Besmaw Pty Ltd v Sutherland Shire Council - [2003] NSWLEC 181

Reported Decision: 127 LGERA 413

Land and Environment Court

of New South Wales

CITATION: Besmaw Pty Limited v Sutherland Shire Council and Another [2003] NSWLEC 181

PARTIES:
APPLICANT
Besmaw Pty Limited
FIRST RESPONDENT
Sutherland Shire Council
SECOND RESPONDENT
The Minister Administering the Environmental Planning and Assessment Act 1979

FILE NUMBER(S): 40238 of 2001

CORAM: Talbot J

KEY ISSUES: Development Consent :- whether construction physically commenced - whether work related to the development - whether work permitted by development consent and conditions

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76, s 76(2)(b), s 95(4), s 99, s 99(1), s 99(1)(a), s 99(2)(a), s 99(4), s 99(5), s 102
Environmental Planning and Assessment (Amendment) Act 1997

CASES CITED: Bishop v Deakon (1936) 1 Ch 409;
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Others (1999) 106 LGERA 243;
Commercial Union Assurance Co of Australia Ltd v Beard and Others (1999) 47 NSWLR 735;
Day v Pinglen Proprietary Limited and Others (1981) 148 CLR 289;
Detala Pty Limited v Byron Shire Council [2002] NSWCA 404, unreported;
Drummoyne Municipal Council v Lebnan and Others (1974) 131 CLR 350;
Drummoyne Municipal Council v Page (1973) 2 NSWLR 566;
Ex parte Herne Estates Pty Ltd; Re Greater Wollongong City Council City Council and Another (1967) 14 LGRA 102;
Green v Kogarah Municipal Council (2001) 115 LGERA 231;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
Jones and Another v Sutherland Shire Council (1979) 40 LGRA 323;
Liverpool City Council v Home Units Australia Pty Ltd (1973) 28 LGRA 28;
London County Council v Marks & Spencer Ld and Others (1953) AC 535;
M P Metals Pty Ltd v Federal Commissioner of Taxation of the Commonwealth of Australia (1968) 117 CLR 631;
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
Marks & Spencer Ld v London County Council and Others (1952) Ch 549;
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154;
Noble House Corporation Pty Ltd v Sydney City Council [1999] NSWLEC 190, unreported;
North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1964) 10 LGRA 41;
Owendale Pty Limited v Anthony (1966-1967) 117 CLR 539;
Quick v Stoland Pty Ltd (1998) 87 FCR 371;
R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58;
Richard and Others v Shoalhaven City Council (2002) NSWLEC 11, unreported;
Ryde City Council v Echt and Another (2000) 107 LGERA 317;
Sharrment Pty Ltd and Others v Official Trustee in Bankruptcy (1988) 18 FCR 449; 82 ALR 530;
Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170;
Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another (2002) 55 IPR 354;
Tomark Pty Ltd and Ors v Bellevue Crescent Pty Ltd and Ors [1999] NSWCA 347, unreported;
United Dominion Corporation Ltd v Woollahra Municipal Council (1973) 1 NSWLR 616;
Wyong Shire Council v Associated Minerals Consolidated Ltd and Another [1972] 1 NSWLR 114

DATES OF HEARING: 07/11/2002, 08/11/2002, 24/02/2003, 25/02/2003, 26/02/2003, 27/02/2003, 28/02/2003, 03/03/2003, 04/03/2003, 05/03/2003, 06/03/2003, 07/03/2003, 10/03/2003, 11/03/2003, 12/03/2003, 13/03/2003, 14/03/2003, 18/06/2003 (final written submissions)

DATE OF JUDGMENT:
08/08/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr M H Tobias QC with Ms H P Irish (Barrister)
SOLICITORS
Corrs Chambers Westgarth
FIRST RESPONDENT
Mr T F Robertson SC with Mr M J Leeming (Barrister)
SOLICITORS
Woolf Associates
SECOND RESPONDENT
Mr B W Walker SC with Mr J E Robson (Barrister)
SOLICITORS
Freehills

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40238 of 2001

Talbot J

8 August 2003

Besmaw Pty Limited

Applicant

Sutherland Shire Council

First Respondent

The Minister Administering the Environmental Planning and Assessment Act 1979

Second Respondent

Judgment

Introduction

1 The applicant, Besmaw Pty Limited (“Besmaw”) is seeking a declaration that on or about 19 September 1997 it physically commenced building, engineering or construction work relating to a development consent granted by the first respondent on 22 September 1992 and modified on 15 September 1997, for the purposes of s 99(4) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) as in force prior to the commencement of the Environmental Planning and Assessment (Amendment) Act 1997. The primary dispute is with the first respondent, Sutherland Shire Council (“the council”). Apart from questions of construction of s 99(4), the council’s case is that the work carried out on 19 September 1997 contravenes the conditions of the consent. Moreover, the work was not construction work or work relating to the development. Furthermore, the work was a sham. For those reasons the first respondent submits there was no commencement within the meaning of s 99(4) of the EP&A Act.

History of the site and applicable consents

2 Besmaw is the registered proprietor of Lot 3 DP 225537, Lot 4 DP 712157 and Lot 2 DP 559922 comprising 193 hectares at Kurnell (“the land”). The land has been subject to extensive sand mining and is, therefore, greatly disturbed. It is situated within the boundary of the first respondent and is located approximately three kilometres from the suburb of Kurnell. At various times there was a dredge pond used in conjunction with the sand mining of the land.

3 By Notice of Determination dated 22 December 1989 the first respondent granted development consent DA 155/89 to Fapace Pty Limited, representing a consortium formed in the 1980’s for the purposes of property development, whereby it conditionally approved a development comprising 2 International Standard Hotels, 1,400 Condominiums, a Private Hospital, a Research Centre, a Retail Centre, Ancillary Offices, a Theatre, Recreational Facilities including a Golf Course, an Equestrian Centre, a Tennis Ranch, Swimming Facilities, a Sports Ground and a Network of Pathways for Walking, Jogging, Bike Riding and Horse Riding and Associated Roads and Infrastructure. Relevantly, for present purposes, condition 6 provides for groundwater quality testing and monitoring in the same terms as condition 11 in development consent 542/92 set out in full hereunder at [5].

4 An amended development application was lodged with the council on 30 March 1992. Notice of Determination of DA 542/92 determined the amended application by grant of consent on 22 September 1992. The amended development application was in respect of the same land. The applicant was Besmaw as owner of the land. The amended development consent granted conditional approval for the Sydney Destination Resort as follows:-

Stage 1A, development of golf course, golf clubhouse, hotel, condominiums and roadworks and the remainder of the land as approved in Development Consent 155/89 for 2 international standard hotels (1969 rooms), 1278 condominiums, a private hospital, a research centre, a retail centre, ancillary offices, a theatre, an equestrian centre, a tennis ranch, swimming facilities, a sports ground, a network of pathways for walking, jogging, bike riding and horse riding, associated roads and infrastructure

5 Condition 11 (which is in identical terms to Condition 6 in DA 155/89 referred to above) was imposed by DA 542/92 as follows:-

11. The applicant shall undertake a program of groundwater quality testing on the site before construction commences to establish reliable baseline data at specified locations to enable long term monitoring of groundwater quality. The applicant/resort operator shall submit infrequent but regular laboratory results to Council for monitoring purposes in order to help protect the adjacent wetland and estuarine ecology from pollution of groundwater within the site boundaries during both construction and operational phases.

6 On 15 September 1997 Development Consent 542/92 was modified by the council following an application made by Besmaw (“the modified consent”). The modified consent relates to the development described as Sydney Destination Resort (“the SDR development”) comprising two international-standard hotels each containing 1,000 rooms, 1,400 condominiums, golf course and golf clubhouse, a private hospital, a research centre, a retail centre, ancillary offices, a theatre, an equestrian centre, a tennis ranch, swimming facilities, a sports ground, roadworks, a network of pathways for walking, jogging, bike riding and horse riding and other associated infrastructure.

7 The modified consent was granted subject to condition 11 above and to the following further relevant conditions:-

A- STAGING OF THE DEVELOPMENT

1. The development shall be implemented substantially in accordance with the details set out on the application form and the supporting information received with the application except as amended by the conditions specified hereunder and in particular it shall be implemented in 3 stages namely:

(a) Stage 1 for Roadworks in accordance with plans titled “Access Road”, Connell Wagner Project No. 5627.01, Drawings 10-17, revision 01;

…

B – STAGE 1 AND 1A

7. There shall be no clearing of the site or earthworks carried out prior to the release of any Building Approval whereafter such clearing or earthworks shall only be in accordance with the Building Approval.

15 . Details shall be submitted with each building application for each of Stages 1 and 1A, indicating how soil erosion will be minimised during the construction phase of that Stage, to prevent sediments escaping from the site to Quibray Bay. The details are to clearly indicate:

· The extent of construction area to be worked at various points in the programme;

· the placement of haybales, silt fences, detention drains, gabions and washing devices to prevent migration of silts from the site;

· sediment ponds; and

· vegetation establishment to reduce wind erosion.

…

24A. A detailed drainage design for the whole of the site areas the subject of Stage 1 prepared by a suitably qualified Civil Engineer in accordance with The Institution of Engineers “Australian Rainfall & Runoff” (1987) shall be submitted to Council with the Building Application. The submission is to incorporate:

(a) Certification from the Engineer that the design has been prepared in accordance with the Australian Rainfall & Runoff (1987).

(e) [sic] A physical barrier around the perimeter of the site to prevent the discharge of surface water flows onto adjoining properties or the road reserve.

(f) [sic] A means of preventing water from pathways and access drives entering the road reserve as surface flow.

(g)

Erosion control measures which shall be undertaken during the course of construction to prevent sediment discharge from the site, in accordance with Council’s standards and specifications, along with measures to be undertaken to stabilise all disturbed areas by revegetation at the completion of building construction.

8 The council, concurrently with its consideration of the modified consent, considered an Application for Approval of Activity in respect of Stage 1 referred to in condition 1(a) of the modified consent (“the activity approval”). The activity approval, which was, in effect, a building approval, was granted on 17 September 1997 in respect of Lot 2 DP 559922 only (“the site”).

9 The following conditions of the activity approval are relied upon by one or other of the parties either in the pleadings or as part of the evidence:-

1. The development shall be implemented substantially in accordance with the details set out on the plan/drawing no. 5627.01 Sheets 10-16 (Revision 2) and 17 (Revision 3) and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder. (D101)

2. Site earth works for the construction of the internal access road shall be controlled at all times by a NATA Registered Laboratory to ensure the adequacy of material type and quality, material placement procedures, compaction specification and material testings. On completion of works and prior to use of the road, the supervising laboratory shall provide Council with the results of all site monitoring and testing to demonstrate compliance with Council’s Specification for Civil Works Associated with Subdivision and Developments. (D999)
3. That section of roadway between chainages 50 and 250 shall not be constructed until a review of environmental factors concerning that length of road construction is provided to the satisfaction of the Director – Environmental Services. (D999)

…

4. PRIOR TO COMMENCMENT OF ANY WORK ON SITE THE APPLICANT SHALL MAKE ARRANGEMENTS WITH Council’s Engineer for a pre-commencement meeting on site with the nominated road contractor and archaeologist. At this meeting it will be necessary for the road contractor to be in possession of a copy of the stamped approved engineering drawings. (D999)

…

6. The proposed access road shall be constructed in accordance with Council’s Specification for Civil Works Associated with Subdivisions and Developments, January 1996. The traffic loading criteria for pavement design shall be not less than a collector road classification. (D999)

…

9. At all times the requirements of Development Consent No. 92/0542 shall be complied with. (D999)

10 The first respondent’s Specification for Civil Works Associated with Subdivision and Developments (“the Specification”) includes requirements in respect of erosion and sediment control, earthworks and roadworks with particular reference to sediment control devices, clearing, formation, cut, boxing and subgrade, subgrade stabilisation and compaction.

