Tovedale Pty Limited v Shoalhaven City Council

Tovedale Pty Limited v Shoalhaven City Council - [2004] NSWLEC 483 - NSWLEC 1996 case summary — Zoe

[7]

… (2) For the purpose of subsection 1(a) - (a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work) of land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided) - that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies; or (b) where development comprises the use of any land, building or work (not being a use referred to in paragraph (a)) - that development is commenced when the use of that land, building or work is actually commenced. 3 In the present case, it is common ground that the relevant statutory lapsing period expired on 28 September 1991 and that the adjudication on the disputed issue as to whether the relevant development consent did or did not lapse on that day is to be determined solely on the basis of the quoted provisions of s 99. In other words, the legislative history of s 99 that occurred subsequent to 28 September 1991 (the section was materially amended in 1993 by the Local Government (Consequential Provisions) Act 1993, which substituted a five year lapsing period and was repealed and replaced by s 95 by the Environmental Planning and Assessment Amendment Act 1997 which repealed the whole of the EP&A Act, Pt 4 (in which Part, s 99 was included) and re-enacted new Parts 4, 4A 4B and 4C). This is because the subsequent amendments and repeal of the EP&A Act, s 99 did not affect its previous operation: vide s 30(1)(b) of the Interpretation Act 1987. 4 Paragraph 7 of the Applicant's Points of Claim assert that the relevant development consent did not lapse by operation of the EP&A Act, s 99 by virtue of the following facts asserted in pars 5 and 6: 5. After grant of the consent but before 28 September 1991 building, alternatively engineering, alternatively construction work was carried out on the land: PARTICULARS (a) clearing of vegetation; (b) digging holes; (c) placement of permanent marks on or under the surface; (d) marking by means of pegs driven into the ground of centerlines of roads and principal drains and sewer lines; (e) placement of pegs to act as recovery marks; (f) observation and recording of levels of roads and drainage lines by surveyors. 6. During the same period information recorded in the field by surveyors, utilizing the information obtained as a result of the physical work particularised above, was provided to engineers who prepared engineering designs for roads, stormwater and sewerage reticulation on the land, in conformity with the consent. 5 The Council, in its Points of Defence answers these allegations by asserting - (i) the works particularised are not " physical works pursuant to s 99(2) "; (ii) the works particularised were undertaken for the purposes of obtaining approval under the Local Government Act 1919 which was preparatory to the carrying out of physical works upon the land; (iii) without admitting that the particularised works are relevantly building or engineering or construction works carried out on the land, such works were effected in relation to the design of proposed public roads and for the purpose of obtaining an approval under the Local Government Act 1919 . 6 The Council's Points of Defence raise an additional defence, namely whether the Court should, in the exercise of its discretion, refuse the relief claimed by the Applicant on account of the significant delay on the part of the Applicant in commencing these proceedings (some nine years having elapsed since the Applicant became aware of the Council's opinion that the development consent had lapsed on 28 September 1991). 7 This discrete defence is challenged by the Applicant on the grounds that there is no relevant discretion vested in the Court to refuse declaratory relief on the basis of the Applicant's delay in commencing the proceedings, if the Applicant otherwise proves its case that the relevant development consent did not lapse by virtue of the operation of the EP&A Act, s 99. 8 In the circumstances, I propose firstly to adjudicate upon the disputed question of whether the relevant consent lapsed on 28 September 1991 by virtue of the operation of the EP&A Act, s 99 (as relevantly in force). It is only if I conclude that the development consent has not lapsed that the Council's discretionary defence will become relevant and will require adjudication.

