Williams v Coffs Harbour City Council

ASIC v Rich & Ors (2004) 50 ACSR 500; CASES CITED: Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47; Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; KJD York Management Services Pty Ltd v City of Sydney Council (2006) 148 LGERA 117.

APPLICANT Mr P Clay with Ms F Berglund LEGAL REPRESENTATIVES: SOLICITOR Harbord Property Lawyers RESPONDENT Submitting appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

400374 of 2007 Craig Williams and Leah Williams v Coffs Harbour City Council

EX TEMPORE JUDGMENT 1 Her Honour: These are Class 4 proceedings seeking a declaration that the development consent no 225/92 granted by the Respondent Council on 19 January 1993 for the construction and use of a 136 site caravan park at Lot 350, DP 703698, Pacific Highway, Arrawarra (the land) has not lapsed.

2 The Council has filed a submitting appearance save as to costs so that there is no contradictor to the application. Relevant legislation 3 When development consent no 225/92 was granted on 19 January 1993 s 99(1)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) provided that a development consent lapsed after two years. Section 99 was amended by the Local Government (Consequential Provisions) Act 1993 Sch 2 cl 8, which commenced on 1 July 1993, so that a development consent lapsed after five years if not physically commenced. Under the savings and transitional provisions, a development consent that had not lapsed before the commencement of Sch 2 lapsed five years after the date from which it operated (Sch 3, cl 1). This amending Act also changed the requirement for commencement from "substantial" to "physical" (s99(4)). This continued to be the relevant provision when the lapsing date of 19 January 1998 occurred.

Evidence relied on to support finding of physical commencement 4 The evidence consisted of the tender of documents largely obtained from the Council's file and recent correspondence between the Applicants' solicitor and the Council concerning whether the Council would state in writing that the consent 225/92 had been commenced. The Council has not provided that statement. An affidavit of Mr Wilson, engineer, sworn 19 June 2007 who undertook engineering work on the site in January 1993 states: I was aware during the preparation for the Works that there was a requirement for work to be undertaken under the development consent before 19 January 1998 because that was the date on which the development consent would lapse if not physically and substantially commenced. Annexed hereto and marked "A" is a letter I sent to Coffs Harbour City Council on 18 December 1997. (That letter identifies the scope of bulk earthworks intended to be undertaken by 5 January 1998) I prepared, or commissioned the preparation of, the documents listed in Annexure A. I do not recall the precise dates that the Works were carried out but do recall that it was in early January 1998 and prior to 19 January 1998. The works referred to in paragraph 7 consisted of: (a) clearing of some vegetation on the site; (b) excavation to increase the size of the existing dam; (c) creation of an access road; (d) Placement of fill around the perimeter of the new lagoon to create elevated building platforms for proposed holiday cabins. 5 The work relied on by the Applicants to show physical commencement as identified in Mr Wilson's affidavit at par 8 is: (a) clearing vegetation; (b) creation of an access road; (c) excavation to increase the size of the existing dam; and (d) placement of fill around the perimeter of the new dam to create elevated building platforms. 6 A chronology of the relevant facts, and documents as contained in Annexure A to the affidavit of Mr Wilson, in these proceedings is as follows: Development Application 225/92 was lodged with Coffs Harbour City Council 11 June 1992 Development Application 225/92 was determined by approval 19 January 1993 Application to modify DA 225/92 (under former s102) was lodged 5 March 1997 Modification Application determined by approval 14 July 1997 Council notified approval of flood study 15 December 1997 Documents submitted to Council in compliance with conditions of consent, including Acid Sulphate Soil Investigation, proposal for Effluent Disposal System and Erosion and Sediment Control Plan 18 December 1997 EPA issued Pollution Control Approval 18 December 1997 DLWC issued approval for Sediment and Erosion Control 19 December 1997 Work undertaken on site: · Clearing vegetation Prior to · Creation of access road 19 January 1998 · Excavation to increase size of dam · Placement of fill around the perimeter of the new dam to create elevated building platforms Building Application 257/00 was lodged 19 August 1999 Building Application 257/00 was approved 15 September 1999 Property acquired by Applicants November 2002

Is there physical commencement? 7 The relevant case to consider on the meaning of physical commencement is Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124 per Tobias JA (Santow JA, Stein AJA concurring) at [83], [84], [88], [98]: In my opinion, the expression "engineering work" in its context of forming part of the composite phrase "building, engineering or construction work", should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. There can be no doubt that engineering as such can involve many different elements: relevantly with respect to a subdivision, it involves civil engineering work such as the design and (possibly) the construction of roads, sewerage systems, drainage and the like.

