Environment and planning - Environment Protection - Generally - Investigation - Orders - Standing - Standing of plaintiff to bring proceedings concerning lapsing of permit for development of golf course at Arm End - Plaintiff asserts standing for the purpose of enforcing public right of compliance with legislated planning controls in respect of the land - Potential environmental impact of development of golf course legitimate planning consideration capable of giving rise to a special interest in development including within the context of planning approval - Plaintiff has long history in environmental protection in Tasmania and particular interest in site of golf course and surrounding waters including protection of spotted hand fish in waters adjacent to development site - Plaintiff's interest in subject matter of the proceedings over and above that of other members of public - Plaintiff has standing to maintain proceedings

Land Use Planning and Approvals Act 1993 (Tas) ss 3, 5, 51(2), 53(3), 53(5), 57(7), 61(5), sch 1 pt 2

Resource Management and Planning Appeal Tribunal Act 1993 (Tas) (repealed) s 14

Evidence Act 2001 (Tas) s 80

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493

Australian Conservation Foundation Inc v Minister for Resources (1989) LGRA 200

Blue Derby Wild Inc v Forest Practices Authority [2024] TASFC 1; 424 ALR 157

Day v Pinglen Pty Ltd and Anors [1981] HCA 23; (1981) 148 CLR 289

Drummoyne Municipal Council v Lebnan and Others (1974) 131 CLR 350; [1974] HCA 34

Green v Kogarah Municipal Council [2001] NSWCA 123

Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; (2005) 63 NSWLR 124

Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 123

K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202

North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41

Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632

South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113

Tasmanian Conservation Trust Inc v Minister for Resources and Anor [1995] FCA 1035; (1995) 55 FCR 516

VicForests v Kinglake Friends of the Forest Inc [2021] VSCA 195; (2021) 66 VR 143; VSCA 195

Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188

Judgment Number: [2026] TASSC 1

TASMANIAN CONSERVATION TRUST INC v MARY ANN'S ISLAND PTY LTD

1. The defendant is the proponent of the development of an 18-hole golf course on a parcel of land at Arm End, Opossum Bay. The land is owned by the Crown, but has been leased to the defendant for the purpose of the development.
2. The site is situated on the tip of a peninsula. It comprises a total area of 116.3 hectares but excludes a privately owned heritage listed cemetery. It is currently used as a public reserve, known as the Gellibrand Point Nature Recreation Area, and contains a number of unconstructed access tracks which are utilised by the public for recreational purposes. It is sparsely vegetated and was, when the development was first proposed, in a degraded state due to weed infestation and erosion. It is currently and has, at all relevant times, been managed by the Parks and Wildlife Service.
3. The proposal is to develop a links style golf course. A course of that type will utilise the natural contours of the land and the defendant's expectation is that earth works will be kept to a minimum. In addition to the golf course itself, the proposal also includes the development of associated infrastructure including car parking, a number of buildings such as a pro shop, kiosk and maintenance buildings, the construction and maintenance of public pathways, signage and infrastructure associated with water storage. The golf course is part of a wider integrated development project which includes the construction of a wastewater treatment plant at Blackmans Bay, which is located across the River Derwent from the proposed golf course. It also includes construction of a pipeline from that plant across the river and then to the golf course for the purpose of providing water for irrigation. The proposal is that this water will also be available to the local community.
4. These proceedings concern planning approval for the development and use of the land for the proposed golf course. The relevant planning authority is the Clarence City Council (the Council). In 2013, the Council granted a permit for an initial iteration of the proposal. A further permit, that relevant to these proceedings and encompassing the current proposal, was granted on 5 October 2015. The planning application had been opposed by some local residents and community groups and the grant of the permit was subject to an appeal to the Resource Management and Planning Appeal Tribunal (RMPAT). After a contested hearing, the Tribunal dismissed the appeal. Pursuant to s 53(3) of the Land Use Planning and Approvals Act 1993 (LUPA), the permit took effect upon the determination of that appeal, 1 April 2016. This permit relates only to the use and development of the golf course. Planning approval for the wastewater treatment plant and the pipeline is the subject of separate permits.
5. The plaintiff is, and at all material times was, an incorporated association concerned with environmental conservation activities in Tasmania. It claims to have a long-standing interest in the site in question and is opposed to the development of the golf course. It did not, however, make a representation in relation to the development application which resulted in the current permit, nor did it participate in the RMPAT appeal. In general terms, its concerns relate to the adverse impact of the proposal on the conservation values of the site and the potential interference with the use of the site by the community for recreational purposes. It is also concerned with the impact of the proposal on the adjoining waters, and in particular upon an endangered species of angler fish, known as the spotted hand fish. The plaintiff claims that the species inhabits a marine reserve adjacent to the site. The impact on the spotted hand fish is alleged to arise from the development of the pipeline as well as the construction and use of the golf course, in particular consequential upon runoff of chemicals associated with the maintenance of the golf course.
6. In these proceedings, the plaintiff seeks a declaration that the permit has lapsed pursuant to s 53(5) of LUPA, on the basis that the development in respect of which the permit was granted had not been substantially commenced within the time provided by that provision. The section requires that substantial commencement occur within two years from the date on which the permit was granted or in the case of an appeal, from the date of determination of the appeal. That period can be extended in accordance with the provision. It is common ground that there were extensions and that the final date for substantial commencement was 1 October 2022. The defendant concedes that it had not commenced construction of the golf course or associated infrastructure by that date, but says that it has substantially commenced the development by the preparation of a weed eradication plan in accordance with conditions of the permit and significant work in the implementation of that plan. It claims that such work is a critical and intrinsic part of the development.
7. The plaintiff concedes that the defendant has developed a weed eradication plan and has undertaken some works pursuant to it but asserts that this does not constitute substantial commencement within the meaning of s 53(5). It argues that weed eradication is not unequivocally referable to the permit and this is legally necessary if the work is to constitute substantial commencement. It also argues that in any event, the work is not substantial within the context of the overall project. Finally, it argues that, as a matter of law, the development has not commenced because there has not yet been compliance with another condition which is a precondition of the commencement of works under the permit.
8. In addition to its position on the question of substantial commencement, the defendant raises some other issues in respect of the claimed relief:
   • The defendant disputes that the plaintiff has standing to seek that relief. The plaintiff does not assert that it has any propriety, business or economic interest in the land but says that it has standing to bring this proceeding for the purpose of enforcing a public right, in particular compliance with legislated planning controls in respect of the land. It says that its standing to do so arises from its special interest in the enforcement of that public right, pursuant to the test stated by the High Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493.

• The defendant says that in the event that the plaintiff establishes standing and that the development has not been substantially commenced within the requisite period, declaratory relief should be refused as a matter of discretion. In this regard, it relies upon the significant work and expenditure incurred in the associated development of the waste water treatment plant and the pipeline, the fact that there are already procedures available under LUPA to enforce planning controls, and in particular, to prevent work being done in respect of a lapsed permit and finally, that the defendant has been prejudiced by the plaintiff's delay in commencing the proceedings.

1. Given that the question of standing goes to my jurisdiction to determine this action, it is convenient to consider that issue at the outset.