The evidence of events relevant to work undertaken on 19 September 1997

11 Several days of the hearing were taken up by arguments, principally between the applicant and the first respondent, regarding the admissibility of the expert evidence. Ultimately, this argument was resolved when the applicant and first respondent withdrew their respective objections following a detailed explanation of the first respondent’s case. There was also an element of expediency in that course whereby the determination of the question of admissibility was left for the Court to decide in due course after hearing the whole of the evidence and argument. This has been done in the course of the judgment by referring only to that evidence the Court has accepted as admissible, except where expressly stated otherwise, generally in the context of an alternative argument.

12 Many of the so-called expert witnesses called by the respective parties gave evidence on the basis that they had perused certain identified documents or records and the evidence of other witnesses and then went on to state what is otherwise obvious. It is extremely doubtful that the conclusions in many instances were strictly based on any specific expertise beyond the capacity of the Court to decide for itself. In those instances where that was clear the Court has not had regard to that evidence as a basis for its decision notwithstanding that ultimately, as I have just said, after several days of inconclusive argument the evidence was admitted without objection.

13 In Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another (2002) 55 IPR 354 the Full Court of the Federal Court doubted that all of the tests for admissibility posed by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 should be applied strictly rather than in the course of determining the weight to be given to the evidence.

14 Having regard to the way in which the evidence was admitted the approach by the Federal Court in Red Bull has been adopted. This course is consistent with the observations made by Branson J at 357.

15 Brian David Griffiths is a Road Designer and Associate of Connell Wagner Pty Limited (“Connell Wagner”). In an affidavit sworn 25 October 2002 Mr Griffiths gave evidence that on about 12 June 1997 Connell Wagner was retained by Besmaw to prepare detailed engineering design drawings for the Stage 1 Access Road (“the access road”) of the SDR development. Mr Griffiths was the Project Manager for the preparation of the design drawings for the access road. Because the alignment had been previously determined during the planning phase and the terrain being traversed was a flat sand environment, Mr Griffiths says the access road was a relatively simple road to design.

16 Connell Wagner prepared plans in support of the application made pursuant to s 102 of the EP&A Act seeking the modified consent and the activity approval. The design drawings evolved between 12 June 1997 and September 1997. Changes were made to the plans following correspondence between Mr Griffiths and Michael Duffy, a council officer, and between Mr Duffy and Arthur Philip Holt, as Besmaw’s representative. Notes were added to drawing No. 17 to reflect amendments made by Connell Wagner in response to the council’s concerns and handwritten notes were added by council officers to the approved plans. The plans were approved on 17 September 1997. The council also formally approved the Report to Accompany Design Drawings Stage 1 Access Road Sydney Destination Resort prepared by and submitted to the council by Connell Wagner in support of the application for the activity approval.

17 On 19 September 1997 Mr Griffiths was present on the site at a meeting attended by Mr Holt, in his capacity as Managing Director of Besmaw, Mr Floyd, an employee of Besmaw, and Mr Ford, an Archaeologist, together with Mr Duffy, Ian Brandon and Ian Drinnan, who represented the council. Mr Griffiths says that during the meeting those present walked along the route of the proposed access road which had been pegged by survey markers. He observed a clearing operation before he left the site at approximately 1:00pm.

18 In the final paragraph of his affidavit sworn on 25 October 2002 Mr Griffiths offered the following opinion:-

On 19 September 1997 I witnessed the commencement of clearing, consistent with normal road construction practice, and amounting to construction work. I have reviewed the photographs taken on 19 September 1997 by Arthur Philip Holt which are exhibit PH4 to the affidavit of Arthur Philip Holt sworn on 22 February 2002. These photographs reinforce the taking place of clearing works on 19 September 1997 and my opinion that this amounted to construction work carried out on 19 September 1997. I have read the affidavits of Darren Floyd and Arthur Philip Holt sworn on 22 February 2002 and the affidavits sworn by Darren Floyd and Kelvin Horgan on 16 October 2002. Based on what is said there I say that the commencement of the cutting exercise had occurred affirming in my view that construction work on the Access Road had commenced by the end of 19 September 1997.

19 In response to a question during cross-examination by Mr Robertson SC, who represents the first respondent, in respect of the last statement Mr Griffiths gave the following answer:-

A. I make reference there to seeing photos that reinforced

y opinion that there’s clearing works. I then go on to say that the affidavits of Darren Floyd and Arthur Phillip Holt sworn on the 22nd and Darren Floyd and Kelvin Horgan on 16 October, based on what is said there I say that commencement of the cutting exercise had occurred confirming my view that construction work on the access road had commenced.

20 Mr Griffiths emphatically denies that he was instructed by Mr Holt to design a road which would enable Besmaw to secure the development consent from lapsing rather than to design an access road for the SDR development.

21 Surveyor Bruce Ernest Smith has carried out surveyors’ investigations and tasks for Besmaw since the 1980’s. A survey of existing or natural surface detail for design of the access road took place under his direction on 17 and 18 June 1997. His evidence is that parts of the access road site were under water or affected by sand stockpiles from chainage 60 to chainage 575. The centre line of the road was marked at 25 metre intervals on straight sections and the site was detailed at least 25 metres either side of the centre line. Following calculations made on 30 June 1997, further field work continued under Mr Smith’s direction on 1, 2 and 3 July 1997. The centre line was pegged sufficiently to control the limits of the detail survey. On 4 September 1997 he set out additional centre line marks at varying intervals of approximately 25 to 30 metres. The centre line setout to chainage 1,000 was completed on 19 September 1997.

22 He says that marking limits of topsoil stripping was not necessary because none existed. Furthermore, batter pegs had not been placed at the top of cuts because, from his experience, batter pegs, if used, would not be placed until a later stage of construction.

23 When Mr Smith visited the site on 20 and 27 November 1997 and 12 January 1998 he observed the site was generally cleared and material was being moved to grade the site. Earthworks on the access road had commenced from chainage 600 to chainage 850 along the alignment in the drawings as surveyed and set out by him.

24 Adam David Ford is a qualified and practising Archaeologist who was employed by ERM Mitchell McCotter (“ERM”) during the period June 1997 to September 1999. He says ERM was retained by Mr Holt to undertake an archaeological watching brief in respect of the construction of an access road on the site. The purpose was to identify and record any archaeological material discovered during the construction of the access road and to give immediate advice on conservation and management strategies.

25 As part of the watching brief, Mr Ford attended the site on 19 September 1997. He observed what he described as “the commencement of the construction of the Access Road” consisting of the removal of vegetation along a 400 metre section in an area approximately 12 metres wide either side of a centre line.

26 He arrived at the site at approximately 10:00am and remained there for five hours. Mr Ford explained that a bulldozer was used to carry out most of the stripping of the vegetation.

27 He first walked along the centre line of the proposed access road to ascertain whether the land had been previously disturbed. Once the vegetation stripping occurred he made observations at either side of the ground ahead of and from behind the bulldozer in order to identify and record any archaeological material discovered during the carrying out of the work.

28 Mr Ford says he remembers that the bulldozer was doing the vast majority of the stripping of the vegetation by gathering up the material and pushing it out of the way.

29 Mr Robertson suggested to Mr Ford in the course of cross-examination that no filling or cutting as such took place other than the taking of sand necessary to be taken with the vegetation or for the purposes of removing vegetation. Mr Ford’s answer was as follows:-

A. I think the primary reason for their activities that day was to remove the vegetation, incidental movement of sand or any other sand deposits was either related to the removal of the vegetation and the roots or in some cases where the gradient of various dune formations were acute then they would be removed or graded or ameliorated basically for the access for the vehicles that are actually on the site at the time.

30 When Mr Robertson suggested that there was no levelling of the access road, Mr Ford responded:-

A. Depends on what you mean by levelling. They were ameliorating some of the gradients, they were taking off some of the tops and filling in maybe some of the bottoms of the steeper elements of the dunescape, so in some ways that was levelling. You know generally by using all those, you’re levelling some of the landscape anyway by default.

31 Mr Ford explained that work progressed from chainage 600 to chainage 1,000 and that once the persons doing the work “reached the far end that was it”.

32 Darren John Floyd is a Site Supervisor who has been employed by Besmaw since 2 December 1996. Mr Floyd first swore an affidavit on 22 February 2002 in relation to the events which occurred on 19 September 1997. On 14 August 2002 he swore a second affidavit making a correction to his earlier evidence. In a further affidavit sworn on 16 October 2002 he addressed the work carried out prior to 19 September 1997. He also supplemented his evidence sworn on 22 February 2002 in respect of the work carried out on and after 19 September 1997.

33 Mr Floyd attended the meeting called on the site at approximately 11:00am on 19 September 1997. He walked along the surveyed path of the proposed access road with the other persons who attended the meeting. He says that Mr Holt instructed him to measure 12 metres each side of the pegged centre line of the access road and then clear “a little past 12 metres either side, from CH 600 to 1,000”. Thereafter, in accordance with that instruction, he and Kelvin Horgan removed the vegetation for the full width of the road construction. He describes the vegetation as mainly scrub in the form of bitou bush with some pampas grass and two small palm trees. His evidence is that the vegetation was pushed to the side of the access road. According to him, he and Mr Horgan also took the tops off some of the high points to enable Mr Ford to inspect below the surface.

34 He describes work of “forming up” undertaken on 19 September 1997 as comprising levelling by pushing the high points into the low points following the clearing of the vegetation. He asserts this work was done to prepare the subgrade of the access road by ensuring the surface was level prior to the placement of fill. Compaction on 19 September 1997 was limited to the effect of the weight of the machinery used.

35 Mr Floyd agrees that there was no attempt to level the area cleared to any precise level on 19 September 1997. The levelling that took place was judged by reference to a nail on a telegraph pole at chainage 600. He explained this process as follows:-

Q. But you didn’t know what the level was, did you, other than from that nail on a pole at chainage 600?

A. You can eye it across and see that the road’s lower.

Q. This must have been a very approximate process of levelling, Mr Floyd?

A. On the 19th, yes.

Q. It wasn’t intended to level to any precise level was it?

A. On the 19th?

Q. Yes.

A. Not particularly to a precise level, no.

36 Mr Floyd originally swore that on “possibly 6 November 1997” he placed a couple of loads of sandstone on the cleared access ways. Moreover, following the placement of fill, he was involved in grading and the construction of batters after 19 September 1997. Further work was carried out in the area of the access road on 17 and 18 December 1997.

37 Contrary to the evidence of Mr Ford, Mr Floyd maintains that:-

A. We cleared from chainage 600 to 1000, once it had been cleared we went back and then we started taking the high points off into low points while Adam Ford was still there.

Q. Whilst Mr Ford was still there?

A. Yeah.

38 During cross-examination by Mr Robertson Mr Floyd indicated for the first time that he continued to work in the afternoon of 19 September 1997 between 3:00pm and 3:30pm after Mr Ford had left the site. He says the work undertaken during this half hour was to take between half a metre and a metre of cut from the surface of the road. He describes the work carried out after Mr Ford left the site as “tidying up” by “picking up the roots and larger stuff that was left behind and stockpiled it on the edge of the – past the 12 metre mark”.

39 When challenged by Mr Robertson that he continued to work after the archaeologist left, contrary to instructions by Mr Holt, Mr Floyd said as follows:-

A. The work we did after he left was tidying up windblown material so I don’t, I don’t believe there was any reason for him to be there.

Q. Just pushing a bit of dry white sand or yellow sand around, was that it?

A. It was windblown sand that had been blown there by the wind. We didn’t go deep enough to uncover back to the natural level that he was looking at.

40 Kelvin Horgan is a Quarry Worker who has been employed on a full time basis by Besmaw since 11 August 1997. Within the three months prior to his full time employment by Besmaw he assisted Mr Floyd with the clearing of bitou bush from chainage 600 to chainage 1,000 to allow the centre line pegs to be put in place.

