Byron Shire Council v Detala Pty Ltd - [2001] NSWLEC 234

Land and Environment Court

of New South Wales

CITATION: Byron Shire Council v Detala Pty Ltd [2001] NSWLEC 234

PARTIES:
APPLICANT:
Byron Shire Council
RESPONDENT:
Detala Pty Ltd

FILE NUMBER(S): 40043 of 2000

CORAM: Bignold J

KEY ISSUES: Development Consent :- whether or not lapsed-whether works relied upon to avoid statutory lapsing were unlawful being in contravention of condition of consent and/or the EP&A Act s 76A(1
s 81A(4).

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 95(1) and s 95(4)
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998
Environmental Planning and Assessment Amendment Act 1997 (Act No 152)
Local Government Act 1993
Local Government Act 1919 Part XII

CASES CITED: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243;
Green v Kogarah Municipal Council (2001) NSWCA 123;
Grand United Friendly Society v Parramatta City Council (2000) NSWLEC 207;
Hornsby Shire Council v Winsloe 101 LGERA 117;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
Meriton Apartments Pty Ltd v Ryde City Council (2000) 108 LGERA 352;
Mison v Randwick Council (1991) 73 LGERA 349;
Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125;
Rao v Canterbury City Council (2000) NSWCCA 471

DATES OF HEARING: 20-22/11/00, 01/12/00, 02/03/01, 07/05/01, 24/05/01, 08/06/01

DATE OF JUDGMENT:
10/03/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr T Robertson, Barrister
SOLICITORS
Wilshire Webb
REPONDENT:
Mr M Tobias QC with Ms S Duggan, Barrister
SOLICITORS
Bartier Perry

JUDGMENT:

IN THE LAND AND

Matter No. 40043 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

3 October 2001

BYRON SHIRE COUNCIL

Applicant

DETALA PTY LIMITED

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The fundamental mixed question of law and fact raised in the present proceedings is whether a development consent granted by the Court in 1995 (the 1995 development consent) to a development application made by the Respondent for the carrying out of a community title subdivision on land situate at Pacific Vista Drive, Byron Bay (the development site) has lapsed by virtue of the operation of the Environmental Planning and Assessment Act 1979, s 95(1) (EP&A Act).

2. The proceedings were commenced by the Council on 13 March 2000 (ie two days before the expiry of the relevant statutory lapsing period of five years provided by the EP&A Act, s 95(1)) claiming permanent declaratory and injunctive relief against the Respondent in respect of the 1995 development consent.

3. On the same day, I heard as a matter of urgency, the Council’s application for an interlocutory injunction restraining the Respondent from “carrying out development or any work” on the development site.

4. The Council’s claim to the interlocutory injunction was founded upon the allegation that the carrying out of the proposed works on the development site would relevantly involve a breach of the EP&A Act, by virtue of being in contravention of (i) Condition 23 of the 1995 development consent; and (ii) the EP&A Act, s 81A(4).

5. Although I upheld both legal foundations of the Council’s claim to interlocutory injunction (the parties had fully argued the case and had invited me to finally determine the disputed issues, notwithstanding the interlocutory context of the proceedings), I refused the interlocutory injunction (instead accepting the Respondent’s undertaking to carry out only minimal works on the development site) for the reasons given in my judgment delivered on 14 March 2000 (see [2000] NSWLEC 48) because I concluded “that the balance of convenience favours an acceptance of the Company’s undertaking so as to provide it with the last opportunity to carry out the small amount of work it proposes today” (par 35).

6. My reference to “last opportunity” was reference to the fact that the five year statutory lapsing period prescribed by the EP&A Act, s 95(1) that was applicable to the 1995 development consent would expire on the next day. That fact had also been the crucial background fact to two class 1 proceedings instituted within the period of four months immediately preceding that expiry by the Respondent respectively seeking a modification of Condition 23 of the 1995 development consent, and a supplementary development consent for the removal of trees both of which proceedings were determined adversely to the present Respondent in my judgments delivered on 10 March 2000—see [2000] NSWLEC 44 and [2000] NSWLEC 46.

7. In my interlocutory judgment immediately following par 36, I added the following observation:

Whether that work, which I have held will involve a breach of

Condition 23

of the 1995 development consent and of the

s 81A(4)

, will be availing in the Company's quest to avoid the statutory lapsing of the 1995 development consent is not for me now to say: but see

(1992) 81 LGERA 132

8. That observation encapsulates the disputed issue now requiring adjudication on the final hearing of these proceedings in respect of works carried out on the development site on 14 March 2000 and of earlier works carried out by the Respondent in October 1999. (The later works were related to the earlier work, which had involved an excavation of a trench some 7 m in length for an approved retaining wall). The earlier works had been terminated following vehement public protest and intervention by the Council asserting that the works were being carried out in contravention of Condition 23 of the 1995 development consent. These circumstances obviously led the Respondent to commence the two class 1 proceedings in this Court which both resulted in my judgments delivered on 10 March 2000, leaving Condition 23 of the 1995 development consent unmodified and refusing to grant consent for the removal of trees.

9. It is at once to be noted that on the final hearing, the Respondent has candidly acknowledged that its success therein wholly depends upon it persuading me to entirely abandon my relevant findings and holdings contained in my interlocutory judgment to the effect that the carrying out of the relevant works on the development site involved a contravention of the EP&A Act, on two counts, namely
(i.) breach of Condition 23 of the 1995 development; and
(ii.) breach of s 81A(4),

and instead to conclude that such works did not involve any contravention of the EP&A Act, and accordingly to conclude that those works qualify as “building, engineering or construction work” within the meaning of the EP&A Act, s 95(4) and ultimately to find, that by virtue of the existence of those works, the 1995 development consent did not lapse, within the meaning of the EP&A Act, s 95(4) on 15 March 2000.

10. Since the Council has not argued (as it may have) that my relevant findings and holdings in the interlocutory proceedings represent the Court’s final adjudication upon the question, I am prepared to reconsider my earlier decision that the works carried out by the Respondent on the development site involved a contravention of the EP&A Act by virtue of (i) a breach of Condition 23 of the 1995 development consent; and (ii) a breach of s 81A(4). However, in so proceeding, I would reiterate that my interlocutory judgment on the disputed issue, now re-agitated, had had the benefit of full argument from the parties. Moreover, the interlocutory proceedings had immediately followed the hearing of the class 1 proceedings that I have referred to, at which hearing comprehensive evidence of all the background facts to the grant of the 1995 development consent had been received by the Court. That same evidence has been tendered by the Respondent on the final hearing of the present proceedings.

11. However, I should note that in neither of those class 1 proceedings was it necessary to determine the true meaning and effect of Condition 23 of the 1995 development consent. Thus, in my judgment, in the proceedings for modification of the 1995 development consent, I said at pars 31 and 32:

Before leaving this case, I would emphasise that I have deliberately refrained from expressing my opinions on a number of matters that were either raised in, or underlie and inform, the parties’ competing cases. In particular, I express no opinion on whether the 1995 development consent will or will not expire on 15 March 2000. Likewise, I say nothing on whether the Applicant has fulfilled its obligations under condition 23 of the 1995 development consent or whether the requisite approval referred to in that condition has or should have, been granted. Likewise, I have not found it necessary to conclude what is the true meaning of condition 23 .

Although I have no doubt that these are issues keenly in dispute between the parties, I am firmly of the opinion that the present proceedings do not provide the occasion or the justification for adjudication on those issues.

12. The issues now requiring final adjudication arise out of the Council’s amended class 4 application and related amended points of claim and amended points of defence, and the Respondent’s amended cross-application, the contents of all of which must now be noted.

B. THE COUNCIL’S AMENDED CLASS 4 APPLICATION AND AMENDED POINTS OF CLAIM AND AMENDED POINTS OF DEFENCE

13. By its amended application, the Council claimed the following relief:
1. A declaration that, until compliance with condition 23 of Development Consent granted by the Court of 15 March 1995 for Community Title Subdivision of portion 173 and Lot 1 DP 42428 Byron Bay (“the subject land”) the Respondent cannot commence works under the Consent on the subject land or on the Crown Road Reserve or the Crown land to the east of the subject land.
2. A declaration that, on its proper construction the Respondent has failed to comply with condition 23 of the said Consent.
3. A declaration that, the Respondent is unable to commence the Development for which consent had been granted by the Court on 15 March 1995 for the subject land without first obtaining a Construction Certificate issued under Section 81A of the Environmental Planning Assessment Act 1979.
4. A declaration that any works performed on or about the subject site being building, engineering or construction work relating to the subdivision are not works of commencement within the meaning of Section 95(4) of the Environmental Planning & Assessment Act 1979 and accordingly the consent has lapsed.
5. An order restraining the respondent, its servants, agents and contractors from carrying out development or performing any works of any kind on the subject land and the Crown Road Reserve and Crown land to the east of the subject site.

14. According to the Amended Points of Claim and Amended Points of Defence, the following claims made by the Council are disputed by the Respondent—
6. The said work (being the work carried out on the subject land by the Respondent in October 1999 and March 2000) was not building, engineering or construction work, and the consent has therefore lapsed.
7. In the alternative, the said work did not relate to the subdivision of land for which development consent was granted and the consent has therefore lapsed.