1. The standing of an organisation concerned with environmental protection to bring proceedings seeking to enforce a public right was recently considered in some detail by the Full Court in Blue Derby Wild Inc v Forest Practices Authority [2024] TASFC 1, 424 ALR 157. At [96], Martin AJ with whom Jago J agreed, adopted an analysis of the relevant principles by the Victorian Court of Appeal in VicForests v Kinglake Friends of the Forest Inc [2021] VSCA 195; (2021) 66 VR 143, VSCA 195:

"(a) A plaintiff must show a special interest in the subject matter of the litigation;

(b) The need for a special interest reflects the need to show an interest or a position that is different from the public at large;

(c) The concept of 'interest' is not limited to proprietary, business or economic interests;

(d) The need for the interest to be special or different is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation. The nature of the interest in the subject matter must be more than merely emotional or intellectual;

(e) The subject matter of the litigation will involve a consideration of the statutory context, the nature of the power, and the form of relief sought. The place, if any, that the plaintiff has in the statutory scheme may be important."

1. The authorities also establish that the determination of standing depends upon all of the circumstances of the case. It involves an evaluative exercise, not an exercise of discretion. These points were made by the Court of Appeal in New South Wales in South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113 by Griffiths AJA with whom Adamson JA and Basten AJA agreed:

"Whether or not particular steps or activities are sufficient to demonstrate a special interest will depend on the subject matter of the proceeding and are necessarily fact and context specific. As Brennan J stated in Onus at 75, whether a person has shown a sufficient interest in the particular case 'must be a question of degree, but not a question of discretion.'"

1. The capacity of the application of these principles to the specific facts and circumstances of individual cases, to produce different results is amply demonstrated by the cases in this area, including those just citied. These cases demonstrate that in environmental cases in particular, identification of the subject matter of the litigation is critical to the assessment of the plaintiff's special interest and hence standing. For example in Kinglake, the subject matter of the proceeding was the lawfulness of logging a piece of land. The plaintiff's standing to bring a proceeding seeking to prevent what it alleged was unlawful logging of that land, arose from its long standing and significant interest in the land, demonstrated by activism designed to stop logging in order to protect relevant species, organising multiple public events, including on the land itself, and involvement in prior protests and litigation concerning the precise subject matter of the proceedings. The situation was similar in South East Forest Rescue Inc v Forestry Corporation, in which the Court of Appeal overturned the primary judge's rejection of the claim of special interest. The proceedings in that case sought to enforce a statutory remedy. At [133], the Court of Appeal emphasised the importance of the subject matter of the proceeding which required "attention to be paid to the statutory context (including the role, if any, that a plaintiff has in the statutory scheme), the nature of the power, and the form of relief sought by a plaintiff."
2. The nature of the subject matter of the proceedings was also central to the decision of the Full Court in Blue Derby that the plaintiff lacked standing. The case was concerned with an attempt by an incorporated environmental organisation to stop logging in an area of forest by challenging the validity and lawfulness of the certification of forest practices plans authorising those logging operations. The legislative scheme provided that such operations were only lawful if authorised by certified forest practices plans. The plans in question had been certified by delegates of the relevant authority and the challenge related to the validity of the certification. Although the primary judge did not determine that issue, the Full Court considered the question of standing and determined that the organisation was not able to establish a special interest in the question of the lawfulness of the certification of those plans. The Full Court considered it to be significant that the legislative scheme did not "provide for a role by the appellants, or anyone else, in the preparation of the forest practices plan" and that the appellant "had no involvement in that process and is not entitled to input at any stage of the process". The Court noted that the appellant's aim to stop the logging did not translate into a special interest in the subject matter of the litigation.
3. In this case, as in Blue Derby, the subject matter of the litigation is defined by the legislative scheme. This action seeks to enforce compliance with the planning controls prescribed by LUPA. It is common ground that the development and use of the land as a golf course were both discretionary under the planning scheme in force at the time of grant of the permit, the Clarence Planning Scheme 2007. Although the use was categorised as active recreation which was permitted in the relevant zone, the application of overlays meant that because the development includes works located within the frontal dune system on the land, both the use and development of the golf course were discretionary. Accordingly, by virtue of s 51 of LUPA, the plaintiff was prohibited from commencing the use or development unless pursuant to a permit granted by the planning authority. The application for the permit was to be assessed in accordance with the provisions of s 57 of LUPA. That section provides a framework for public involvement in the planning process concerned with the determination of the application for the permit. The section prescribes a requirement for public notification and permits any person to make a representation during a defined time period. Section 51(2) provides that the planning authority "must take into consideration the matters set out in representations relating to the application" made within the requisite time period, when determining the application for the permit. The making of a representation is a prerequisite to further involvement in the determination of the application. Under s 57(7), upon granting or refusing to grant the permit, the planning authority must, within seven days, serve notice of the decision on the applicant and all persons who made representations. By s 61(5), a person who made a representation is included among those who may appeal to the Tribunal against the grant of the permit. Under s 14 of the Resource Management and Planning Appeal Tribunal Act 1993 (repealed), RMPAT was authorised to join a person in an appeal only if the person had made a representation or the Tribunal considered that the person had a proper interest in the subject matter of the appeal and that it is not reasonable to expect the person to have made a representation in respect of the application for the permit. Accordingly, because it did not make a representation nor seek to become a party to the appeal, the plaintiff had no role in the statutory process which led to the grant of the permit.
4. The plaintiff's claim of special interest is based on the evidence of its Chief Executive Officer, Peter McGlone. There are two aspects to its claim. Firstly, the plaintiff relies upon its lengthy history of involvement in environmental protection in Tasmania. The objects set out in the plaintiff's constitution are consistent with such work. According to Mr McGlone, the plaintiff was incorporated on 17 July 1975. His evidence described many examples of the plaintiff's involvement in opposing or making representations in respect of a number of significant developments, including by becoming involved in the planning process. Mr McGlone noted that the plaintiff is governed by a Board and that he is employed to conduct its activities. According to his evidence, the plaintiff also employs an office manager and a climate campaigner. It is funded by donations, and has approximately 100 members and 6,000 supporters. Mr McGlone describes supporters as those who "sign up through our website" to support the organisation and receive updates about its work. However, supporters do not pay a membership fee and it seems, do not have any particular status under the constitution.
5. In some of the cases dealing with this question, the size and status of the organisation seems to be a matter upon which the Court has placed significant weight in the determination of standing. See for example Australian Conservation Foundation Inc v Minister for Resources (1989) LGRA 200, South East Forest Rescue. These considerations are related to the distinction between merely holding beliefs and taking concrete action to give effect to those beliefs. This distinction was explained by the Court of Appeal in Kinglake:

"A distinction may be drawn between holding beliefs (or having an emotional or intellectual concern), and the taking of concrete steps to give effect to those beliefs. The latter demonstrates a commitment that distinguishes the person or entity from other members of the community and may give rise to a 'special interest'. In the context of environmental protection, the commitment may be shown by the conduct or support of research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, political lobbying or other conduct. Such conduct would reveal that the person or entity is not just an 'intermeddler', 'crank' or 'busy body.' "