41 He says that on 19 September 1997 he and Mr Floyd arrived at the access road site at about 7:30am or 8:00am. He describes the work as “Working from chainage 600 to 1000 Darren Floyd and I re-cleared around the centre line pegs and used string lines to mark 12 metres plus 1 metre offset either side of such centre pegs”.

42 Vegetation was cleared 12 metres either side of the centre line pegs by pushing it along and off the sides of the access road. Mr Horgan describes the type of vegetation as “mostly low rooted bush”. According to him there was some infestation of pampas grass and one palm tree was also removed.

43 In his affidavit sworn on 16 October 2002 he refers to the marking of a power pole with a surveyor’s peg, which “would have been what we struck the “dumpy level” off that day”.

44 Mr Horgan confirms that he completed working on the access road on 19 September 1997 at approximately 3:00pm. However, he continued to work on the access road for a period of approximately two months. He said he was “trimming everything up and putting sandstone on it”.

45 In cross-examination Mr Horgan contended that Mr Ford was present when he commenced work around 8:00am. Under further cross-examination by Mr Leeming (who appears with Mr Robertson on behalf of the first respondent) Mr Horgan was equivocal about whether a dumpy level was used on 19 September. He agreed that it is more likely than not that the levelling he referred to in his affidavit, as part of the work which occurred on 19 September 1997, occurred subsequently. He also conceded in cross-examination that any trimming up on 19 September was in a very rough fashion.

46 Patrick Joseph McCue is the Manager of sand extraction conducted by Rocla Limited (“Rocla”) on the subject land.

47 Mr McCue testifies to observations he made in mid-1997 when Mr Floyd and Mr Horgan pegged out the site of the access road in the company of Mr Smith. Mr Holt had previously advised him that Mr Smith would peg out a centre line for the access road to the SDR development. A few days later he remembers seeing Mr Floyd, Mr Smith and Mr Horgan pegging out the access road. He also remembers a bulldozer being used to clear vegetation off the pegged area. This was followed by formation and shaping of the access road by Mr Floyd and Mr Horgan “ready for placement of sub-base, and then the importation and placement of material by Kelvin Horgan and Darren Floyd, over something like a three month period …involving a front end loader and dozer”. Mr McCue’s evidence in relation to the alleged construction work in September 1997 is not specific as to time and date. After the area of the access road had been pegged out and cleared Mr Floyd and Mr Holt took Mr McCue on a tour of the area. He expresses the following opinion based on his observations during that tour:-

Based on my experience with road construction I say that when I was taken on a tour of the Access Road it needed a bit more work to bring it up to a regularly used road for a construction site but it was certainly well on the way to that.

48 Mr McCue says that at different periods over three years parts of the access road were subsequently dredged out. The removal did not take place as one operation. The process of removing material is carried out in consultation with Mr Holt on an ad hoc basis. The events that led to part of the access road being removed did not commence until close to three years after the work was done in 1997. The evidence of the Regional Manager of Rocla, John Louis Gardiner, confirmed the circumstances leading to removal of parts of the road and consultation with Mr Holt.

49 Following discussions with consultant town planners, Planning Workshop and Mr Griffiths of Connell Wagner in or about June 1997, Mr Holt says he requested Mr Smith to peg the centre line of the access road. He personally requested Mr Duffy, Mr Griffiths and Mr Ford to meet at the site of the proposed access road on 19 September 1997 for a pre-commencement meeting. He also asked Mr Floyd and Mr Horgan to be present on the site.

50 Mr Holt’s evidence is that the meeting commenced at approximately 11:00am and continued for approximately one hour. He says Mr Ford, Mr Griffiths, Mr Duffy, Mr Brandon, Mr Drinnan and Mr Floyd were at the meeting. Mr McCue and Mr Horgan were also on the site at that time.

51 At the conclusion of the meeting and inspection of the access road Mr Holt says that he had a conversation with Mr Duffy in words to the following effect:-

I said: “Is there anything further that you require from us before we commence construction?”

He said:

52 Mr Holt’s recollection is that after the meeting took place he observed vegetation being cleared by Mr Floyd and Mr Horgan. He says they used a front-end loader and a bulldozer over the full length of the access road between chainage 600 and 1,000 to a width of 12 metres either side of the pegged centre line. Mr Holt describes the works undertaken on 19 September 1997 as follows:-

(a) Clearing the vegetation from the Access Road approximately 12 metres wide either side of the marked centre line of the Access Road between chainage 600 and chainage 1000.

(b) Inspection of the surface of the Access Road between chainage 600 and chainage 1000 accompanied by Adam Ford, the archaeologist.

(c) Levelling and forming the Access Road between chainage 600 and chainage 1000.

53 Mr Holt asserted in his oral evidence that thereafter the work continued for three months in accordance with his instructions. He had claimed in his affidavit evidence that the work continued over the following six months. He says that the full width of the access road between chainage 600 and 1,000 was cleared on 19 September 1997.

54 In cross-examination Mr Holt explained that the bulldozer and the front-end loader proceeded in a logical progression to clear the access road in the sense that they started at chainage 600, pushed the vegetation to the side of the road and then proceeded to chainage 1,000.

55 He says he observed work and results of work conducted by Mr Floyd and Mr Horgan on the access road after 19 September 1997 when they were not otherwise engaged. However, as workload increased in other areas of the land the rate of construction of the access road slowed and ceased altogether in approximately January 1998.

56 Mr Holt agrees that the cleared vegetation extended for a distance of about 450 metres corresponding approximately to chainage 600 to chainage 1,000 along the eastern most portion of the access road and that at the time the clearing took place the western portion of the proposed road alignment was occupied by a large dredge pond.

57 However, Mr Holt explains that the purpose of work undertaken on 19 September 1997 was to physically commence construction of the access road. He appreciates it could not be used until such time as a building approval was granted for Stage 1A of the SDR development as set out in condition 37 of the modified consent. He further acknowledges that “The works were conducted to secure the commencement of the development consent”. Mr Holt claims there was no requirement in the modified consent or the activity approval whereby the access road had to be completed as one event. Moreover, there were pre-conditions as to use and further development that precluded work beyond that which could be achieved by 19 September 1997.

58 Mr Holt explained the approach taken by Besmaw in regard to the commencement of the access road as follows:-

A. We were looking at ways of commencing so that the consent didn’t lapse and I think eventually on advice we decided that was there an element that Besmaw themselves could physically commence and the choice at the end of the day was to commence the access road. And then on further advice it was agreed that to make sure it was clear of what we actually were commencing, that the access road become another stage and that the modification between June and the approval of that was a series of discussions of how – what were the mechanics of doing that.

59 He agreed with Mr Robertson that the matter of physical commencement of the development was “maybe the most important” matter that he had to consider between May and September 1997. At another time during cross-examination Mr Holt accepted that Besmaw commenced the road to “lock down” the consent for the SDR development. However, he acknowledged there was no intention to complete the access road until there was a need for it to be completed sometime in the future after September 1997. He also agreed that Besmaw was looking at the best and most economical way of locking down that consent.

60 In this context the following exchange took place between Mr Robertson and Mr Holt:-

Q. It was also your view, was it not, in September 1997 that it didn’t matter if the road was never completed and it didn’t matter if the road was later destroyed so long as it had been commenced in accordance with the consent that would secure the consent from lapsing?

A. Removed, I think I used the word removed rather than destroyed.

…

Q. You were aware at the time of the commencement works that if the road was completed and maintained it would sterilise some considerable amount of sand from extraction weren’t you?

A. Correct.

…

Q. When you commenced the works on the road you intended to complete them, did you?

A. In September when it commenced I don’t think it had a – Besmaw was not forming a view of when it would be completed other than at some stage it would be completed in the future.

Q. Even if it might be extracted in the meantime?

A. Besmaw felt that it would be constructed in the future.

Q. No, even if it might be extracted in the meantime.

A. I don’t think Besmaw was looking at extracting.

Q. But--

A. I don’t think extraction of the road in 1997 came into play.

61 Mr Holt specifically denied to Mr Robertson that the road was “in the way of the dredge in 1997”.

62 Again, addressing the question of whether Besmaw had any intention to complete the road, Mr Holt answered questions from Mr Robertson as follows:-

Q. When did Besmaw think the road would be completed, the approximate date of completion?

A. In time for stage 1A.

Q. In other words, possibly never.

A. The road couldn’t be used until stage 1A was approved.

Q. Yes. Mr Holt--

A. So we had a time frame.

Q. All right, tell me what the time frame was, between what dates, two dates, are we dealing with?

A. Well there weren’t dates.

Q. No.

A. There was a time frame.

Q. If there’s no dates----

A. It’s an indefinite time frame.

Q. There was an indefinite time frame?

A. That’s right.

63 The following further exchange took place between Mr Robertson and Mr Holt about work undertaken after 19 September 1997:-

Q. Mr Holt, why did you believe that you had secured the consent by the works of 19 September 1997? Did you bother doing any further work on the road?

A. The company intended to use staff down time so it kept on working on the road. It was a project.

Q. So the company must have had an intention to continue the works on the road after the commencement of the road works in 1997?

A. Besmaw had the intention that if staff had free time rather than sit and do nothing that there would be an advantage for them to continue working on the road past the 19th.

64 When challenged by Mr Robertson as to whether the particular staff involved had the necessary skills to complete the access road in September 1997 Mr Holt gave the following evidence:-

A. I don’t think they have the skills to complete the road.

Q. They didn’t have experience beyond vegetation stripping and building sand or roads, did they?

A. The main time concern for us which was 22 September they had the skills to perform the work. They had the skills to continue performing the work up to a certain standard. They didn’t have the skills to complete the road.

Q. They didn’t have the skills to perform it up to whatever that standard was you referred to in your previous answer did they, Mr Holt?

A. I believe they have skills.

Q. They had experience in vegetation stripping than building haul roads, didn’t they?

A. Correct.

65 In re-examination Mr Holt answered questions put by Mr Tobias as follows:-

Q. It was suggested to you that in September 1997 you had the view that if you commenced the road it did not matter if it was not completed or later removed. Now, was that – did you – was that something that was in your mind, actively in your mind, as at September 1997?

A. No.

Q. Did you at that time intend, once the road had been commenced, to thereupon remove it?

A. No.

Q. Was there any intention at that time to remove it in the future?

A. No.

66 Mr Holt took a series of photographs while the works were being undertaken. The photographs taken by Mr Holt on 19 September 1997 are evidence in the proceedings. These photographs have been the subject of intense scrutiny by witnesses called on behalf of the applicant and the respondents. Mr Holt had a conversation with Mr Duffy in January 1998. The conversation related to the production of the photographs to the council. He could not recollect whether Mr Duffy asked him to forward the photographs to the council, however, in a fax message dated 31 March 1998 Mr Duffy asked Mr Holt to confirm whether a photographic record of construction activity relating to the access road was kept and requested that the council be provided with copies. Mr Holt replied to the fax on 15 April 1998 confirming that a photographic record of construction activity was kept and that he would arrange for copies to be provided for the council’s records. The photographs were never sent to the council. Mr Duffy has not given evidence. There is no documentary evidence that Mr Duffy pursued the matter after 15 April 1998.

67 Michael Kartsounis is a Civil Engineer with 15 years experience in road and geotechnical engineering. Mr Kartsounis was supplied with a comprehensive bundle of documents, affidavits and records with a request to provide a professional opinion on whether the actions in respect of the proposed access road were carried out in accordance with the modified consent, consistently with normal road construction practice. He reaches the following conclusions:-

(1) The work conducted before 22 September 1997 constituted physical commencement of the work for the construction of the road between chainage 600 to chainage 1,000; and

68 Malcolm Gordon Drummond is an Engineering graduate, a Registered Surveyor and a qualified Town Planner who acts as a consultant to private developers, architectural, legal and engineering proprietors and State and Local Government. After examining aerial photographs taken on 11 March 1998 he observed that:-

(a) from approximately Chainage 550 to approximately Chainage 780 roadworks have been carried out to a stage of roadworks development;

(b) from approximately Chainage 900 to Chainage 1000 the road reserved has been cleared with no apparent evidence of road formation development.

