Wollongong City Council v K and M Prodanovski Pty Limited

1These proceedings concern the alleged lapsing of a development consent ('DC') under s 95(4) of the Environmental Planning and Assessment Act 1979 ('EPA Act') which provides that: development consent for (a)the erection of a building, or (b)the subdivision of land, or (c)the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. (emphasis added) 2The DC (no DA2004/1220) was granted to architects acting on behalf of the respondent company ('Prodanovski') on 28 June 2005, and approved the following substantial mixed-use re-development of a service station site: Demolition of existing dwelling, service station and outbuildings, construction of mixed residential unit development comprising 24 residential units, 1 x retail, 2 x professional suites with basement parking for 51 cars. 3The DC was due to expire on 28 June 2007 (see Statement of Agreed Facts ('SAF'), Exhibit C1), but, on 10 July 2007, the Council agreed to a request made on 14 June 2007 by the respondent's agent, tcg Planning ('tcg'), to extend the lapsing period by one year, so that the effective lapsing date became 28 June 2008. Two tcg employees (Elaine Treglown and Christopher Hammersley) swore affidavits for the respondent. 4The conditions of consent are of some complexity, and they incorporated into the consent several investigatory reports on environmental matters, some of which reports foreshadowed a need for further investigations to be made. 5These proceedings were commenced on 1 November 2010, and came on for hearing first on 14 March 2011, when counsel for the applicant Council sought leave to amend the Council's points of claim, relying on an affidavit from Council's solicitor, Carlo Zoppo. The amendments added further particulars of the respondent's claimed non-compliance with the DC. 6After argument, I agreed to allow the amendment, and one inevitable consequence in all the circumstances was that the respondent required an adjournment so that he could secure the attendance of a particular witness. The adjournment was granted, with costs reserved. 7The Amended Points of Claim ('APOC') were duly filed on 18 March 2011. The Points of Defence ('POD'), filed on 23 December 2010, were not amended, and, on 18 March 2011, the applicant filed a Reply to those Points of Defence. The hearing resumed on 12 May 2011. 8In its summons the Council seeks a declaration that the DC has lapsed, and an order restraining any development on the subject land owned by the respondent (known as Lot 1 in DP527353 and Lot 3 in DP37937 at 292-294 and 296 Gipps Road, Keiraville, located in Council's area), in purported reliance of the DC. 9The respondent asserts that, as a consequence of demolition and/or geotechnical work that was carried out prior to 28 June 2008, the DC has not lapsed. It is common ground that no work was undertaken before 4 April 2008, that demolition work was undertaken by Antonio Silvestri on the respondent's behalf, and that geotechnical work was undertaken for the respondent by Douglas Partners Pty Limited. Silvestri swore affidavits for the respondent on 24 February 2011 and 6 April 2011, and also gave oral evidence at the hearing. Arthur Castrissios from Douglas Partners also provided an affidavit. 10It is appropriate to first set out the relevant contents of the subject DC (Exhibit C2, tab 6, fols 238-254), and then the relevant provisions of Australian Standard AS2601 - "The Demolition of Structures" (2001) ('the Demolition Standard') called up by the conditions.

The Development Consent 11Condition 1 of the DC provides that the development be carried out in compliance with plans and documentation listed therein, and endorsed with Council's stamp. Included in the list are the following two items: Geotechnical report - dated June 2004 - Douglas Partners Phase 1 environmental site assessment report - dated June 2004 - Douglas Partners 12Other conditions in the DC provide as follows (some emphasis added): General Matters 2Construction Certificate A Construction Certificate must be obtained from Council or an Accredited Certifier prior to work commencing. A Construction Certificate certifies that the provisions of Clauses 139-148 of the Environmental Planning and Assessment Amendment Regulations, 2000 have been satisfied, including compliance with all relevant conditions of Development Consent and the Building Code of Australia. ... 6 Geotechnical The applicant shall undertake the following: 1A supplementary geotechnical investigation is required to better assess groundwater conditions. 2Drainage designs are to be revised to include the findings of the investigation of groundwater conditions. 3A supplementary geotechnical investigation of soil and rock conditions is required of Lot 1 and the rear of Lot 3 once demolition of structures is complete. 4The preliminary excavation plan is to be reviewed to incorporate the findings of the supplementary soil and rock and groundwater investigations. 5All earthworks and rock excavation, drainage, retaining wall and foundation construction are to be undertaken with Level 1 geotechnical supervision. 6Where necessary the geotechnical consultant will recommend adjustments to designs to suit encountered conditions including adjustments to vibration controls. ... 10Section 138 The applicant must obtain a Section 138 Consent from Council to undertake works within the road reserve in accordance with the Roads and Traffic Authority's Publication 'Traffic Control at Work Sites'. Prior to the Issue of the Construction Certificate ... 13Final Geotechnical Report The submission of a final geotechnical report, prepared by an approved geotechnical consultant, to the Principal Certifying Authority for approval is required prior to the issue of the Construction Certificate. The final report must include the results of subsurface investigations involving either test pits to bedrock preferably the drilling of cored boreholes to 1 metre below the proposed final excavation level. This report shall include, but is not necessarily limited to, the following: 13.1extent and stability of proposed embankments (particularly those acting as detention basins); 13.2recommended geotechnical testing requirements; 13.3required level of geotechnical supervision for each part of the works as defined under AS3798 - Guidelines on Earthworks for Commercial and Residential Developments; (items 13.4 to 13.15 omitted) ... 20Site Management, Pedestrian and Traffic Management Plan (Where Works are Proposed in a Public Road Reserve) The submission of a Site Management, Pedestrian and Traffic Management Plan to the Principal Certifying Authority and Council (in the event that Council is not the Principal Certifying Authority) for approval of both the Principal Certifying Authority and Council is required, prior to the issue of the Construction Certificate. This plan shall address what measures will be implemented for the protection of adjoining properties, pedestrian safety and traffic management and shall be in compliance with the requirements of Australian Standard AS1742.2 (1985) - Traffic Control Devices for Works on Roads. This plan is required to maintain public safety, minimise disruption to pedestrian and vehicular traffic within this locality and to protect services, during demolition, excavation and construction phases of the development. This plan shall include the following aspects: 20.1proposed ingress and egress points for vehicles to/from the construction site; 20.2proposed protection of pedestrian, adjacent to the construction site; 20.3 proposed pedestrian management whilst vehicles are entering/exiting the construction site; (items 20.4 to 20.9 omitted) ... The approved plan shall be implemented, prior to the commencement of any works upon the construction site. Note: any proposed works or placement of plant and equipment and/or materials within any road reserve will require the separate approval of Council, prior to the commencement of such works, pursuant to the provisions of the Roads Act 1993. 21Asbestos Management Report The submission of a report, prepared by a suitably qualified and experienced asbestos consultant, which indicates the exact nature and extent of asbestos material contained within the site and the proposed remediation measures to be adopted for the removal of the asbestos material from the site to a NSW Environmental Protection Authority registered waste disposal site. This report shall be submitted to the Principal Certifying Authority for its separate approval prior to the issue of the Construction Certificate. 22Site Contamination The preparation of a site contamination audit report (ie prepared by a suitably qualified and experienced site contamination expert) which identifies the exact nature, degree and extent of any contamination within the soil strata and/or groundwater table (if any) and what remediation measures are necessary to address such identified contamination impacts. If contaminated soil strata and or ground water the contaminated material is to be removed from site and remediation of the material must occur off site. This report shall be submitted to the Principal Certifying Authority for endorsement, prior to the release of the Construction Certificate. ... Prior to the Commencement of Works 55aAppointment of Principal Certifying Authority Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must: 55a.1Appoint a Principal Certifying Authority (PCA) and notify Council in writing of the appointment, irrespective of whether Council or an accredited private certifier is appointed (if Council is nominated as the PCA please use the attached form) and 55a.2notify Council in writing (on the attached form) of their intention to commence the erection of the building (at least two days notice is required). The Principal Certifying Authority must determine when inspections and compliance certificates are required. 56Sign - Supervisor Contact Details Before commencement of any work, a sign must be erected in a prominent, visible position: 56.1stating that unauthorised entry to the work site is not permitted; 56.2 showing the name, address and telephone number of the Principal Certifying Authority for the work; and 56.3showing the name and address of the principal contractor in charge of the work site and a telephone number at which that person can be contacted at any time for business purposes. ... 59Demolition Works The demolition of the existing service station and dwelling shall be carried out in accordance with Australian Standard AS2601 (2001): The Demolition of Structures or any other subsequent relevant Australian Standard and the requirements of the NSW WorkCover Authority. No demolition materials shall be burnt or buried on-site. The person responsible for the demolition works shall ensure that all vehicles leaving the site carrying demolition materials have their loads covered and do not track soil or waste materials onto the road. Any unforeseen hazardous and/or intractable wastes shall be disposed of to the satisfaction of the Principal Certifying Authority. In the event that the demolition works may involve the obstruction of any road reserve/footpath or other Council owned land, a separate application shall be made to Council to enclose the public place with a hoarding or fence over the footpath or other Council owned land. 60Consultation with NSW WorkCover Authority Prior to any work commencing on the site it is the responsibility of the owner to contact NSW WorkCover Authority in writing in respect to any demolition or use of any crane, hoist, plant or scaffolding. 61Notification to Surrounding Property Owners/Occupants Prior to Commencement of Demolition Works At least five (5) days notice must be given in writing to any residence or business within 100 metres of the premises to which this consent pertains of the impending demolition works. The written notice must include at least the following information: 61.1a summary of the work plan and method for the demolition and a timetable for completion of works, including hours of operation, transport routes etc; 61.2details of the primary contractor and/or company conducting the demolition works; 61.3the name and telephone number for a person supervising the works to which residents can direct questions, comments and/or concerns about the works for the duration of the works. 62Hazardous Material Survey At least one week prior to demolition, the applicant must prepare a hazardous materials survey of the site and submit to Council a report of the results of the survey. Hazardous materials includes, but are not limited to, asbestos materials, synthetic mineral fibre, roof dust, PCB materials and lead based paint. The report must include at least the following information: 62.1the location of hazardous materials throughout the site; 62.2a description of the hazardous material; 62.3the form in which the hazardous material is found, eg AC sheeting, transformers, contaminated soil, roof dust; 62.4an estimation (where possible) of the quantity of each particular hazardous material by volume, number, surface area or weight; 62.5a brief description of the method for removal, handling, on-site storage and transportation of the hazardous materials, and where appropriate, reference to relevant legislation, standards and guidelines; 62.6identification of the disposal sites to which the hazardous materials will be taken. ... Prior to the Issue of the Occupation Certificate ... 90Site Contamination Validation Report and Site Contamination Audit Statement The submission of a site contamination validation report to the Principal Certifying Authority and Council (in the event that Council is not the Principal Certifying Authority for its records) is required, prior to the issue of an Occupation Certificate. This validation report shall verify that: 90.1all site contamination remediation works have been satisfactorily completed 90.2the site is not affected by any soil strata and/or groundwater table contamination, above NSW EPA threshold limit criteria and 90.3the site is rendered suitable for the proposed development. The submission of a site audit statement/final clearance certificate is also required from an accredited auditor pursuant to the provisions of Part 4 of the Contaminated Land Management Act 1997 confirming that the site has been satisfactorily remediated and is suitable for the proposed development. 13The concluding paragraphs of the relevant DC (at fols 253-254) contain a series of Notes. Relevantly Note 4 provides: Where the consent is for building work or subdivision work, no temporary buildings may be placed on the site and no site excavation, filling, removal of trees or other site preparation may be carried out prior to the issue of a Construction Certificate and appointment of a Principal Certifying Authority.