1. In the plaintiff's case, the evidence demonstrated that its size, substance and status was, by the time it commenced these proceedings, significantly reduced compared with times past. I was referred to a decision of Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources and Anor [1995] FCA 1035; (1995) 55 FCR 516. The case concerned a challenge by the plaintiff to decisions by the relevant Federal Minister to grant a large Tasmanian company a licence and approval for the export of woodchips. The plaintiff opposed the decisions for environmental reasons. The trial judge concluded that the plaintiff had standing "under the general law to challenge" the relevant decisions. In arriving at this conclusion, his Honour found that the plaintiff was "a peak environmental organisation for Tasmania, recognised as such by the State and Commonwealth Governments". It had been a member of a peak conservation organisation for some years and received annual administration grants from the Commonwealth, as well as support from Commonwealth agencies for projects undertaken by it. The plaintiff was also recognised by the Tasmanian Government as a body which represented environmental interests on advisory and consultative bodies and its size was substantial, in terms of membership, income and range of activities.
2. In cross-examination, Mr McGlone conceded that most, if not all, of these aspects of the plaintiff's operation were no longer applicable. Its membership had fallen from 450 members at the time of Sackville J's decision to 100 members now. The Commonwealth Government withdrew its funding to the plaintiff in 2014 and the State Government stopped making grants to it in 2017. It is no longer a member of the peak conservation organisation, although Mr McGlone commented that he did not believe that organisation existed any longer. He agreed that the plaintiff is no longer recognised by the Commonwealth as "the representative conservation organisation for the Commonwealth's purposes for Tasmania", and is no longer a member of State Government committees. Mr McGlone did comment that the State has changed its method of consulting, which makes membership of committees somewhat irrelevant. It is clear also that its financial resources have significantly reduced since the 1995 decision.
3. While this decline in resources, size and status cannot be disputed, I am satisfied that the plaintiff remains an organisation with a long-standing history of environmental activism and regularly seeks to give effect to its beliefs in that area, consistent with the objects set out in its constitution, by undertaking a wide range of activities including participation in the planning process. It is clear that this is the primary reason for its existence. Its geographic focus for these activities is Tasmania.
4. The second category of factors relied upon by the plaintiff to establish standing concerns its particular involvement with the Arm End site and the proposed development. The unchallenged evidence of Mr McGlone is that the plaintiff has been involved and interested in the subject land since 1994, when it was involved in the establishment of the land as a public recreation area. However, there is little evidence of any active involvement with the land until 2017. At that time, the plaintiff became involved with a community group known as "Opossum Bay and South Arm Coastcare" (OBSAC). The group's primary concern seems to have been the eradication of weeds in the relevant area, including on the subject site. Mr McGlone's evidence is that he assisted this organisation by drafting correspondence and otherwise providing support and advice in respect of its activities. These mostly related to advocating with the Parks and Wildlife Service in respect of the weed problem.
5. In 2019, Mr McGlone became involved in a similar way with a newly formed local community organisation named "Reimagine the End" (RITE). Again, the plaintiff's involvement largely consisted of providing support particularly with respect to correspondence, as well as helping to organise a limited number of events and activities on the land. By this time, the plaintiff was also engaging in some correspondence in its own right relating to aspects of the land, including a complaint made to the Council about the storage of pipes on the site, and the need for weed eradication.
6. Also in 2019, the defendant applied for and obtained a permit relating to the pipeline. A local resident, a member of the said community groups, had made a representation objecting to the permit. This person subsequently commenced an appeal against it to RMPAT. Mr McGlone, on behalf of the plaintiff, successfully applied to join the appeal and was then permitted to represent the appellant in the appeal. Mr McGlone became aware of the presence of the spotted hand fish in relevant waters during this process. The appeal was resolved by agreement but the agreement included some conditions designed to afford protection to that species during the construction of the pipeline. Thereafter, the plaintiff became involved in agitating generally in respect of the protection of the spotted hand fish in waters adjacent to the development site. This included correspondence to the local federal member of Parliament.
7. In 2021, the plaintiff was involved in a hearing by the Tasmanian Planning Commission concerning modifications to the planning scheme. The plaintiff's concerns related to provisions in the planning scheme affecting areas of spotted hand fish habitat. Correspondence to environmental authorities and politicians indicates a growing concern about the impact of the golf course on the spotted hand fish.
8. Since 2020, the plaintiff both in its own right and on behalf of the community groups, has agitated its opposition to the construction of the golf course. This ultimately became focused on the potential expiry of the permit. The plaintiff corresponded with the Council about the expiry date of the permit in 2022. On 22 December 2022, the Council forwarded a letter to the plaintiff advising that it had received legal advice that substantial commencement had been achieved through weed control. The plaintiff subsequently requested a statement of reasons. This correspondence led to the plaintiff's decision to bring these proceedings. It became clear from Mr McGlone's evidence that the plaintiff had decided to bring the proceedings on its own behalf as well as on behalf of the various community groups. It has in fact sought public donations to facilitate the proceedings. The only reasonable conclusion is that the purpose of the proceedings is to prevent the completion of the development.
9. Notwithstanding the obvious fact that the plaintiff's commencement of the proceedings manifests its specific opposition to the development of the golf course, I am satisfied that this view has only recently been adopted by the plaintiff. The history of the plaintiff's involvement shows a general interest in the development of the land for the purpose of public recreation, and specific concerns about the impact of the development on the spotted hand fish and weed infestation. Its concern with the spotted hand fish is reflected in the correspondence since 2017, and its involvement in the planning appeal relating to the pipeline. However, its lack of involvement and apparent disinterest in the 2015 planning process concerning the golf course, supports the conclusion that at that time the plaintiff was not concerned to oppose planning approval for the golf course. This is consistent with concessions made by Mr McGlone in cross-examination. However, particularly since its involvement with the community groups commencing in 2017 and the development of its concern in relation to the spotted hand fish in 2019, the plaintiff has demonstrated a growing interest in opposing the development of the golf course. This has now culminated in the commencement of these proceedings.
10. The defendant argues that the plaintiff has not demonstrated an interest in the development beyond environmental concerns, in particular the impact on the waterways and the spotted hand fish. The defendant submits that this does not establish a special interest in the subject matter of the litigation, which relates specifically to the planning issue of the lapse of the permit. In fact, the defendant argues that s 53(5) of LUPA does not give rise to a public right or duty for the purposes of the special interest test. The environmental consequences of the development may be sufficient to establish a special interest in respect of public duties arising under environmental legislation, but that is not the subject matter of this action. The result, it is argued, is a lack of standing.
11. There is no question that a desire to prevent development cannot alone amount to a special interest sufficient to confer standing. It is also clear that the plaintiff's claim to standing is significantly impacted by its lack of interest and failure to involve itself in the original planning process. However, there is no question that enforcement of planning controls can constitute a public duty sufficient to give rise to a special interest and hence standing in an appropriate case. In Day v Pinglen Pty Ltd and Anors [1981] HCA 23; (1981) 148 CLR 289, the High Court accepted that the owner of the adjoining property had standing to seek declaratory and injunctive relief in respect of the construction of a building in circumstances in which it was found that the planning permit had lapsed because of a failure to substantially commence the work within the statutory time limit. It seems that the plaintiff had not made a formal objection to the approval but the Court accepted that she had a special interest in the question of the validity of the permit albeit that it arose from her desire to stop the development. The Court accepted that the plaintiff was "a member of a category of persons who were, at least potentially, specially affected by the proposed development". In particular, it endorsed the trial judge's finding that the proposed development would interfere significantly with her view and that this could also reflect on the value of her property. This was sufficient to support standing to seek the declaratory and injunctive relief, notwithstanding the plaintiff's failure to avail herself of a statutory right to object to the grant of approval for the development, which had she done so, would have been determined in a different forum.
12. I am similarly satisfied in this case that a finding of standing is not precluded by the plaintiff's failure to involve itself in the original planning process. The historical reality is that the plaintiff has developed its opposition to the golf course over time, largely since the grant of the permit. Its interest in opposing the development is consistent with its long-standing concern with and activity in respect of environmental protection. I reject the defendant's argument that because the plaintiff's opposition is partly linked to its desire to protect the spotted hand fish, and that the species lives in waters which are outside the municipal boundary and hence not strictly within the jurisdiction of LUPA, that this somehow negates the existence of a special interest in the enforcement of planning controls on the site in question. When making planning decisions under LUPA, including when exercising the discretion under s 57, the planning authority and any other relevant decision-maker was and is required to take into account the objectives of the planning process set out in Part 2 of Schedule 1 of LUPA. See s 5 of LUPA and cl 3.3.1(a)(i) of the Clarence Planning Scheme. These objectives include "to ensure that the effects on the environment are considered .... when decisions are made about the use and development of land". This clearly requires consideration of the impact of the development on the environment generally, not just that located within a municipal boundary. Further, it is not to the point that the impact on the spotted hand fish as a threatened species might also be the subject of other legislation. The potential environmental impact of the development of the golf course is a legitimate planning consideration and, accordingly, capable of giving rise to a special interest in the development, including within the context of planning approval. This includes the subject matter of these proceedings, which ultimately are concerned with the enforcement of legislation regulating planning approval. Because of the plaintiff's identity and long history as an organisation concerned with environmental protection and its particular interest in the site of the golf course and surrounding waters, including with respect to the spotted hand fish, I am satisfied that the plaintiff's interest in the subject matter of the proceedings is over and above that of other members of the public. I do not regard it as particularly significant that the economic circumstances of the plaintiff, and its changed relationship with government has resulted in a decline in terms of both resources and status. The fact of the matter is that the plaintiff has well and truly established itself in the field of environmental protection over a lengthy period and continues, as best as it can, along the same path as that identified by Sackville J in TCT v Minister for Resources. I am satisfied, therefore, that the plaintiff has standing to maintain these proceedings.

