application to modify the consent by deleting condition 5.
4. On 12 September 2007 the Court modified the consent by deleting condition 5 which had stated: "A Construction Certificate is to be issued by the Certifying Authority prior to commencement of any works including the basement car park. The application for this certificate is to satisfy all of the requirements of the Environmental Planning and Assessment Regulation 2000".
5. At all relevant times a construction certificate was not in force.
6. The Applicant caused works to be carried out upon the lands after the modification of the development consent by deletion of condition 5.

Demolition 7. From 12 September 2007 to 13 September 2007 the Applicant caused the demolition of a dwelling house and a shed located on the land. 8. The demolition works related to the consent. Particulars (a) The works the subject of the Consent identified demolition of a dwelling house and shed. (b) The dwelling house and shed were identified on Trehy Ingold Neate Surveyors' plan "Detail Survey Plan for Development Application Purposes Over Lot 1 in DP 1078040, Toowoon Bay Road, Toowoon Bay", sheets 1 to 3 dated 5 April 2007 and residential flat buildings were approved in the location of the buildings and dwelling houses. 9. The demolition related to the Consent and was lawful. Particulars All conditions required to be complied with prior to demolition were satisfied. 10. The demolition works were inspected by an officer of the Council on 12 September 2007 and 13 September 2007.

Additional works 11. On 12 September 2007 the Applicant caused additional works to be carried out on the lands. Particulars The additional works comprise: (a) all weather access installed (b) silt control barriers installed (c) metal groynes installed in Toowoon Bay Road and Kitchener Road (d) site signage installed (e) installation of shake down grid (f) erection of safety fence (g) installation of traffic signage (h) temporary closet provided on site (i) water skip provided on site 4 There is also other activity undertaken before 12 September 2007 referred to in the Amended Points of Claim. Reliance on that activity raises issues concerning the operation of condition 5 of the development consent which was in force until 12 September 2007 and required that a construction certificate issue before any work was undertaken. I do not consider I can determine the Applicant's arguments concerning whether the building works undertaken while condition 5 was in force and no construction certificate had issued were lawful on an ex parte basis. I will therefore determine this matter on the evidence and submissions concerning the activities of demolition work on 12 and 13 September and the additional works related to that demolition work also undertaken on those days.

5 An affidavit of Mr Smith dated 29 February 2008 was relied on. It refers to the work undertaken pursuant to the development consent and relied on by the Applicant in relation to numerous conditions at par 7-38. 6 The Applicant submitted that pursuant to s 95(4) of the EPA Act the demolition and additional works had been physically commenced, in accordance with Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124. The works related to the subject consent, were necessary for its implementation and were lawful.

Finding 7 Section 95 of the EPA Act relevantly provides: (1) A development consent lapses 5 years after the date from which it operates.

(2) However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent. …

(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. … 8 Under s 95(1) of the EPA Act a development consent lapses after five years from its date of operation but this period of operation can be reduced by a council under subsection 2 as occurred in this case when the period of two years was allowed for the development consent. An extension of the period of operation of the consent was granted after the initial period of two years under s 95A(1) expiring on 13 September 2007. The issue arises of whether under s 95(4) this consent lapsed or was physically commenced on or by 13 September 2007.

9 In Hunter Brokerage Tobias JA identified at par [83], [84] and [88] what physical commencement consists of, as follows: 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 [13] above). …

88 Given the obvious difference between the expressions "substantially commenced" and "physically commenced", 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. In my respectful opinion, Cowdroy J went too far when he held that the engineering work must result in a material change to the physical nature of the land. The statutory provisions contain no such requirement.

10 Adopting these findings that the statute requires that relevant work be commenced in a physical sense, I am satisfied that the work identified in the affidavit of Mr Smith in relation to the demolition work on 12 and 13 September, and the additional work related to the demolition undertaken on those dates, supports a finding that the development consent was physically commenced pursuant to s 95(4)(a) and/or (c). I also accept the Applicant's submissions that the additional work identified in Mr Smith's affidavit undertaken pursuant to the development consent on its own could constitute physical commencement in light of s 95(4)(c). The demolition work and the additional work undertaken relates to the development consent as identified in the affidavit of Mr Smith, including the plan in folio B annexed to his affidavit which identifies where the demolition work and additional work was undertaken in relation to the structures the subject of the approved plans. I consider the work was necessary to implement the development consent.

11 In relation to whether the work was lawful, the Applicant's counsel correctly and appropriately referred me to the potential conflict between s 95(4) and s 81A of the EPA Act. Section 81A(2)(a) requires that the erection of a building in accordance with a development consent must not be commenced until a construction certificate for the work has been issued by the consent authority. The issue of whether the erection of buildings meant that demolition of a building required a construction certificate was considered in Sharp v Hunters Hill Council (2002) 120 LGERA 155. Bignold J held at [58] that the demolition of a building is not a matter which falls within the ambit of a construction certificate in terms of s 109C(1)(b) and s 81A(5). It was not therefore a matter which required a construction certificate under s 81A. Judicial comity suggests that a judge at first instance should follow the decision of another judge at first instance unless he or she considers the decision is wrong; Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820. I consider I should adopt the finding of Bignold J in Sharp. Accordingly the demolition work undertaken by the Applicant's contractors on 12 and 13 September was lawful. Is there a controversy? 12 It is relevant to the Court's consideration of whether to make a declaration that there be a controversy, in other words, that the Court is not being asked to consider a hypothetical circumstance. In this case the Applicant wrote to the Council by letter dated 9 November 2007 (exhibit 2) seeking confirmation that the development consent had been physically commenced following the work on 12 and 13 September 2007. There has been no response to that letter. I note that the Council has filed a submitting appearance and is therefore aware of these proceedings but has chosen not to appear. I consider there is a controversy in the circumstances so that the making of a declaration has utility. Should a declaration issue? 13 In Williams I held that it was appropriate that a declaration be issued in similar circumstances and I adopt what I said in that case at [13] - [17].

14 In light of all these matters I consider I should exercise my discretion to make the first declaration sought, modified in light of the second declaration, as both lapsing and physical commencement are referred to in s 95(4). Accordingly I declare that development consent, as modified, to Development Application No 1107/04 for the erection of residential flat buildings at 30-36 Toowoon Bay Road, 17A-21 Kitchener Road and 11 Centennial Avenue, Long Jetty has been physically commenced and that the Consent has not lapsed in accordance with section 95(4) of the EPA Act.

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