The Demolition Standard 14As noted above, the conditions (especially 59 at fol 248) call up the Demolition Standard (AS 2601 - see [10] above, and Exhibit C2 tab 23, fols 507-555). 15Among the definitions in the Standard (at fols 512-515), the following are of relevance to "The Demolition of Structures" (some emphasis added in this and subsequent paragraphs in this section of the judgment): 1.3.3 Competent person A person who has acquired through training, qualification, experience, or a combination of these, the knowledge and skills enabling that person to perform the task required by a recognized Standard. 1.3.5Demolition The complete or partial dismantling of a building or structure, by pre-planned and controlled methods or procedures. 1.3.10Hazardous Substances Management Plan A plan provided by the property owner, the owner's agent, or the person on whose behalf the demolition work is done, which identifies all hazardous substances that may affect the health of site personnel or members of the public. 1.3.18Manual demolition Demolition techniques involving the use of hand-held tools such as picks, sledgehammers, jackhammers, and the like. 1.3.25Work plan Specifically prepared document that details the methods and procedures for the safe demolition of the structure. 16The following provision in chapter 1 of the Standard "Scope and General" is relevant to the present matter: 1.6HAZARDOUS SUBSTANCES 1.6.1 Audit A competent person shall determine the presence of hazardous substances or conditions in the structure, and all parts of the site, which may be hazardous to the health of the site personnel or the public if disturbed by the stripping or demolition. The nature and location of each hazard shall be recorded and both the record and proposed method on controlling the hazards shall be recorded in a Hazardous Substances Management Plan and included in the contract documentation. The Hazardous Substances Management Plan shall include, but not be limited to, location and quantity of each substance, the method in which that substance is to be controlled or removed, the methods of monitoring exposure limits, and the handling, storage and disposal procedures to an approved landfill or approved storage area. The purpose of the audit is to identify the location, extent, accessibility, type and condition of hazardous substances such as asbestos, PCBs, lead paint, underground storage tanks, chemical and other hazardous containing materials in relation to the proposed demolition or stripping work, and to assess the risk to employees and other persons. The audit shall be supported by a laboratory analysis of the suspected hazardous substances ... 17Chapter 2 of the Standard, "Planning and Execution", includes the following (fols 523-524a): 2.1GENERAL REQUIREMENTS Before the commencement of any stripping or demolition work, an initial investigation of the structure and the site shall be carried out in accordance with Clause 1.6 and Clause 1.7.2.5. On the basis of this investigation, in conjunction with investigation of the structure and site, a work plan shall be prepared and documented in accordance with Clause 2.3 and submitted for approval. No stripping or demolition activity shall be commenced until the work plan has been approved. Where conditions revealed during execution of the works necessitate changes in the approved work plan, notification shall be given and approval received before the proposed changes are put into effect except that in an emergency situation, the necessary changes shall be effected immediately and notification of the changes given within the next 24 h. 18That chapter goes on to deal, in section 2.2, with investigation of both structures and the demolition site, and, in section 2.3, with the preparation of a "Work Plan", all to be done by a "competent person", who will "ensure that the proposals contained in the work plan comply with the requirements of [the Demolition] Standard". Section 2.4 deals with explosives, and section 2.5 provides that "the work shall be executed by competent persons, with due regard at all times for safe working practices and in accordance with the work plan, a copy of which shall be kept on site...". 19Chapter 3 (commencing at fol 525) deals with "Methods of Demolition". Section 3.1.1 provides (my emphasis) that "at all times demolition work shall be supervised by a competent person". 20Section 3.3 deals with "Removal of Hazardous Substances": 3.3.1General Removal of hazardous substances shall be carried out only by competent persons, or competent and registered persons if so required prior to the start of any demolition or stripping work (see Clause 1.6.1). 3.3.2Removal of asbestos Removal of asbestos or materials containing asbestos fibre shall be in accordance with the NOHSC (WorkSafe Australia), Code of practice for the safe removal of asbestos. [see Exhibit C2 tab 36] 3.3.3Removal of other materials Precautions to be observed, and procedures to be adopted during the removal of hazardous substances other than asbestos, shall be in accordance with the relevant State or Territory regulations appertaining to those materials. 21Chapter 3 goes on to deal specifically with a range of other topics, including manual demolition. Appendix A (commencing at fol 530) is a "Demolition Check List" to guide investigations, the work plan, and execution. It includes a regime of "daily checks". Appendix B deals with "Contractual Considerations", and subsequent appendices deal with more technical detail including qualification, certification, licensing and registration. Appendix E6 (fols 549-550) makes specific provision for storage tanks.

22In APOC 1-7 the Council pleads, and in POD 2-4 the respondent admits, that, at all relevant times, the subject land has been owned by the respondent company (Statement of Agreed Facts, Exhibit C1, par 2). It has been used in the past for the purposes of a service station and a dwelling. 23The applicant Council notes (in APOC 8-14) that, on 19 January 2007, and on 13 April 2010, the respondent lodged s 96 modification applications, which were subsequently withdrawn. On 26 April 2007 the respondent's architects lodged a development application ('DA') for student accommodation and some commercial space. Council refused consent on 4 February 2008, and later refused an application for review of that refusal. POD 5 does not plead to these assertions. 24The Council then asserts (in APOC 15), and the respondent admits (POD 6), that no works were undertaken pursuant to the DC until about 4 April 2008. Demolition works were notified to Council, in a letter dated 2 April, signed "K&M Prodanovski", but on tcg letterhead (Exhibit C2, tab 11), and were due to commence on 4 April, for a duration of about three weeks (APOC 16). Following a complaint on or about 15 May 2008, a Council officer visited the site, and subsequently issued an order directing the respondent to cease "all remediation works on the premises", including "the venting of any fuel tanks, the removal of any fuel tanks and any soil remediation works" (APOC 17-18). (The POD do not admit APOC 16-18 in full). 25Council pleads (in APOC 19 and 20) that the DC lapsed on 28 June 2008, as the respondent "had not lawfully undertaken works ... that amount to physical commencement for the purposes of section 95(4)". Any works undertaken prior to that date were not in compliance with the conditions of consent, viz: (a)No Principal Certifying Authority ('PCA') had been appointed in accordance with Condition 55a and Note 4; (b)A Hazardous Material Survey was not provided to Council in accordance with Condition 62; (c)A Construction Certificate ('CC') was not obtained prior to "any work (including demolition work) commencing", as required by Condition 2 and Note 4; (d)Documents required to be submitted, prior to the issue of a CC and/or any works (including demolition works) being undertaken, were not provided to the Council for its approval or otherwise: (i)Asbestos Management Report (Condition 21) (ii)Geotechnical Report (Condition 13) (iii)Site Management Pedestrian and Traffic Management Plan (Condition 20) (iv)Site Contamination Audit Report (Condition 22) (e)Demolition works were not carried out in accordance with the Standard, as required by Condition 59. In particular, no work plan compliant with cls 2.2 and 2.3 of the Standard was prepared, nor a "Hazardous Substances Management Plan" as required under cl 1.6.1; (f)Before carrying out demolition works on site, the respondent did not contact the WorkCover Authority of NSW in accordance with Condition 60; (g)The demolition works carried out were not carried out by a person licensed to undertake them in accordance with WorkCover's requirements (cl 318 of the Occupational Health and Safety Regulation 2001 ('OH&S Regulation')) and Condition 59. 26The respondent (in POD 10) denies APOC 19 and 20, which pertain to the claimed lapsing of the DC, and had labelled the works as "not lawfully undertaken", and (in POD 11) the respondent says, in response to "the whole of" the Council's APOC: (a) between 19 and 24 June 2008 Prodanovski caused to be carried out geotechnical work on the site as described in the report by Douglas Partners dated July 2008 ("the geotech work"); (b) the geotech work constituted the commencement of engineering work carried out pursuant to the Consent; (c) in the premises the Consent did not lapse on 28 June 2008 or at all; (d) from on or about 21 April 2008 Prodanovski carried out demolition work on the site pursuant to the Consent; (e) on the proper construction of the Consent it was not necessary to appoint a Principal Certifying Authority or obtain a construction certificate prior to the demolition work; (f)the demolition work was otherwise carried out in accordance with the Consent; (g)the demolition work constituted the physical commencement of building engineering or construction work relating to the Consent; and (h) in the premises the Consent did not lapse on 28 June 2008 or at all. 27The applicant Council filed a Reply to POD 11, on 18 March 2011, in the following terms: a. ... in respect to subparagraphs (d) to (h) ...: i.between 17 April 2008 and 14 May 2008, demolition of above ground structures on the subject land was carried out by the respondent, or by others on its behalf ("the demolition works"); ii.the demolition works were not carried out in accordance with the development consent; Particulars A. Demolition works were not carried out in accordance with AS2601-2001 as was required by condition 59, in particular: i.a work plan pursuant to cl.2.2 and 2.3 of AS2601-1991 was not prepared, and ii.a Hazardous Substances Management Plan in accordance with clause 1.6.1 AS 2601-2001 was not prepared; B.Before carrying out the demolition works on site the respondent did not contact the WorkCover Authority of NSW in accordance with condition 60. C.The demolition works carried out were not carried out by a person licensed to undertake demolition works in accordance with the requirements of NSW WorkCover (clause 318 Occupational Health and Safety Regulation 2001) and condition 59. iii.as the demolition works were unlawful works not carried out in accordance with development consent they were accordingly not works that related to that consent for the purposes of s.95(4) of the Environmental Planning & Assessment Act 1979; b. ... in respect to subparagraphs (a) to (c) ... : i.the geotechnical works referred to could, by reason of condition 6.3 of the development consent, only be carried out once lawful demolition of the structures in accordance with the development consent was complete; ii.the demolition works were not carried out in accordance with the development consent and therefore were not works that related to that consent for the purposes of s.95(4) of the Environmental Planning & Assessment Act 1979; iii.accordingly the geotechnical works were: 1.unlawful works (in that necessary pre-conditional works under the terms of the development consent had not lawfully been carried out), or were 2.the continuation of, and part of, unlawful works carried out by the respondent in breach of the conditions of the development consent; and therefore were not works that related to that consent for the purposes of s.95(4) of the Environmental Planning & Assessment Act 1979; c.Says that properly construed, the development consent required demolition works to be lawfully carried out prior to the carrying out of geotechnical works, and that having carried out the demolition works in breach of the development consent, the respondent would be enjoined or estopped from profiting from its own wrong.