Particulars

(a) the work was not authorised by the consent;
(b) if the work was authorised by the consent, it was carried out in breach of condition 23 of the consent;
(c) If it is found that the work was subdivision work, then the work was carried out in breach of s.81A(4) of the

EPA Act as no construction certificate had been issued and no principal certifying authority had been appointed, further any appointment of a principal certifying authority had not been notified to the Council.

8. The work was carried out in breach of s.76A of the

EPA Act as:

(a) it was carried out without development consent as it was not authorised by the consent;
(b) alternatively, it was carried out otherwise than in accordance with the consent.
9. If it is found to be subdivision work, the work was carried out in breach of s.81A(4) of the

EPA Act as no construction certificate had been issued by the Applicant for the work and no principal certifying authority had been appointed and no notification to Council of any such appointment had been made.

10. By reason of the matters alleged in paras 8 and/or 9 of the above, the work was unlawful and was not work to which s.95(4) of the

Act applied. The consent has therefore lapsed.

C. THE RESPONDENT’S AMENDED CROSS-APPLICATION

15. By its amended Cross-Application, the Respondent claims the following declaratory relief:
1. Condition 23 of the development consent granted by the Land and Environment Court on 15 March 1995 (the 1995 Consent) operates so as to require the Cross-Applicant to show on a plan any tree or trees required to be removed in order to carry out the works the subject of 1995 Consent (the Plan).
2. Condition 23 operates so as to require the Planning Manager of Byron Council to be satisfied only that the trees shown on the plan are required to be removed in order to carry out the works the subject of the 1995 Consent.
2B. The tree preservation order made by Byron Council and published in the New South Wales Government Gazette on 6 September 1996 is not valid to the extent that it purports to control activities with respect to coastal heath land; such coastal heath land not relevantly being a tree for the purposes of clause 8 of the Environmental Planning and Assessment Model Provisions 1980.
3. Upon the Planning Manager of Byron Council being satisfied as a matter of fact that the trees shown on the plan are required to be removed in order to carry out the works the subject of the 1995 Consent the Planning Manager of Byron Council has an obligation to approve the Plan.
4. No further approval is required pursuant to the Environmental Planning and Assessment Act 1979 to authorise the Cross-Applicant to remove the trees identified on the Plan.
5. The plan dated 9 November 1999 a copy of which is attached prepared by Christopher Neville Jack and Peter Humphreys of Dames & Moore Pty Ltd and lodged by the Cross-Applicant with Byron Council on 9 November 1999 only shows trees to be removed which are required to be removed in order to carry out the works the subject of the 1995 Consent.

16. The Respondent properly concedes that its Amended Cross-Application is founded upon the premise that the 1995 development consent has not lapsed by virtue of the operation of the EP&A Act, s 95(4). If this premise is found to be incorrect, the cross-application must itself necessarily fail, as a consequence.

17. Accordingly, it is appropriate to proceed at once to an adjudication on the disputed question of whether or not the 1995 development consent has lapsed.
D. THE RELEVANT FACTS

18. The 1995 development consent was granted by the Court when, in a reserved judgment delivered on 15 March 1995, Assessor Bly upheld the Respondent’s appeal against the Council’s deemed refusal of its development application for a community title subdivision of the development site into 15 residential lots, two public reserve lots and a private road and granted development consent subject to the conditions set forth in “Annexure A” to his judgment, (a copy of which Annexure is attached hereto and marked “A”).

19. It is to be noted that 30 conditions were imposed under the heading “B. The following conditions will need to be complied with before the final Plan of Survey is approved” and in those conditions include the following condition:

23.

No tree to be ringbarked, cut down, lopped, removed or damaged, or caused to be ringbarked, cut down, lopped removed or damaged in contravention of the Tree Preservation Order applicable to the land. Any tree or trees which require removal are to be shown on a plan of adequate scale for the approval of Council’s Planning Manager prior to any works commencing.

20. The reasons for judgment of Assessor Bly contain some brief reference to the conditions of development consent that were imposed by the Assessor. It appears that the conditions imposed emanated from the Council. (This is conventional practice when the Court is determining development appeals). However, there is no specific reference in the Assessor’s judgment to Condition 23.

21. In his judgment, the Assessor identified the issues raised at the hearing. These included the following issue:

The impact of the proposed development on the existing vegetation on the subject site

22. The Assessor’s judgment considered this issue in the following passages at p 7 to 9 inclusive, upon which the Respondent places great reliance in submitting (i) that the 1995 development consent granted the necessary authorisation for the removal of trees and vegetation from the development site (see par 4 of the Cross-Application) and (ii) that Condition 23 only required a plan to be submitted to the Council showing trees required to be removed from the site by virtue of the carrying out of the approved development (see pars 1,2, 3 and 5 of the Cross-Application):

IMPACT ON EXISTING SITE VEGETATION

Vegetation on this site comprises predominantly low heath with a paperbark woodland extending into the northern end of the site. There is a high diversity of native plant species on this land. The proposal will result in the loss of approximately 0.77 ha of mainly low heath and some of paperbark woodland.

Relying on an investigation of this land by Mr. A. Murray, the National Parks and Wildlife Service advised the Council by letter dated 12 November 1993 that:-

Murray (1992) considers the status of this site is of moderate to high local and regional conservation significance. The paucity of protected sites containing this vegetation association is particularly apparent in the Far North Coast Region (i.e. Tweed/Byron/Ballina Shires). Griffith (1993) also considers that this association, which he terms as graminoid clay heathland , although, is well reserved in Yuraygir National Park (south of the Clarence River). This association is largely unreserved and of a disjunct distribution across its range north from the Macleay Valley. Many areas of this unique association have been lost to urban and other development on the coast.

The Service therefore considers that the vegetation communities of this site together with its contribution to the ecological integrity of the Cimbil Margil system is of high regional conservation significance.

Miss A. Martin described the heath on the site as low clay heath which was part of a poorly represented plant community comprising about 5 ha including the site and surrounding areas. She was concerned at the proposed removal of just under 1 ha of his heath and the effective fragmentation of the remainder. It needed to be protected '\ c because of its high conservation value and because it acted as a filter system for run-off.

Mr. Lembit also acknowledged the regional conservation significance of this low heath community which occupies an area of about 10 ha, 7 ha of which are zoned for Environmental Protection -Coastal Habitat Approximately 0.2 ha of the site's low heath will be retained as part of the land to be dedicated as open space.

In relation to the significance of the low heath, the NPWS supported a proposal to have the subject land, together with other adjoining lands also zoned 2(a), rezoned to 7(f2) Coastal Lands Acquisition. This proposal was not supported by the Department of Planning and the zoning remains unchanged.

Taking the opinion of the NPWS together with Miss Martin’s evidence that only 5 ha of low clay heath remains would tend to lead one to the conclusion that this land should be preserved in its present state. I do not, however, accept this for several reasons. Firstly the loss of less than 1 ha out of 5 ha (Martin) or even 10 ha (Lembit) is significant but this nevertheless leaves either just over 4 ha or just over 10 ha of undeveloped heathland. Some of this heathland exists in conjunction with other substantial natural areas in environmental protection zones and there was no suggestion that it could not continue to survive in this situation particularly if the abovementioned drainage scheme is to be effectively implemented.

Secondly, from a visual inspection of this particular area there is nothing conspicuous in terms of a change in the nature of the vegetation, soils or topography to distinguish the site from adjoining lands to the east. Despite this, the decision was made in 1988 to zone the site for residential development and to zone the adjacent land for environmental protection. Moreover, there were no submissions made that the zoning of the subject land was wrong or that there were any moves afoot to rezone the land. These factors together with the fact that there is no intention to bring this site into public ownership leads me to the conclusion, subject to any presently applicable statutory provisions, that the site is available for residential development. Inevitably this will result in a significant loss of site vegetation.

I particularly find the second line of reasoning compelling, especially given the reasonable expectations of the present owner who purchased the land which was at the time and remains zoned for residential development.

Clause 43(1) of the NCREP provides inter alia that the Council shall not give consent to residential development unless:

(a) it is satisfied that the density of the dwellings have been maximised without adversely affecting the environmental features of the land;

Clearly, the main environmental feature of the site is its vegetation. Taken to the extreme it would appear that destruction of any part of that vegetation would to some degree, adversely affect that environmental feature, contrary to what the clause requires. An outcome of such an interpretation would be that the maximum density of dwellings would be very low so as not to adversely affect the environmental features of the land. I do not however believe that this is what the clause means. Instead I think that it seeks a reasonable balance between development and protection of natural features.

In its present form, 3,300 m2 out of a total site area of 11,020 m2 is to be dedicated for public reserve, a figure well in excess of what could be reasonably required in the context of a conventional residential subdivision. A large proportion of this proposed public reserve is to contain the paperbark woodland. In the context of clause 43(1)(a) of the NCREP and what I have already said about the zoning of the land and removal of existing vegetation, I have been persuaded that the proposal satisfies the reasonable balance test.