But once consent is granted for a subdivision, the implementation of that consent ultimately resulting in the construction of the subdivision roads, drainage and sewer lines as well as the laying out of the allotments in accordance with the approved layout, requires as a necessary first step in the engineering or construction of that subdivision, including the physical works contemplated thereby, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. This would accord with common sense and industry practice. . .

Given the obvious difference between the expressions "substantially commenced" and "physically commenced", in my opinion the only statutory requirement is that the relevant work is commenced upon the land in a physical sense (as was clearly the position in the present cases). What is to be distinguished is work which is not physically commenced on the relevant land but is off-site work such as design and planning work. The point to be taken ... is that the erection of a dwelling begins with clearing of the site followed by its pegging out and then the digging of trenches for footings. It must logically follow that the erection commences with the first of those items. It matters not that neither the clearing of the site, its pegging out nor the digging of trenches involves the actual erection of the fabric of the building. So in the present cases, once it is accepted that the survey and geotechnical investigation work that was carried out was "engineering work", it must follow that that work, in the context of a development consent to a subdivision was, to adopt the words of McTiernan J in Owendale Pty Ltd , "an initiatory step" in the process of subdividing the relevant land in accordance with that consent. Provided that "initiatory step" is a necessary part of that process that is all the statutory provisions require. Accordingly, whether one describes that step as preparatory is irrelevant.

8 Provided the physical work relates to the consent that is sufficient, applying the findings of Tobias JA in Hunter Brokerage. It is irrelevant whether that work is labelled "preparatory work".

9 The development consent included the approval of a plan and required engineering works related to erosion and sediment, inter alia, to be carried out: (a) Condition 17 required submission of a sediment and erosion control plan. This was lodged with the Council under cover of letter from Roderick Wilson of Gutteridge Haskins & Davey Pty Limited dated 18 December 1997. It was also recommended for approval by the Department of Land and Water Conservation (DLWC) on 19 December 1997. (b) Condition 25 required acid sulphate soil testing, which was submitted to Council on 18 December 1997. (c) Condition 27 required the design of an effluent collection and disposal system, which was issued with a Pollution Control Approval by the Environment Protection Authority (EPA) on 18 December 1997 and also submitted to Council on the same date. 10 Evidence that physical commencement occurred prior to 19 January 1998 is from: (a) Documents on the Council's file showing that preliminary work was undertaken during 1997, including the lodgement of plans and studies with the Council, DLWC, and the EPA. (b) Affidavit evidence of Mr Wilson, the engineer who oversaw the commencement of the works; and (c) Admissions made by the Council that the consent had commenced: (i) the approval of Building Application 257/00 on 15 September 1999 (ii) response to a general information enquiry on 18 July 2002 (iii) the Council's letter to Harbord Property Lawyers on 23 June 2004. 11 The s 96 modification application granted in 1997 included approval for an amended plan. The evidence outlined above at par 4 - 6 shows that approval needed from the EPA and DLWC for sediment and erosion control works was obtained. The evidence of Mr Wilson confirms that the work was physically done on the site in early January 1998. I consider there was physical commencement of the development consent by 19 January 1998.

Council position - is there a "controversy" 12 The Applicants are the current owners of the land having the benefit of the consent no 225/92. The recent correspondence shows that the Council has refused to confirm that the development consent had been commenced with the Applicants' solicitors and possibly also with potential buyers of the land the subject of the consent. There is a "controversy" which warrants the matter being brought to this Court in these circumstances. The evidence shows statements that development consent no 225/92 has commenced were made by the Council by its actions in relation to previous owners of the land. Should a declaration be made? 13 Parties have no automatic right to declarations whether by consent or, as here, where there is no contradictor to the Applicants' application. As consent does not confer jurisdiction, it is to be noted that parties have no automatic right to declaratory relief by consent. As Sir Robert Megarry VC said, with uncharacteristic brevity, in Metzger v Department of Health and Social Security [1977] 3 All ER 444 at 451: "The Court does not make declarations just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are no declarations without argument: that is quite plain."