28In an effort to simplify the factual complexity underlying the dispute between the parties, the solicitors for the applicant served upon the solicitors for the respondent, on 12 April 2011, an amended Notice to Admit Facts (in Exhibit C3), in the following terms:

1. The document entitled Hazardous Materials Survey attached to a letter dated 2 April 2008 from tcg Planning to Council was not prepared by a 'competent person' as defined under cl. 1.3.3 of Australian Standard AS 2601-2001 (The Demolition of Structures)
2. The demolition works carried out by or on behalf of the respondent up to and including 16 May 2008, were not carried out by a demolition contractor who held the licence required pursuant to clause 381 of the Occupational Health and Safety Regulation 2001.
3. Prior to carrying out demolition works at the subject site the respondent did not prepare a Hazardous Substances Management Plan in accordance with clause 1.6.1 AS 2601-2001. 4.Prior to carrying out demolition works at the subject site the respondent did not prepare a work plan pursuant to cl.2.2 and 2.3 of AS 2601-1991.
4. Prior to carrying out demolition work at the subject site, and prior to the removal of the underground storage tanks and associated elements, the respondent did not prepare a remedial action plan.
5. On 15 May 2008, after demolition works had commenced at the subject site, Council issued a stop-work order on the respondent pursuant to s.121B of the EPA Act. 29On 5 May 2011, the solicitors for the respondent served a Notice Disputing Facts (also in Exhibit C3), disputing "facts" 1 to 4 above. 30When the hearing resumed on 12 May 2011, the SAF was tendered (Exhibit C1), noting agreement between the parties on the following relevant factual matters: (a)The nature of the development approved by the subject DC (see [2] above - SAF 3); (b)The respondent had never appointed a PCA for the development (SAF 7); (c)No CC had been issued for the development (SAF 8); (d)Various reports and plans required by conditions of consent (namely an asbestos management report, a final geotechnical report, a site and traffic management plan, and a site contamination audit report) were not submitted to the Council or a PCA, prior to commencement of demolition on or about 17 April 2008 by Mr Silvestri (SAF 9-10); (e)The respondent failed to prepare a remedial action plan prior to the demolition works and the removal of "underground storage tanks and associated elements" (SAF 20); (f)Demolition of above ground structures was completed by 14 May 2008 (SAF 11); (g)On 15 May 2008 Council issued a stop work order (under s 121B of the EPA Act) to Mr Silvestri (Exhibit C2, tab 10 - SAF 21); (h)On behalf of the respondent, tcg had dealings between March and May 2008 with Douglas Partners, regarding geotechnical work at the site (see Exhibit C2 tabs 29 and 30), and Tony Prodanovski accepted the terms of the Douglas Partners proposal on 23 May 2008. Drilling of test bores was undertaken between 18 and 24 June 2008, under the direction of Arthur Castrissios of Douglas Partners. Mr Castrissios then prepared a report dated 31 July 2008 (Exhibit C2, tab 14, fols 288-337) that described the work done. He wrote to Mr Prodanovski on 1 August 2008 (Exhibit C2, tab 13 - SAF 12-18); and (i)Council received copies of the report and letter prepared by Mr Castrissios on or about 26 August 2008 from tcg Planning (SAF 19 - tcg's letter at Exhibit C2, tab 14, fols 286-7 is dated 15 August 2008).

Documentary Evidence 31Exhibit C2 (Council's two volume bundle of documents) contains many official publications and guideline documents on issues such as the remediation of land. Those documents (see tabs 17-22, 24, 31-36) include SEPP55, WorkCover and Council publications, and the Code of Practice for the Safe Removal of Asbestos (National Occupational Health and Safety Commission ('NOHSC'), 2nd ed, 2005). At tab 39 is a second Australian Standard - AS 4976-2008 "The Removal and Disposal of Underground Petroleum Storage Tanks" ('The Tank Removal Standard').

WorkCover documents regarding the subject site and the demolition works 32Exhibit C2 (at tabs 25-27, and 37-38), and Exhibit C4, contain relevant incident/complaint/improvement file notes, notices and reports from the WorkCover Authority: 33Exhibits C4 and C5 contain documents concerning Silvestri's demolition licence. Included in Exhibit C5 is a letter from WorkCover Authority explaining how the documents in Exhibit C5 did not come to be included among the documents in Exhibit C4. The documents in Exhibit C4 respond to a subpoena issued on the 12 January 2011, and the documents in Exhibit C5 to a subpoena issued on 31 March 2011. 34Tab 37 of Exhibit C2 contains "WSMS Complaint Report" No 1-179918, and tab 38 contains Complaint Report No 1-180094. Both of those complaint reports are repeated in Exhibit C4. Complaint No 1-179918 came from Mr Geoff Pring, and concerned the absence of a sign indicating asbestos removal. It was received on 17 April 2008, and was allocated to Mr Mark Stothard, who visited the site in company with Inspector Wayne Cobbin. They met Silvestri, who was the only person working at the premises, and he promised to fix the signage that afternoon. It was noted (at p4) that he was "a licenced [sic] demolisher", and that the asbestos fibro sheeting being removed from the residence was being temporarily and appropriately stored in a plastic lined waste bin prior to disposal at a registered site. Mr Pring was apparently satisfied with the intervention by WorkCover. 35Complaint No 1-180094, made to WorkCover anonymously, was that no signage was on the site, workers were not wearing "PPE", and they were not "wetting down or disposing correctly". The address shown on the report (at fol 347) was 206 Gibbs Street (c.f. 292-294 and 296 Gipps Road, Keiraville). It was received on the 21 April 2008, and allocated to Mark Stothard. He and Cobbin went to "206 Gibbs Road Keiraville", which proved to be "a series of unit residences with no demolition or asbestos removal work or any work activities being performed". No action was taken, but the substance of the report (at fol 350) refers to 296 Gipps Road, and replicates, word for word, the report on complaint No 1-179918 (at fol 345). 36During a follow up visit on 24 April 2008, it was noted that emergency contact details signage had been attached to security fencing on the site. The entries dated 15 and 22 May 2008 would appear to indicate that no further action was required. A link was made to complaint file 1-180094. No other issues were noted, and "no further action" was endorsed on 22 May 2008. 37The document (at tab 25 of Exhibit C2) entitled "WSMS Complaint Report - No 1-182022" is incomplete. The complete 5-page document appears in Exhibit C4. It refers to a complaint received by telephone on 15 May 2008 from Gene Stewart, regarding occupational health and safety ('OH&S'). The complaint was that the service station being demolished "has not been decommissioned properly". 38As a result of that complaint, Brett Jurmann and Inspector Stothard visited the site on 16 May 2008 (see Exhibit C2, fol 565). They met with Mr Silvestri, Matt Fuller (an Environmental Officer from the Council), and Robert Kemp, who was said to be the director of Global Petroleum Services ('GPS') and "the tank decommissioner". At the time of the visit, Silvestri was operating the excavator replacing spoil under the supervision of Fuller. Fuller's presence was explained by the issuing of a Council stop work order on the site following complaints about fuel odours. 39It was found that the developer did not have a CC covering the removal of the tanks, because Council had not yet approved the decontamination and remediation plans. Further, Silvestri did not have a current demolition licence, but held "a DE2" which had expired in 2006. He had applied to renew it, and paid the appropriate fees, but the licence had not yet been issued. He had "engaged [GPS] to abandon tanks prior to removal", and Global was undertaking this process when stopped by the Council. (I pause here to note that the Tank Removal Standard (Exhibit C2, tab 39) uses the word "abandon" in respect of underground tanks which are left "in situ" where removal is not feasible). 40Silvestri did not have risk assessments or a work plan for fuel risks. He produced a "SWMS" for normal house demolition. The WorkCover file is endorsed "work needs to cease until he has appropriate licence". Folio 567 indicates that two "improvement notices" were issued, but that no other issues were identified during the visit. Folio 568 indicates that a "SMWS" for tank decommissioning was received from Laura Silvestri, subsequent to the recommendation that Mr Silvestri attain a licence. These notations appear to have been made on 12 June 2008, and the outcome report (on fol 568) indicates that the matter was "completed" on 7 July, by the notation on the report "no further action". 41On 16 May 2008, Mr Jurmann issued Improvement Notice 7-159187 to "A&L Silvestri" (see tab 26, fol 569f). The notice records that the Inspector had reached the opinion that the partnership contravened (in circumstances that make it likely that the contravention will continue or be repeated) s 8 of the OH&S Act 2000 (since repealed), and/or cl 318 of the OH&S Regulation. The Silvestris were directed to remedy the contravention before 4:00pm on 23 May 2008. The "Reason for issue" was stated as "Demolishing service station including removal of underground fuel tanks using an excavator without a current demolition licence". The "Measures to be taken" were listed as:

1. You shall obtain the appropriate WorkCover demolition licence and comply with the conditions of the licence prior to recommencing removal of the fuel tanks.
2. Your attention is drawn to Clause 318 of the Occupational Health and Safety Regulation 2001.
3. Your attention is drawn to the WorkCover Dangerous Goods Fact Sheet 3_1 Abandoning Disused Underground Tanks. A copy of the improvement notice was to be sent to Kemp, described as the "tank abandoner" (sic? - see [39] above). 42A second Improvement Notice was also issued to the Silvestris on 16 May 2008 (see tab 27). It said again that they were contravening s 8 of the OH&S Act, and, this time, cl 247 of the OH&S Regulation. Again, it was requested that the contravention matter be remedied by 4:00pm on 23 May 2008. Again a copy was sent to Kemp. The "Reason for issue" was stated to be: Persons may be exposed to risk to their health and safety [sic] from working with fuel risks during the demolition of a service station. No work plan on site detailing how the following risk [sic] are to be addressed: Explosion Contamination Confined spaces. The "Measures to be taken" were listed as:
4. You must develop, implement and maintain a work plan for the proposed method of: dealing with the fuel systems dealing with hazardous contaminants
5. The plan shall include the work proposed by sub-contractors.
6. Your attention is drawn to AS 2601-1991 The Demolition of Structures Clauses 2.2 and 2.3. 43Copies of these two Improvement Notices also appear in Exhibit C4.