69 After a site inspection on 2 September 2002 he made the following further observations:-

(a) “ the aforementioned worked roadway strip shown on the Aerial Photograph between Chainages 550 to 780 is now mainly located within a pond”;

(b) In his opinion, roadworks have been carried out on the site “on part of the location shown on the Council approved plans” ;

(c) “ the Aerial Photograph shows road works in the location shown on the approved plans”;

(d) “my approximate site survey confirms that work was carried out in the vicinity of chainage 920 to 1000”;

(e) “the descriptions of the work carried out in the affidavits of Mr Holt and Mr Floyd are consistent with the early stages in the construction of a road, and give comfort to my opinions based on my observations”; and

“existing level”

70 Matthew John Philpott is a Civil Engineer employed by Shoalhaven City Council but was employed by Connell Wagner during the period January 1996 to February 1999. He inspected the site of the access road on 26 September 1997, 2 October 1997, 10 December 1997 and 4 May 1998 and reviewed the photographs taken by Mr Holt.

71 He was not cross-examined, however, in [18] of his affidavit sworn on 25 October 2002 he expressed the following opinion:-

Based upon my inspections undertaken on 26 September 1997, 10 December 1997 and 4 May 1998, I witnessed works which had been undertaken which comprised clearing and earthworks which are activities associated with normal road construction practice. I am therefore of the opinion that the works inspected amounted to “building, engineering or construction work”. Further, I believe that the area I went to on each occasion was the same area.

72 Gary Mostyn is a Civil Engineer who gave expert evidence of his opinions in support of the first respondent’s case. He also principally refers to written materials provided to him, photographs and evidence relied on by the applicant. He visited the site on 22 August 2002 with Mr Holt in attendance.

73 Mr Mostyn considers that the work relied upon by Besmaw was not done in a manner consistent with normal road construction practice because firstly, it was not in accord with the conditions of development consent or the activity approval, secondly, the road had no function and thirdly, no geotechnical investigations were performed prior to construction.

74 Mr Mostyn claims that a supervising engineer would usually be present on site at a pre-commencement meeting. This did not occur. A further criticism by Mr Mostyn is that the Specification was not on site and there was no formal contract for the work.

75 Mr Mostyn asserts that, because the access road was effectively to “start nowhere, go nowhere, end nowhere and be extracted by quarrying before it could have any purpose or function”, it could have no function and accordingly the works were not consistent with normal road construction practice.

Whether the work was building, engineering or construction work within the meaning of s 99(4)

76 Section 99(4) of the EP&A Act (as it then was) provided as follows:-

(4) 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.

77 Following the 1997 amendments, this provision is now contained in s 95(4).

78 It is the applicant’s contention that the survey work to mark out the alignment of the access road on 17 and 18 June 1997 was engineering work (Richard and Others v Shoalhaven City Council (2002) NSWLEC 11, unreported). However, the work that took place on 19 September 1997 is the only work that has any relevance for present purposes, except to the extent that the applicant claims the earlier work substantiates a genuine commitment to the project.

79 Mr Tobias submits that the significant clearing work that took place on 19 September 1997, when coupled with the earlier engineering work, was clearly, if not engineering work, construction works. He further says that the motive for doing the work is irrelevant but nevertheless the purpose of doing the work was to commence the consent in order to avoid it lapsing and implicit in that proposition is that the work was commenced for the very purpose of the development as proposed. It is, he says, therefore clearly related to it.

80 He refers to the judgment of Cripps J in Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170 in support of his argument. At p 176 Cripps J was not prepared to accede to a submission that where consent is granted for the erection of a building the development is commenced within the meaning of the relevant legislation when, and only when, building work, as opposed to engineering or construction work, related to that development is sufficiently commenced on the land. In his opinion, provided that what has been carried on is relevantly building, engineering or construction work and provided it relevantly relates to the development the subject of the consent the only requirement is that it must be physically commenced. His Honour made reference to one of the passages in the decision of the High Court in Day v Pinglen Proprietary Limited and Others (1981) 148 CLR 289 where that Court had said an objective test was required to determine whether there was commencement of the work. Cripps J ultimately decided that the particular work relied upon did not have a sufficient nexus or relation to the development the subject of the consent and therefore was not done for the purposes of the development. Mr Robertson argues that Smith was wrongly decided on the basis that only building work can be relevant to the erection of a building.

81 Mr Tobias notes the distinction between the facts in Smith and the facts in the present case where he says the work was clearly construction work that was carried out for the purpose of commencing the very road that was approved. It was not carried out for any other purpose. Moreover, the work was clearly more than notional. As it was done for the purpose of preserving the consent there was clearly a sufficient nexus between the construction work that was carried out and the work that had been approved. According to Mr Tobias, once that decision is made that is the end of the inquiry. There is no room for subjective intentions and the like.

82 Mr Tobias also refers to the observations made by the then President of the Court of Appeal in United Dominion Corporation Ltd v Woollahra Municipal Council (1973) 1 NSWLR 616 at 618-9 to support the proposition that the absence of the requirement of substantiality, which was contained in the legislation prior to enactment of s 99(4), means that the work need not be of real importance and value or of considerable amount. Provided it is physical work that is either building, engineering or construction work then the development is relevantly commenced for the purpose of the subsection.

83 In this case, Besmaw relies on the clearing undertaken by Mr Floyd and Mr Horgan under the supervision of Mr Ford as being the necessary construction work to commence the development. Mr Tobias says it is worth noting that Reynolds JA in United Dominion could not see any significance in the fact that the relevant work relied upon for substantial commencement had not been continued. Nor was he able to subscribe to the view that an alleged commencement ceases to be a commencement if the party that carried out the work does not intend that he himself will continue and finish the work.

84 Mr Tobias emphasises that once it is accepted that the requirement of substantial commencement has gone, so also has any notion of sham or equivocation or notionality because the Court is simply thrown back upon the words of s 99(4), namely that there is a physical commencement of work having a relationship to the approved development. The effect of the use of the word “substantially” in previous legislation was to raise issues such as whether there had been a “positive unequivocal step” referable to the approved work “as distinct from a notional or equivocal or sham commencement” (for example see North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1964) 10 LGRA 41 per Hardie J).

85 It is claimed by Mr Tobias that there is nothing inconsistent between having an intention to put the site to an alternative use in the future, such as to fully extract the sand from the land, and doing the construction to physically commence that which had been approved by the development consent. The only relevant inquiry therefore is whether works have been done for the purpose of commencing that which had been approved.

86 Mr Robertson spent a significant amount of time seeking to persuade the Court, through the cross-examination of Mr Holt, that the company always intended to fully extract the sand resource from the site and that, therefore, it was inevitable the works carried out in purported commencement of construction work for the approved development would be destroyed. It is the applicant’s case that several reports prepared on behalf of Besmaw, through its consultants, were generated to support the prospect of the sale of the property either to a resource company or a developer who could be interested in constructing the SDR development.

87 Mr Holt, despite a barrage of questions seeking his agreement to the contrary, persisted with his evidence that in 1997 Besmaw did not intend at any time in the future that there should be any mining of any part of the site beyond that in which Rocla was operating at that time. He consistently rejected any suggestion that the construction work for the access road was in the way of the dredge progressing across the site in 1997. Mr Tobias relies on the unequivocal statements by Mr Holt that Besmaw did not intend to extract the access road in 1997.

88 When confronted with the prospect of conflicting evidence given by him in compensation proceedings in this Court in December 2000, Mr Holt confirmed that while Besmaw was trying to sell the land it had been allowing the sand extraction to continue but at the same time was rehabilitating the land to fit in with the SDR development. That is, it has been rehabilitating the land with the resort as the overall end use pursuant to the SDR development. Mr Tobias relies upon the constant denials by Mr Holt throughout his evidence that there was ever any intention in 1997 to mine the area of the access road. Mr Holt’s evidence is that although Besmaw was not at that time forming a view as to when the project would be completed, other than at some stage, there was no prospect at that time that sand would be extracted from that area.

89 Even though the applicant’s case is that its intention with regard to time for ultimate completion of the access road is irrelevant, it nevertheless relies on the evidence of Mr Holt to show that it always intended to sell the land as soon as practicable for a price which reflected its value both in terms of the resource and in terms of the approved SDR development. In the meantime, Besmaw licensed others to extract the sand resource but always on the basis that the SDR development would be the end use of the land.

90 According to Mr Holt a report prepared for Besmaw (“the Harvest report”) was generated on the instruction of consultants to the company for the purpose of making approaches to resource companies who might be interested in purchasing the land for sand mining. He says the intention of the Harvest report was to provide a financial model of the extent of the resource upon the assumption that it would be fully extracted so as to provide a prospective purchaser an appropriate indication of the value of the land. Mr Tobias relies on further evidence that at the same time an information memo was prepared which identified the dual purposes for the land, firstly to win the sand resource and secondly, as a potential site for the SDR development. Mr Tobias points out that there is no evidence whereby the Court could accept that Besmaw adopted the position in relation to the future of the land on the basis that the sand resource would be fully extracted.

91 Again relying on the evidence of Mr Holt a further report (“the Corkery report”) was, according to Mr Tobias, prepared solely as part of the due diligence inquiries carried out by Rocla during negotiations between the end of 1998 and the end of 2000 wherein it was proposed that Rocla would acquire the land. Although Mr Holt was consulted about the contents of the Corkery report it nevertheless was produced on behalf of Rocla.

92 The third report upon which the first respondent relies is a report prepared by Mr McCotter of ERM (“the ERM report”). This document was in the form of an issues paper prepared after negotiations for the sale of land to Rocla had ceased. One of the assumptions made by Mr McCotter was that the land would be fully extracted. It is Mr McCotter’s evidence that, as a matter of convenience, figures taken from the Corkery report were incorporated by Mr McCotter. A separate section of the ERM report dealt with the SDR development. Mr Tobias relies upon the evidence of Mr McCotter and Mr Holt to the effect that the ERM report was prepared to identify options for the future use of the land. A master plan recommended by Mr McCotter has never been prepared. Although one of the options discussed by ERM was to allow for maximum extraction from the land, Mr Tobias says that the development of that option in February 2001 does nothing to establish that there was an intention on the part of Besmaw to actually do that at that time, let alone in 1997.

93 Mr Tobias asks the Court to accept Mr Holt as a witness of truth. Notwithstanding a lengthy, detailed and aggressive cross-examination, as Mr Tobias submits, he gave his evidence calmly, accurately and responsively in answer to all of the questions. He could not be shifted at any time about the real and primary purpose of the Harvest report, the Corkery report or the ERM report. Accordingly, Mr Tobias says that the Court should accept that it was never at any time the intention of Besmaw to fully extract the sand from the land either by itself or by its licensees. The Court accepts that whenever that prospect was discussed or proposed it was in the context of promoting a sale of the property and the options that could be open to a prospective purchaser.

94 The evidence of George Arthur McLellan, a Geologist called by the first respondent, which consists of an opinion based on a site inspection in 2002, his review of documents and the results of calculations made by him to the effect that there was a plan to rationally and logically extract all the sand in the deposit prior to September 1997 and that this plan is still being followed, is not an answer to the direct evidence of Mr Holt and is therefore not to the point. Accordingly, this evidence is not persuasive. Furthermore, his evidence is based on material that, apart from a site inspection, is otherwise available for the Court to enable it to draw its own conclusion without the benefit of an expert opinion (Quick v Stoland Pty Ltd (1998) 87 FCR 371; Tomark Pty Ltd and Ors v Bellevue Crescent Pty Ltd and Ors [1999] NSWCA 347, unreported).