1. The plaintiff's case for declaratory relief depends upon establishing that the permit has lapsed by virtue of the provisions of s 53(5) of LUPA. That provision is in the following terms:

"(5) If the use or development in respect of which a permit was granted is not substantially commenced, the permit lapses -

(ii) if an appeal has been instituted against the planning authority's decision to grant the permit, the date of the determination or abandonment of the appeal; or

(b) if the planning authority has granted an extension under subsection (5A) , at the end of a further period of 2 years from the end of the relevant period referred to in paragraph (a) ; or

(c) if the planning authority has granted a further extension under subsection (5B) , at the end of a further period of 2 years from the end of the further period of 2 years for which the permit was extended under subsection (5A) ; or

(d) if the planning authority has granted a further extension under subsection (5D) , at the end of a further period of 2 years from the end of the further period of 2 years for which the permit was extended under subsection (5B) "

1. The case presented by the defendant at trial is that the development in respect of which the permit was granted, is primarily constituted by the golf course, and this has been substantially commenced by the weed eradication work. It concedes that there is no other work which, of itself, would constitute substantial commencement. In particular, it has not commenced to construct the golf course or the associated buildings and infrastructure. The defendant has performed significant work on the water treatment plant and pipeline, but it does not submit that that work forms part of the work involved in the golf course development and hence cannot constitute substantial commencement of that development. However, the defendant does submit that whether the weed eradication work amounted to substantial commencement must be considered within the context of the entire project, including the water treatment plant and pipeline.
2. Although the plaintiff's counsel did faintly submit that there was some imprecision in the evidence with respect to the actual cost of the weed eradication works, there does not seem to me to be any real dispute that significant work in that regard was performed by the defendant prior to the expiry date of the permit. I will return to the precise quantum of this work in due course. The plaintiff's primary argument is that such work does not, and indeed cannot, constitute substantial commencement for the purpose of this permit. The plaintiff's specific arguments in this regard are:
   • The weed management works are not unequivocally referrable to the permit, and this is a legal prerequisite of a finding of substantial commencement. In this regard, the plaintiff argues that the weed management works did not require separate planning approval, and that such works were required in any event by the Crown lease.
   • The works are not substantial. Even at the cost asserted by the defendant, their cost amounts to no more than 4% of the overall budget of the development.
   • It was not necessary to complete the works prior to performing other work. This argument seems to suggest that the failure of the defendant to pursue other work is relevant to an assessment of whether the eradication works of themselves constitute substantial commencement.
   • Condition 20 of the permit requires an environmental management program to be submitted to Council and endorsed by its appropriate officer "prior to the commencement of site works". The condition also requires that the endorsement by the Council officer is to be "in consultation with the landowner (Crown)". The plaintiff argues that the proper interpretation of this condition is that the consent of the Crown to the environmental management plan is a condition precedent to the commencement of works under the permit, and this includes the weed eradication work. It is undisputed that an environmental management program was prepared and submitted to Council and endorsed by the appropriate officer well before the expiry date, but it is alleged that this was done without the program being referred to the Crown for its consent. Such consent was not forthcoming prior to the expiry date. Accordingly, so the argument goes, the precondition to the commencement of works contained in the condition was not achieved by the expiry date and accordingly, substantial commencement for the purposes of s 53(5) was legally impossible.
3. The acceptance of any of these arguments will effectively exclude a finding of substantial commencement. I will accordingly consider each in turn. Of course, even if the finding is not excluded by the arguments, it is still necessary for me to evaluate whether substantial commencement has been achieved. In making such an evaluation, I will, of course, bear in mind that the onus of proving the fact that the permit has lapsed lies with the plaintiff.

What is meant by "substantial commencement" in s 53(5)

1. The plaintiff's first argument requires consideration of the meaning of substantial commencement in s 53(5). The plaintiff's counsel relied on case law concerned with legislation from other jurisdictions to support the following principles which, it is submitted, apply to this determination. In particular:
   • The works said to constitute substantial commencement must be unequivocally referrable to the permit in question.
   • The works must only be undertaken in furtherance of the work authorised by the permit in question and not for some other purpose. Accordingly, if works are undertaken in satisfaction of a legal obligation arising otherwise than under the permit, notwithstanding that they are also included in or required by the permit, they cannot constitute substantial commencement.
   • The works said to constitute substantial commencement must be such as to require planning approval in their own right.
   • Works which must be undertaken before a development can proceed are not capable, without more, of constituting substantial commencement. Such work is generally in the nature of preparatory work to that under the permit. The example was given of demolition of existing structures prior to construction of a building.
2. According to the plaintiff's counsel, these principles are "well-established". However, the authorities cited for them seem to derive from observations made in cases from other jurisdictions in the course of judicial evaluation of the question of substantial commencement, or something similar, within the factual context of the case. This applies to both first instance and appeal cases. For example, the authority quoted for the proposition that the works must be exclusively and unequivocally referrable to the permit in question, was the following passage from the single judge decision of Hardie J in North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41:

"The use of the adverb 'substantially' in the context, in my view, emphasises two points, or perhaps two different approaches to the one point. One is that the commencement must be some positive unequivocal step indicating that the building for which consent or approval has been obtained has actually been commenced; in other words that some work has been done on the site which is referable to and only referable to the particular building or structure that has been approved; in that sense, it emphasises that the commencement must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement."