Licensing of the appointed demolisher, Antonio Silvestri

44Silvestri deposes, in his February affidavit, that he has been a demolition contractor for approximately 30 years, working on "residential, commercial and industrial buildings". 45In his April affidavit, Silvestri indicates that in more recent years the extent of demolition work involved in his earthworks business has reduced to about 20%. In earlier years he had done a lot of work for the New South Wales Roads and Traffic Authority, other Government agencies, and major builders, and he attended a course in demolition supervision in 2002, in the course of obtaining a "Demolition restricted" licence from WorkCover on 3 July 2002, which he was again due to renew on 3 July 2006. Silvestri failed to renew the licence, because, when he enquired about the necessary insurance for bonded asbestos, he was told that he could carry out small demolitions without a licence. 46Once engaged by the respondent, in March 2008, he realised that the nature of the materials on site would require him to obtain/renew a/his restricted demolition licence, and his wife, Laura, made the application on 7 April 2008. Mrs Silvestri confirms this evidence in her affidavit of 6 April 2011. 47Exhibit C4 includes copies of documents that would appear to be WorkCover records of "Licence Details". One refers to licence No 201194. The "licence" type is "Asbestos & Demolition". It was issued to Mr Silvestri for "Demolition & earthworks". The record appears to be printed on 6 July 2010, and shows the expiry date of the licence as 1 July 2012. The second licence recorded in Exhibit C4 is of licence 204351, issued to "Affective Services (Aust)...", but the court has disregarded this document as irrelevant to the present proceedings. 48Silvestri's licensing status is more clearly explained by the extensive WorkCover documentation in Exhibit C5. Only Mr Silvestri in the Silvestri partnership "has the knowledge, experience and qualification to be eligible to hold a licence", so the records at WorkCover were amended on 4 November 2009 to identify only Mr Silvestri as the holder of the relevant licence "201194DE2". He would appear to have held a demolition licence under the Home Building Act 1989 from 19 August 2005 to 2 May 2008, restricted to demolition in residential situations. The Department of Fair Trading ceased issuing such licences in May 2008 when the sector was deregulated. Mr Silvestri apparently continues to hold an excavator licence under that Act, but it would appear that WorkCover licensed him for demolition work from April 2004 until sometime in April 2006, but then not again until 26 May 2008. There are insurance documents in the materials, dated 14 March 2006, 23 November 2007, and 23 November 2009, but a licence from the period of 3 July 2006 to 3 July 2008 is struck in the file as "Dates incorrect". However, there is one for the period 3 July 2008 to 3 July 2010. 49There is also correspondence dated December 2006, from which the court deduces that an application was made for a licence on 4 July 2006. There is a note dated 11 July 2006, stating that the applicant may decide to withdraw the application because of the cost of insurance. WorkCover followed up, and appears to have discussed this with Mrs Silvestri on 9 October 2006, and there are subsequent letters to the Silvestri partnership on 11 and 27 December 2006. On 27 December 2006 it was deemed that the application had been withdrawn and a new application would have to be made. Silvestri's application is dated 4 July 2006, and endorsed with a receipt for $200. A letter dated 6 June 2006 from WorkCover to the Silvestri partnership clarifies that the $200 was an application fee, and that a further $1800 was payable on approval. The May 2008 licence covered the period to 26 May 2010, and the file notes that Silvestri required a licence current from 26 May 2008 to 26 May 2010, as "business can not continue without it". The application for that licence was dated 7 April 2008, as Mrs Silvestri deposed. 50When Jurmann visited the site on 16 May 2008 he confirmed that there had been a delay in generating Silvestri's renewed licence. Silvestri did not receive it until it was issued on 26 May 2008. He testified that, at the age of 66, he continues to carry out demolition work. He holds a licence, current to July 2012.

51Exhibit C6 includes some documents from the Wollongong Council file. Fuller sent a long email to one Elizabeth Borst apparently in response to a complaint from a Mr Trevor Mott in September 2008. Fuller noted that the development on the subject site had proven controversial for many local residents. He had responded to complaints regarding the demolition and remediation works. It refers to the issuing of a stop work order as a result of a lack of a remediation action plan. He gave details of his site inspection, and his conversation with Silvestri, on 15 May 2008, noting that Silvestri had been unable to produce a copy of the DC, thought that a contamination report had been submitted (Condition 22), but could not produce a copy, and was unaware of whether or not there was a CC. Fuller informed Silvestri that he was working without consent. 52Fuller detected a "definite fuel odour in and around the site". He spoke to "Ivan" of GPS, who said that they were venting the tanks to remove fuel vapour. Fuller issued and served the stop work order at 4:45pm on the 15th, and Silvestri then cancelled the attendance of GPS staff for the next day. Fuller recorded that Silvestri spoke to the owner/developer of the site, who confirmed that he did not have any contamination report submitted to Council. 53On 16 May 2008, Fuller attended the site and liaised with Silvestri to "make safe" by attempting to seal the tanks. While Fuller was supervising that work, WorkCover arrived and discussed a range of safety issues with Silvestri. The WorkCover authorities were apparently satisfied, and work recommenced, including the covering of the tanks. He then removed his equipment and left the site. 54On 27 May 2008, Mrs Silvestri asked another Council officer for a copy of the stop work order, and Fuller agreed to that request and the officer complied.

55The applicant Council relied on an affidavit and attached report from geotechnical expert Dr Ian Swane, who was also called to give expert oral evidence. Dr Swane is a "practice leader" for contaminated land management with consultants Sinclair Knight Merz. He has 30 years experience in such matters, and is an accredited site auditor in three States. He has a lengthy and impressive curriculum vitae. While, as a site auditor, he has to check legal requirements applicable to a site assessment and relevant work, he endeavoured to focus his opinions on the technical aspects of the demolition and contamination remediation works undertaken on the subject site. Attachment A to Dr Swane's report is a list of 40 documents with which he was provided in order to reach his conclusions, many of which are among the Exhibits, and he gave brief details of the various approvals and notifications that were required. 56In summary, Dr Swane concluded that: (1) a Hazardous Materials Survey was not provided to the Council (Condition 62); (2) no Asbestos Management Report was submitted (Condition 21); (3) the demolition works were not, in his opinion, carried out in accordance with the requirements of the Standard (Condition 59); and (4) the demolition works were not carried out by a person licensed to undertake them in accordance with the requirements of WorkCover, as specified in cl 318 of the OH&S Regulation (Condition 59). 57In terms of the requirements of Condition 62 (item (1) above), the respondent relies upon a document entitled "Hazardous Materials Survey" dated 27 March 2008 (Exhibit C2, tab 11, fols 271-5), which was submitted to the Council by tcg Planning under the cover of a letter dated 2 April 2008 (Exhibit C2, tab 11, fols 269-270 - and see [24] above). Dr Swane does not consider that document to be an appropriate "Hazardous Materials Survey", as envisaged by Condition 62. He notes that the only hazardous materials identified are sheets of asbestos fibro at the dwelling house and in outbuilding number 4, and he believes that a comment in the tcg document that "no dust contamination is present" is not accurate, in that it purports (fol 271, note 2) to rely incorrectly on a Douglas Partners report which made no such comment. He goes on to express opinions regarding additional hazardous materials not mentioned in the document, that would, in his experience, "inevitably have been present at the site" (see par 3.3 on pp 3-4 of his report). He bases his opinion on extensive past experience of similar site assessments. 58Dr Swane further opined that the document submitted by tcg was not prepared in accordance with the Standard because it was not prepared by a "competent person", as intended by the definitions in the Standard and in the OH&S Regulation. Neither Silvestri nor Mr Prodanovski has established his "competence" for this purpose. 59Dr Swane noted that Silvestri had, at no time, held an "unrestricted demolition licence", as required by a demolition contractor engaged to remove fuel systems at service station sites. Nor did he hold a "restricted demolition work and bonded asbestos removal work licence", from WorkCover, for the period 3 July 2006 to 26 May 2008. 60Dr Swane found nothing to suggest that Silvestri was appropriately experienced, in the sense of familiarity with the various guidelines in existence in 2008, including those included in Exhibit C2 (see [31] above). He also opined that the document, submitted by tcg on the respondent's behalf, did not comply with section 1.6.1 of the Standard in various respects (see pars 3.12 -3.14 of his report). 61Dr Swane further opined that the work carried out by Silvestri, as described in his affidavits, was not carried out in accordance with the Standard, as required by Condition 59 (item (3) in [56] above). He expanded on this in detail in par 5.1 of his report. Included among the shortcomings were lack of investigation to identify hazardous substances; lack of a Hazardous Substances Management Plan; lack of a satisfactory Work Plan; lack of a valid licence; and lack of satisfaction of WorkCover requirements, as evidenced by the three complaint reports and the two Improvement Notices. 62Dr Swane opines that Silvestri's "Work Method Statement" was not prepared in accordance with cls 2.2 and 2.3 of the Demolition Standard. He expanded on this opinion in par 5.2, listing the relevant information that was missing. Silvestri was not appropriately licensed, as required by Condition 59, and has never held a valid WorkCover demolition licence that permitted him to remove the tanks and fuel system (see par 6.1). 63Dr Swane was required for cross-examination. His opinions withstood close questioning by Mr Clay. I note the following passage from the cross-examination (T13.05.11, p4, LL19-41): Q. ... You've identified that in the Australian standard there are a number of documents which may need to be prepared prior to the physical act of demolition? A. Can you tell me which Australian standard you're referring to? Q. AS2601-2001? A. Yes. Yes, that is correct. Q. That standard does not require that the documents which are prepared be forwarded to the relevant local consent authority, correct? A. It mentions nothing about timing of when these documents are to be submitted so, yes, correct. Q. It doesn't say that they need to be submitted in the Australian standard, does it? A. They need to be prepared. I can't recall them saying that they have to be submitted to a consent authority. Q. You are sufficiently familiar with the Australian standard, are you not, Dr Swane, to assure his Honour that it is your understanding that the Australian standard does not require such documents to be forwarded to the consent authority? A. That's my recollection.