23. It is apparent from these passages that when Assessor Bly detailed the loss of vegetation from the development site and the amount of vegetation to be retained, he was referring to the content of the plan that accompanied the Respondent’s development application (Drawing No RP-BB-027A).

24. Condition A of the conditions of the 1995 development consent specifically refers to this plan. The Plan (Exhibit 8) depicts the layout of the proposed community title subdivision, including the extension into the development site of Pacific Vista Drive (a public road) which links with the private internal access road upon which fronts each of the proposed 15 residential lots. Each of those lots depicts a “maximum building envelope”, in each case comprising the bulk of the land mass (each residential lot contains 450m2).

25. The Plan also depicts on each proposed lot an area of private open space. The Plan also depicts on the development site two areas labelled “existing vegetation to remain untouched”. The Plan contains the following written endorsement:

Development Summary

Site Area 11,020 m2
15 lots @ 450 m2 6,750 m2
Area of Road 960 m2
Area of Park 3,310 m2 (30 %)
Area and Dimensions subject to Detailed Survey

26. It is apparent that that Plan contemplated the ultimate loss (ie upon full development of the proposal) of an area of 0.77 ha of existing vegetation (“low heath and some paperbark wood land”).

27. It is also apparent that Assessor Bly contemplated that result if the development was approved and was subsequently carried out (including the erection of a dwelling-house on each of the 15 residential lots).

28. However, it must be recalled that the proposed development was a community title subdivision, which inevitably meant that further development consent would be required for the erection of dwellings on each of the 15 residential lots.

29. This fact (ie the need for further consent) did not, however, mean that it was not necessary for there to be an assessment of the impact on existing vegetation on the development site of the proposed development, when fully developed. It is conventional planning practice in assessing proposed residential subdivision proposals for regard to be had to the impact of the ultimate residential development, even though that residential development (eg dwelling-houses) is not itself the immediate subject of the development proposal. I take it that this is precisely the type of assessment of impact that was required in the appeal determined by Assessor Bly, having regard to the particular issue (ie impact on existing vegetation) that had been raised by the Council.

30. Again, it is to be recalled that the proposed internal access road would consume only 960 m2 of the overall area of the development site of 11,020 m2.

31. The crucial question (presently to be considered) arising from the foregoing facts is whether the clear “contemplation” of ultimate loss of vegetation in the amount quantified on the development site was translated in the terms employed for the grant of the 1995 development consent (including all of the conditions imposed thereon, but especially Condition 23) into an authorisation for the removal from the development site of that amount of vegetation.

32. By letter dated 22 December 1998, the Respondent’s Consulting Engineers wrote to the Council seeking approval “to commence the development” and submitting a number of detailed drawings for approval. The letter contains the following passages:

The first stage of the development works requires approval to carry out works to arrest erosion and rehabilitate Detala’s land so that development may proceed.

The application is for approval to carry out works required to establish and make the road for the 15 lot subdivision. This application is also for approval to establish the drainage and soil erosion controls required for the development.

The work for which approval is required involves the rehabilitation of that part of Detala’s land eroded and continuing to be eroded by water flowing from the catchment. To carry out these works it is necessary to rehabilitate at least part of the eroded gully on land which is the designated Crown road and other Crown land over which there is a native title claim. This land is vested in the Department of Land and Water Conservation.

33. By letter dated 12 April 1999, the Council responded by notifying the Respondent’s Consulting Engineers that the Council had assessed and approved the submitted plans for the subdivision “subject to notations shown in red”. (Some 15 specific plans were so approved.) The plans are stamped with the Council’s approval dated “8 April 1999”.

34. Inexplicably, two versions of the approved plans were introduced into evidence—Exhibits 10 and Q. The versions are of the same plans but contain materially different notations made in red ink, such notations reflecting the conditions upon which the Council’s approval was given.

35. Both red ink notations contain matter referring to “Stage 1’—in Exhibit 10 the notation relevantly states:

Stage 1 to be constructed prior to commencement of Roads and services and Retaining Wall

but in Exhibit Q the notation states:

Stage one to be constructed prior to construction of works approved by these plans.

36. Both versions of the Plans contains the following statement which sheds light on what is meant by “Stage 1” (or “Stage One”):

Construction Staging

Stage 1Construct sedimentation basin and retaining wall

Stage 2Backfill retaining wall and construct underground drainage system and sewer line

Stage 3Construct Pacific Vista Drive cul-de-sac

Stage 4Construct Internal Access Road.

37. Significantly the copy of the approved plans annexed to the affidavit sworn by Phillip Dent on 31 July 2000, a former engineering consultant retained by the Respondent, is the version of the plans being Exhibit Q. (A copy of the same version of the approved plans is referred to in Mr Jack’s affidavit sworn 20 November 2000.)

38. That version indicates that Stage 1 works are to be first constructed and the reference to “stages of works” should be taken as a reference to the works so described in the “Construction Staging” notation on the plans which includes in Stage 1 the “Retaining Wall”.

39. Each of the different versions of the relevant red ink notations presents its own difficulty of interpretation because of its reference to “Stage 1 Works” in a manner that suggests a different meaning of that reference from that provided by the “Construction Staging” notation on the Plans.

40. In this unsatisfactory state of the evidence, I do not think the Council can rely upon the version of the approved plans being Exhibit 10, which is different from that referred to in the Respondent’s affidavits. The Council has not proffered any explanation for the different red ink notations it has made on the plans and I see no reason for not adopting the version being Exhibit Q and reading it as referring to Stage 1, according to the content of the “Construction Staging” notation on the Plans.

41. On 18 October 1999, the Respondent’s Consulting Engineers wrote to the Council enclosing a drawing showing “the areas in which vegetation will be removed in order to construct” the project.

42. On 25 and 26 October 1999, the Respondent caused a trench to be excavated along, and inside of, the eastern boundary of the development site, where it adjoins the undeveloped Crown Road Reserve. The trench had approximate dimensions of 8 m in length, 1.5 m in width and 300 mm in depth.

43. The trench was constructed for the purposes of forming the area for a retaining wall, which wall was shown in one of the plans approved by the Council in its letter to the Respondent’s Council Engineer dated 12 April 1999.

44. As previously noted, physical work on the development site was abruptly terminated when a dispute arose between the Council and the Respondent after the Council asserted that the work was being executed in contravention of Condition 23 of the 1995 development consent. Thereafter the Respondent, presumably in an attempt to overcome the impasse that had emerged, commenced the class 1 proceedings that I have earlier mentioned—initially involving the application for modification of Condition 23 of the 1995 development consent and thereafter involving the development application to remove trees from the development site.

45. However, immediately following my judgments in the two class 1 proceedings delivered on 10 March 2000 the Respondent notified the Council that it intended to resume physical works on the development site, and that notice gave rise to the Council commencing the present class 4 proceedings which included its claim to an urgent interlocutory injunction, which claim was determined by my interlocutory judgment delivered on 14 March 2000. Later in that day, the Respondent caused further physical work to be undertaken on the excavated trench, such work conforming to the Respondent’s undertaking given to and accepted by, the Court in its interlocutory judgment of 14 March 2000. That further work which was carried out over a period of three hours on 14 March 2000 comprised the following:
· additional excavation of the Trench to achieve the required dimensions for the Retaining Wall footing.
· covering soil stockpile with geotextile.
· erecting formwork along the eastern side of the Trench.
· arranging and tying steel reinforcement in the Trench ready for pouring concrete, and
· securing the site by erecting a safety fence around the Trench.

46. According to the uncontested evidence of Mr Christopher Pratt, a Council employee, (affidavit sworn 12 March 2000), which I accept, the following facts are established:
(i) no approval as required by Condition 23 of the 1995 development consent has been granted;
(ii) no approval pursuant to the Part XII of the Local Government Act 1919 has been granted in respect of the subdivision of the development site; and
(iii) no construction certificate within the meaning of s 109C of the EP&A Act has been issued by the Council as principal certifying authority in respect of the subdivision works the subject of the 1995 development consent.
E. HAS THE 1995 DEVELOPMENT CONSENT LAPSED?

47. The EP&A Act, s 95 relevantly provides as follows:

(1) A development consent lapses:
(a) 5 years after the date from which it operates, except as provided by paragraph (b), or
(4) Development consent for:
(a) the erection of a building, or
(b) the subdivision of land, or
(c) the carrying out of 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.

48. The answer to this question depends upon the answers to the following six questions (which are issues raised by the amended points of claim and amended points of defence):

(i.) were the works undertaken by the Respondent on the development site in October 1999 and 14 March 2000 (as I have earlier described them) relevantly “building engineering or construction work relating to the subdivision” within the meaning of the EP&A Act, s 95(4)?

(ii.) were those works carried out on land to which the 1995 development consent applied?

(iii.) were those works authorised by the 1995 development consent?

(iv.) were those works carried out in contravention of the EP&A Act, s 76A?

(v.) were those works carried out in contravention of Condition 23 of the 1995 development consent?; and

(vi.) were those works carried out in contravention of the EP&A Act, s 81A(4)?

49. I propose to consider each of these questions separately (although questions (ii) and (iii) involve some obvious overlap as do questions (iv) (v) and (vi)).

