Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council

Land and Environment Court (NSW)|2009-05-01|Before: Biscoe J

CITATION : Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: Zaymill Pty Limited and Maksim Holdings Pty Limited PARTIES : RESPONDENT: Ryde City Council

KEY ISSUES: DEVELOPMENT CONSENT :- for construction of dwellings - whether lapsed after 5 years - whether engineering work relating to the builidng or work physically commenced before then.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 95

CASES CITED: Hunter Development Brokerage Pty Ltd v The Cessnock City Council; Tovedale Pty Ltd v the Shoalhaven City Council [2005] NSWCA 169, (2005) 63 NSWLR 124

APPLICANT: Mr C Gough, solicitor SOLICITORS Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT: submitting appearance SOLICITORS Ryde City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: HIS HONOUR: The applicants, Zaymill Pty Limited and Maksim Holdings Pty Limited, seek a declaration that development consent No 1024/2001 issued by the respondent City of Ryde Council on 11 October 2002 for the construction of thirty-two dwellings on proposed lots one and three in a subdivision of 1-13 Pennant Avenue, Denistone, has not lapsed pursuant to s 95(4) of the Environmental Planning and Assessment Act 1979. The respondent council has filed a submitting appearance accept as to costs. BACKGROUND 2 The development consent approved the construction of thirty-two dwellings on lots one and three on the property at 1-13 Pennant Avenue, Denistone. If the building engineering or construction work relating to the approved work was not physically commenced before 11 October 2007, then the consent would lapse in accordance with the provisions of s 95 of the Environmental Planning and Assessment Act 1979. Conditions 30-35 of the consent required certain remediation works to be carried out on the property. 3 Between 9 April and 2 May 2003 the following works were carried out on the property: (a) the excavation and removal of approximately five cubic metres of soil from the former paint storage area tested and disposed of to the Penrith Waste Facility at Mulgoa; (b) the excavation of approximately seven cubic metres of soil from the former paint storage area tested and validated for reuse on the site. (c) the excavation of approximately eighty cubic metres of soil from beneath the former wool store tested and disposed of to the Penrith Waste Facility at Mulgoa. (d) The excavation of approximately forty cubic metres of soil from the scouring waste water pits tested and validated for reuse on the site. 4 Parsons Brinckerhoff were then commissioned to prepare a remediation and validation report and lodgement with the council as required by condition thirty-two of the consent. In July 2003 Environ were commissioned to prepare a site audit statement as required by condition thirty-two. 5 On 27 September 2007 the applicant's solicitor wrote to the council seeking an acknowledgement that the work had physically commenced before the date of lapsing. On 2 October 2007 the council indicated that the council would not provide the confirmation sought.

6 On 9 October 2008 the council wrote to the applicant advising that in the council's opinion the consent had lapsed on 11 October 2007. Consequently, the council indicated, it would not consider plans submitted for approval under the conditions of the consent.

7 On 5 November 2008 the applicant's solicitor wrote to the council seeking assurances with respect to whether the work had physically commenced.

8 On 13 November 2008 the applicant's solicitor wrote to the council stating that, further to a recent telephone conversation, he understood that the council would now process the plans that had been lodged pursuant to the consent and noting that the council had stated it would continue to reserve its position on whether the development consent had lapsed. The letter said that this left the applicant in an untenable position as the council could at any time allege that it had lapsed. The council was requested to acknowledge that the works that had been undertaken constituted physical commencement and that the consent had not lapsed. The prospect of seeking declaratory relief in this Court was flagged.

9 On 17 November 2008 the respondent's general counsel wrote to the applicant's solicitor stating: "Council has considered the matter further and, with respect, refuses to state one way or another whether the subject development consent has been physically commenced. In this regard, the statement in council's previous letter of 9 October 2008 that the consent has lapsed is withdrawn.

As previously advised, it is not the duty of council to take a position in relation to this matter. I would also note that, even if council were to take a positive position, such position could not protect your client from third party claims under s 123 of the Environmental Planning and Assessment Act 1979 so no certainty could be achieved by your client on the issue even with council's endorsement.

In addition to the above, I confirm that council has determined to process the documents lodged by your client with council to satisfy certain conditions of development consent number 1024/2001. Council staff will be in contact with your client (or agents) in that regard in due course.