[8]

9 Accordingly, in now proceeding to state the relevant facts (which are principally encompassed by the Statement of Agreed Facts (Exhibit 1) which the parties have very helpfully jointly prepared on the basis of the affidavit evidence that has been filed in the proceedings), I say nothing of the facts (or the evidence) that would be relevant to the issue raised by the Council's discretionary defence. B. THE RELEVANT FACTS 10 The Statement of Agreed Facts is in the following terms: 1. The Applicant is the owner of Lots 55 and 56 in Deposited Plan 808935 situated at South Nowra (the Land). 2. The Land was formerly known as Lot 1 DP791914. 3. The Land is situated in the Respondent's Council area. 4. On 28 September 1989 the Respondent granted development consent SF6559 for the subdivision for residential purposes of Lot 6 DP714802 and Lot 8 DP740045 (the consent). 5. The consent related to the Land. 6. Failing commencement, the consent would have expired on 28 September 1991. 7. The relevant provision for determining whether commencement occurred between 1989 and 1991 is section 99(2) of the Environmental Planning & Assessment Act (as it then was) which provides as follows: Where development comprises the erection of ,a building or the carrying out of a work or the sub-division (involving physical work) of land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided) - that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies 8. Prior to 1998 a plan of subdivision could not be registered at the Land Titles Office unless the plan was endorsed by with a certificate under s.327 of the Local Government Act 1919 9. The consent contained a number of conditions which required physical work to be undertaken before the plan of subdivision would be released by Council. These conditions include 4. The piping of drainage easement(s) to Council's requirements, including interallotment drainage where necessary 5. Removal of all dead trees, stumps, underscrubbing and grading where determined on site or to the satisfaction of the City Engineer. 7. Provision of sewerage service to all proposed lots in the subdivision, at the subdividor's expense, all to Council's requirements. A site for a sewerage pumping station with the provision for access and electricity supply to the pump station and rising mains will also be required. The actual location will be determined upon the submission of engineering plans indicating the sewerage reticulation layout. 11. The construction of new roads in the subdivision, with kerb and gutter, full width bitumen seal and necessary drainage to Council's requirements and as follows: - (a) The 18m road to have a carriageway of 8m. (b) The cul-de-sacs to have a 6m carriageway and 9.5m radius turning circle. (c) Construction of kerb, gutter and associated drainage, shoulder preparation and seal fronting proposed lots in Browns Road. The bitumen seal is to be a minimum of S metres wide and the existing open drain along Browns Road is to be fully piped from Old Southern Road to a point opposite the western boundary of proposed lot 1 shown on the attached plan. Engineering plans and pavement design criteria are required to be submitted for Council's approval. It will be the applicant's responsibility to check and ensure that the proposed works are not affected by Council's services. Any required alterations to services will be at the applicant's expense. (d) The construction of concrete/bitumen cycle paths 1.8m wide leading from the proposed cul-de-sac through to Old Southern Road (e) Threshold treatment to be provided at the entrance to the 2 cul-de-sacs with details being shown on engineering plans. (f) The submission of an overall landscape design plan to be encompassed throughout the subdivision indicating the type of landscaping to be carried out and the species of all trees and vegetation to be planted throughout the subdivision 18. All lots within the fringe area to be filled to R.L. 30.3 A.H.D. and graded to 1:2 having a minimum grade of 0.5%. All filling to be compacted to at least 95% standard proctor. The specification shall require the supervision of the filling works by a consulting engineer and the monitoring of any settlement over the subdivision during the construction and maintenance periods. On completion of the filling, the Subdividor is to submit an Engineer's Certificate confirming the satisfactory compaction of the filling and the suitability of the lots for the construction of dwellings. The result of test bores should be shown. 10. None of the physical work undertaken on the Land referred to in clauses 16, 17, 18, 19, 20, 21, 23, 24, 26, 27, 31 and 38 of this statement required any approval from the Respondent other than the consent. 11. The subdivision proposed the opening of public roads. 12. Section 327 of the Local Government Act 1919 prescribed the requirements for the opening of public roads. 13. The prescribed matters included the prior approval by Council to engineering roadwork, drainage and sewerage plans. 14. The obligation to comply with the requirements of the Local Government Act was separate to and independent of any obligation to comply with the requirements of any consent issued under the Environmental Planning & Assessment Act. 15. In October 1989 Allen, Price & Associates, Land & Development Consultant of Nowra (APA) were engaged by the then owners of the Land to prepare engineering plans for the road and stormwater drainage and sewer reticulation in connection with the subdivision of the Land. 16. On 6 November 1989 APA employees Gregory Elliott and Stuart Leslie attended the Land to traverse the Land for boundary fixation. This involved