QUESTION (i): Are the works relevantly “building, engineering or construction work”?

50. The expression “building, engineering or construction work” is not defined by the EP&A Act although the term “building work” is defined by s 4(1) as follows:

means any physical activity involved in the erection of a building.

51. Section 4(1) also defines “building” as “including part of a building and any structure or part of a structure”.

52. In my judgment, the works carried out on the development site in October 1999 and March 2000 relevantly, in combination, constitute “building, engineering or construction work relating to the building, subdivision or work” which was authorised by the 1995 development consent.

53. It is apparent from its express terms that the 1995 development consent in approving the “community title subdivision” of the development site also approved the carrying out of works. For example Condition 16(a) provides:

Following completion of road and drainage works and prior to release of the linen plan of subdivision a constructed wetland shall be designed and constructed in the location of the secondary sediment basin in accordance with the Department of Housing’s manual

to the satisfaction of Council’s Development Engineer.

54. This authorisation is consistent with the operation of the EP&A Act, s 81A(3) (enacted after the grant of the 1995 development consent) which provides:

(3) Subdivision of land

A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.

55. Accordingly, I would answer this question in the affirmative.

QUESTION (ii): Were those works carried out on land to which the 1995 development consent applied?

56. In my judgment the works were carried out on the land to which the 1995 development consent applied, namely the development site. To the extent that the works may also have extended onto the Crown land situate due east of the development site (being initially the unconstructed Crown Road Reserve and thereafter a Crown Land Reserve), I am satisfied that that Crown land is also relevantly “land to which the (development) consent applies” within the meaning of EP&A Act, s 95(4)—either (i) because the relevant Crown lands were included in the Respondent’s development application to which the Crown Lands Service had granted in writing its conditional consent (as required by the EP&A Act, s 77(1)(b))—vide Exhibit M or (ii) because the Assessor’s grant of development consent expressly required (by virtue of the imposition of Condition 16) the carrying out of sedimentation control works on the Crown land, such condition being authorised to be imposed by s 91(3)(f) of the Act which provides:
(3) A condition may be imposed for the purposes of subsection (1) if it:

…

…

(f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90(1) applicable to the development the subject of the consent,

57. Accordingly, I would answer this question affirmatively.

QUESTION (iii): Were those works authorised by the 1995 development consent?

58. In my judgment the works, being the physical commencement of the sedimentation control works, were works authorised by the Assessor’s grant of development consent. Condition A of the 1995 development consent states:

The development generally being in accordance with the Neighbourhood Management Statement dated 26th August, 1993; drawing No. RP-BB-027 A, dated December, 1993; and the six (6) plans by Warren Smith Pty. Ltd, numbered P1(A), P2, P3, P4, P5 and P6 dated 7/93 and 12/93, as modified by any conditions of this consent.

59. The reference to the plans prepared by “Warren Smith Pty Ltd” is a reference to plans that included a preliminary layout plan (P1(A)) showing, inter alia, stormwater drainage as it affected the adjacent Crown lands. In his judgment, the Assessor makes the following reference at pp 5/6 to drawings tendered in the developer’s case:

The drawing in Exhibit C provide engineering details of a scheme comprising essentially two sediment and detention basins located in the position of an existing highly eroded gully, to the east of the subject land. A single discharge point is shown. Curiously, it does not show any details of the proposed constructed wetland. Instead I was informed that the entire drainage scheme including the constructed wetland would be designed in accordance with the NSW Department of Housing’s

handbook and the NSW Department of Planning’s

guidelines. I heard no evidence to persuade me that the drainage scheme could not be constructed in accordance with the requirements of these documents. Miss Martin and Miss A. Weiland expressed particular concern at possible long term cumulative impacts but I do not accept that these will arise if the scheme achieves its objectives.

60. That reference to Exhibit C is a reference to plan P1(A-2) (being one of the plans that the Assessor in his judgment ordered to be retained on the Court file—see Order 3). That plan contains a layout of the proposed drainage system as it affected the adjacent Crown land that accords with the Assessor’s description of the proposal in the extract from his judgment that I have just recited.

61. It is tolerably clear that in imposing Condition 16, the Assessor was contemplating the installation of drainage works (including the establishment of sedimentation barriers and a wetlands on the adjacent Crown lands) along the lines depicted in Plan P1(A-2). Condition 16 included, in addition to the requirement contained in par (a) that I have earlier recited, the following requirement:
(a) Water discharge from the drainage works shall be of a quality which will not degrade the value or the Cibum Margil Swamp Wetland as a habitat for the Wallum Froglet.

62. Additionally, Condition 4 imposed the following obligation:
4. The subdivider is to make satisfactory arrangements for stormwater drainage disposal. Where applicable, written authority from adjoining owner(s) agreeing to the discharge of stormwater across the property in question is to be lodged with Council prior to the commencement of any drainage works.

63. Having regard to the express terms of the 1995 development consent, now amplified by the extension expressly provided by the EP&A Act, s 81A(3), I am satisfied that that consent relevantly authorised the carrying out of the drainage and sedimentation works, including those proposed to be undertaken on the adjacent Crown lands, and that the works undertaken by the Respondent in October 1999 and March 2000 relevantly constituted the “physical commencement” of those authorised works.

64. Accordingly, I would answer this question affirmatively. However, this answer, which simply identifies some of the scope of the approved development, is necessarily subject to my answers to the following questions (iv), (v) and (vi).

QUESTION (iv): Were those works carried out in contravention of the EP&A Act s 76A?

65. Section 76A(1) relevantly provides:

(1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

66. It is common ground that the relevant environmental planning instrument (the Byron Local Environmental Plan 1988) provided (both at the time that the 1995 development consent was granted and when the Respondent undertook the aforesaid works) that development of the development site for community title subdivision purposes may not be carried out except with development consent.

67. When the Respondent carried out the works on the development site in October 1999 and March 2000, the 1995 development consent was in force thereby satisfying subsection (1)(a). However, was the development carried out (by virtue of these works being carried out) “in accordance with that consent” so as to satisfy subsection (1)(b)?

68. The reference in that phrase to “that consent” is properly to be understood as a reference to the relevant development consent and to any conditions imposed on the grant of that consent: cf Rao v Canterbury City Council (2000) NSWCCA 471.

69. Since the next question directly asks whether the relevant works were carried out in contravention of Condition 23 of the 1995 development consent, I shall defer my present consideration of whether the EP&A Act, s 76A has been contravened, until I answer the next question, since that answer will simultaneously provide the answer to the present question.

70. Accordingly, I would answer this question in the negative, but subject to my answer to question (v).

QUESTION (v): Were those works carried out in contravention of Condition 23 of the 1995 development consent?

71. Condition 23 of the 1995 development consent is in the following terms:

72. The first and prime task is to establish the true meaning of this condition and its effect on the 1995 development consent.

73. In my interlocutory judgment delivered on 14 March 2000 I discussed this question at pars 12-21 inclusive:

12. The Council's claim to interlocutory relief asserts that the proposed works relevantly involve a breach of the EP&A Act being in contravention of Condition 23 of the 1995 development consent and in contravention of the EP&A Act s 81A(4) which provides that subdivision work (a defined term) in association with a development consent not be commenced until a construction certificate (another defined term) for the subdivision work has been issued.

13. The parties have fully argued the two legal foundations for the Council's claim to interlocutory relief and invite me to determine those issues finally in the present context. This is, in my view, the appropriate course to adopt.

14. In my judgment both the Council's bases for claim are well founded in that Condition 23 of the 1995 consent operates to preclude the "commencing" of any works in respect of the 1995 development consent until its requirements are satisfied.

15. The terms of condition 23 and its context (the 1995 development consent) are set out in both my judgments delivered last Friday. Condition 23 reads as follows:

16. It is the meaning of the second sentence that is in issue and in particular, the meaning of the expression " prior to any works commencing ".

17. The Council contends that condition imposes a condition precedent to the commencement of "any works" in relation to the approved development.

18. The Company contends that it is limited to works associated with tree removal.

19. In my opinion, the requirement imposed by the second sentence operates as a condition precedent to the commencement of any works in respect of the approved development and is not limited to works associated with tree removal.

20. The expression any works is general and wide and I do not think that there are considerations of subject matter or context that justify limiting the expression in the manner contended for by the Company.

21. In so concluding, I would add that there has been no challenge to the validity of the condition.

74. The Council submits that that reasoning and conclusion reflect the true meaning of Condition 23. However, the Respondent strenuously argues that that assigned meaning of Condition 23 was incorrect.

75. In deference to the detailed argument advanced by the Respondent in its written submissions on the true meaning of Condition 23, I set forth the entire argument:

13. Condition 23 of the 1995 consent provides as follows:

No tree to be ringbarked, cut down, lopped, removed or damaged, or caused to be ringbarked, cut down, lopped, removed or damaged, in contravention of the Tree Preservation Order applicable to the land. Any tree or trees which require removal are to be shown on a plan of adequate scale for the approval of Council’s planning manager prior to any works commencing.