64Silvestri had worked for Mr Prodanovski on previous occasions, and was engaged to work on this project in March 2008. 65Mr Prodanovski told him he would arrange for town planners to "do the paperwork for the demolition", and that he personally would "sort out the site fence". Following a joint site inspection in March 2008, Silvestri gave Mr Prodanovski a verbal quote. In his April affidavit he deposes, in respect of that inspection (par 12): As part of that inspection: 12.1I noted the nature of the materials used in the construction of the buildings on the site, 12.2I identified the location and the extent of the asbestos within the dwelling house and the service station on the site, 12.3I assessed the most appropriate means of removal of the asbestos and how that was to be stored pending delivery to an appropriate facility, 12.4I assessed the most appropriate means of demolition of the above ground structures after removal of asbestos, 12.5I identified those materials within the structures which could be recycled, 12.6I identified the general location of services within the site, 12.7I noted the presence of underground fuel storage tanks near the service station on the site, 12.8I observed the retaining wall east of the service station building, 12.9I observed the earthern (sic) bank/cutting behind the service station building; and 12.10I investigated the best points of access to the site for the purpose of demolition and removal of materials. 66He then formulated an order of tasks (par 6 of his February affidavit): After reviewing the structures at the site, I decided to carry out the demolition in the following order: A.the site fence was to be constructed B.preliminary site works such as installation of a portable toilet and a silt fence were to be undertaken C.asbestos within the structures was to be identified D.the asbestos was to be hand removed E.the house was to be demolished F.the trees on the site were to be removed G.the service station was to be demolished H.the concrete slabs within the service station were to be demolished I.work would then start on the removal of the fuel tanks. 67On 27 March 2008, he had his wife, Laura, send Prodanovski the following email: We have inspected the site at Gipps Road Keiraville and found asbestos sheeting which will be removed in the correct manner and disposed of at Sita Waste Elizabeth Street Kemps Creek, demolition material will be disposed of at Huntley Heritage, concrete and bricks will be crushed for recycling purposes all metal scrap will go to Smorgon Steel at Unanderra. The petrol tanks if filled with water will be emptied by Thiess or Clean Away if filled with sand a geotech report will be necessary if material is found to be contaminated material will be disposed of correctly. 68He deposes (par 15 of his April affidavit) that, before demolition works commenced, he prepared the "Work Method Statement" (annexed to that affidavit as 'G'), to which Dr Swane had referred. 69Silvestri planned to start work on Friday 4 April 2008, but was told by Mr Prodanovski not to do so until the developer's paperwork was "in with the Council". He believes he eventually commenced work on asbestos removal on 17 April 2008. The preliminary work was of a kind that can be done manually, but eventually an excavator is required. The excavator was not transferred to the property until Tuesday 22 April 2008. Based upon his recollection that four working days were required to remove the asbestos, he calculates his commencement date as 17 April 2008. 70On 22 April 2008, a WorkCover officer visited the site while asbestos was being removed, but did not ask Silvestri if he held a restricted demolition licence. As requested by that officer, Silvestri attached appropriate signage to the perimeter fence. 71The demolition work required the involvement of two trucks. Silvestri owned and operated one, and the other he contracted from a Mr Petrovski, who was not required at the site until 24 April 2008, shortly after the heavier demolition work commenced. The asbestos collected from the site was wrapped and stored and was removed to a licensed facility on 23 April 2008. This was a necessary prerequisite to the commencement of machine driven demolition work. Silvestri produced documents to verify these dates. 72In pars 14ff of his February affidavit, Silvestri details the work done, and his approach to the removal of asbestos. The demolition work continued until 14 May 2008, but he was not personally working on the site every day. 73The parties are agreed (SAF 20) that the respondent did not prepare a remediation action plan prior to the demolition works and removal of the "storage tanks and associated elements". Under the supervision of GPS employees, Silvestri started work on removing the tanks on 15 May 2008. Shortly after the degassing by GPS commenced, Fuller attended the site, and work ceased in accordance with the Council stop work order he issued (SAF 21). On 16 May 2008, and under Fuller's supervision, Silvestri replaced all the spoil over the tanks and compacted it. He ceased all work and removed his equipment on 16 May 2008; he rendered an account (for $27,416.90 for the completed work) on 16 June 2008. 74He returned to the subject site in December 2010/January 2011 to remove the underground fuel tanks under the direction of Bob Bishop of Absolute Environmental Pty Ltd (February affidavit, par 34). 75Silvestri gave short oral supplementary evidence, in response to Mr Clay, largely regarding the work done at the site prior to the arrival of regulatory officials, and he was then closely cross-examined by Mr Miller. He made it clear in answer to Mr Clay that his role was works above ground, except for concrete, associated piping, and storage tanks. He had no role in the issue of soil contamination and geotechnical investigation. 76Mr Prodanovski had a clear understanding of the arrangement between his company and Silvestri, and Silvestri gave him a verbal quote, but no "scope of work" document, and engaged GPS to do the tank works under his supervision. The Council stop work order was given while the "venting works" were going on. A lot of Silvestri's work on bowsers, etc. was done manually. 77Silvestri confirmed that he was never given a copy of the DC, nor any of the documents (e.g. Douglas Partners documents) associated with the DA. He also confirmed that he had let his licence lapse, because of the high asbestos-related insurance costs involved in keeping it current. He did, however, have substantial experience demolishing service stations, and dealing with old service station sites. He had read the Demolition Standard around 2001, but "not really" since, and was familiar with the NOHSC code of practice (Exhibit C2, tab 36). 78His evidence about what was needed for compliance with the Demolition Standard was quite unsatisfactory, both in general terms, and in respect of the Prodanovski job, and whatever documentation he either prepared or obtained from others was only to deal with any inspection by WorkCover or the unions. On his own admission, he refuses to wear a safety mask, but has never been prosecuted for it, and his records are kept only in his head. 79In respect of the "Work Method Statement" (his annexure 'G'), Mr Miller's cross-examination went as follows (T13.5.11, p34, L27-p35, L46): Q. Was it prepared by you, or was it prepared by somebody else? A. Usually my wife helped me out, because I'm not really good writing English. Q. Your wife wrote this? A. Usually my wife helps me out. Q. Helps you out, I apologise. A. Because I'm not really good writing English. Q. Do I take it that this is a document that sits on your computer as a standard document and you hand write in the address? A. No, I don't think so. It gets writing different things, different material, different things get used on it, it gets writing on it. Q. Can you remember this document being prepared? A. Yes, I think. Q. What bits were written into this document specifically for the purposes of this project? A. Sorry? Q. What bits started out as always being there, and what bits were put in this document specifically to deal with this project? A. The hydraulic hammer, that was added, because it-- Q. Which one, sorry? A. Hydraulic hammer. CLAY: Hydraulic hammer. MILLER Q. Hydraulic hammer. I see. A. That's right. Because not very often you use them, unless there is concrete. Q. Right. A. And the traffic control plan, if it's required. Q. Traffic control plan if it's required. A. That's right. Q. What page are you reading that from? HIS HONOUR: Halfway down the first page, under Risk Factors. Is that what it is? MILLER Q. That's all. The rest is a standard document? A. More or less, yes. Q. And those are the two bits that are put in for this project, is that right? A. That's exactly right, yes. Q. And it said on the second page, and this is a document you keep to show WorkCover if they turn up, is that right, Mr Silvestri? A. You're talking about the second page. Can I have a look at it? Q. No, just - I'm sorry - this is a document you keep to show WorkCover if they turn up? A. Normally WorkCover never ask about this. Mainly it's union if they call on site, because they want to keep updated if you've got your machinery in proper working order, and to avoid problem with them, I usually keep this record for them. Q. To deal with the union? A. Because union, yeah, unions cause more headaches than anybody else. Q. So this is a document prepared for-- A. For WorkCover and for the union. 80Later, the following exchanges occurred. At Tp36, LL30-4: Q. So is this written so as to keep the union or WorkCover happy, but with full knowledge that you never intended to follow it? A. It's written down because it's a standard thing, but I never wear it. WorkCover always come on site, always catch me without mask. Never did wear a mask in all my life since union came, or WorkCover came around. and, Tp37, LL35-37: Q. Did you give a copy of that document to anyone that you understood was working for Mr Prodanovski on this project? A. When WorkCover called around, they saw the document...

81Christopher William Hammersley swore an affidavit on 11 May 2011. He was employed by tcg in 2008, and, in February 2008, he was directed by the principal town planner, Elaine Treglown, to assist the respondent company in arranging for demolition of the existing structures on the site, and the preparation of a "further geotechnical report" as required by the DC. He reviewed the DC and prepared a file note regarding the steps needed to comply with the conditions. The file note is attached to his affidavit. 82Condition 60 required notification of the demolition work to WorkCover, and Hammersley recalls preparing a letter, dated 31 March 2008, advising of commencement of demolition. He believes that this letter was posted on 1 April 2008, but he provided no evidence of the actual despatch of the letter, and WorkCover denies receiving it. 83Treglown swore an affidavit on behalf of the respondent on 5 April 2011. She is, and has been, the principal of tcg since 2006. In October 2006 the respondent engaged tcg to assist it in the development of the property. She obtained a copy of the DC, and secured, in July 2007, the extension of the lapsing date until 28 June 2008. 84In February 2008, the respondent instructed Treglown to assist in arranging the demolition of existing structures at the property and preparation of a further geotechnical report as required by the DC. She arranged for Hammersley to directly assist the respondent in this work. She also annexed, inter alia, a copy of the file note Hammersley prepared. 85Treglown deposes (par 8) that she "understands" that the respondent engaged Silvestri to undertake the demolition work, and (in par 9) she notes that tcg was instructed to attend to "a number of documentary pre-conditions to commencement of demolition work", required by the consent. She also testified (pars 14-15) as to the way correspondence is prepared and filed in the tcg business. If despatched mail is returned, it is placed in the relevant file. There is no record that the intended letter to WorkCover was returned.

Douglas Partners 86Arthur Castrissios is a geotechnical engineer employed by Douglas Partners at Unanderra. He swore an affidavit in the proceedings on 24 February 2011. He has been with Douglas Partners "in Wollongong" since September 1996, except for two years working out of the Campbelltown office in 2003-2004. He gave evidence regarding relevant geotechnical work done in 2008, and produced a folder of documents (Exhibit R1) prepared between June 2004 and August 2008. 87By letter dated 4 March 2008 (SAF 12, Exhibit R1, tab 1, and Exhibit C2, tab 28), tcg requested Douglas Partners to provide costings for work to address Conditions 6 and 13 of the DC. Douglas Partners sent the respondent a proposal on 14 March 2008 (SAF 13, Exhibit R1, tab 2, and Exhibit C2, tab 29), and it was accepted by Mr Prodanovski on 23 May 2008 (SAF 14, Exhibit R1, tab 3). Castrissios reviewed the Douglas Partners file regarding the site, and came across Michael Jones's geotechnical report of 29 June 2004, and Chris Rudins's phase 1 environmental site assessment of 24 June 2004 (see tabs 4 and 5). 88Castrissios prepared a Field Work Plan on 11 June 2008 (tab 6), and made a site visit on 18 June 2008 with professional drillers regularly used by Douglas Partners (Boers Drilling). He noted that the service station and dwelling house had been demolished. He walked over the site and selected, with Paul Boers, appropriate locations for test bores (tabs 7 and 8). He also took photographs (tab 7). 89He goes on (in par 15) to identify the drilling protocol to be followed, and, after observing some work on test bore 101, he left Boers in charge. Boers Drilling submitted an account on 24 June 2008 for the work done between 18 and 24 June 2008 (SAF 15), amounting to $4,842 (see tab 9). Boers Drilling delivered the samples to the Douglas Partners office in Unanderra. Castrissios, and other Douglas Partners employees under his direction, analysed the results and he prepared a report dated 31 July 2008, which, like the June 2004 report, was then reviewed by Michael Thom (SAF 16-17, Exhibit R1, tab 10, and Exhibit C2, tab 14). Castrissios then authored a letter to tcg, dated 1 August 2008, which provided geotechnical comment in respect of the two relevant conditions of the DC (SAF 18, Exhibit R1, tab 11, and Exhibit C2, tab 13). Council received those documents from tcg, on or about 26 August 2008 (SAF 19). He subsequently submitted a tax invoice for the work, amounting to $12,844 (Exhibit C2, tab 12). 90Castrissios opines that the drilling work, carried out between 18 and 24 June 2008, was done to complete subsurface investigation to provide site coverage, namely within Lot 3 and the rear of Lot 1 as required by Condition 6, and to assist in the preparation of the final geotechnical report as required by Condition 13 (see par 26).