[17]

On 6 March 1990 APA lodged road, drainage and sewer design plans for the subdivision with the Respondent. 29. On 12 April 1990 the Respondent granted approval pursuant to s.331(2) of the Local Government Act 1919 for subdivision roadworks. 30. On 4 May 1990 amended sewer design plans were lodged with the Respondent by APA. 31. In May 1990 an area of the Land was cleared and temporary marks were placed in the ground to locate the boundaries of 17 lots. A second advance sale plan was prepared for promotion to the public for sale purposes. 32. On 30 August 1990 the Respondent informed APA that Council would require the land for the sewer pumping station to be transferred to it in fee simple as a condition of the release of any sewer plans. 33. On 29 November 1990 a plan of subdivision of the Land to create Lots 55 and 56 was finalized by Stuart Leslie of APA (the two lot plan of subdivision). It was intended that Lot 55 be the site of the proposed sewerage pumping station. 34.The two lot plan of subdivision did not provide for the opening of a public road. 35. On 8 February 1991 the Council Clerk's Certificate pursuant to s.327(7)(b) of the Local Government Act 1919 was endorsed on the two lot plan of subdivision. 36. On 8 February 1991 the two lot plan of subdivision was released to APA. 37. On 3 April 1991 the two lot plan of subdivision was registered as DP 808935. 38. On 30 April 1991 Mark Egan and Stuart Tomlinson of APA went to the Land and placed pegs in the ground to denote the centerline location of the sewer main in Browns Road. This involved the clearing of land so that levels could be observed. 39. On 17 May 1991 APA lodged amended sewer design plans with the Respondent. 40. On 19 July 1991 the Respondent granted approval pursuant to s.331(2) of the Local Government Act 1919 to the subdivision sewerage works. 41. Lot 55 DP808935 has never been transferred to the Respondent in fee simple or otherwise and remains in the ownership of the applicant. 11 In amplification of the abovementioned facts, it is necessary to note some further relevant facts which are deposed to in the affidavit evidence of Ms Kerry Rourke, the Council's Senior Development Planner, and of Mr Ernest Panucci, Registered Surveyor and Director of Allen Price and Associates which was commissioned by the former owners of the subject land on 3 November 1989 to act as consultants in respect of the then recently approved subdivision of the land. 12 The approved subdivision layout was shown on an amended plan that had been suggested by the Council in response to the submission of the subdivision application (that had been accompanied by a sketch plan depicting the proposed residential subdivision). A copy of the approved plan is annexed hereto and marked "A". It shows three proposed internal subdivisional roads branching off Browns Road, an existing but unconstructed public road.

[19]