I note your client's proposed intention to commence class four proceedings seeking a declaration of physical commencement. That is a matter for your client. In relation to costs, council notes once again that it is under no legal duty to take a position in relation to the matter". LAPSING OF CONSENTS 10 Section 95 of the Environmental Planning and Assessment Act 1979 provides that: " 95 Lapsing of consent

(1) A development consent lapses 5 years after the date from which it operates. … (4) Development consent for: (a) the erection of a building, 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 ..." 11 In Hunter Development Brokerage Pty Ltd v The Cessnock City Council; Tovedale Pty Ltd v the Shoalhaven City Council [2005] NSWCA 169, (2005) 63 NSWLR 124, a test was set out to determine whether work done in preparation for a development can be considered to constitute physical commencement. Tobias JA adopted the meaning of the word "engineering" in the Macquarie Dictionary being: "The art or science of making practical application of the knowledge of pure sciences such as physics, chemistry, biology etcetera". His Honour said at [83]-[88]: "83 In my opinion, the expression 'engineering work' in its context of forming part of the composite phrase 'building, engineering or construction work', should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. There can be no doubt that engineering as such can involve many different elements: relevantly with respect to a subdivision, it involves civil engineering work such as the design and (possibly) the construction of roads, sewerage systems, drainage and the like.

84 But once consent is granted for a subdivision, the implementation of that consent ultimately resulting in the construction of the subdivision roads, drainage and sewer lines as well as the laying out of the allotments in accordance with the approved layout, requires as a necessary first step in the engineering or construction of that subdivision, including the physical works contemplated thereby, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. This would accord with common sense and industry practice (as to which see at 128 [13] supra).

85 The carrying out of survey work to establish the correct location of these elements, in my opinion, is capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. Accordingly, it follows that the natural and ordinary meaning of the expression 'engineering work' in the context relevant to the present issue is capable of including physical survey work of the nature and extent of that the subject of these appeals.

86 That is not to say that any survey work, albeit of a physical nature, would so qualify. Simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not, in my view, necessarily qualify. There is an element of fact and degree in each case. Although in Besmaw Pty Ltd , Talbot J (at 436 [112]) observed that once Parliament had decided to delete the requirement of substantiality, there was little room for an argument that the works must not be de minimus, and that it was therefore reasonable to exclude any test of the degree and extent of the work under the present statutory regime, nonetheless the requirement that the relevant work relate to the approved subdivision requires a real nexus between them. In particular, the concept that the work must be 'physically commenced', requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved: cf Besmaw Pty Ltd (at 436 [111]).

87 Subject to the issue of whether the relevant work was merely preparatory and, if so, whether that disqualified it from preventing the lapsing of the consent, in my opinion the physical survey work carried out by Tovedale (and which his Honour found to have occurred prior to the lapsing date) was neither notional nor equivocal. In fact, his Honour did not suggest to the contrary. Equally, there can be no doubt that that work was physically commenced. I appreciate that Cowdroy J in Biwazu Pty Ltd found that for engineering work to be physically commenced on the land there had to be a 'material alteration of the existing circumstances'. It would appear that this expression by his Honour was intended to require a material change to the land as a consequence of the physical impact due to the commencement of the relevant work. The difficulty with this construction is that the statutory provision only requires the relevant work to be 'physically commenced': it need not continue, let alone be completed: see Besmaw Pty Ltd (at 430 [83]; 436 [111]-[112]). Furthermore, as Tovedale submits, the statutory concept requires only some application of labour which manifests itself on the land. I am unable therefore, to endorse Cowdroy J's approach.

88 Given the obvious difference between the expressions 'substantially commenced' and 'physically commenced', in my opinion the only statutory requirement is that the relevant work is commenced upon the land in a physical sense (as was clearly the position in the present cases). What is to be distinguished is work which is not physically commenced on the relevant land but is off-site work such as design and planning work. In my respectful opinion, Cowdroy J went too far when he held that the engineering work must result in a material change to the physical nature of the land. The statutory provisions contain no such requirement." ENGINEERING WORK 12 The applicant submits and I accept that the taking away and testing of significant quantities of soil from the development site and the investigations undertaken by Parsons Brinckerhoff constitute engineering work. In my opinion, the work has physically commenced. The work that has been done was required as a condition of consent and was a necessary step prior to the construction of a building to be used for residential purposes. There is nothing before the court to suggest that the works undertaken were merely a sham. 13 I accept that there is a sufficient nexus between the engineering works undertaken and the approved development.

14 It is well established that declaratory relief should not be granted merely because of the absence of a contravener and should only be granted on the basis of evidence and submissions. I am satisfied that the declaration sought by the applicant should be made.

ORDERS 15 The orders of the court are as follows:

Declaration that development consent No 1024/2001 issued by the respondent on 11 October 2002 for the construction of thirty-two dwellings on proposed lots one and three in subdivision of 1-13 Pennant Avenue, Denistone has not lapsed pursuant to s 95(4) of the Environmental Planning and Assessment Act 1979 . 2. Costs are reserved. Any application for costs must be made by approaching the registry within fourteen days to obtain a hearing date for the hearing of a costs application, otherwise there will be no order as to costs. 3. The exhibits may be returned.

10/08/2009 - incorrect respondent on cover page - Paragraph(s) cover page 10/08/2009 - cover page amendment - citation - Paragraph(s) cover page

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