1. Further, the authority relied upon for the requirement that the works must require separate planning approval in order to constitute substantial commencement was a comment by Tobias JA in the New South Wales Court of Appeal decision of Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; (2005) 63 NSWLR 124:

"Further, the demolition of the existing houses upon the relevant land in Lebnan was indeed preparatory in the sense that although that demolition was necessary before the developer could proceed to erect the approved residential flat building, that demolition did not itself require consent so that, in truth, it could be said that the development consent was not itself referable to that demolition and vice versa."

1. Counsel advanced further references of a similar nature to support the other propositions.
2. In my view, care should be taken in utilising such judicial commentary as stating propositions of law binding on this Court in respect of the interpretation and application of s 53(5). In general terms, such comments invariably appear not to have been intended by the relevant judge to constitute statements of legal principle but rather were made as observations of factual matters upon which weight was placed to a greater or lesser extent in the ultimate factual evaluation as to whether there had been substantial commencement in accordance with the relevant legislative provision. The pertinence of such comments must be assessed having regard to both the legislative and the factual context of the case in question. For example, in North Sydney, Hardie J was considering whether or not work which included both the demolition of a house and the laying of a foundation pier, was substantial commencement of a development consent and building approval in respect of the construction of an 18 storey block of home units. His Honour, after making the statement quoted above, concluded that he was satisfied in all of the circumstances that there had been "a real, as distinct from a sham and an unequivocal, as distinct from an ambiguous, commencement of the building work". In coming to this conclusion, his Honour considered the entire factual context. In respect of the demolition work, his Honour declined to express a "concluded view" as to whether it should be treated as part of the relevant work, but did say that he was "satisfied that whether or not it is strictly part of the development... it is a very relevant matter in the special circumstances of this case against the background of which must be viewed the conduct and activities of the defendant company and the building company in the last few days of the period ending on 23rd February". I take this to mean that his Honour considered that, at the very least, the demolition work, even if it did not constitute substantial commencement, provided important context when making that assessment in relation to the work on the foundations. In my view, the case emphasises that the question of substantial commencement is a factual one, informed by all of the circumstances including contextual matters such as related work performed at an earlier time or under other permits.
3. The proposition that the determination of the question of "substantial commencement" requires a factual evaluation dependent upon the legislative and factual context of the case, is well demonstrated by the discussion by Tobias JA in Hunter Development Brokage Pty Ltd v Cessnock City Council, from which the above passage was cited by the plaintiff's counsel. I note that his Honour wrote the primary decision, with which the other members of the Court agreed. The issue faced by the Court of Appeal in fact involved a statutory provision which provided that a development consent for the subdivision of land would lapse after a specified time unless "building engineering or construction work relating to" the approved development was "physically commenced" upon the land. One of the issues concerned whether work which the trial judge had found to be "preparatory work", could be considered engineering or construction work for the purpose of the lapsing provision. The trial judge found that such work did not constitute commencement of the development. Tobias JA emphasised that the matter is essentially one of statutory construction and warned against placing a "judicial gloss" on the words of the legislation. His Honour rejected the proposition that "preparatory work" should be placed ipso facto "into a separate and independent category of work which, even if it is building, engineering or construction work, cannot qualify to prevent the consent lapsing even though it is physically commenced upon the land to which the consent applies". His Honour noted that the legislative requirement was that there be work "relating to" the development. In respect of this, he said that the work related to the development if it "is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent". He described preparatory work as work "required to be performed prior to some other work being performed", but rejected the proposition that such work should be excepted from constituting work capable of commencing the development "where it otherwise meets the elements of the statutory formula."
4. His Honour was, of course, dealing with a different legislative formulation to s 53(5). However, the comments are apposite to the issue in this case. Further, the factual nature of the evaluation by reference to the ordinary meaning of the words of the relevant legislative provision is also exemplified by other cases which involve legislative provisions which require "substantial commencement" to avoid the lapse of a permit or consent. For example, in Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632, the New South Wales Court of Appeal found that a consent to the erection of a service station which required the building to be erected on a flat or horizontal surface at a level approximating the level of adjoining roads "impliedly authorised any filling of the land which was necessary for the purpose of producing such a surface". Such work, therefore, was accepted as work necessarily involved in that development. In Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188, another single judge decision, Rath J considered that demolition work, not referred to in the development consent or plans did not constitute substantial commencement, although it must be noted that it was not asserted by the relevant party that it was. His Honour was more concerned with a retaining wall which was not shown in the relevant drawings and which could also be regarded as preparatory to the erection of a building. However, his Honour found that such a retaining wall was on the basis of all of the evidence referrable only to the construction of the building and hence constituted substantial commencement of that development. In Day v Pinglen Pty Ltd, the High Court concluded that the construction of a concrete slab which had been hurriedly laid in order to avoid the lapsing provision, in the circumstances, did not amount to substantial commencement. However, the case demonstrates the critical nature of the factual context. The Court said:

"We come then to this question of substantial commencement. As has been said, it is a question of degree. The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount. The statutory purpose must be borne in mind. A substantial commencement involves a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work has really commenced..... Pinglen pressed the analogy with the facts in Lebnan's Case but it is futile to seek an answer to one case in the facts of another."

1. The case referred to in that passage is Drummoyne Municipal Council v Lebnan and Others (1974) 131 CLR 350, HCA 34. One of the issues in that case was whether a development consent and building permit for the erection of a block of home units had lapsed because the development had not been commenced by the legislatively prescribed date. The work relied upon for substantial commencement was the demolition of existing houses on the site and the digging of excavations for footings. Plaintiff's counsel quoted a passage in her written submissions from the judgment of Gibbs J, which was asserted by counsel to set out his Honour's "reasons for determining that demolition of the existing houses did not constitute substantial commencement". The passage as quoted by counsel seems to support this assertion. However, the quoted passage omits a critical phrase which makes it clear that his Honour did not find it necessary to decide whether the demolition work should be regarded as a commencement of the work. The full passage is generally instructive but does not stand for the principle asserted by counsel:

"The final question for decision is whether the work the subject of the approval and consent was substantially commenced within twelve months after 2nd November 1971. Clearly the work and development which s. 315 of the Act and cl. 38(2) of the Ordinance require should have been substantially commenced is that to which the approval or consent itself refers, and it would seem to follow that work or development is not commenced when nothing more has been done than acts preparatory to the work or development which is the subject of the approval or consent. It may therefore be assumed, although it is not necessary to decide, that the demolition of the existing houses should not be regarded as a commencement of the work in the present case. The question whether the work or development has been substantially commenced is an objective one depending on what in fact has been done rather than on the intention with which it was done...., and the circumstance that the work in October was done for the purpose of keeping the approval alive is not inconsistent with the conclusion that the work was substantially commenced. The expression 'substantially commenced' is not altogether clear and precise. Sometimes the use of the word 'substantially' has the effect of requiring a comparison to be made between a part and the whole, and this may well be so, for example, when the phrase 'substantially completed' is used. However, to say that work has been 'substantially commenced' does not, in the natural meaning of those words, suggest that what has been done forms a large proportion of the whole work; something can be substantially commenced although it has not been substantially completed. For example, if, in the case of a large city building, work had been done that was in itself very extensive and costly, it would accord with ordinary usage to say that work had been substantially commenced, although what had been done formed only a small proportion of the whole work. The test to be applied for the purposes of s. 315 and cl. 38 (2) is whether the work or development the subject of the approval or consent has been begun by the performance of some substantial part of that work or development."