14 There is no direct evidence that separate subdivision approval under the Local Government Act 1919, Part XII (LG Act) was granted in respect of the approved subdivision either at the time the development consent was granted or later. It is common ground that such additional approval was required by virtue of the provisions of the LG Act, s 327 which relevantly provided: 327. (1) Subject to the provisions of this Act a public road shall not be opened, and in a case where a subdivision provides for the opening of a public road land shall not be subdivided until - (a) an application in respect thereof accompanied by plans and specifications thereof has been approved under this Act; and (b) the roads have been constructed and drained to the satisfaction of the council in accordance with the approved application, plans, and specifications, and with any conditions attached to any such approval; (c) the applicant has placed in the road permanent survey marks in the position and manner and of the character prescribed; and (d) the town or shire clerk has certified that: (i) the requirements of this Act (other than the requirement of the registration of plans) have been complied with; and (ii) in the case of a subdivision (being a subdivision that provides for the opening of a public road) of land that is wholly or partly within: (A) the area of operations referred to in Part 4 of the Water Board (Corporatisation) Act 1994; or (A1) the area of operations within the meaning of Part 5 of the Hunter Water Board (Corporatisation) Act 1991; or (B) a Water Supply Authority's area of operations, within the meaning of the Water Supply Authorities Act 1987 , a certificate of compliance has been issued under section 73 of the Water Board (Corporatisation) Act 1994, section 50 of the Hunter Water Board (Corporatisation) Act 1991 or section 27 of the Water Supply Authorities Act 1987, as the case requires, in respect of the subdivision; (e) a plan of the road or of any subdivision containing the road (such plan bearing the signatures of all necessary parties, a statement containing such particulars as may be necessary to identify the title to the land comprised in such plan, and the aforesaid certificates) has been registered in the office of the Registrar-General. 15 The LG Act 1919, s 331(1) provided for the making of an application under Part XII and Ordinance 32 (made under the LG Act, Part XII) contained detailed provisions in respect of (i) the making of an application for approval to subdivide land including the opening of a new road (cl 2) and (ii) the obtaining Council's Clerk's certificate under s 327 (cl 3). Section 331(6) precluded the grant of approval to an application relating to a development that may only be carried out with development consent under the EP&A Act, unless that consent had already been granted or that consent and the approval were granted concurrently. 16 Clause 2 of Ordinance 32 prescribed the following requirements in respect of the plans and specifications to accompany the application, paragraphs (a), (c) and (d) providing as follows: (a) With each application for approval to the opening of a new road and with each application for approval to a subdivision involving the opening of a new road, the applicant shall submit four copies of the plans (including sections) and specifications. ………….. (c) The plans shall show - (i) the position of each proposed new road, and its relation to the existing roads of the area; (ii) longitudinal sections, with levels at intervals not exceeding 1 chain, showing the proposed grade of each new road, and the depth of cutting and filling proposed to be done thereon; (iii) a typical cross section of each new road showing the proposed width and convexity of carriage-way, width and slope of footway, details of the proposed construction of kerbing, guttering, and footway, and any proposed arrangement of tree planting; (iv) the provision proposed to be made for drainage (with levels, gradients, and dimensions of proposed drains, if any), and the drainage reserves proposed to be provided; (v) the conduits if any) proposed to be placed in the roads in compliance with section 325 of the Act; (vi) the proposed treatment of junctions or intersections of roads to comply with section 325 of the Act; (vii) the shape and approximate dimensions of each separate parcel in the subdivision; (viii) the existing and proposed means of access to each separate parcel; (ix) the amount of land proposed to be provided as a public reserve. Provided that if the Council so requires the plans shall also show - (i) contour lines or spot levels indicating the general contour of the surface of the subdivision; (ii) topographical features which will restrict the full use of any parcel in the subdivision; (iii) existing buildings or other permanent improvements in the subdivision; (iv) easements or proclamations which will restrict the full use of any parcel in the subdivision; (v) the exact relationship of the subdivision to the surrounding lands: Provided that this requirement may be satisfied by a small scale plan. (d) The specifications shall state in detail particulars of the matters required to be shown on plans, and shall define fully the methods to be followed and materials to be used in carrying out the work of construction. 17 Clause 2(e1) of Ordinance 32 provided the opportunity for an application for approval under Part XII to be made without the requisite details and specifications accompanying the application, but subject to a condition that "construction of such roads and drains shall not be commenced until full details….of the design and construction thereof have been submitted to and approved by the council". 18 I mention these requirements of Ordinance 32 made under the LG Act, Part XII because they relevantly operated when the development consent was granted and throughout the two year statutory lapsing period that is relevant to that development consent and provide the relevant legal matrix for an evaluation of the various actions undertaken by the landowner's consultant culminating in the grant of the requisite approvals under the LG Act, Part XII in respect of the subdivision that had been approved by the development consent.