95 Mr McLellan’s evidence does not persuade the Court to change its adopted view that it can accept Mr Holt’s explanation of the history and account of the company’s intention at the relevant times. Moreover, Mr McLellan has never had a direct conversation with Mr Holt about the documents and therefore his opinion is simply based upon his understanding of the documents and a site visit, without the benefit of any assistance from Besmaw or any of its officers.

96 Both Mr Tobias and Mr Walker SC, who appears on behalf of the second respondent, rely upon the analysis carried out by the High Court in Pinglen. This was a case relating to the law as it stood when the test against the lapse of a consent was whether substantial commencement had occurred. After referring to the judgment of Jacobs P in United Dominion, the Court of Appeal decision in Drummoyne Municipal Council v Page (1973) 2 NSWLR 566 and a previous decision of its own in Drummoyne Municipal Council v Lebnan and Others (1974) 131 CLR 350, the Court remarked that it regarded it as important that the clarification which those decisions brought to the concept of “substantial commencement” should not be disturbed. However, it remained necessary to consider whether, applying an objective test, firstly, there was a commencement of the building work and secondly, if so, whether that commencement was substantial (p 298). The High Court re-affirmed the opinion of Jacobs P that it must be immaterial that the work did not continue beyond a particular date and concerned itself only with the facts that were open to objective determination on the relevant date. The Court was satisfied that the slab constructed did in fact form part of the approved work. It was not prepared to find that there was no commencement. Thereafter the judges embarked upon a consideration of whether there had been substantial commencement, which of course is no longer relevant. However, it is relevant for present purposes that the High Court in Pinglen expressed the view that subsequent deterioration of the work is wholly irrelevant (p 297). Notwithstanding that the work undertaken by Pinglen was out of the normal sequence and caused difficulty in the remaining sequences and that at the relevant time it was not only lacking in utility but was an actual hindrance, it nevertheless represented an acceptable method of commencing the project (p 298).

97 In Mr Walker’s view the decision in Pinglen puts beyond any real doubt the correctness of the applicant’s position. He adds to this submission that there is nothing in the switch from the test of substantial commencement to explain why the Court would now shift away from the approach taken by the High Court in Pinglen, namely to concern itself only with the facts that are open to objective determination at the relevant date.

98 The applicant finally settled the basis of its case as being that what occurred on 19 September 1997 was “construction work” within the meaning of s 99(4) of the EP&A Act. As stated earlier, Mr Robertson criticises the decision of Cripps J in Smith on the basis that on a proper reading of s 99(4) the reference to building work is confined to the erection of a building, engineering work relates only to the subdivision of land and construction work is confined to the carrying out of a work. This submission relies upon the maxim reddendo singula singulis (render each to each) (Bishop v Deakon (1936) 1 Ch 409 at 413 – 4 and M P Metals Pty Ltd v Federal Commissioner of Taxation of the Commonwealth of Australia (1968) 117 CLR 631 at 642 and 647-8). As the construction of an access road is clearly a work and the applicant relies only on the physical commencement of construction work, it is not necessary to determine whether Smith was wrongly decided in these proceedings because the applicant’s case is consistent with a construction of s 99(4) in accordance with the maxim. Despite Mr Tobias making reference to survey work marking the alignment of the road as being engineering work in his final submission, I do not understand this submission to entail construing that work as part of the commencement. In any event, it occurred before the consent was granted and therefore cannot qualify in that respect.

99 The most important distinction that Mr Robertson raises in regard to this aspect of the case is the distinction between commencing construction work and commencing work preparatory to construction work. In Owendale Pty Limited v Anthony (1966-1967) 117 CLR 539 the Hight Court had to consider a provision in a lease that dealt with circumstances where a building “is not commenced” within a specified period. At first instance Windeyer J recognised that the removal of trees from the site, or from those parts of the site on which the building would stand, was a necessary preliminary course of action to the erection of the building. The builder did not carry out the work. He had not then obtained all the necessary permits to start building and had not started work on the site. His Honour determined the question of fact by holding that he was not satisfied that the erection of the building had relevantly been commenced. On appeal, Barwick CJ, McTiernan and Taylor JJ were satisfied that the work “marked the commencement of the work for the erection of the building”(at p 598). McTiernan J described the work as an “initiatory step in the building operations” (at p 580). Kitto J, with whom Owen J agreed at p 610, adopted the distinction made by Jenkins LJ (who was also in the minority in Marks & Spencer Ld v London County Council and Others (1952) Ch 549 and London County Council v Marks & Spencer Ld and Others (1953) AC 535) between beginning “works for the erection of a building” and beginning “the erection of a building”.

100 Relying on the minority views in Owendale and Marks & Spencer, Mr Robertson says that the replacement of the requirement of substantiality with a qualitative analysis of whether what was done had the quality of amounting to construction work supports the argument that before that type of work is lawfully undertaken there will be a need for significant preparatory work to occur which the express words in the section do not encompass and, accordingly, must be assumed to be outside the intention of Parliament. He further says it is insufficient merely for the work to be authorised. It is therefore the first respondent’s case that as the works undertaken on 19 September 1997 were no more than works preparatory to construction work, they do not constitute construction work as required by s 99(4).

101 “Construction work” is not defined in the EP&A Act. Accordingly, the words must be taken to have their natural and ordinary meaning in the English language. Taking the Shorter Oxford Dictionary definition of “construction” as the action of framing, devising or forming by the putting together of parts, combined with the use of the word “work” in the dictionary sense as toil or labour, and the words “physically commenced on the land to which the consent applies” it follows that any work which marks the commencement of roadworks in accordance with the approved plans can be regarded as construction work. In the words of McTiernan J in Owendale it is sufficient if “the work was an initiatory step” in the making of the road. Even the first respondent’s expert witness, Mr Mostyn, agreed that the clearing of vegetation that he understood took place on 19 September 1997 “was very much an initial commencement of the road works”. Mr Griffiths considered that what happened on 19 September 1997 was earthworks. He relied on the council’s definition of earthworks in its Specification. Based upon what was said in the affidavits of Mr Floyd, Mr Holt and Mr Horgan, Mr Griffiths formed the view that construction work on the access road had commenced.

102 The Court agrees with the applicant’s submission that whether or not the work was carried out in accordance with normal road construction practice will obviously depend upon the purpose for which the work was performed in the first place. In the present case, it was only ever proposed to physically commence work of the access road and that is all s 99(4) of the EP&A Act requires.

103 The council’s contention that the work was inconsistent with normal practice because the access road had no purpose is not sustainable given the fact that on the date the modified consent was granted the road could not be commenced prior to chainage 250 because of the then position of the dredge line and could go no further than chainage 1,000 because that was all that was approved. Furthermore, the issue of whether the access road had an immediate function is demonstrably irrelevant where there was an express condition, namely condition 37 of the modified consent that the access road shall not be used to carry vehicles until such time as the building approval is granted for Stage 1A.

104 Mr Mostyn’s further complaint in relation to the alleged lack of geotechnical investigations in the present context is not supported by any condition or incorporated document, such as the council’s Specification. The absence of a supervising engineer or the Specification does not, in the Court’s view, take the council’s argument any further.

105 Mr Robertson urges the Court to accept the evidence of Mr Ford as providing the only reliable account of what occurred on 19 September 1997 as he was the sole person on the site and relevantly present for the whole of the works upon which the applicant can rely and who is independent of the parties to the litigation. Even Mr Ford recognises that the work went beyond actual clearing as is apparent from his evidence at [25], [29] and [30] above.

106 Mr Robertson submits that the Court should find the following:-

(a) the works started after the meeting attended by Messrs Holt, Griffiths, Ford, Duffy, Drinnan, McCue, Floyd, Horgan…;

(b) the meeting commenced at 11am…;

(c) the meeting lasted about an hour…;

(d) the works took place between around noon and 3pm, moving progressively from chainage 600 to chainage 1000;

(e) the works involved merely the removal of vegetation, with some basic taking off tops and filling in bottoms to provide access for the machinery;

(f) there was no levelling using a dumpy level, nor any cutting or filling;

(g) there was no forming of the road, nor “trimming up” of any road formation;

(h) once the bulldozer and loader reached chainage 1000, they did not return on that day to chainage 600 to perform more work.

107 Even if the Court only adopts that narrow finding of the facts, it is nevertheless satisfied on the balance of probabilities that the clearing was related to the development of the approved access road and, consistently with the approach taken by the majority in Owendale, that it was construction work as part of the action of framing and preparing the land for the completion of the roadworks in due course. Reinforcing this conclusion is the evidence of Mr Griffiths at [18] and [19], Mr Ford at [29] and [30], Mr Kartsounis at [67], Mr Philpott at [71], Mr Floyd at [34] and Mr Drummond at [68] and [69] above.

108 Mr Holt concedes that Mr Floyd and Mr Horgan did not have the necessary skills and experience to carry out the full construction of the access road but he nevertheless maintains that they were qualified by practice to at least carry out the work that was achieved on 19 September 1997. The fact that the employees did not have a high degree of skill in the techniques of road making or that an independent contractor was not engaged does not detract from the authenticity of the work, as Mr Mostyn contends it does, for the purposes of s 99(4) of the EP&A Act.

109 Although the evidence of Mr Floyd and Mr Horgan suffers from the criticism that their respective recollections may not be entirely reliable and is clearly inaccurate in a number of respects, on the balance of probabilities, taking account of the whole of the evidence, they did carry out the clearing of vegetation and some levelling work for at least three hours on 19 September 1997. The work was physical and related to the approved development. Mr Holt’s evidence to the effect that the work was carried out solely for the purpose of commencing the approved development expressly to prevent the lapse of the consent is accepted on the basis there was no formed intention at that time to dredge the site of the work in the future.

110 The commencement was a positive unequivocal step indicating that the work has actually been commenced (Liverpool City Council v Home Units Australia Pty Ltd (1973) 28 LGRA 28). The circumstances that the work was undertaken for the purpose of keeping the consent alive is not inconsistent with the conclusion that the work was commenced (Lebnan). The work carried out on 19 September 1997 was work which actually physically assisted and was necessary for the construction of the access road. It was not mere preparatory work (Marks & Spencer and Richard v Shoalhaven City Council at [13] and [14]).

111 The appearance and reality of the work denies the proposition that the purported commencement was a sham. It was not notional or equivocal, it truly was work relating to the approved roadworks that could not be mistaken for something else and amounted, in my view, to a genuine attempt to save the consent from lapsing by commencing the work. The work was carried out with the clear intent on the part of Besmaw through the efforts made by and instructions given by Mr Holt to create the actual legal step of commencement in order to satisfy the requirements of s 99 (Sharrment Pty Ltd and Others v Official Trustee in Bankruptcy (1988) 18 FCR 449; 82 ALR 530, Middle Harbour and United Dominion). There is no requirement in s 99(4) for the applicant to create a road that would endure as the first respondent submits. Notwithstanding the lack of relevance of that submission the Court is satisfied that it was not the intention of Besmaw at 19 September 1997 to remove sand from the site of the clearing by dredging. It is irrelevant that the work was carried out immediately prior to the date on which the consent would otherwise have lapsed (Noble House Corporation Pty Ltd v Sydney City Council [1999] NSWLEC 190, unreported). Following the removal of the condition of substantial commencement the fact that Besmaw may have carried out the work as cheaply as possible, if true, does not detract from the work being capable of amounting to physical commencement of construction work relating to the approved development. The subsequent actions of Besmaw up to January 1998 establish a continuing intention by Besmaw to continue with the work.

112 Once Parliament decided to delete the requirement for substantiality there is little room for an argument that the works must not be de minimus. It is reasonable to exclude any test of the degree and extent of the work where the statutory regime that replaced the earlier scheme makes specific provision in s 99(5) for the council to order the completion of development where development is commenced within the period specified in s 99(1) but is not completed within that period.