The arguments 91For the Council, Mr Miller argues that the consent has lapsed pursuant to s 95(4), and, for the respondent, Mr Clay argues that the consent was commenced and complied with by the respondent. 92The primary issues before the court are: (i)whether the works undertaken on the land prior to 28 June 2008 - being the demolition and the geotechnical works - were lawful under the DC granted on 28 June 2005; and (ii)if the works were unlawful, whether such works constitute "physical commencement" for the purposes of s 95(4) of the EPA Act. 93I have earlier set out the DC in some detail. The parties actually agree on the principles of construction, but apply them differently. Mr Miller, for the Council, asks the court to view the consent as a whole, but Mr Clay, for the respondent, construes each provision individually, without challenging their validity. 94The respondent urged on the court a construction and interpretation which pays close regard to those provisions of the EPA Act, notably ss 81A, 109C, and 109E, which make clear: (1)that a CC is limited to erection of buildings and subdivision of land, and does not apply to work which may nevertheless be required or authorised by a DC, but falls outside those definitions e.g. demolition, and geotechnical engineering work: Sharp v Hunters Hill Council ("Sharp") [2002] NSWLEC 27; 120 LGERA 155, and (2)that a PCA is appointed only "in respect of building work involved in the development", and not in respect of a DC generally or "at large". 95Note 4 to the DC in this case (see Exhibit C2, tab 6, fols 253-4/pp16-17) states that none of the site preparation works identified there "may be carried out prior to the issue" of a CC or appointment of a PCA. Neither event has occurred (SAF 7 and 8), but Mr Clay points out that the "note" is just that, and cannot operate as a condition imposed upon the respondent. However, even if its status is merely advisory, the court would expect the Council to have felt the need to include it, and the consent holder to take notice of it when acting on the DC.

Principles of Construction 96Development consents are normally not drafted with the degree of formal complexity usually found in documents prepared by lawyers, and the need for the courts and others to construe them "in a commonsense way" has been long recognised by the authorities. As Mr Clay observed in his submissions (par 10), their words should be read so as to find a "reasonable and practical result". In his oral submissions he said (T13.5.11, p57, L29-p58, L4): ...in approaching the construction of the consent in a commonsense way to achieve a practical outcome the court will look in my respectful submission at the overall structure and then look at clauses and construing the clauses to do as little strangulation as possible to those conditions ... [A]t the end of the day with a consent, someone's got to be able to pick it up and work out what it means. A consent ought not require a judicial construction in relation to something where its words are plain. Do something before the issue of a construction certificate, means what it says. ...So as one considers, with respect, those three important contextual matters, drive the proper construction of the consent. The legal theory, the statutory context and doing as little damage to the words of the consent as is possible, having regard to a structure which achieves a practical outcome. 97The principles of construction were comprehensively set out by Biscoe J in Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322, and in Reysson Pty Ltd v Roads and Maritime Services ("Reysson") [2012] NSWLEC 17, and I respectfully agree with His Honour's expositions of them, without repeating them. 98I interrogated and applied those principles in Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No.3) [2012] NSWLEC 57. In that judgment I specifically quoted remarks made by Spigelman CJ in Winn v Director General of National Parks and Wildlife ("Winn") [2001] NSWCA 17; (2001) 130 LGERA 508, which, in turn, were endorsed by Kirby J in the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at [89]-[90] as stating the settled law on construction of consents. The learned Chief Justice said (Winn at [4]): A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has . . . an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions. 99As Mason P observed in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 (at [37] and [41]): The search is not for what the council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. ... it must speak according to its written terms, construed in context but having regard to its enduring function. ... The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a land owner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later. 100In Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243 ('Coalcliff'), Stein JA (with whom Meagher JA agreed) stated (at [64]): ... an over-technical approach to the meaning and language used in conditions is not, as a general rule, called for. However, the words used in the subject conditions are ordinary English words and carry a plain and unambiguous meaning.

Council's construction of the consent 101On Council's behalf, Mr Miller submitted, in the present case (par 7): The consent is poorly drafted and structured but its intent is plain: (a) An Accredited Certifier (PCA) must be first appointed; (b) This is so because the PCA has a role to play immediately in the demolition of any structures (surface or sub-surface). That much is plain from the terms of condition 59. (c) The term "demolition of the existing service station" in condition 59 is not to be parsed in a manner to exclude the sub-surface elements comprising same. The tanks and underground pipes are as much the existing service station as was its office and workshop. (d) A week before demolition commenced the applicant was to give the Council the Hazardous Materials Survey in condition 62. (e) Noting however that demolition works are not regulated by a CC, the consent sought to ensure appropriate control over those works via the direction in condition 59 that they be undertaken in accordance with AS 2601 and the requirements of the NSW WorkCover Authority. In its terms AS2601 addresses both surface and sub-surface structures (including USTs). It sets up the regime for investigation, planning and implementation. (f) Consistently with that approach, condition 60 required consultation with NSW WorkCover "prior to any work commencing on the site", and "in writing in respect to any demolition...". [While Mr Hammersley of tcg planning may have intended to do so, the evidence is not that he did.] (g) At this point also the Asbestos Management Report (that the respondent admits has never been produced) was to be submitted to the PCA (condition 21). Condition 21 needs to be read as part of the pre-demolition steps. It would produce an absurd outcome to do otherwise - ie, to require the report that delineates asbestos presence and proposed remedial measures after the surface asbestos has been demolished and disposed. (h) Once the service station has been demolished, or sufficiently demolished to permit supplementary geotechnical investigation (condition 6.3 and page 5 to the 2004 Douglas Partners Geotechnical Report) the supplementary geotechnical investigation can then issue (condition 13). (i) Complete demolition of the service station (and dwelling), including all sub-surface tanks and piping is to be undertaken pursuant to AS2601. (j) At that point the CC can issue and works regulated by the CC proceed. 102Mr Miller then submitted (par 9) that "work done unlawfully, purporting to be pursuant to a DC, but in point of fact contrary to the terms of the consent, cannot count as physical commencement, to prevent the lapsing of the consent under s 95 ...". He argues that the respondent's case "reordered" the terms of the consent, so as to argue that its actions were not in breach of them, but were sufficient to satisfy s 95(4). He submitted (par 5) that the respondent's erroneous view was that the consent mandated events in the following sequence: (a)In condition 59 demolition is used as regards the dwelling and surface structures of the service station only; (b)Such surface demolition works did not require a construction certificate, and indeed were to be undertaken having regards only to Section 3 of AS2601 (not sections 1 and 2 of that Standard which concerned pre-demolition site investigations and planning); (c)Such investigations and pre-planning for the demolition of surface structures were to be addressed only by way of a condition 62 Hazardous Materials Survey; (d)The consent therefore was silent as regards the removal of the USTs and other related sub-surface infrastructure connected with the service station; (e)Once geotechnical testing was carried out (condition 6.3) a final geotechnical report was to issue (condition 13); (f)Only then would the need arise for a Construction Certificate and the appointment of a PCA (condition 2); (g)Presumably (it not being clear why, or practicably how it might be so), only then would the need arise for an Asbestos Management Report (condition 21) - ie, after the actual surface asbestos products themselves had been demolished and removed; (h)So too only at that point would a site audit report be necessary (condition 22) - despite the fact that sub-surface fumes would (and were) already have been vented, and absent the conditions addressing anywhere a methodology to delineate sub-surface contaminants (save, possibly, for groundwater).

The respondent's construction 103Mr Clay did not take issue with the order of events Mr Miller attributed to him in the previous paragraph. In his submissions he addressed each contentious condition on its own terms, essentially submitting that each should be construed narrowly. For example, and firstly, he argues that Condition 2 should be seen as requiring merely that a CC must be obtained before any work is done which requires one. 104Secondly, he submits that the geotechnical work required by Condition 6 is to be done before the report required by Condition 13 is submitted prior to the issue of a CC, and notes that that work may result in design amendments which would have to be finalised before a PCA was needed and a CC issued. 105Thirdly, he submits that compliance with other conditions (e.g. 20-22) properly understood, was not necessary prior to any demolition or geotechnical work, only prior to the issue of a CC. Mr Clay's argument is epitomised by the following extract from his written submissions (pars 62-65 - emphasis mine): Condition 21 requires an Asbestos Management Report, again to be provided prior to the issue of the Construction Certificate. Condition 21 must be understood in the context of the whole of the consent, of course, but particularly Condition 62. Condition 62 provides for a Hazardous Materials Survey which includes dealing with asbestos, its identification, removal and disposal in the course of demolition. It is neither common sense nor a practical result to construe the consent as providing two separate obligations for reports dealing with asbestos, where one is specifically directed to demolition and the other is a general provision. Condition 21 is to be read in the context of dealing with the any (sic) asbestos contamination after demolition. This is reinforced by the requirement for the additional geotechnical work demanded by Condition 6 and Condition 13. Condition 22 is a similar type of provision dealing more generally with site contamination. It is concerned with potential remediation of contaminated soil and/or groundwater. It is not concerned with the contamination the nature of which is dealt with more comprehensively in Condition 62 in relation to the demolition of the structures. It must also be the fact that the report required under condition 22 cannot be prepared until the structures are demolished and sub-surface access is gained. There is no failure to comply with Condition 22. (See also T13.5.11, p63). 106Fourthly, he would read down Condition 55a by construing the word "work" as limited to "work" traditionally the subject of the appointment of a PCA, and requiring a CC. 107Fifthly, he would read Condition 59 as meaning that the demolition must occur before either issue of a CC or appointment of a PCA, and that the nominated documents must be "simply created", and not necessarily "provided to any authority". The respondent must simply follow the Demolition Standard and the requirements of WorkCover, whatever they might be, after providing to Council the Hazardous Materials Survey required by Condition 62. Mr Clay notes there is no evidence of precisely what "requirements" WorkCover had. WorkCover would be expected to require compliance with all statutory regimes for which it is responsible, but Mr Clay submits (par 76) that "one would be very cautious in construing a development consent in such terms as incorporating a requirement for compliance with any other particular legislative regime where there are sanctions available in that other legislative regime". (See also T13.5.11, p66). 108Sixthly, he reads Condition 60 as advisory rather than mandatory - "responsibility of the owner" - such that any failure to notify WorkCover should not lead to the work being held to be unlawful. In any event, he submits that the court should infer that WorkCover was notified.