It is submitted that condition 23 has two distinct parts; the first comprising the first sentence and the second comprising the second. The first sentence is advisory or

declaratory only and has no operative effect. That is, the purpose of the first sentence is to advise an applicant that no tree may be removed contrary to the Tree Preservation Order. It is submitted that this sentence does not operate as a requirement that any further approval pursuant to the Tree Preservation Order need be obtained prior to removal of those trees required to be removed to enable the consent to be implemented.

14 The granting of the 1995 consent by Commissioner Bly operated as a consent for all purposes required pursuant to the provisions of the EP & A Act. It clearly envisaged the removal of trees for the purpose of undertaking the subdivision works and the subdivision itself which the consent authorised. Accordingly, it is submitted that no further and/or separate consent is required for the removal of trees required to be removed to enable the 1995 consent to be implemented., notwithstanding the existence of the Tree Preservation Order (see

Grand United Friendly Society v Parramatta City Council [2000] NSWLEC 207 (unreported, Talbot 27 September 2000).

15 The second part of the condition requires the lodgment of a plan. That plan is to indicate any tree or trees which require removal. That is, removal to permit the subdivision works the subject of the 1995 consent to be implemented. Thus, it is submitted that the plan was to indicate the tree or trees in respect of which removal was necessary or required in order to facilitate the development for which consent has been granted (

the Tree Plan).

16 The Tree Plan was to be submitted to the Council for approval by its Planning Manager. It is submitted that the approval referred to herein is an acceptance by the Council that the tree or trees which are shown on the Tree Plan are trees which are required to be removed in order to facilitate the development consent. The approval of the Manager is to occur

prior to any works commencing .These words are the crux of the dispute between the Council and Detala.

17 The Council asserts that the Tree Plan must be approved prior to the undertaking of any works at all on the land. Detala submits that this construction is incorrect and that the Plan need only be approved prior to the commencement of any works the subject of the approval which necessitate the removal of trees; or put another way, works which cannot be carried out without the removal of trees. The contrary construction would permit the Planning Manager to refuse approval of the Tree Plan so as to frustrate not only the implementation of the consent generally but also the carrying out of sufficient work to prevent the consent lapsing. Such a construction would not be adopted without clear words. (See distinction in conditions referred to in

Irongates and Coalcliff). In this respect the adjective any does not take the matter further. There is no difference in meaning between the words prior to any work commencing and prior to work commencing: see, for example Condition 24 and 27.

18 Condition 23 read in the context of the 1995 consent as a whole supports this construction of the condition. Conditions 4, 14, 23, 24 and 27 provide for certain things to be done before certain works are done. It is apparent from the context of these conditions that the Council was requiring that certain information be provided to it before the work the subject of that information was carried out. In construing the consent as a whole there is no reason, it is submitted, to place a different construction on the words in condition 23 to those words where they appear in those other conditions of the 1995 consent to which reference is made.
19 Further, if it was the Council's intention to require the Tree Plan to be approved prior to the carrying out of any works at all on the land, the condition should have been framed to reflect that intention. It is respectfully submitted that condition 23, as drafted, is ambiguous as to what work is required to be carried out and therefore should not be construed in the expansive manner referred to by the Council. Accordingly, given its context of requiring a Tree Plan identifying trees

which require removal, it only makes sense for that plan to be lodged and/or approved before the commencement of works which require the removal of the trees so identified so Council can be satisfied that only those trees are removed as a consequence of those works. The condition and its operation are distinguishable from those referred to in Coalcliff Community Association Incorporated v Minister for Urban Affairs and Planning and Ors 106 LGERA 243 (Coalcliff); and Iron Gates Development Pty Limited v Richmond-Evans Environment Society Incorporated (1992) 81 LGERA 132 at 133) (Iron Gates).

20 Looked at as a whole, in light of the foregoing, it is apparent that the first sentence of condition 23 was aimed at the removal of any tree not required to be removed to implement the consent. Such a tree would still require approval under the Tree Preservation Order. The second sentence was aimed at those trees for which no further development consent or Tree Preservation Order approval was required, namely, any tree which was required to be removed so that the 1995 consent could be implemented.

No further approval required (Declaration 4)

46 It appears to be suggested by the Council that in order to comply with the terms of condition 23 Detala is required to obtain a further development consent under the EP & A Act and/or an approval under the Tree Preservation Order (TPO) to remove the trees identified in the Tree Plan, being the trees required to be removed to enable the approved subdivision works to be undertaken. For the reasons outlined above it is submitted that the condition is not open to that interpretation.
47 There has been recent judicial consideration of the manner in which the existence of a TPO controls the removal of trees on land and how the TPO fits into the legislative context of the EP & A Act.

(Lloyd J NSWLEC 30 April 1998, unreported at paragraphs 12-16)

Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 at 313;

Dames & Moore Pty Ltd v Byron Shire Council [2000] NSWLEC 46 at paragraphs 16-18.

48 The tenor of the recent judicial consideration suggests that a TPO controls

development within the meaning of the EP & A Act. This determination, however, was made in the context of an applicant seeking to remove trees where no development consent already existed in respect to the use of land which required, of itself, the removal of trees in order for the consent to be implemented.

49 This distinction is critical as in the present case Detala has the 1995 consent. That consent anticipated the removal of trees (see Judgment of Commissioner Bly and transcript.). The removal of trees due to the proposed subdivision works and their potential impact was a hotly contested issue at the hearing of the appeal before Commissioner Bly (see Transcript and index).
50 Section 81 A(3) of the EP & A Act anticipates that part of any development consent for the subdivision of land is the authority to carry out physical activity on the land the subject of the consent to implement the proposed subdivisions and subdivision works such as road construction is expressly exemplified..
51 In

Grand United Friendly Society v Parramatta City Council [2000] NSWLEC 207 Talbot J considered a matter factually very similar to the present case. His Honour determined that the development consent in that case authorised the removal of trees for the purpose of, or in connection with, the subdivision approval and that no further or separate consent was required for the removal of such trees whether under the EP & A Act or the Parramatta TPO.

52 It is accepted that each case turns upon its own facts and upon the construction of the particular development consent. It is clear form the decision in

Grand United that the conditions imposed upon that consent dealt with the issue of tree removal. The differences between the conditions in Grand United and the 1995 consent, however, are not sufficiently different to render Grand Untied distinguishable on its facts. Both consents clearly anticipated tree removal as necessary for the development the subject of the consent to be undertaken. Conditions were in place to ensure tree removal was limited. Both local government areas had TPO’s which controlled the removal of trees.

53 It is respectfully submitted that for the reasons outlined above and in light of the evidence now filed in these proceedings (which places condition 23 in its proper context to enable a better understanding of its purpose and intent), the finding of this Court in

Dames and Moore v Byron Council [2000] NSWLEC 46 at para 16 that:

... the 1995 development consent did not in fact or in law grant any consent for the clearing of the vegetation. On the contrary, by imposing condition 23, the 1995 consent left for future consideration the question of any further necessary approval .

was incorrect. It is therefore submitted that the Court would not, in this case, adopt that finding in respect of condition 23. This is particularly so in light of the evidence that the issue of tree removal required by the proposed subdivision works was one of the very issues upon which the Council resisted the granting of the 1995 consent in the proceedings before Commissioner Bly. It is thus abundantly clear that the 1995 consent carried with it any development consent (or other approval required pursuant to the LEP) to remove trees to enable that consent to be implemented.

54 If the last sentence of that finding be correct, given that the question of tree removal was an essential matter to enable that consent to be implemented, that consent would fall foul of the principle referred to in

Mison v Randwick City Council (1991) 73 LGRA 349 at p.354 that requires a consent to be final. The Court, in imposing such a condition could not have intended to grant an invalid development consent. Accordingly, it is submitted that the construction referred to in the last sentence of the finding was incorrect.

55 It follows from the foregoing submissions that condition 23 did not leave

for future consideration the question of any further necessary approval if this is meant that the condition required a further development consent under the EP & A Act and/or a consent under the TPO in force at the time of proposed removal with respect to those trees required to be removed to enable the approved subdivision works to be undertaken, being the trees the removal of which was the very subject matter of the grant of the 1995 consent.

56 It is submitted that the condition therefore cannot be legitimately construed to negative the very works (including the removal of the trees required to enable that work to be undertaken) the subject of that consent. The requirement in the condition for the Tree Plan was to enable the Trees required to be removed for the approved works to be identified and that the Planning Manager's approval of that plan was to enable him to be satisfied that no trees were earmarked for removal other than those so required for the purpose of undertaking those approved works. The Planning Manager's approval (not the Council's) was not, therefore, an approval under the EP & A Act, the LEP or any TPO. It was not expressed as such and its evident purpose cannot justify any construction to the contrary. Approvals under the EP & A Act, the LEP and the TPO were incorporated into the 1995 consent - the approval required by the condition was one of identification only.
57 Therefore, it is submitted that by virtue of the construction and content of the approval and in accordance with s. 81A(3) of the EP & A Act the 1995 consent authorised the removal of any tree required to be removed to implement that consent without the requirement for any further approval of the Council.