113 Subject to dealing with other issues raised by the first respondent particularly in respect of the alleged failure to comply with the conditions of consent (Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 and Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Others (1999) 106 LGERA 243), the Court finds that Besmaw physically commenced construction work relating to the access road on land to which the development consent applied on 19 September 1997.

Breach of Conditions of Consent

114 In further answer to the applicant’s claim that the physical works undertaken on 19 September 1997 constituted the physical commencement of “building, engineering or construction work” relating to the modified consent for the purposes of s 99(4) of the EP&A Act, the first respondent says that the work did not relate to the development consent because the applicant failed to comply with conditions of consent prior to commencement of the alleged work or that the work was carried out otherwise than in accordance with the conditions. The relevant conditions will be dealt with separately.

Groundwater Quality Testing - Condition 11 of the modified consent

115 Mr Walker submits that condition 11 (set out in [5] above) must be understood in the context of its purpose to establish reliable baseline data to enable long-term monitoring of groundwater quality. A program of quality testing to establish a baseline is, he says, something that precedes the proposed work at a relevantly proximate time to commencement. The criterion for the program is not mandated by the condition. Given that the condition applies, as he puts it distributively, to all of the three stages, the testing required for Stage 1 will be different in time and kind to the testing necessary for each stage. Mr Walker relies on the vagueness of the language, particularly in the second sentence to suggest that there are a variety of ways in which Besmaw could comply. He says there is no hard and fast rule or opinion that dictates the methodology required so long as it establishes reliable baseline data to facilitate monitoring during the construction phase of the roadworks.

116 To establish this submission the second respondent and the applicant principally, but not solely, rely on the following reports:-

(a) Water Quality Monitoring Records compiled by Coffey Partners International Pty Ltd (“Coffey”) submitted in support of the s 102 application for the SDR development 1997;

(b) Kurnell Project Geotechnical and Hydrogeological Conditions report by Coffey 1989;

(c) Destination Resort Stormwater Drawing and Water Quality Control by Webb McKeown & Associates Pty Ltd 1989;

(d) Sydney Destination Report Bate Bay Water Management Study by Rankine & Hill and Coffey 1991;

(e) Annual Environmental Report for Besmaw by Environmental Resources Management Australia Pty Ltd March 2001; and

117 Peter John Jamieson, an Environmental Engineer who supports the second respondent’s case, says that the above analysis of groundwater quality data did provide reliable baseline groundwater quality data for the site and shows the following:-

(a) The groundwater quality data provided to Council prior to 19 September 1997 is consistent with more recent groundwater monitoring results for the area.

(b) The groundwater quality data recorded shows variability spatially and temporarily.

(c) The variability and range recorded in the water quality parameters monitored is consistent with, in my experience groundwater quality in similar coastal dunes systems.

118 Mr Jamieson prepared a table, which he presented as Annexure K to his affidavit, to enable a comparison of the available information and a figure showing the location of the referenced monitoring points. When asked whether he could maintain the contention that the water in the dredge pond does contain groundwater he replied as follows:-

A. I believe as I have for many years and through my professional life, the dredge pond does contain ground water. If you turn to appendix 11 – I’m sorry, annexure K of my affidavit and compare water quality in the test bore that was put in December 1997, the bores that were put in 1997 with that in the dredge pond, the water quality is very similar. Same sort of pH range, conductivity 500 to 900, chloride level similar, total iron level similar, arsenic level similar et cetera, down through the heavy metals. And as back filling of this site is part of the base line conditions, I would think it would be quite pertinent to use the information that’s been gained to know what the ground water looks like.

119 The reason given in the Notice of Determination by the council for the clutch of conditions under the heading Environmental Impact, which includes condition 11, are as follows:-

(i) To safeguard against pollution of Quibray Bay and the groundwater aquifer.

(ii) To protect and

natural environment of Kurnell Peninsula and its estuarine waters including its wetlands, ecological systems, conservation and heritage values, and commercial fisheries.

120 It must be remembered that only chainage 600 to chainage 1,000 was being constructed in September 1997 and that pursuant to condition 37 the access road could not be used to carry vehicles until such time as the building approval was granted for Stage 1A. The access road is over a kilometre from Quibray Bay and the other sites nominated for protection in the Reasons for Conditions outlined above.

121 The applicant’s consultant Hydrogeologist, Dr Leonard Warren Drury, has expressed an opinion that the establishment of reliable baseline data for the access road was not necessary. He assesses that the access road without vehicular authority is not a potential pollution activity nor is the road in a particular area of pollution concern. During cross-examination Mr Robertson pressed the point that condition 11 referred to the construction of the access road from chainage 0 to chainage 1,000 rather than the limited area between chainage 600 to chainage 1,000. Dr Drury agreed that his evidence only addressed the application of condition 11 to that part of the access road between chainage 600 to chainage 1,000.

122 Notwithstanding that he gave evidence in the applicant’s case, Dr Drury agrees that studies and reports by Webb McKeown in 1988 and Coffey in 1988/1989 and again in 1991 and 1996/1997 provided only broad scale data, incomplete data or information based on a wide range of values associated with another purposes. Furthermore, no Quality Assurance Quality Control procedures were used in 1997, by which time groundwater chemists applied those protocols in order to carry out proper baseline assessment of groundwater quality.

123 Ian Hosking is a Geoenvironmental Engineer and accredited Site (Contaminated Land) Auditor employed by Coffey who gave his evidence in reply on behalf of the applicant.

124 He worked on the SDR development site from about 1994 to 1998 and has been involved with the groundwater and surface water monitoring and related work mainly associated with the land rehabilitation operations currently being carried out on the site by Besmaw.

125 His opinion is expressed in his affidavit sworn on 25 October 2002 as follows:-

In conclusion, it is my opinion that the monitoring programs carried out by the applicant do constitute “a program of groundwater quality testing on the site” , and they were carried out “before construction commence(d)”. Whilst they did not “establish reliable baseline data” from the point of view of providing a rigorous analysis of the groundwater chemistry, they did, I believe “provide reliable baseline data” to the extent that was, in my opinion, required (in this case, not required at all) in relation to the construction (only) of a road. The monitoring was carried out at “specified locations” , and, due to the fact that the construction (only) of the road is highly unlikely to effect groundwater quality, the work that was carried out will “enable long term monitoring of groundwater quality” . Prior to 19 September 1997, the applicant submitted the monitoring data described above to Council, and therefore, to the extent relevant to the construction of a road, the applicant “submit(ted) infrequent but regular laboratory results to Council for monitoring purposes in order to help protect the wetland and estuarine ecology from pollution of groundwater within the site boundaries during both construction and operational phases” . Given the reasoning expressed above, it is my opinion that Condition 11 was complied with, to the extent relevant to Stage 1, that is, construction only, of a road.

Further, given the very low risk of groundwater impacts associated with the Stage 1 works, I believe that the objectives of Condition 11, that is: “to safeguard against pollution of Quibray Bay and the groundwater aquifer”, to “protect and [sic] natural environment of Kurnell Peninsula and its estuarine waters including its wetlands, ecological systems, conservation and heritage values, and commercial fisheries, and to “protect the wetland and estuarine ecology from pollution of groundwater within the site boundaries during both construction and operational phases”, have also been complied with.

126 Insofar as condition 11 applies to Stage 1, in his opinion it would be entirely appropriate not to monitor groundwater over the whole site in order to satisfy condition 11 but only to monitor groundwater to the extent necessary to comply with condition 11 in relation to Stage 1.

127 In cross-examination Mr Hosking recognises that when carrying out investigations in 1997 it did not occur to him to use baseline data from the 1991 boreholes for monitoring around the dredge pond. He agrees that when preparing his affidavit evidence he made an assumption that the only relevant location for that purpose was Stage 1 and that the area actually disturbed was the most important part.

128 He said the following:-

A. My reading of the conditions was that the condition applied to the whole of the road route which was stage 1 but for practical purposes, for example where there was a dredge pond and no road was to be constructed, that was less relevant in terms of the requirements of that condition.

129 Mr Hosking agrees that if condition 11 applies to both Stage 1 and Stage 1A there would be no doubt that to establish a reliable baseline data groundwater monitoring program more groundwater wells would be required. He was not aware of any intention by Besmaw to construct Stage 1A within a year of the commencement of the works on the access road in September 1997 and that if the likelihood of Stage 1A being constructed was imminent then Coffey probably would have heard about it. In his view, the program envisaged by condition 11 was satisfied by the groundwater level monitoring and limited chemical analysis in six groundwater wells between 1988 and 1991. He agreed with Mr Robertson’s challenging suggestion that in the context of the condition and the fact that Stage 1 was only an access road “a program can just be cobbled together from a variety of different tests taken at different times for different purposes”.

130 He was not taken away from this view by further cross-examination.

131 Christopher Martin Jewell is a Hydrogeologist retained by the first respondent to give evidence of his expert opinion as to whether a program of groundwater quality testing was undertaken by 19 September 1997 sufficient to establish baseline data at specified locations to enable long-term monitoring of groundwater quality. He expresses his views on the basis of what is optimal practice and what he regards as reasonable. He does not criticise the standard of competency or the comprehensive nature of the work undertaken by Coffey relied upon by the applicant and second respondent. He also recognises that other experts could validly expound different views to the approach adopted by him. He summarises his conclusions as follows:-

It is concluded that:

i. Council required Besmaw to undertake a program of groundwater quality testing on the site before construction commenced, in order to establish reliable baseline data;

ii. a groundwater monitoring network that would provide adequate coverage of the site would comprise at least twenty monitoring wells installed at suitable locations across the site;

iii. groundwater quality monitoring should have been carried out several times, and samples analysed for a comprehensive suite of parameters, prior to the commencement of any development of the site, in order to determine baseline conditions;

iv. sampling carried out by Webb McKeown and Coffey in August 1988 could only be assessed as comprising one round of reconnaissance-level groundwater sampling suitable for scoping and designing a baseline groundwater monitoring program;

v. Coffey’s sampling of the four pump test bores in October 1990…and April 1991…was conducted primarily to assess the suitability of the groundwater for irrigation purposes;

vi. the groundwater quality data collected are not sufficient to assess baseline conditions at the site;

vii. no ground water quality data were collected at the site in the five years prior to commencement of development at the site.

Because of these data inadequacies, it is also concluded that

a. it is not possible to define baseline conditions immediately prior to the commencement of development at the site or to assess any impacts on the groundwater from sand dredging and backfilling of the dredge pond on the site; and

b. the lack of quality assurance and quality control procedures adopted during the collection and analysis of those groundwater samples that were obtained makes it impossible to assess the reliability of the available data.

132 It is his opinion that contrary to the view taken by opposing witnesses a rational approach to groundwater monitoring would be to treat the site as a whole rather than to attempt to comply separately with condition 11 in stages. He explains his reference to the use of the word “optimal” as follows:-

Optimal practice, as I used it, or as I understood it when I responded to the question was the practice, the monitoring programme that would best have met the requirements, as I see them, of condition 11 and then particularly the intent of the last three lines of condition 11.

133 Fundamentally, Mr Hosking agrees with Mr Jewell if condition 11 is to be applied to the whole site and Stage 1 and Stage 1A. However, he does not agree with this approach. Dr Drury criticises Mr Jewell for directing his evidence to the whole site rather than the application of condition 11 in the context of Stage 1.

134 The task of interpretation of condition 11 needs firstly to take account of the express direction in condition 1 that the development “shall be implemented in 3 stages”.

135 Clause 7 proscribes clearing or earthworks prior to the release of “any” building approval. Conditions 4(A), 4(B), 6(A), 6(B), 9(A), 9(B), 24(A), 24(B), 34(A), 34(B) clearly stipulate specific but different requirements for Stage 1 and Stage 1A respectively.