[32]

34 Other relevant ultimate findings of fact derived from the Agreed Statement of Facts will be stated in the next section of these reasons when determining whether or not the development consent lapsed. C. DID THE DEVELOPMENT CONSENT LAPSE ON 28 SEPTEMBER 1991? 35 The Applicant submits that the works undertaken on the subject land as particularised in the Statement of Agreed Facts before the expiry of the two year statutory lapsing period, qualify as (i) "building, engineering or construction work"; (ii) relating to the approved subdivision; (iii) that were "physically commenced on the land to which the consent applies" within the meaning of the EP&A Act, s 99(2)(a) and accordingly avoid the statutory lapsing of the development consent otherwise provided by s 99(1) of that Act. 36 In amplification of this submission, the Applicant submits as follows - (i) the " survey works " qualify as " engineering works ": see Richard v Shoalhaven City Council (2002) NSWLEC 11; (ii) even if it be found that the survey works were undertaken for the purpose of the preparation of engineering plans for the subdivision roadworks and subdivision sewerage works for submission for the Council's approval under the LG Act , Pt XII that fact does not exclude a finding that such works were also undertaken as required or contemplated by relevant conditions of the development consent (ie conditions 4, 11 and 16) and if that additional finding be made, such works necessarily " relate to " the approved subdivision; (iii) the survey works included physical work undertaken on the subject land; (iv) even if the survey work is held to be " preparatory " work in the sense that it was a necessary prelude to other work being done, the preparatory work remains part of the overall process of work done on the subject land which physically commenced the approved subdivision. 37 The Council's competing argument may be summarised as follows: (i) in a case such as the present where the approved subdivision involves physical work on the land, s 99(1) and (2) require the undertaking of relevant physical work on the subject land if the development consent is to avoid statutory lapsing; (ii) the works relied upon by the Applicant, being various survey works, do qualify as relevant " building, engineering or construction work….physically commenced on the subject land "; (iii) the survey work undertaken on the subject land did not require the grant of development consent under the EP&A Act or any other approval and accordingly, the undertaking of that survey work did not involve the physical commencement of relevant engineering, building or construction work " relating to " the approved subdivision; and (iv) the survey work was in truth merely preparatory work which was undertaken for the purposes of the preparation of engineering plans for the subdivision roadworks and subdivision sewerage works for submission to the Council for the purpose of obtaining the requisite approval under the LG Act , Part XII, and accordingly that work did not relevantly relate to the approved subdivision. 38 In my judgment, the Applicant has failed to establish its claim that relevant "building, engineering or construction works relating to the approved subdivision were physically commenced" on the subject land "within the meaning of s 99(2)(a) of the EP&A Act". It follows that the Applicant has not established that the development consent did not lapse on 28 September 1991 conformably to the operation of the EP&A Act, s 99 as relevantly in force. 39 In so concluding, I hold that the "survey works" undertaken on the subject land do not relevantly qualify as "building, engineering or construction works" for two separate reasons, namely - (i) survey work is not comprehended by the statutory expression " building, engineering or construction works "; and (ii) even if survey work were so comprehended, it was merely preparatory work which did not involve the physical commencement of relevant work on the subject land. 40 The legal basis for these two reasons is fully expounded in my recent judgment in Hunter Development Brokerage Pty Ltd v Cessnock City Council [2004] NSWLEC 454 which was published in the week following the hearing of the present proceedings. 41 At that hearing, the parties were aware that two judgments in this Court had recently been reserved in separate proceedings involving the Cessnock City Council where the common issue was whether a relevant development consent had or had not lapsed pursuant to the statutory lapsing provisions now found in the EP&A Act, s 95 (which in relevant respects is not materially different from s 99 of the original Act which is the applicable provision to the present case). Indeed, Senior Counsel for the present Applicant had appeared for the Cessnock City Council in those two cases.

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