Meagher, Gummow & Lehane's Equity Doctrines & Remedies (4th ed, 2002) 19-160.

14 The Court must be satisfied by evidence, as stated in ASIC v Rich & Ors (1994) 50 ACSR 500 per White J at [10]: As a general principle a Court does not make declarations on matters relating to public rights, or rights analogous thereto, by consent or on admissions, but only if it is satisfied by evidence. (Williams v Powell [1894] WN (Eng) 141; Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at 225-227; Termijtelen v Van Arkel [1974] 1 NSWLR 525; Wallersteiner v Moir [1974] 3 All ER 217; Metzger v Department of Health and Social Security [1977] 3 All ER 444 at 451; BMI Limited v Federated Clerks Union of Australia (1983) 51 ALR 401; Young, Declaratory Orders, 2 ed para 601). 15 Reference was also made to Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47 where Bignold J considered these principles in relation to a matter where he decided to make the declaration sought in the absence of a contradictor. The necessity for the applicant to establish its entitlement to the declaratory relief was considered in the costs judgment. Under the heading "The necessity for the Applicant to establish its entitlement to the declaratory relief" his Honour states at [51] -[53]: 51. Similarly, this Court will not ordinarily make declarations by consent, or without there being a proper contradictor, or at least where as in the present case, the Respondent has filed a submitting appearance, without the claimant establishing its entitlement to the relief claimed. As Megarry V-C said in Metzger v Department of Health and Social Security (1977) 3AllER 444 at 451: The Court does not make declarations just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are no declarations without argument: that is quite plain.

52. Accordingly, there can be no legitimate complaint from the Applicant that costs would have been avoided if the Respondent had entered into consent orders, because the Court would not have made, by consent, the declarations claimed, especially since the Court's orders would probably have the effect of a judgment in rem: see P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437.

53. Similarly (albeit somewhat paradoxically) the Applicant cannot legitimately complain about the Respondent's failure or reluctance to agree with the Applicant's representations concerning the effect of cl 45 because if there had been no "controversy between the parties", the declaratory relief would not, on that account, have been granted: see Young at par 203.

16 This decision was referred to in part by Lloyd J in KJD York Management Services Pty Ltd v City of Sydney Council (2006) 148 LGERA 117 where his Honour held in obiter that it was not appropriate in the absence of a contradictor to grant the declaration sought by the applicant as the proceedings involved consideration of public rights and the application of public law. KJD concerned the proper legal construction of a planning instrument in relation to zoning, inter alia.

17 The distinction of public versus private rights is referred to in several of the authorities to which I was referred and these urge caution when considering whether a declaration ought be made where there is no contradictor and where the right in issue is public. That distinction has to be considered in the context of the legislation administered by this Court where much of the Court's jurisdiction requires the making of declarations which inevitably have an impact beyond the immediate parties. In this case the declaration sought concerns whether as a matter of fact, there being no relevant dispute about the law, the development consent was physically commenced and has not lapsed. It does not give rise to any new question of law. It will have legal consequences beyond the Applicants because a development consent operates in rem. 18 While there is no contradictor the Applicants have presented evidence of the facts which are drawn from the Council's file and are matters about which it would appear a dispute is unlikely. Further, the Council's own actions in approving a building application in 1999 confirm that at that stage that the Council's own view was that the development consent had commenced. There are specific written statements added by a Council staff member to the building application to the effect that the development consent no 225/92 had commenced. Other matters suggesting this was the understanding of Council staff are outlined above.

19 I consider that I should exercise my discretion to make the declaration sought in light of the evidence presented and in light of the fact that there is clear utility for the Applicants in my doing so given that there is a "controversy" which the declaration can cure. 20 There was no application for costs and therefore no need for a costs order. 21 The Court declares that the development consent granted by the Respondent on 19 January 1993 (Council reference 225/92) for the construction and use of a 136 site caravan park at Lot 350, DP 703698, Pacific Highway Arrawarra has not lapsed.

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