136 Other conditions apply in terms only to either Stage 1 or Stage 1A, but not to both. Some others such as condition 13 and 15 refer to requirements that must be met in respect of both of the nominated stages by express reference to Stages 1 and 1A.

137 Condition 11 does not fall within any of the above categories. The non-specific reference to “construction” creates the issue between the first respondent and the other parties. In the absence of words such as “any” or a reference to a particular stage the Court must decide whether by implication the condition is to be read distributively so that its requirements come into play only before and for the purpose of the construction of each stage or alternatively whether the literal interpretation prevails with the effect claimed by the first respondent, namely that the program must be undertaken over the whole site before any construction for Stage 1 or Stage 1A takes place.

138 If the first respondent is right about the interpretation point then on any view of the evidence, except Mr Jamieson, condition 11 has not been complied with.

139 Mr Robertson asserts that the specific attention given to the distribution of the conditions applicable to Stages 1 and 1A in the course of approval to the modification application is a powerful indicator that a distributive reading of condition 11 is simply not available. Mr Walker on the other hand argues that as between Stages 1 and 1A the baseline is going to be different unless the start date for the second stage, that is Stage 1A, is relevantly close to the start time for Stage 1. This latter submission is put on the basis that there is a stark contrast between the extent of the works involved in the construction of an access road and the vast works envisaged for the development of the golf course, golf clubhouse, an international hotel and 122 condominiums with their associated roadworks. Furthermore, the access road cannot be used to carry vehicles until such time as the building approval is granted for Stage 1A pursuant to condition 37. Moreover, the dynamic efforts of continued sandmining of parts of the land could result in significant change.

140 Intellectually, the literal meaning of condition 11 leads to a conclusion that the applicant was required to undertake a program of groundwater quality testing before construction of any type occurred, including the access road. No such program was specifically undertaken pursuant to the condition following the grant of consent on 22 September 1992, or the decision to modify the consent on 15 September 1997.

141 Common sense might dictate that based on the balance of expert opinion there could have been sufficient information already available to meet any contingency likely to arise in terms of effect on groundwater from the construction of the access road. But the words of the condition are clear.

142 In Coalcliff Stein JA expressly rejected a distributive approach to the construction of a condition where the words were clear and the plain and ordinary meaning was apparent. The words of condition 11 in this case are not readily capable of more than one interpretation and the meaning of the words is apparent. It is only because the applicant’s witnesses suggest a lack of utility or rational basis for the strict implementation of the condition that doubts arise. Even if that is not right and the condition should be construed distributively in respect of the separate stages, the fact remains that Besmaw did nothing except to rely on material collected for another purpose as baseline data before commencing work on the access road. The so-called program has been adopted ex post facto in order to meet the challenge. There is no direct evidence that Besmaw or anyone representing the company turned their mind to the issue of whether the existing information could be adopted as providing reliable baseline data at specified locations following the issue of the modified consent.

143 Coffey Water Quality Monitoring Records, included as an Appendix to the approved Connell Wagner report, document the results of the February 1992 round of water quality monitoring within the sand extraction pond. The stated objective of that monitoring program was to check the impact of placement of Clean Excavated Natural Material on surface water and groundwater quality. The Connell Wagner report is silent about baseline data.

144 Studies undertaken as long ago as 1988 and 1991 do not, in the Court’s opinion, relate to the time immediately before road construction was commenced in September 1997. The period addressed in the first sentence of condition 11 is the time between the grant of the consent (even if that was 1992) and the date of commencement of construction.

145 It must be noted that this is not a breach case. The applicant is seeking to show that it has complied with the legal requirement of the EP&A Act in order to have the benefit of maintaining its development consent against lapse. No question of discretion arises.

146 There was no program undertaken pursuant to the condition. As a matter of interpretation there is no warrant to limit the application of the first sentence of condition 11 solely to the road construction. Nonetheless, the applicant did not comply with the condition by undertaking a prescribed program before construction of the access road commenced. Moreover, even if the material available at the date of commencement could be regarded as reliable baseline data for the purpose of building a road, clearly it was not acceptable in respect of the construction of Stage 1A.

Silt fences – Condition 1(a) and Condition 7 of the development consent and Condition 1 of the activity approval

147 Mr Griffiths recalls a conversation on 19 September 1997 between Mr Holt and Mr Duffy in relation to the provision of silt fences as shown on the Connell Wagner plans. He heard Mr Duffy say that he believed that the silt fences would be either of little or no benefit in the sand environment. Mr Griffiths did not make any direction in relation to the erection of silt fences as he held the view at the time that they would be of no benefit because in a sand environment, once the vegetation is stripped off, there is little run-off from an exposed site. He believes that, in the particular environment, there would be no run-off from the exposed site. In his opinion, benefit is only gained from silt fences when fill is imported. In the following exchange with Mr Tobias he explains the reasons for showing silt fences on the Connell Wagner plans:-

Q. This area of the road where you’ve noted silt fences on the plan was all going to be fairly extensively filled was it not?

A. The areas that we’ve noted on the plans where silt fences would have possibly been required were areas where there was extensive filling and the likelihood of imported fill of unknown origin at the time.

Q. Was that the reason why you noted the silt fences on the drawings?

A. There were two reasons I believe in my recollection in noting silt fences, one was that the council had a requirement for erosion sediment control. During the design process one looks at what those controls may be. Secondly was we believe that there would be importation of material again of unknown origin and therefore imported fill more than likely was not going to be sand, it was going to be some other material approved for filling purposes which could have sedimentation come from it.

148 In cross-examination Mr Griffiths acknowledged to Mr Robertson that according to contemporaneous notes taken by himself and council officers, the issue of drainage was the subject of discussion at a meeting with council officers on 30 June 1997. Mr Griffiths agrees that the council officers recommended that the application for the modified consent be refused over concerns in relation to stormwater disposal, the run-off of contaminated stormwater to sensitive water tables, the need for groundwater linked ponds to provide short term storage of surface drainage during storm events and the need to minimise soil erosion by adequate silt management techniques prior to any construction work taking place.

149 On 27 August 1997 Mr Duffy sent a facsimile transmission to Mr Griffiths requesting further details in respect of a number of matters. He requested that amended details be provided no later than the morning of Friday, 29 August 1997 to allow final assessment and preparations for presentation to the council on Monday, 1 September 1997. Ultimately, Mr Duffy recommended to the council that, subject to the submitted engineering plans being amended to incorporate certain requirements, the activity approval be conditionally approved.

150 In response to criticisms with regard to the need for compliance with condition 15 of the modified consent raised by the first respondent’s expert civil engineer, Mr Mostyn, Mr Griffiths makes the following statement:-

Condition 15 of the modified Development Consent provided for erosion and sediment controls. Connell Wagner provided silt fences in the design as the means of erosion and sediment control. There was no dissatisfaction by Council with this at the Activity Approval stage. In this particular instance I don’t believe that there would be much benefit in constructing such silt fences. In a sand environment, water does not flow across sand, it sinks. There was no dissatisfaction expressed by Council regarding this at the pre-commencement meeting on 19 September 1997. This position is reflected by Council Officer Michael Duffy, as noted in his file note dated 22 September 1997.

151 No silt fences were installed prior to 22 September 1997.

152 The plans referred to in condition 1(a) of the development consent as revision 01 show the position of a silt fence at several locations in some cases, with the additional instruction “to direct sediments to low dunal areas”.

153 The plans approved pursuant to the activity approval on 17 September 1997 were revisions 02 and 03. In addition to showing silt fences, the following condition was endorsed on the approved plans:-

11. All Access road engineering plans shall be read in conjunction with Connell Wagner P/L Access Road Report dated August 1997 and relevant Conditions of Council Approval No.s DA 920542 and BA 980293.

154 The report that accompanied the building application was stamped “approved”, together with the plans, on 17 September 1997. The Court accepts that the report, together with the plans, are intended to meet the requirements of condition 15 and condition 24A of the modified consent.

155 Condition 9 of the activity approval would, if necessary, resolve any conflict between the conditions of development consent and the conditions of the activity approval.

156 The first respondent relies upon part 4 of the report submitted by Connell Wagner on behalf of Besmaw which relevantly states as follows:-

4. Erosion and Sediment Control

The following controls will be implemented during construction to ensure that erosion and sedimentation is kept to a minimum.

…

· silt fences to be in place for each stage prior to any construction work

· silt fences are to be placed to direct sediment to low dunal areas.

157 It is noted that condition 7 of the modified consent requires that clearing or earthworks shall only be in accordance with the building approval. Condition 6 of the activity approval dictates that the access road shall be constructed in accordance with the council’s Specification. Mr Robertson therefore relies upon the requirement in the Specification for erosion and sediment controls to be implemented prior to the commencement of works “where shown in the approved plans” and “silt fences shall be constructed…around all disturbed areas…”.

158 Mr Robertson submits that, as a matter of construction, when the plans and the Connell Wagner report are read together with the council’s Specification, as required by the combined effect of condition 1(a) and condition 7 of the development consent and condition 1, condition 6 and condition 9 of the activity approval, silt fences are to be constructed prior to the commencement of any works. This, he says, is plainly a pre-condition at the same time imposing a continuing obligation to conduct clearing works only in accordance with the building approval. Accordingly, s 76(2)(b) of the EP&A Act (as it then was) applies and therefore, absent compliance with the conditions, the work carried out on 19 September 1997 was not authorised by the consent and was therefore prohibited by s 76.

159 In Iron Gates, Handley JA (with whom Mahoney JA and Rogers AJA agreed) was of the opinion that the work there in question was not work “relating to that development” for the purposes of s 99(2)(a) because it was prohibited by the consent and was therefore not “the subject of the consent” within s 99(1)(a). The condition in that case prohibited any work on an internal access road until an external access road has been constructed.

160 Stein JA applied the interpretation by Handley JA to the earlier EP&A legislation in Coalcliff while Hodgson CJ in Equity (as he then was) expressed his opinion about breach at p 262 as follows:-

In my opinion, if there is a requirement that one do X before one does Y, this normally means one is required not to do Y until one has done X; so that if one in fact does Y before doing X, there is a breach of the requirement which can be characterised both as “failing to do X before one did Y” or as “doing Y in circumstances where one had not previously done X”; and there is a breach of the requirement under the latter description just as much as the former.

161 In Green v Kogarah Municipal Council (2001) 115 LGERA 231 Giles JA extended the principle adopted by Handley JA in Iron Gates to prohibition on carrying out development without consent because the development was not “permitted by the planning permission read together with its conditions”. His Honour expressed his reasoning at p 249 as follows:-

To my mind this is a more satisfactory basis for the reasoning. 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.

162 Besmaw maintains the position that there was no requirement for construction of silt fences on the critical date with respect to the work carried out at that time. Putting aside any question of waiver, it relies on what was said by Mr Duffy during the conversation with Mr Griffiths and Mr Holt on 19 September 1997 to the effect that the silt fences were either of little or no benefit in the context of construction between chainage 600 and chainage 1,000 to confirm the evidence from several of its experts that any condition that requires the erection of silt fences lacks utility and in the circumstances has no practical application.

163 There is strong authority that compliance with the requirements of a planning consent cannot be waived by a consent authority and that estoppel is not available irrespective of what Mr Duffy said (R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58; Ex parte Herne Estates Pty Ltd; Re Greater Wollongong City Council City Council and Another (1967) 14 LGRA 102 at 108 and Wyong Shire Council v Associated Minerals Consolidated Ltd and Another [1972] 1 NSWLR 114 at 142). This is not a case of a council relieving the holder of a development consent from the consequences of breach of a condition of the consent (Ryde City Council v Echt and Another (2000) 107 LGERA 317). Nor is it a case where the Court can be asked to exercise its discretion.