1. His Honour went on to conclude that the test of substantial commencement had, in fact, been satisfied by the excavation work. It was clearly because of this that his Honour found it unnecessary to decide whether the demolition work could have satisfied the test. Once again, the case involved a factual evaluation dependent on the specific facts of the case. The point is that the case, as the full passage makes clear, does not stand as authority for the proposition that the demolition work did not constitute substantial commencement, as was submitted by the plaintiff's counsel in reliance on the edited passage.
2. In my view, the correct approach is to simply apply the provisions of s 53(5) to the facts of the case. The wording is not complicated and its meaning is clear. Under that section, what must be substantially commenced within the relevant time is "the use or development in respect of which" the permit was granted. In this case, there is no suggestion that the use has commenced. The question is whether the weed eradication works have substantially commenced the development of the golf course. "Development" is defined by s 3 of LUPA and includes the "carrying out of works". "Works" is also defined and includes "any change to the natural or existing condition ... of land including the ... the removal of vegetation". These definitions are clearly wide enough to encompass the removal of weeds as part of the construction of the golf course. The formulation explained by Tobias JA in Hunter Development, although dealing with a different legislative formulation, provides a commonsense approach to the evaluation which is consistent generally with other judicial explanations of the test. That is, was the relevant work a necessary step in, or part of, the process required for or involved in the development of the golf course. If so, did it amount to a substantial commencement of the development. In accordance with the approach of Tobias JA_,_ this question will need to be answered by reference to the factual and circumstantial context of this case. The particular aspects raised by the plaintiff's counsel, that is that the work must be unequivocally referable to the permit in question, must not be undertaken pursuant to any other legal requirement and must themselves require approval, should be regarded as factors which may bear on that assessment, but not as binding principles of law which have the effect of excluding the weed eradication works from eligibility to constitute substantial commencement.

1. In order to determine the question as to whether the weed eradication works constitute substantial commencement of the development, it will be necessary to examine the evidence in more detail.
2. The lease between the defendant and the Crown was entered into on 21 November 2014. The terms of the lease are consistent with it being granted to facilitate the development of the golf course. It obliges the defendant as the lessee to construct the development within defined time parameters. At its formation, the lease defined the development by reference to the planning permit granted in 2013. The lease was varied by deed on 21 October 2020. The primary effect of the variation was to update the definition of development by reference to the 2016 permit.
3. The lease attached an environmental management plan for the site which had been developed in 2014. This plan provided for the development of a weed management and revegetation plan, to be prepared by Welling Consulting. The principle of that firm at that time was Andrew Welling, an ecologist. It also included covenants that required that the defendant was to comply with the environmental management plan and keep the land "free from noxious weeds, vermin and fire hazards".
4. Each party presented expert botanical/ecological evidence. Mr Welling was called by the defendant, and Mr Stephen Mueck, a botanist, was called by the plaintiff. It was common ground between those experts that the site had a long history of past agricultural use. One of the consequences of this was weed infestation. The experts agreed that the site was significantly degraded by weed infestation prior to the defendant's involvement with the land.
5. The permit approved by the Council on 1 April 2016 provided for the use and development to be undertaken "in accordance with the endorsed plans and any permit conditions". The plans are attached to the permit and set out the general concept of the golf course and the relevant buildings. There are numerous conditions. The conditions include provision for the preparation of more detailed engineering plans and designs and a range of investigations and reports including an erosion and sedimentation control plan and a landscape plan. The weed infestation issue is dealt with by condition 13, which provides that a "weed management plan identifying measures to control weeds must be submitted to and approved by the Council's Group Manager Asset Management prior to the commencement of works". The condition requires that the plan must be implemented and maintained to the satisfaction of the same manager prior to the commencement of the use. Condition 20 provides for an environmental management plan "to be submitted and endorsed by Council's Group Manager Asset Management, in consultation with the landowner (Crown), prior to commencement of site works".
6. Mr Welling, in his evidence, confirmed that in 2014, he was engaged to undertake an initial botanical assessment of the site and prepare a botanical report. He was not engaged to develop the weed and rehabilitation plan until shortly after the grant of the 2016 permit. He prepared this plan in May 2016. The plan indicates that it was intended to meet conditions in the 2013 permit, but Mr Welling's evidence makes it clear that it was updated after the grant of the 2016 permit.
7. Mr Welling said in his evidence that the plan was "produced as part of the development of a public recreation space and golf course". He also noted that it was part of the environmental plan, which was required by the Crown lease and the requirements of a Reserve Activity Assessment.
8. The weed management plan itself is consistent with Mr Welling's evidence that the site was heavily degraded prior to the defendant's involvement. Part of the degradation was the infestation of the site with a range of significant weed species. These originated from stockfeed, windblown sources or were garden escapees. His initial survey identified numerous declared and environmental weed species. Additional species have been identified as work has progressed over time. The plan provides for management by actions which include dividing the site into management control zones, undertaking primary weed control of certain species, reducing larger weed infestations, developing and implementing strict vehicle hygiene protocols and a monitoring maintenance and reporting program. The plan sets out objectives which include undertaking "primary control of wide spread weeds prior to initial earthworks". Specific actions in relation to individual species are set out in considerable detail in a lengthy table incorporated into the plan.
9. Jack Chrapot, who is a director and secretary of the defendant and the officer who now has responsibility for implementing the project, gave evidence concerning work done by the defendant subsequent to the grant of the 2016 permit. His evidence was that weed management works were carried out on the site between May 2018 and July 2022 and that the work was in accordance with the weed management and rehabilitation plan prepared by Mr Welling. Mr Chrapot's affidavit makes it clear that much of this work occurred prior to the expiry of the permit. His evidence, which was not the subject of effective challenge and which I accept, is that the cost of the weed management work assessed over the years 2021 to 2022 was $602,108.65. The actual cost would be in excess of this amount given that the work had been ongoing, and performed by a contractor, since 2018.
10. The implementation and effectiveness of this work is supported by other evidence. For example, a report prepared by Alister Hazeldine, a weed planning officer with the Council, after an inspection of the site conducted on 20 April 2020, confirmed that significant work had been undertaken which appeared consistent with the weed management plan. The report noted that some of the work originally intended to be undertaken during golf course shaping works had been brought forward and completed prior to the inspection. Further, Mr Welling prepared further reports auditing the implementation of the weed management plan in 2018 and again in 2022. In his evidence, he opined that the weed control program implemented on the site "has resulted in the primary control of almost all weed infestations on the site". In his opinion, "the vast majority of the actions recommended in the 2018 report had been carried out and that primary control of the weed infestations on the site had been achieved. Several areas had been revegetated ...". He expressed the view that "the control of widespread weed infestation prior to the commencement of ... excavation and building works ... is critical to minimise the spread of the weeds and reduce ongoing weed management requirements". In summary, he considered that the weed management measures had been effective.
11. Mr Welling's evidence was not undermined in cross-examination. Further, his conclusions in respect of the weed eradication and management program were not the subject of any significant dispute by Mr Mueck. Mr Mueck's evidence largely concerned itself with the natural conservation values of the land. His reference to the weed management and rehabilitation plan prepared by Mr Welling was positive. In his evidence, he agreed when he visited the site on 8 May 2024, he had seen "significant effort in controlling the primary infestations at the site". He would not be drawn on expressing an opinion in relation to cost but agreed that he would not "expect that sort of endeavour to be cheap".
12. There are two further categories of expert evidence relevant to the question of whether the weed eradication work constitutes substantial commencement of the development. These are the evidence of consultant planners called by each party and a golf course architect called by the defendant.
13. With respect to the planning experts, their evidence, which in effect comprised an opinion on the ultimate issue, provided me with little assistance. Unsurprisingly, each planner expressed an opinion concerning the question of substantial commencement, which was in accordance with the position of the party that called him. The expression of such an opinion is admissible by virtue of s 80 of the Evidence Act 2001, but in the circumstances of this case does not assist me to any significant extent.
14. The evidence of the golf course architect, Christine Kerr, is however of some importance. Ms Kerr is a very experienced golf course architect. She is familiar with the design and construction of links style golf courses, which is the style relevant to this proposal. She explained that such a course relies heavily on the natural topography and hence its construction requires minimal earth works. She estimated that the earth works for the design of the subject course will involve movement of around 25,000 cubic metres of earth. This can be contrasted with other styles of golf course which require a much greater volume of earth works. Ms Kerr indicated that an inland parkland style course, for example, which relies much less on the natural topography of the ground, could result in earth works of around 450,000 cubic metres or more. Even in respect of links style courses, the particular attributes of this site means that the degree of construction is far less than some other courses. She provided an example of a links style course with which she is involved in her practice, which will require earth works in the vicinity of 144,000 cubic metres.
15. A further point made by Ms Kerr is that given the reliance on the natural contours of the land, the removal of the weeds prior to shaping is essential. She explained as follows:

"Weed removal and management is an essential element in the construction process of any links style golf course, particularly as the native sandy soils are shaped and largely provide the growing medium for the turfgrasses of the golf playing surfaces."

1. I accept Ms Kerr's evidence, including these opinions. The evidence was not subject to significant challenge.

Has there been substantial commencement in this case ?

1. Having regard to all of the circumstances, I am satisfied that the weed eradication works performed prior to 1 October 2022 constituted substantial commencement of the development. I reject the argument that they did not amount to works which have commenced the development because they are merely preparatory or not unequivocally related to the permit. The statutory test is that they must constitute the substantial commencement of the development in respect of which the permit was granted. Accordingly, the focus must be on the relationship between those works and the development of the golf course. I am satisfied that the weed eradication works are a necessary and intrinsic part of the development, both by virtue of the requirement for them to be performed pursuant to condition 13 and their importance to the development as explained by Ms Kerr. It is not to the point that weed eradication might be considered mere preparation in respect of some other form of development. In this case, the preparation and formation of the land into a golf course is the central and most significant aspect of this development. To an extent, the other aspects of the development, including the club house and maintenance buildings, are peripheral to the golf course. In respect of the development of the golf course, weed eradication, particularly given the predevelopment state of land, is critical. This is particularly so given the reliance in the formation and construction of the golf course on the natural contours of the land. Further, the fact that weed eradication is a requirement of the Crown lease and would not require separate approval under the planning scheme, does not affect my finding that the weed eradication is part of the development. In any event, it must be borne in mind that the purpose of the lease and the requirements in it, are intrinsically related to the development of the golf course. It is apparent from its terms that the primary purpose of the lease was to facilitate the development of the golf course.
2. Further, in my view, the extent of the work performed prior to the expiry date is sufficient to answer the description of substantial commencement. Counsel for the plaintiff argued that the amount of weed eradication work was relatively small in comparison to the estimate given by Mr Chrapot for the cost of the overall project, which was $15m to $16m. Counsel noted that it represented only 4% of the total estimate. That may well be so, but regard must also be had to the relative importance of weed eradication in respect of the construction of the course. The critical issue is the relationship between the work and the final development. As was noted in Day v Pinglen Pty Ltd, the assessment of whether the commencement is substantial is a question of degree. The importance of the amount of work done is that it must be such that it objectively confirms that the development has commenced. I am satisfied that the weed eradication work satisfies that test.
3. A further matter which affects the assessment of substantial commencement is the place of the weed eradication work within the context of the overall project, including aspects covered by other permits such as the water treatment plant and the pipelines. It is clear that by virtue of s 53(5), the development which must be substantially commenced is that of the golf course on the site. However, when regard is had to the purpose of the "substantial commencement" requirement in s 53(5), that is that substantial commencement must be such as to confirm that the proponent has committed to a real and actual commencement of the development as distinct from a notional, equivocal or sham commencement, it can be seen that the context of the performance of the work within the wider development is a relevant consideration. In other words, it is relevant that the works constitute a step in the overall project to which the proponent has already committed or is prepared to commit considerable resources. There was not a lot of evidence about how much work on the overall project had actually been done prior to the expiry of the golf course permit, although Mr Chrapot's unchallenged evidence is that the defendant had obtained permits for at least part of the pipeline and had commenced design works and purchase of pipes prior to that date. Notwithstanding this, the commitment to and contemporaneous progress of the overall project is an important contextual consideration with respect to the assessment in this case.
4. Another aspect of this consideration is the argument made by the plaintiff's counsel to the effect that the defendant did not have to wait for the completion of weed eradication work before commencing the earthworks required to construct the golf course. As I understand it, this argument is really made in response to an anticipated converse submission from the defendant. I do not understand the defendant to have actually made that submission, although it was part of the opinion expressed by the defendant's planning expert. However, and in any event, I take it that what the plaintiff is really saying is that the defendant's failure to complete construction of the golf course, and its failure to explain why this is so, is a relevant factor when assessing whether there has been a real as opposed to a notional or sham commencement by way of weed eradication.
5. There is no merit in this submission. The evidence is clear that the weed eradication works are ongoing and likely to be permanent. Further, Mr Chrapot provided detailed information in his evidence concerning works related to the golf course and the wider project. He noted that a delay in commencing construction work was partly due to a stop work notice delivered by the Crown on 26 August 2022. This was not rescinded until 22 November 2023. Notwithstanding this, it is clear that significant work on the overall project, in particular the pipeline, has been ongoing. Mr Chrapot's unchallenged evidence is that the defendant had incurred expenditure in the order of in excess of $18m as at 30 November 2024, in respect of the overall project. It can be inferred that as at the expiry date of the permit, there had been significant work done and expenditure incurred in respect of the overall project. Viewed in this context, the weed eradication works demonstrate a real commencement of the development of the golf course.
6. Further and in any event, as Gibbs J noted in the passage quoted above from Drummoyne Municipal Council v Lebnan, the term "substantially commenced" does not suggest that what has been done must form a large proportion of the whole work. The extent to which the work has been completed is not the question. Further, the fact that the defendant has not commenced the actual earthworks and shaping involved in the construction of the course since 1 October 2022, is not a cogent consideration, provided that the development had been substantially commenced by then. See Day v Pinglen Pty Ltd at 297.
7. Subject to determination of the plaintiff's argument in respect of condition 20, I reiterate my finding that the weed eradication works performed prior to 1 October 2022, considered in all the circumstances of the case, constitute substantial commencement of the development in respect of which the permit was granted. The work has been significant and effective, and the cost considerable. It has rendered the land into a condition suitable for construction of the links style golf course with minimal earthworks and formation. It represents a genuine and substantial commencement of the development.