The respondent's other submissions 109As the respondent asserts commencement of, and compliance with, the DC it is convenient to record at this point some of its other submissions before I move on to consider the applicant's argument that the consent lapsed. 110The submission just noted in regard to Condition 60 raises the general question of "pre-conditions" and the consequence of not meeting them, a question relevant also on the question of lapsing. Mr Clay says (par 87) that the usual principles of construction in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, at [93], apply to determine if failure to comply negates the lawfulness of work subsequently carried out. As noted above, he says "no" in respect of Condition 60. In this respect he relied also on Cranky Rock Road Action Group Inc v Cowra Shire Council [2005] NSWLEC 674; (2005) 143 LGERA 356 where Bignold J found (at [91]), upon considering the legislative intention of the EPA Act, that the failure of a DA to be accompanied by a statement of environmental effects did not invalidate the DA, or the subsequent DC. Failure to comply with Condition 60, in that the respondent did not contact WorkCover, would not be the "type" of breach that would make the work on the site unlawful. 111He also submits also that any finding that Silvestri was unlicensed when he did the demolition work should not deprive subsequent work of lawfulness. He notes that Silvestri successfully held, and later renewed, the appropriate licence, and submits that that establishes he was and remains a "competent person". He also notes that there is no evidence of any complaint or reservation about Silvestri's work. 112The respondent further submits that it complied with Condition 62; it provided a Hazardous Material Survey, which Council appears to have accepted as adequate compliance with the condition, as it allowed the demolition to proceed, and was concerned only about work on the tanks. Dr Swane's views on the adequacy of the Survey should be discounted. The condition imposed the duty personally on the applicant, unlike other conditions which stipulated by whom/what a report should be prepared, and did not set any standards for it. (See also T13.5.11, p67). 113Mr Clay accepts that a DC was required for the demolition work, but not the geotechnical work, and that the DC envisaged that demolition would be (at least, largely) completed, so that access to soil was available for the additional geotechnical work. He noted the following remarks of Giles JA in Green v Kogarah Municipal Council ("Green") [2001] NSWCA 123; (2001) 115 LGERA 231 (at [67]): Even if a development consent on its proper construction amounts to a requirement not to do Y until X has been done, it is necessary to ask why the landowner is precluded from doing Y in the first place - why there can be imposed the precondition of doing X. The answer is that Y can not be done without consent, and the underlying prohibition is the prohibition on carrying out the development without consent. And submitted (par 89) that: ... If the geotechnical work did not require development consent then the matter is shortly disposed of - engineering work relating to the building or work for which development consent was carried out was physically commenced prior to the lapsing date of the consent. 114Mr Clay submits that a construction of the consent to the effect that any necessary prior work carried out unlawfully renders subsequent work unlawful is "absurd". Any development requires steps which allow further steps to be taken, e.g. demolition of an existing building to make way for an approved new one, and the court frequently "rights wrongs", e.g. by approving the use of structures unlawfully constructed. He relied on the Court of Appeal decision in Troja v Troja (1994) 33 NSWLR 269, a rather extraordinary case concerning whether a woman who had murdered her husband was entitled to benefit from his estate, and submitted that the question of illegality must be viewed by reference to the relevant statutory scheme. In the planning area Hooper v Lucas (1990) 71 LGRA 27 held that a building certificate may be validly issued for extension or modification of an existing structure comprising unauthorised building work. He also cited Rancast Pty Limited v Leichhardt Council (1995) 89 LGERA 139, and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361. 115Mr Clay, therefore, concluded that the geotechnical work could not be illegal, and the fact that it related to the DC and, therefore, fell within the scope of s 95(4), meant that the DC had not lapsed.

The question of lapsing of the consent 116Mr Miller argues that the consent has lapsed, and he submits (par 15) that, in order to determine whether the DC had lapsed, it is necessary to address the following questions: (a) Was the work that is relied on to found physical commencement building, engineering or construction work? If so, (b) Did it relate to the approved development? If so, (c) Was it physically commenced on the land to which the consent applied prior to the relevant lapsing date? 117These were the questions asked by Tobias JA in the defining case on such issues, Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169; 63 NSWLR 124 ("Hunter/Tovedale") (at [111]).

Lapsing question (a) 118It was common ground in the present matter that the court could be satisfied that Tobias JA's question (a) be answered in the affirmative, because this court would be satisfied in the same way that His Honour was satisfied in Hunter/Tovedale (at [117]): ... that the survey work and the geotechnical investigation work were preparatory to, but necessary for, the commencement of the actual ... works...The latter purpose did not, on the approach I have adopted, disqualify the work from being carried out for a purpose which bore a real relationship to the approved subdivision works.

Lapsing question (b) 119In regard to Tobias JA's question (b) - the "relate to" test - the parties disagree. 120Mr Miller distinguished the present case from Hunter/Tovedale, where demolition works were permitted without the issuing of a CC. He argued (1) that, although a PCA need not, by law, be appointed prior to the demolition works under Condition 59, the fact that the condition contemplates works "to the satisfaction of the [PCA]" means that "there needs to be a PCA in existence to give work to do to [Condition] 59" (T13.05.11, p42, LL15-30); and, (2) that the works that were done on the site by the respondent "temporally and physically...preceded the further geotechnical (bore hole) works" (submissions par 20(b)), which was fundamental to the respondent's reliance on this sequence of events to ultimately submit that s 95(4) was satisfied. 121Mr Miller submitted that there is no distinction to be made between surface and sub-surface work for the purpose of issuing a CC. Even though a CC was not required for demolition, such work was not to take place without the procurement of certain reports, namely an Asbestos Management Report (condition 21), a Hazardous Materials Survey (condition 62), a Site management Pedestrian and Traffic Management Plan (condition 20), and a site contamination audit report (condition 22), nor without the appointment of a PCA (Condition 52a). The respondent was also required by the DC to make contact with WorkCover (Condition 60), and to comply with the mandates both of the Demolition Standard (Condition 59), and of WorkCover. Those requirements included preparation of a demolition work plan (cls 2.2 and 2.3), and a Hazardous Substances Management Plan (cl 1.6.1). 122Mr Miller submitted that if works done were contrary to, or were prohibited by, the DC, they could not "relate to" that consent, pursuant to the requirements stipulated in s 95(4). He, therefore, reframed question (b) in terms of "whether all of the activities sanctioned by the consent authority and comprising the approved development were (viewed sequentially) lawfully undertaken so as to demonstrate physical commencement prior to the lapsing of the consent" (submissions par 27), and submitted that, although the demolition works were permitted under the DC, the respondent had "departed" from the consent by not fulfilling the stipulated pre-conditions that were to be satisfied prior to the issuing of a CC. In his submissions in reply, Mr Miller said of Silvestri (T13.5.11, p78, LL17-24): Mr Silvestri was a gentleman who had absolutely no regard to the standards that pertained at the time that were called up by the development consent, who would put together a document knowing that all he had to do was have a piece of paper, as he was concerned, to flash to WorkCover and who absolutely no intent of following it and it's for the court to decide whether there's been departure from that which was require, not WorkCover, certainly not in circumstances where my friend doesn't call WorkCover to explain what it was that they saw or did. 123In Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 ('Iron Gates'), a Court of Appeal case concerning the former lapsing provision of the EPA Act (s 99), it was found that works that failed to comply with conditions of a DC could not be relied upon as commencement of work approved by the consent. Handley JA (with whom Mahoney JA and Rogers AJA agreed) held (at 136) that works which were prohibited by a DC (or its conditions) could not be seen as "relating to that development", and, therefore, could not be relied upon as commencement of a development. 124In Coalcliff, the Court of Appeal endorsed and applied Handley JA's reasoning in Iron Gates (see Stein JA at [66]-[67], and Hodgson CJEq at [97]. Meagher JA agreed with both of them). 125In Green, the Court of Appeal (per Giles JA, with whom Mason P and Ipp AJA agreed) decided that the Iron Gates/Coalcliff principles applied to the amended lapsing provision, s 95(4), despite changes in statutory wording. The works in Green were "purely preparatory", and, in the absence of Council approval, did not prevent lapsing, as they could not "properly be described" as commencing the works approved by the DC. 126In Young v Warringah Shire Council [2001] NSWLEC 208, (2001) 117 LGERA 62, Cowdroy J held that survey pegging, etc, were not simply preparatory; they were part of the DC works, but could not be relied upon on the lapsing question, under the Iron Gates/Coalcliff principles, because they required a CC, and did not have one. 127In Hunter/Tovedale, Bignold J had held, at first instance, that the relevant consents had lapsed, despite survey and geotechnical works. The Court of Appeal overturned his Honour's decisions and applied Green. Tobias JA (with whom Santow JA and Stein AJA agreed) held that "merely preparatory" work may not be enough ([111]), unless "necessary" to the actual commencement of the approved work ([117]). No material change to the land is necessary ([88]). His Honour proceeded on the basis that the work relied upon was lawful. 128In Smith v Wyong Shire Council [2008] NSWLEC 115 ('Smith'), Pain J dealt with reliance on demolition works prior to the issue of a CC as physical commencement of a DC. Her Honour addressed the potential conflict between s 95(4) and s 81A, and relied upon Sharp, where Bignold J held that the demolition of an existing building was not a matter that fell within the ambit of issuing a CC, but was "building work", and a necessary prelude, or preliminary activity, to enable erection of a (new) building, such that the DC had not lapsed. See also Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404; (2002) 133 LGERA 1. 129This line of authority on lapsing is regularly reviewed and applied by this court. Recent reviews were carried out by Pain J in Department of Environment and Climate Change v Olmwood Pty Ltd ("Olmwood") [2010] NSWLEC 15; (2010) 173 LGERA 366, and by Biscoe J in Reysson. It must always be borne in mind, as Tobias JA acknowledged in Hunter/Tovedale (at [86]), that these cases turn on questions of "fact and degree". In Olmwood, her Honour distinguished Detala on its facts. In Detala, Handley JA had distinguished Coalcliff, Green and Young! 130Mr Miller, relying, on the present facts, on the Coalcliff/Iron Gates principles, submitted that "if there is anterior work which is necessary in a temporal or physical sense to allow the work that you in turn rely upon to be physical works, all of those anterior works themselves have to be lawfully conducted within the four corners of the consent" (T13.05.11, p49, LL3-6). 131Therefore, those conditions in the DC, under the heading "Prior to the Commencement of Works", (i.e. those commencing with 55a), can be read as strictly as in Coalcliff, such that Conditions 55a, 59 and 60 were breached by the respondent (T13.05.11, pp79-80) because "[t]he demolition and geotechnical work that the respondent relies upon was therefore unlawful and cannot count as physical commencement to prevent lapsing." As those works were carried out in breach of the DC, they did not "relate to" it.