76. While acknowledging that this argument was far more elaborate than that advanced on behalf of the Respondent at the interlocutory hearing, I must confess to not being ultimately persuaded to depart from my interlocutory judgment. This was the task the Respondent candidly set out to establish on the final hearing, but my consideration of the detailed argument leads me to conclude that the Respondent has not successfully essayed the task it set itself. I now proceed to give my detailed reasons for so concluding.

77. It may be assumed that when the 1995 development consent was granted, there was in existence within the Byron Shire a relevant Tree Preservation Order. (This assumption operates in favour of the Respondent, because unless there was a relevant Tree Preservation Order in force when the development consent was granted, there would be no possibility for the Respondent to argue that that consent additionally operated as a consent required by the Tree Preservation Order for the removal of trees.)

78. In any event, there is in evidence (Exhibit 2) a Tree Preservation Order made by the Council by resolution passed at its meeting held on 20 August 1996 pursuant to the powers conferred by cl 8 of the Environmental Planning and Assessment Model Provisions 1980 (which were adopted for the purposes of Byron Local Environmental Plan 1988: vide cl 6).

79. The Tree Preservation Order was in the following terms:

No person shall cut down, lop, top, remove or wilfully destroy any species of tree, palm or fern exceeding three (3) metres in height, except with the written consent of Council being obtained beforehand. All coastal heathlands and mangroves of any height are covered by this order and consent within these areas for any lopping or removal of vegetation is required.

Exemptions from this Tree Preservation Order are any fruit tree grown in an orchard for its edible fruit or trees planted as part of a windbreak to an orchard, trees planted for commercial woodlots or farm forestry, trees within two (2) metres of the footprint of an existing building, trees subject to a building application including within two 92) metres of the footprint, and trees listed below as Undesirable Trees. A maximum of six (6) regrowth trees of less than ten (10) years of age per holding in a twelve (12) month period is also exempted.

80. Some 13 species or types of “undesirable trees” thereafter are listed according to their botanical and common names.

81. The Tree Preservation Order then states:

The Council also resolved that all applicants seeking approval under the Tree Preservation Order submit development applications. The fee structure for development applications will be $25.00 for applications affecting six (6) or less trees, excluding applications which require a Species Impact Statement under the Threatened Species Conservation Act, 1995. The fee for all other applications will be $150.00.

82. In view of the foregoing content of the Tree Preservation Order, the reference in the first sentence of Condition 23 to “in contravention of the Tree Preservation Order…” is readily explicable—it refers to doing a proscribed act (eg removing trees) without the requisite “written consent of the Council”, which consent is to be sought by the making of an appropriate development application.

83. In these circumstances, I am unable to accept the Respondent’s argument that the first sentence of Condition 23 is “advisory or declaratory only and has no operative effect”. Generally, in the context of conditional development consents where a condition is intended to have only “advisory” effect, that is specifically so stated. Here, there is no such statement and none of the conditions of the 1995 development consent is said to be “advisory” only.

84. On the contrary, prima facie, the first sentence is bringing into immediate focus and particular application to the development site, the provisions of the Tree Preservation Order as it applies generally within the Shire. Its apparent effect is to proscribe specified activities which would involve a contravention of the Tree Preservation Order.

85. The Respondent seeks to avoid this construction by asserting that the 1995 development consent itself authorised the removal of trees and therefore the first sentence of Condition 23 must be confined to apply only to other trees that are located on the development site, ie trees the removal of which is not so authorised by the 1995 development consent.

86. But this argument invites the crucial question—what trees are authorised by the 1995 development consent to be removed?

87. The Respondent’s answer is principally based upon the passages from the Assessor’s judgment that I have earlier recited under the heading “Impact on Existing Site Vegetation”. It must be recognised that these passages provide background facts only—they are not part of the words of grant of the 1995 development consent, and it is the words of grant that must be construed.

88. However, concerning the passage recited from the Assessor’s judgment, as I have earlier noted, there can be no doubt that in assessing that impact, the Commissioner contemplated that when the proposed development was fully developed there would be a vegetation loss on an area of 0.77 ha of the development site (constituting some 70 per cent of the overall site area). However, does that contemplation translate into a development consent for the removal of that vegetation in view of the existence of the Tree Preservation Order proscribing specified activities without the consent of the Council?

89. A number of matters are relevant to this crucial question (the answer to which must ultimately come to terms with the existence of Condition 23). Firstly, the 1995 development consent does not in terms, grant consent for the removal of any trees or vegetation. Secondly, the Assessor’s judgment makes no reference to the existence of a Tree Preservation Order. Thirdly, the Tree Preservation Order requires the requisite consent thereunder to be obtained via the making of a development application. Fourthly, included in the express terms of the exemptions to the Tree Preservation Order’s proscriptions are the following:

trees within two (2) metres of the footprint of an existing building, trees subject to a building application including within two (2) metres of the footprint

90. The last-mentioned exemption is significant inasmuch as it is referring to the effect of a building application. Significantly, no express exemption is similarly made in respect of a “development application”. This suggests that it is at the later stage of a building application coming into existence in the overall development process, that is considered to be the opportune time to consider an application for consent under the Tree Preservation Order. This makes good sense because it links the removal of trees from a development site with the immediate prospect of the development being carried out, thereby avoiding unnecessary or premature tree removal.

91. Moreover, it is reasonable to expect that a “development application” required by the Tree Preservation Order for the removal of trees would need to be particular in stating with some precision what trees are sought to be removed, so that there is no indiscriminate or unnecessary loss of trees.

92. There is no suggestion in the Assessor’s judgment that he was dealing with a “development application” seeking the removal of particular trees. Moreover, as I have earlier pointed out, the vast majority of the area of the development site shown on the development application plan that would involve vegetation removal was the combined area of the “maximum building envelope” identified on the plan for each of the 15 residential lots. The creation of those building envelopes was something that would occur after the community title subdivision was effected, when separate applications were made for dwelling-houses to be developed on each of those lots. In these circumstances, it is not likely that development consent for the community title subdivision would consider the question of what precise vegetation would need to be removed for the purpose of creating the building envelope for each of the 15 residential lots—rather, that question would be profitably deferred until there emerged development applications to develop each of the residential lots.

93. Finally, it is to be noted that the development application plans did not adopt the conventional approach of development applications identifying particular trees to be removed and particular trees to be retained, in the development proposal. When that conventional approach is employed in a development application which receives development consent, it is generally accepted that that development consent provides the necessary authorisation for the removal of the trees that have been shown on the development plans as being required to be removed: cf the facts in Rao.

94. Having regard to all the foregoing considerations, there is substantial difficulty in accepting the Respondent’s submission that the 1995 development consent in approving the community title subdivision additionally granted the requisite consent under the Tree Preservation Order for the removal of trees from the development site.

95. Even if the question were to be answered on the assumption that Condition 23 did not exist, there would be difficulty in accepting the Respondent’s submission.

96. But once Condition 23 is factored into the 1995 development consent (as it must be, because the consent is a consent granted subject to specified conditions), the difficulty is greatly magnified so as to require rejection of the Respondent’s submission that upon its true construction, the 1995 development consent subject to the specified conditions imposed thereon, including in particular, Condition 23, granted the required consent under the Tree Preservation Order for the removal of an unspecified number of trees, in consequence of the carrying out of the approved community title subdivision.

97. In so concluding, another background fact is worthy of note, namely the fact that speaking generally, it was not until very recent times (certainly post the 1995 development consent) that the operation of tree preservation orders was recognised as part and parcel of the system of “development control” in force under the EP&A Act, Part 4. The modern exposition of the proscriptions of a tree preservation order being part of the development control applied by environmental planning instruments in combination with the EP&A Act, s 76A can be traced to a series of recent decisions in this Court, the first of which was the decision of Lloyd J in April 1998 in Meriton Apartments Pty Ltd v Ryde City Council (not reported until (2000) 108 LGERA 352) See also my decision in Hornsby Shire Council v Winsloe (1998) 101 LGERA 117.

98. The significance of these recent decisions is the unlikelihood when the 1995 development was granted, of the relevant proscriptions in force under the Tree Preservation Order being considered as part of the controls on development applied by the Byron Local Environmental Plan 1988 in combination with the EP&A Act s 76(1) (being the legislative predecessor to s 76A(1) which came into force on 1 July 1998).

99. For all these reasons, I would construe the first sentence of Condition 23 as applying to the development site the relevant proscriptions of the Tree Preservation Order in the sense that the removal of particular trees from the development site would require consent under the Tree Preservation Order.

100. This conclusion does not mean, that the contemplation of vegetation loss made in Assessor Bly’s judgment would be irrelevant, or that the 1995 development consent would be stultified of frustrated. Many of the conditions of that 1995 development consent required the submission of detailed plans on various aspects of the approved development, to the Council for approval prior to the commencement of works. For example, in respect of stormwater drainage disposal, although it is clear that the 1995 development consent authorised this essential aspect of the approved development, nonetheless Conditions 4 and 16(a) required submission of detailed plans to the Council “to the satisfaction of the Council’s Development Engineer”.