Does condition 20 preclude a finding of substantial commencement ?

1. The plaintiff's argument in respect of condition 20 depends upon a finding that the defendant proceeded with the commencement of the development, in this case by the weed eradication works, without complying with the condition, and that this was prohibited by the terms of the condition. In particular, it is asserted that the environmental management program (EMP) was endorsed by the relevant officer of the Council without consulting with the Crown prior to the expiry date of the permit. Hence, it is argued, any works performed prior to then must be disregarded when considering the question of substantial commencement.
2. There are cases of the Court of Appeal in New South Wales which support the proposition that if a condition in a planning permit or consent requires something to be done before other works can commence, work done in breach of the precondition cannot constitute commencement of the development. Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 123, Green v Kogarah Municipal Council [2001] NSWCA 123, K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202. However, care needs to be taken with the application of these cases, given that they are decided under a different legislative framework to that applicable in this case.
3. The antecedent question is whether the plaintiff has made out its claim that condition 20 was not satisfied prior to the expiry date of the permit. In this regard, the evidence establishes the following. The lease attached an EMP which according to the definition provision was "developed on behalf of the Lessee for the Gellibrand Point Nature Recreation Area". Clause 5.1(g)(v) of the lease required the defendant to "punctually comply" with this document. This obligation was not affected by the deed of variation of the lease entered into by the Crown and the defendant in 2020. In apparent compliance with condition 20, the defendant submitted an updated version of the EMP to the Council and it was endorsed by the relevant officer on 17 June 2022, well before the lapsing date. On the same date, the Council sent a letter to the defendant confirming compliance with both condition 13 and condition 20 of the permit. However, on 26 August 2022, the Crown issued a stop work notice to the defendant, purporting to rely upon its rights under the lease, claiming that the defendant was in breach of the lease. The notice alleged a number of breaches which were set out in a table. In a further paragraph, the notice asserted that:

"In addition to the breaches noted above, the environmental management plan remains outstanding and has not been approved by the Parks and Wildlife Service."

1. The stop works notice was rescinded by the Crown on 22 November 2023. On 22 September 2025, the Parks and Wildlife Service sent a letter to the defendant confirming its approval of the latest version of the EMP.
2. The claim in the stop work notice that the EMP remained outstanding seems to be in direct contradiction with the actual breaches relied upon in the same document, which assert that the defendant was in breach of its obligation under cl 5.1(g)(v) of the lease to "use its best endeavours to meet all requirements and comply with all recommendations of the EMP (a copy of which was attached to the lease) within the initial 12 months of the term of the lease". Of course, the notice is obviously referring to the updated version, but the purported source of the Crown's authority to approve this version is not clear. At best, it arises from condition 20, which requires Council's consent to an unspecified version of the EMP, in "consultation" with the Crown. Having said this, correspondence forwarded by the defendant's solicitor to the Crown on 6 September 2022, seems to accept that the Crown has the right to approve the updated version of the EMP, and that this arises under condition 20. There is no doubt that the condition is extremely vague and uncertain. It does not specifically refer to an updated version of the EMP, nor does it specify what is meant by consultation nor whether the obligation to ensure consultation falls on the defendant or the Council. It can be observed that consultation would normally mean something other than approval. However, the concessions made in the defendant's solicitors' correspondence confirm that the defendant and the Crown, at least, were proceeding on the basis that the Crown's approval of the updated EMP was necessary in order to satisfy condition 20. For the purpose of the argument, I will proceed on the basis that this in fact is the case. It is undisputed that that approval was not forthcoming by the lapsing date.
3. The question which then arises is whether the weed eradication work should be disregarded for the purpose of the substantial commencement issue because of the apparent failure to comply with condition 20 prior to the lapsing date. This requires the condition to be construed as prohibiting the weed eradication work unless and until the approval by the Crown of the updated EMP. What the condition actually prohibits is the commencement of "site works". This term is not defined in the permit. Having regard to the wording of the condition as a whole, its apparent purpose and its interaction with other conditions, in particular condition 13, it is clear in my view that "site works" in condition 20 does not include the weed eradication works. Weed eradication is the subject of condition 13, which itself required approval of a separate weed eradication plan by the same Council officer. That approval was forthcoming on 23 November 2017. Importantly, condition 13 does not require consultation with the Crown. In my opinion, condition 20 is concerned with site works in the nature of construction, including both earth works necessary to form the golf course and the construction of the associated infrastructure, and does not include the weed eradication work which is the subject of condition 13. It is true that condition 20 specifies that "details of the proposed weed management techniques to be implemented" must be included in the EMP, but it is the "site works" which are prohibited from commencing, not these techniques. At no time prior to trial has any relevant party, including the plaintiff, the Council or the Crown suggested that compliance with condition 20 was necessary before the weed eradication works could commence. In the plaintiff's case, the issue, although raised in submissions, is not alleged as part of its pleading. Such an interpretation would be nonsensical, given the terms of condition 13 and the significant weed infestation of the site. Accordingly, I am of the view that the precondition set out in condition 20 did not relate to the weed eradication work and its performance prior to the lapsing date was not contrary to the provisions of that condition.
4. The question which then arises is whether this finding affects the capacity of the weed eradication works to amount to substantial commencement of the development. In my view, there is no reason why such works despite not falling within the category of site works as that term is used in condition 20, and hence not being subject to condition 20, should be excluded from works constituting substantial commencement of the development for the purposes of s 53(5). The New South Wales cases do not support that outcome because in each of those cases, the work which was said to constitute substantial commencement was clearly prohibited by the relevant condition where there was a failure of the precondition. I have already concluded, applying the terms of s 53(5) that the weed eradication work was part of the development and its performance constituted substantial commencement. The fact that this work does not fall within the more narrow category of "site works" for the purpose of condition 20 does not affect that conclusion. I reject the plaintiff's argument.

1. I find accordingly that the development in respect of which the permit was granted was substantially commenced by 1 October 2022, and accordingly the permit has not lapsed pursuant to that provision. It follows that the plaintiff's action must fail. Because of my conclusion in relation to substantial commencement, it is not necessary to consider the arguments presented by the defendant concerning the exercise of discretion with respect to the grant of declaratory relief. The action is dismissed.