Lapsing question (c) 132The Council's submission in regard to Tobias JA's question (c) - whether work pursuant to the DC was physically commenced prior to the lapsing date - is that conditions 20, 21 and 22, albeit they may have been "unfortunately placed" in the order of conditions in the DC, should be read to achieve practical results, namely that various documents, such as an Asbestos Management Plan and a site contamination audit report, should have been produced prior to any demolition occurring on the site. 133Mr Miller submitted that the purported "Hazardous Materials Survey" that was forwarded to the Council on 2 April 2008, by tcg planning on behalf of the respondent (see [24] above), did not comply with Condition 62, which must be read with Condition 59, which required that a "competent person" (as defined in the Demolition Standard) conduct the survey. 134The Council submits (par 12(o)) that, contrary to requirements, the respondent did not, prior to carrying out any demolition work: (i)Have prepared by 'a competent person' (as defined under clause 1.3.3 of Australian Standard AS2601-2001 - the Demolition Structures) a Hazardous Material Survey (cf condition 59); (ii)Contact NSW WorkCover Authority in writing with respect to the demolition works (c.f. condition 60); (iii)Undertake a Phase 2 detailed contamination investigation pursuant to SEPP55 Planning Guidelines (in force as at 28 June 2005) or Wollongong City Council policy on 'Remediation of Contaminated Land' dated 28 July 2003; (iv)Prepare a site contamination audit report that identified the exact nature, degree and extent of contamination within the soil strata and/or groundwater table, and the remediation measures necessary to address such (cf condition 22); (vi)Prepare a Hazardous Substances Management Plan in accordance with clause 1.6.1 of AS2601-2001 (cf condition 59); (vii)Prepare a work plan pursuant to clause 2.2 and 2.3 of AS2601-1991 (cf condition 59); (viii)Prepare a Remedial Action Plan; (ix)Appoint a Principal Certifying Authority (cf condition 55a); (x)Prepare and provide to Council (or any PCA) an Asbestos Management Plan (cf condition 21 - an admitted fact); (xi)Prepare a Site Management Pedestrian and Traffic Management Plan (cf condition 20 - an admitted fact). 135As the Demolition Standard is expressly referred to in Condition 59, Mr Miller also submitted that its requirements form part of the conditions of the DC, such that demolition needed to be conducted in a way that accorded with it. 136The Council listed the following ways in which the respondent failed to comply with the Demolition Standard (submissions par 49): (a)The structures and site were not investigated for hazardous substances by a "competent person" in accordance with clause 2.2 of AS2601-2001; (b) A Hazardous Substances Management Plan was not prepared for the demolition work in accordance with clause 1.6.1 of Australian Standard AS2601-2001 because the documents titled "Hazardous Materials Survey" attached to the tcg letter dated 2/04/08, a fax sent by Mrs L Silvestri on 27/03/08 and a work method statement were not a Hazardous Substances Management Plan prepared in accordance with clause 1.6.1 of Australian Standard AS2601-2001; (c)No work plan was prepared for the demolition work in accordance with clause 2.3 of AS2601-2001; (d) Mr Silvestri did not have a valid WorkCover demolition licence at the time he commenced demolition work; (e) Mr Silvestri has never held a valid WorkCover demolition licence that permitted him to remove the USTs and fuel system at the site; (f) The demolition work was not been undertaken in accordance with WorkCover NSW requirements. This is shown by the three Complaint Reports and two Improvement Notices prepared by WorkCover NSW on the demolition work undertaken at the site; (g) The document titled "Work Method Statement" for demolition work at the site (Attachment G of an affidavit prepared by Mr A Silvestri dated 6/04/11) was not prepared in accordance with clauses 2.2 and 2.3 of AS2601-2001 because: a) It did not document the location of buildings and structures to be demolished at the site as required by clause 2.3(a) of AS2601-2001; b)It did not document the heights of structures above ground level and the least distance from each structure to each site boundary as required by clause 2.3(b) of AS2601-2001; c) It did not provide a brief description of the type of building (occupancy class), its structural support system services and the principal materials of its construction as required by clause 2.3(c) of AS2601-2001; d) It did not provide a description of the methods proposed for handling and disposing of demolished materials and, in particular, hazardous substances other than asbestos fibro sheeting as required by clause 2.3(e) of AS2601-2001; e) It did not provide a description of the methods to be used for the decommissioning and removal of USTs and associated fuel systems as required by clause 2.3(e) of AS2601-2001; f)It did not provide a description of the proposed sequence of carrying out the demolition works and an estimate of the time, in days, that it is likely to take to complete all or each of the stages of the work as required by clause 2.3(f) of AS2601-2001; g) It did not provide details of protective measures as required by clause 2.3(g) of AS2601-2001; h)It did not define the dimensions of the demolition exclusion zone as required by clause 2.3(h) of AS2601-2001; i) It did not include a copy of or reference to the hazardous materials survey, hazardous substances management plan or asbestos management report as required by clause 2.3(i) of AS2601-2001; j) It did not include a copy of or reference to a traffic management plan as required by clause 2.3(j) of AS2601-2001; k) It did not include a copy of or reference to an environmental management plan as required by clause 2.3(k) of AS2601-2001; and l) It did not include documentation describing the occupational health and safety system as required by clause 2.3(l) of AS2601-2001. 137The applicant Council also submitted that the respondent had failed to comply with Condition 60, there being no evidence that WorkCover NSW was contacted "[p]rior to any work commencing on the site", as required by the Condition. Certainly an effort was apparently made to make that contact, but no evidence was brought such that the court could infer that contact was indeed made, despite WorkCover's assertion of non-receipt of the letter prepared. Standard mail handling practice is not sufficient, and the respondent bears the onus of establishing that the necessary contact was made. See discussions in Clark & Davis v Wollongong City Council [2008] NSWLEC 110, at [52]ff, and in Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232, at [34]ff. 138The Council, finally, took the court to Conditions 6 and 13 of the DC to demonstrate that question (c) could not be satisfied. Although the geotechnical works carried out by the respondent post-dated the demolition works, as required by the DC, the applicant submitted that the Conditions could not be satisfied because the demolition works were carried out in breach of the DC, and, being unlawful, could not be considered. 139To make good this submission, the applicant distinguished this case from Zaymill Pty Ltd v Ryde City Council [2009] NSWLEC 86. Biscoe J found in that case that the works done on the site constituted "engineering work", such that work on the site had commenced, and the consent had not lapsed. Those works were not "tainted" and "unlawful". In Norlex Holdings Pty Ltd v Wingecarribee Shire Council [2010] NSWLEC 149; (2010) 177 LGERA 261 ('Norlex'), Pepper J also found that the works which had commenced on the site related to the works stipulated in the DC, and, therefore, the consent had not lapsed. Both cases applied the principles in Hunter/Tovedale. 140In summary, Mr Miller submitted that the respondent relied upon works done by Mr Silvestri just prior to the lapse of the DC to demonstrate physical commencement under s 95(4) of the Act, but noted that the respondent never sought to comply with the mandated reporting requirements prior to the commencement of works (T13.05.11, p 55, LL37-49).

141The construction of the consent as a single, comprehensive regime to regulate the redevelopment of the subject site in the way articulated by Mr Miller is clearly to be preferred over the piecemeal construction advocated by Mr Clay. 142The case made by Mr Miller that the consent lapsed as a result of the illegality of some preparatory or preliminary works - demolition and geotechnical engineering - which were done in breach of some terms of the consent, is also to be preferred. 143Most of the respondent's alleged failings (particularly those listed in [25], [134], and [136] above) have been clearly made out in the evidence. 144Some of them, notably the proven lack of an appropriate licence at the time of demolition, and perhaps also the failure to notify WorkCover, I accept, might be regarded as "technical" or "de minimis" if they were at the heart of appropriate proceedings, but these present proceedings turn on more serious failures to comply with express or implied requirements of the consent, such as Conditions 59, and, I say, 62. The fact that Council may not have responded immediately to the inadequacies of the applicant's Hazardous Materials Survey does not preclude it from raising them in these proceedings. A comparison of the detailed specifications for the survey, in Condition 62, against the applicant's purported compliance with them (in Exhibit C2, tab 11) speaks for itself, and the Court accepts the criticisms made by Dr Swane in his report (see [57] above). 145Iron Gates, Coalcliff and Green clearly state that works involving such serious failures as have been shown in this matter cannot be relied upon as physical commencement for the purpose of s 95(4). 146In Iron Gates, when considering an earlier change in the lapsing provision, Handley JA quoted the following from a judgment of Woolf LJ in F G Whiteley & Sons Ltd v Secretary of State for Wales [1992] JPL 856, (1992) 64 P&CR 296 (see Handley JA at 135): The permission was controlled by and subject to the conditions. If the operations contravened the conditions they could not be properly described as commencing the development authorised by the permission. If they did not comply with the permission they constituted a breach of planning control and for planning purposes would be unauthorised and thus unlawful. That was the principle clearly established by the authorities. 147That statement of the appropriate principle found favour with Giles JA in Green, at [65]-[67], and with Biscoe J in Reysson, at [38], and I adopt it here as well. 148None of the conditions Council imposed on the DC have been impugned for validity, and I consider that the Council was perfectly entitled to require the involvement of a PCA prior to the necessary statutory involvement of one at a later stage of the process, and also entitled to require the applicant to furnish a series of reports, which may have some overlap in content, at relevant stages of the project, whether or not they proved necessary for the issue of a CC at the appropriate stage. In formulating the terms and conditions of consent, Council was, no doubt, well aware that a likely (if not inevitable) consequence of some of its requirements would be a revised design, which would be the proposal examined by the PCA in deciding the question of granting a CC in due course. 149The Council has established its entitlement to the relief sought in its summons dated 1 November 2010. At the close of the evidence, Mr Clay sought to add to the respondent's defence a plea for discretion. After some argument (T13.5.11, pp 38 - 40) he withdrew that application. On the evidence as it remained, I would not have been inclined to exercise my discretion to decline the relief sought.

150The Orders of the Court will, therefore, be: 1.The Court declares that the development consent DA2004/1220 granted by the applicant to the respondent ('the Consent') for development on land known as Lot 1 in DP527353 and Lot 3 in DP37937 at 292-296 Gipps Road Keiraville ('Land'), has lapsed, pursuant to s 95 of the EPA Act. 2.The Court orders that the respondent, by itself, its servants, agents, contractors or sub-contractors, be restrained from carrying out, or authorising or permitting the carrying out of development on that Land in purported reliance upon that Consent. 3.The respondent is to pay the applicant's costs. 4.All exhibits are returned.

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