101. Similarly Condition 9 required detailed engineering plans for sewerage and water supply to be submitted for the approval of the Council’s Development Engineer. Similarly Conditions 24 and 27 required submission of detailed plans for approval either of a nominated Council servant or the Council in respect of the extension into the development site of Pacific Vista Drive (Condition 24) and the provision of a footway from the development site to Paterson Street (Condition 27).

102. All these conditions imposed requirements for the developer to submit detailed plans in respect of specified aspects of the approved development and to obtain the approval of the Council’s nominated servant or the Council itself. However, it is implicit in all of these conditions that upon submission of appropriate detailed plans, the requisite approval would be granted, not simply as a formality, but in recognition of the fact that the 1995 development consent had approved the community title subdivision subject to the requirement for various detailed plans to be submitted to the Council for approval, which approval would not be unreasonably withheld.

103. So with the first sentence of Condition 23, it might reasonably be expected that the development application seeking the removal of trees would be dealt with by the Council in the knowledge that the 1995 development consent had approved the community title subdivision in the contemplation that extensive vegetation and tree removal from the site would be necessary in the carrying out of the approved development.

104. It is also for the foregoing reasons that I cannot accept the Respondent’s allied submission that “no further and/or separate consent is required for the removal of trees required to be removed to enable the 1995 consent to be implemented, notwithstanding the existence of the Tree Preservation Order”. In advancing this particular submission, the Respondent relies upon the decision of Talbot J in Grand United Friendly Society v Parramatta City Council (2000) NSWLEC 207 where his Honour construed development consents (for (i) the subdivision of land and the development of one of the lots by an aged persons housing development; and (ii) for a re-subdivision of the first mentioned land) as not requiring “further or separate consent” for the removal of trees and vegetation because the removal of trees was authorised by the relevant development consents.

105. However, as the Respondent fairly concedes, each case of development consent calls for its own construction, and it is important to note that the relevant condition imposed upon one of the development consents construed by Talbot J was in the following terms:

48 Prior to the removal of any trees detailed tree removal plans and planting schedules are to be submitted, including guidelines for retention and management of identified trees and other vegetation.

106. The significance of this condition to the task of construction is emphasised at par 49 of his reasons for judgment where Talbot J states:

Condition 48 of the consent in proceedings No 10799 of 1994 expressly contemplates that trees will be removed. The condition requires only that detailed tree removal plans and planting schedules be submitted to the council prior to the removal of any trees. If there had been any intention to require a submission as a precursor to the grant of further consent it might reasonably be expected that condition 48 would have contained a statement to that effect.

107. Accordingly, that condition considered in Grand United Friendly Society is very different in its terms from Condition 23 of the 1995 development consent, and the result reached in that case, which involved the question of construing the relevant development consents including relevant conditions imposed thereon is not readily translatable to the task of construing a different consent in the present case. (The relevant condition in the other development consent construed in Grand United Friendly Society was also sufficiently different from Condition 23 in the 1995 development consent as to render that decision, similarly distinguishable on the facts).

108. Coming to the Respondent’s submissions addressing the second sentence in Condition 23 (which perhaps is the more crucial component of Condition 23 in issue in the present case because of the fact that the works undertaken by the Respondent on the development site did not involve the removal of any tree—rather, it involved the removal of coastal heathland vegetation), the Respondent’s argument properly concedes that the meaning of the sentence requires the “approval” of the requisite tree removal plan by the Council’s Planning Manager “prior to any works commencing”.

109. Here, the Respondent propounds a restrictive and narrow meaning of the phrase “any works commencing” by submitting that it is confined to “works which cannot be carried out without the removal of trees” ie works on those parts of the development site where trees are located which require removal in order that the approved development may be carried out.

110. The Respondent’s proffered justification for so reading down the general and wide words “any works” in the context of the grant of a development consent for a community title subdivision of the development site, is to avoid the situation where the Council’s Planning Manager could frustrate (i) the implementation of the consent; and (ii) the overcoming by the developer of the statutory lapsing of the consent.

111. This argument is not only premised upon the Council’s Planning Manager adopting a course of deliberately frustrating or obstructing implementation of the development consent, but upon the additional premise that such an obstructive approach would be unreviewable or irremediable in court proceedings brought at the instigation of the developer.

112. But neither of these premises is substantiated, either as a matter of argument or as a matter of fact. As to the latter, the evidence does establish that when the Respondent submitted the tree removal plan to the Council in October or November 1999, (some 4 1/2 years into the five years statutory lapsing period) the Council’s relevant servant acting upon legal advice (and no doubt upon instructions received from the Council) refused to approve the tree removal plan. But even at that late stage into the statutory lapsing period, the Respondent was able to almost immediately commence proceedings in this Court seeking a modification of Condition 23 of the 1995 development consent by omitting the requirement for any “approval” of the tree removal plans and limiting the developer’s obligation to merely submit the tree removal plan.

113. Thus, the facts of the present case themselves deny the Respondent’s premises (i) that the Council’s servant deliberately frustrated implementation of the 1995 development consent; and (ii) that there was no opportunity for reviewing the Council’s servant’s decision not to approve the tree removal plan.

114. Next, the Respondent advanced the curious submission that “if the Council’s intention was to require the Tree Plan to be approved prior to the carrying out of any works at all on the land, the condition should have been framed to reflect that intention”. The obvious response to this submission, is that surely is the plain and obvious meaning of the expression “prior to any works commencing” employed by Condition 23.

115. The absence of express mention in Condition 23 of “the land” does not create any ambiguity—given that as a matter of context and subject matter, the development site (including the adjoining Crown land) is the obvious, if not only, geographical land unit on which the approved works could be carried out.

116. In my respectful opinion, the Respondent’s argument seeking to read down the natural and ordinary scope and meaning of the expression “any works commencing” is unconvincing and provides no justification for rejecting the plain and ordinary meaning of the expression. Reliance upon the terms of other conditions of the 1995 development consent (eg conditions 4, 7, 9, 14, 24 27) in the Respondent’s attempt to read down the words of Condition 23 is neither convincing nor decisive, inasmuch as no single approach is revealed in these conditions.

117. Finally, the Respondent submits that any suggestion, implicit in the Council’s argument (and reflected in a passage quoted from my judgment of 10 March 2000 in one of the Respondent’s class 1 proceedings) that some “further development consent is required either under the EP&A Act or under the Tree Preservation Order, in respect of the removal of trees from the development site”, fails to appreciate what development was authorised by the 1995 development consent, or alternatively offends the principle of finality established in Mison v Randwick Council (1991) 73 LGERA 349.

118. I have already rejected the Respondent’s submission concerning the effect of the first sentence of Condition 23 and its allied submission that the 1995 development consent granted the requisite consent under the Tree Preservation Order.

119. More importantly, in my respectful judgment, this final submission fails to appreciate that the second sentence of Condition 23 requires the approval of the tree removal plan “prior to any works commencing”, even if the Respondent’s submissions on the first sentence of Condition 23 were assumed to be correct.

120. It is that temporal qualification or imperative which is distinctive to the obligation imposed by Condition 23 and its existence means that the answer to the Respondent’s question whether the requisite “approval” referred to in Condition 23 is a further development consent under the EP&A Act or under the Tree Preservation Order, would not resolve the effect of the temporal qualification or imperative of the condition which, in my judgment, inevitably translates the obligation imposed by Condition 23 into a condition precedent to the carrying out of development authorised by the 1995 development consent cf Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 at 256.

121. Accordingly, in my judgment, the proper construction of the second sentence of Condition 23 does not require the equating of the requisite “approval” therein mentioned with a further development consent granted either under the EP&A Act or the Tree Preservation Order, although in passing, I would note that the Mison principle (which the Respondent relies upon but which in my judgment would not be infringed even if Condition 23 did require the obtaining of a further development consent for the removal of trees from the development site) has been considerably abrogated by the later enactment of the EP&A Act, s 91AB which was in force when the 1995 development consent was granted.

122. In passing, I would also note that in my judgment in the class 1 proceedings, from which the Respondent’s submissions cite (and criticise) a passage from par 16, the context of that proceeding was the Respondent’s development application to cut down and remove specified trees from the development site, which development application had been expressly stated by the Respondent’s agent in making the development application to have been “made pursuant to condition 23 of the 1995 development consent” in respect of which I observed in par 5 of my judgment:

This would appear to be intended as a reference to the first sentence of condition 23, which draws attention to the applicable Tree Preservation Order.

123. In the present proceedings, the Respondent has entirely abandoned the approach that it had taken in the class 1 proceeding, by submitting that no further consent under the Tree Preservation Order is required for the removal of trees from the development site in order that the approved development be carried out, which activity is said to be governed by the 1995 development consent. Whereas the Respondent is now entitled to abandon the approach it adopted in the class 1 proceedings, that does not alter the fact of the approach it took in those earlier proceedings which approach obviously influenced the relevant passage in my judgment in those proceedings cited in the Respondent’s written submissions.

124. Finally, I would note that in the present proceedings the Respondent has not impugned the validity of Condition 23 of the 1995 development consent. Rather, it has argued, solely upon the basis of construction, that the wide scope and operation of the obligation imposed by Condition 23 (which arises solely from the plain and ordinary meaning of the expression “prior to any work commencing”) should be read down, but not because of any alleged invalidity in Condition 23 which would justify such a construction: ut res magis valeat quam pereat.