164 Accepting that there may be some force in the applicant’s argument that the Connell Wagner plans may be read in a common sense way so that the silt fences will only be installed where necessary at the relevant time to divert sediments to low dunal areas, nevertheless the “approved” report creates a legal obligation for silt fences to be in place for each stage prior to any construction work. The incorporation of the Specification by condition 6 and condition 7 of the consent approval reinforces the requirement as a pre-condition for the commencement of the work in connection with the access road.

165 The Court is not prepared to find that it can ignore the breach of the conditions requiring the erection of silt fences because the council had waived compliance with them as the applicant submits. The decision of the Court of Appeal in Detala Pty Limited v Byron Shire Council [2002] NSWCA 404, unreported is of no assistance to the applicant in this case. The council had no obligation to do anything, such as approve a report submitted to it as Besmaw concedes. The Court rejects the submission that by analogy the reasoning of Davies AJA in Detala may be applied to the alleged representation by Mr Duffy on behalf of the council that it would be of no benefit to implement the condition on 19 September 1997. The finding by Davies AJA is not to the present point where the totality of the obligation to perform rested with Besmaw. On that basis alone the facts in Detala can be distinguished.

Control by NATA Registered Laboratory – Condition 2 of the activity approval

166 Condition 2 of the activity approval requires the site earthworks for the construction of the access road to be controlled by a NATA Registered Laboratory at all times.

167 When asked whether he considered what was done on 19 September 1997 to be earthworks Mr Griffiths replied as follows:-

A. What I consider to be done on 19 September was clearing which under council’s definition is earthworks so yes, therefore what I consider happening on 19 September was earthworks.

Q. No, did you consider – leave aside council’s specifications – did you consider that what happened on 19 September was earthworks?

A. Yes, I consider it was earthworks.

168 It is common ground that the work undertaken on 19 September 1997 was not controlled by a NATA Registered Laboratory.

169 Site earthworks are not defined. The reference to “site earthworks” in the Court’s opinion indicates a limited scope. The council’s own Specification makes no reference to a NATA Registered Laboratory in respect of clearing. The Specification does refer to tests by a NATA Registered Laboratory in respect of subgrade material, the sub-base and base course. The purpose of the condition is apparent from the body of the condition itself, namely to “ensure the adequacy of material type and quality, material placement procedures, compaction specification and material testings”. Clearing was the major task undertaken on 19 September 1997. Nevertheless the Court has found that the totality of the work on that day can be rightly regarded as construction work for the purposes of s 99(4). The construction work, such as it was on that day, did not involve the introduction or placement of material let alone compaction intended to comply with, or in accordance with, a specification. The relevant circumstances for the application of the terms of the condition did not arise. Nothing was built or placed that needed testing. The Court agrees with the applicant that common sense dictates that it is only when clearing is complete that there is any prospect of a contribution from a NATA Registered Laboratory. The condition should be read in the context set by its own terms explaining the purposes of the control. The requirement to comply with condition 2 did not arise.

Detailed Drainage Design – Condition 24A of the modified consent

170 Condition 24A requires that a detailed drainage design be prepared by a qualified civil engineer for the whole of the site areas the subject of Stage 1 which incorporates, inter alia, a certification from the engineer that the design has been prepared in accordance with the Australian Rainfall & Runoff (1987) (“the AR&R”).

171 Mr Griffiths told Mr Robertson that when the road was designed he made no assumptions about an easterly movement of the dredge pond or whether areas around the access road would be extracted and replaced with fill. Mr Robertson challenged the capacity to design any kind of drainage without that information. Mr Griffiths responded as follows:-

A. No, can I say because we designed the road for the sand environment. The future drainage would be – the future drainage of the surrounding area of the road would be designed in subsequent stages of the development taking into account what the development surfaces were.

172 The first respondent raises the distinction between the submission of information or details on the one hand and the certification of those matters from the engineer on the other in the sense that a certificate is a document wherein a fact is formally certified and to certify is to guarantee as certain or declare or attest by a formal or legal certificate. The facts show that the Connell Wagner report was lodged in support of the application for modification of development consent and the activity approval.

173 The first respondent relies on the evidence of Mr Mostyn who expresses an opinion that whether examined individually or collectively all of the documents considered by him that were lodged in support of the development application dated 24 March 1992 and subsequently, including the Connell Wagner plan and reports, do not incorporate the elements listed in sub-paragraphs (a) to (e) of condition 24A. He bases this opinion upon the usual practice for certification by civil engineers. He also criticises the accuracy of the material contained in the Connell Wagner report and plan.

174 It is common ground that the Connell Wagner drawings and report upon which the applicant relies, were expressly approved by the council when it granted the modified consent and issued the activity approval. Mr Tobias submits that the council cannot now claim that the work was carried out in breach of condition 24A in circumstances where the building application or activity application purported to comply with the requirements of the condition and pursuant to that, the council issued an activity approval authorising the work. The Court agrees with Mr Tobias on that point.

175 In determining whether a breach has occurred the Court should have regard to the presumption of regularity which is that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164). Moreover, the Court rejects the opinion of Mr Mostyn in relation to the material forwarded to the council in the form of the drawings and the report by Connell Wagner as to whether it was appropriately certified for the purposes of condition 24A(a). Firstly, it is a matter for the Court to decide whether or not the form of the submission amounts to a certification. Secondly, the statement by the engineer contains a clear representation that the drainage flows had been calculated in accordance with the AR&R. The material was submitted to the council under cover of correspondence from Mr Griffiths on behalf of Connell Wagner. The fact that the specific words of certification did not appear does not, in the Court’s opinion, detract from its veracity as a certificate. The approach taken by Mr Mostyn is highly technical and pedantic. The Court is satisfied that the material submitted by Connell Wagner satisfied the requirement of condition 24A(a).

176 Although Mr Mostyn criticises the balance of the material provided in support of the activity application pursuant to condition 24A his complaints are directed almost entirely to the degree of compliance, the satisfaction for which rested with the council. The issue of the activity approval without any evidence from a council officer or any other person involved leads the Court to the ultimate conclusion that condition 24A was complied with by the submission of the Connell Wagner documents. The decision in Detala and the observations by Davies AJA by analogy support the applicant’s submission that it is no longer open to the council, so many years later, to resile from its decision to issue the activity approval on the basis that the requirements of condition 24A were not complied with. Furthermore, following on from comments made by Giles JA in Green, as the work on the access road was commenced pursuant to the activity approval issued subsequent to and based upon the development consent it cannot now be said that the work was carried out unlawfully in breach of condition 24A.

Conclusion

177 Where a party, such as Besmaw, seeks declaratory relief it has to prove all the facts which are necessary to enable the Court to make the declaration in terms applied for in the application (Jones and Another v Sutherland Shire Council (1979) 40 LGRA 323 at 327 and Commercial Union Assurance Co of Australia Ltd v Beard and Others (1999) 47 NSWLR 735 at 740).

178 Besmaw, as the party seeking relief, has not discharged the burden of proof for a necessary element of the claim, namely that the work was carried out in accordance with the development consent, including the conditions. However, the Court is able to make specific findings of fact and law to support the first respondent’s case. It is appropriate to bring together the findings that the Court makes in support of its decision in response to the application made by Besmaw. The following findings, made on the balance of probabilities, are essential to that decision:-

(1) The work carried out on 19 September 1997 at Kurnell was construction work.

(2) Subject to (4) and (5) below, the work carried out on 19 September 1997 related to the carrying out of a work for the construction of an access road approved as Stage 1 by development consent granted by Sutherland Shire Council on 22 September 1992 and modified on 15 September 1997.

(4) The construction work was carried out on 19 September 1997 at a time when condition 11 of the modified consent had not been complied with.

(5) The construction work was carried out on 19 September 1997 at the time when condition 1(a) and condition 7 of the modified consent and condition 1 of the activity approval had not been complied with.

(6) By reason of (4) and (5) above the work was not work relating to the development within the meaning of s 99(4) of the EP&A Act as it then was (Iron Gates).

(7) By reason of (4) and (5) above the work was not permitted by the development consent read together with the conditions (Green).

(8) The construction work carried out on 19 September 1997 by dint of (6) and (7) above was not construction work commenced on the site for the purposes of s 99(4) of the EP&A Act as it then was.

(9) The applicant is not entitled to a declaration in the terms of [1] in the Further Amended Application Class 4 dated 4 November 2002.

Orders

179 The Court makes the following formal orders:-

(2) Costs reserved.

CITATION:	Besmaw Pty Limited v Sutherland Shire Council and Another [2003] NSWLEC 181
PARTIES:	APPLICANT Besmaw Pty Limited FIRST RESPONDENT Sutherland Shire Council SECOND RESPONDENT The Minister Administering the Environmental Planning and Assessment Act 1979
FILE NUMBER(S):	40238 of 2001
CORAM:	Talbot J
KEY ISSUES:	Development Consent :- whether construction physically commenced - whether work related to the development - whether work permitted by development consent and conditions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 76, s 76(2)(b), s 95(4), s 99, s 99(1), s 99(1)(a), s 99(2)(a), s 99(4), s 99(5), s 102 Environmental Planning and Assessment (Amendment) Act 1997
CASES CITED:	Bishop v Deakon (1936) 1 Ch 409; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Others (1999) 106 LGERA 243; Commercial Union Assurance Co of Australia Ltd v Beard and Others (1999) 47 NSWLR 735; Day v Pinglen Proprietary Limited and Others (1981) 148 CLR 289; Detala Pty Limited v Byron Shire Council [2002] NSWCA 404, unreported; Drummoyne Municipal Council v Lebnan and Others (1974) 131 CLR 350; Drummoyne Municipal Council v Page (1973) 2 NSWLR 566; Ex parte Herne Estates Pty Ltd; Re Greater Wollongong City Council City Council and Another (1967) 14 LGRA 102; Green v Kogarah Municipal Council (2001) 115 LGERA 231; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Jones and Another v Sutherland Shire Council (1979) 40 LGRA 323; Liverpool City Council v Home Units Australia Pty Ltd (1973) 28 LGRA 28; London County Council v Marks & Spencer Ld and Others (1953) AC 535; M P Metals Pty Ltd v Federal Commissioner of Taxation of the Commonwealth of Australia (1968) 117 CLR 631; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Marks & Spencer Ld v London County Council and Others (1952) Ch 549; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; Noble House Corporation Pty Ltd v Sydney City Council [1999] NSWLEC 190, unreported; North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1964) 10 LGRA 41; Owendale Pty Limited v Anthony (1966-1967) 117 CLR 539; Quick v Stoland Pty Ltd (1998) 87 FCR 371; R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58; Richard and Others v Shoalhaven City Council (2002) NSWLEC 11, unreported; Ryde City Council v Echt and Another (2000) 107 LGERA 317; Sharrment Pty Ltd and Others v Official Trustee in Bankruptcy (1988) 18 FCR 449; 82 ALR 530; Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170; Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another (2002) 55 IPR 354; Tomark Pty Ltd and Ors v Bellevue Crescent Pty Ltd and Ors [1999] NSWCA 347, unreported; United Dominion Corporation Ltd v Woollahra Municipal Council (1973) 1 NSWLR 616; Wyong Shire Council v Associated Minerals Consolidated Ltd and Another [1972] 1 NSWLR 114
DATES OF HEARING:	07/11/2002, 08/11/2002, 24/02/2003, 25/02/2003, 26/02/2003, 27/02/2003, 28/02/2003, 03/03/2003, 04/03/2003, 05/03/2003, 06/03/2003, 07/03/2003, 10/03/2003, 11/03/2003, 12/03/2003, 13/03/2003, 14/03/2003, 18/06/2003 (final written submissions)
DATE OF JUDGMENT:	08/08/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr M H Tobias QC with Ms H P Irish (Barrister) SOLICITORS Corrs Chambers Westgarth FIRST RESPONDENT Mr T F Robertson SC with Mr M J Leeming (Barrister) SOLICITORS Woolf Associates SECOND RESPONDENT Mr B W Walker SC with Mr J E Robson (Barrister) SOLICITORS Freehills