125. Accordingly, and for all the foregoing reasons, I would construe Condition 23 of the 1995 development consent according to its plain and ordinary meaning, so as to require “prior to any works commencing” the approval by the Council’s Planning Manager of a tree removal plan.

126. Such a construction of Condition 23 is founded upon the plain and ordinary meaning of the language of the condition. Of course, as I have already emphasised, the context of that language is that of a condition imposed upon the grant of development consent. This invites consideration of the relationship between the grant of a development consent and the conditions imposed upon such a grant. By its nature, a condition of development consent will invariably qualify in some respect the development consent and that development which it authorises. Often conditions will modify the nature of the approved development. Mison provides an example of a condition being held to so substantially change (or potentially change) the nature of the approved development as to invalidate the development consent.

127. Another potential effect and operation of a condition commonly encountered is that it may require something to be done in relation to the approved development before that development may be carried out. The effect of such a condition of development consent was considered in the Court of Appeal’s judgments in (i) Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; (ii) Coalcliff Community Association; and (iii) Green v Kogarah Municipal Council (2001) NSWCA 123. These judgments affirm that a condition of a development consent may operate as, or in the nature of, a condition precedent to the carrying out of the approved development to the intent that if the condition is contravened, any works undertaken on the approved development will in consequence be held to be unlawful works.

128. Accordingly, in construing Condition 23 of the 1999 development consent, and in the absence of any attack on the validity of the condition, it is of course fundamental that the conditional development consent be construed as an entirety, recognising the proper bounds of the relationship between the grant of the development consent and the conditions upon which it was granted.

129. In this respect, and contrary to what I have held, even if the Respondent’s submission that the development authorised by the 1995 development consent included the removal of trees on the development site (to accommodate the carrying out of the approved community title subdivision) were fully accepted (and in my respectful opinion, that construction virtually ignores the existence of Condition 23, and on that account is fundamentally flawed) it would not follow that the obligation imposed by the second sentence of Condition 23 is thereby nullified or neutralised or has no work to do. On the contrary, it operates, according to its plain terms so as to require the developer to obtain the approval of the Council’s Planning Manager to the tree removal plan “prior to any works commencing”.

130. As I have earlier noted, it is the express terms of this obligation cast by Condition 23 that entirely distinguishes on the facts the present case from the decision in Grand United Friendly Society, and excludes the application to the present case of the following approach to construction of the relevant development consents adopted by Talbot J at par 48 in that case:

…it was intended to be a consent for all relevant purposes under the provisions of the EP&A Act for the carrying out of the development proposed in the application and identified by the plans.

131. If Condition 23 only contained the first sentence, the present case would come into closer alignment, factually with the Grand United Friendly Society case, although as I have earlier found, the relevant conditions would still be different. However, as I have emphasised, it is the obligation cast by the second sentence of Condition 23 with its express temporal qualification and imperative and with its requirement for approval to be obtained for the tree removal plan, which not only distinguishes the present case from Grand United Friendly Society, but which does not lend itself to a construction solution, along the lines employed in that case.

132. No such approval of the tree removal plan, having been granted, as required by Condition 23 at the respective times in October 1999 and March 2000 when the Respondent carried out the works on the development site, it necessarily follows that those works were carried out in contravention of Condition 23 of the 1995 development consent, and in consequence thereof, also in contravention of s 76A(1) of the EP&A Act.

133. Accordingly, I would answer this question (and the preceding question) affirmatively.

QUESTION (vi): Were those works carried out in contravention of the EP&A Act, s 81A(4)?

134. Section 81A(4) is in the following terms:
(3) Subdivision work in accordance with a development consent must not be commenced until:
(a) detailed engineering plans and specifications relating to the work have been endorsed with a construction certificate by:
(i) the consent authority, or
(ii) an accredited certifier, and
(b) the person having the benefit of the development consent:
(i) has appointed a principal certifying authority, and
(ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and
(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council of the person’s intention to commence the subdivision work.

(Section 81A(2) is a counterpart provision imposing similar restrictions on the commencement of “the erection of a building”.)

135. Section 81A and the related provisions relating to “certification of development” contained in Part 4A were introduced into the EP&A Act by the Environmental Planning and Assessment Amendment Act 1997 (Act No 152) which came into force 1 July 1998. Those provisions were enacted to replace the statutory regimes of the control on the erection of buildings and on the subdivision of land formerly contained in the Local Government Act 1993 and the Local Government Act 1919, Part XII respectively, which regimes were repealed by Act No 152 of 1997. The effect of these significant legislative changes are fully discussed in my recent judgment in Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

136. Although s 81A was not in force when the 1995 development consent was granted, it was, of course, in force when the Respondent carried out works on the development site in October 1999 and March 2000.

137. As I have earlier noted, it is common ground that when those works were carried out, no “construction certificate” within the meaning of the EP&A Act, s 109C(1) had been issued in respect of detailed engineering plans and specifications of the subdivision work (or in respect of the building).

138. Prima facie therefore, the works carried out by the Respondent relevantly “commenced subdivision work in accordance with the development consent” within the meaning of the EP&A Act, s 81A(4) without there being in existence the requisite “construction certificate”, and hence the carrying out of those works involved a contravention of s 81A(4).

139. However, the Respondent seeks to avoid this inevitable conclusion by contending—
(i.) a construction certificate was not required because the Council’s approval of the Respondent’s engineering plans as communicated in the Council’s letter dated 12 April 1999 had the legal effect of being a subdivision approval granted under Part XII of the Local Government Act 1919; and
(ii.) in the alternative, the Council is estopped by its conduct from asserting that a construction certificate was required.

140. I shall separately consider these two contentions.
(i) The asserted approval under Part XII

141. It is common ground that when the 1995 development consent was granted “subdivision of land” was an activity that not only required development consent under the EP&A Act but required approval under Part XII of the Local Government Act 1919 (which Part had not been repealed when the Local Government Act 1993 repealed the Local Government Act 1919).

142. It is also common ground that when the Part XII was repealed by the enactment of the amendments to the EP&A Act contained in the Environmental Planning and Assessment (Amendment Act 1997) (Act No 152)and was replaced by the regime of certified development (including in the case of “subdivision” a construction certificate) the transitional and savings provisions contained in the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 enabled an application for approval of a subdivision under Part XII to be made on or after “the appointed day” (being 1 July 1998 when the amendments to the EP&A Act came into force) but “before 1 July 1999”, as if Part XII had not been repealed: vide cl 5.

143. Clauses 6 and 7 of the Regulation preserved the operation of Part XII in respect of any approval granted to an application made pursuant to cl 5 of the Regulation.

144. It is also common ground that if cll 5, 6 and 7 of the Regulation were properly invoked in respect of a subdivision, then the requirements of s 81A(4) of the EP&A Act would not apply to such a case.

145. However, the parties diverge on the question whether approval was relevantly granted in the present case pursuant to the transitional provisions contained in cll 5, 6 and 7 of the Regulation so that s 81A(4) would have no application.

146. The divergence is not based upon any factual dispute because it is common ground that no application for approval under Part XII was actually made by the Respondent. Rather, it is submitted by the Respondent that the approval granted by the Council on 12 April 1999 to the Respondent’s engineering plans, operates in law as the grant of approval under Part XII.

147. In the course of argument when I directed the Respondent’s attention to the requirement of s 331(1) of Part XII (“Applications under this Division shall be submitted to the Council by the owner of the land or by some person authorised by him in writing”) it was properly conceded that at the times (i) when the Respondent’s Consulting Engineers by their letter dated 22 December 1998 applied to the Council “for approval to commence the subdivision works”; and (ii) when the Council on 8 April 1999 approved the detailed engineering plans, there was not in existence the requisite consent granted by the owner of the Crown land, situate immediately to the east of the development site, upon which Crown land the detailed engineering plans depicted the carrying out of extensive sedimentation control works (being nominated as Stage 1 works in the Construction Staging notation on those plans).

148. Senior Counsel for the Respondent properly conceded that the absence of owner’s consent to an application for subdivision approval under Part XII (as required by s 331(1)) went to the validity of the application. This concession led ultimately to the abandonment of the Respondent’s argument that the Council’s approval of the detailed engineering plans constituted in law an approval under Part XII.

149. Accordingly, it necessarily follows that there having been no valid application for subdivision approval under Part XII made “before 1 July 1999” pursuant to cl 5 of the Regulation, the repeal of Part XII effected by the amendments made to the EP&A Act (which came into force on 1 July 1998) meant that when the Respondent undertook the works on the development site in October 1999 and March 2000 it did so at a time when the EP&A Act, s 81A(4) applied to such work and that the work was undertaken in contravention of s 81A(4) by virtue of there not being in existence the requisite “construction certificate” in respect of the subdivision, the subject of the 1995 development consent.
(ii) The alleged estoppel raised against the Council

150. Although the Respondent sought to raise as an alternative contention, the relevant estoppel against the Council alleging that the relevant works were undertaken by the Respondent in contravention of the EP&A Act, s 81A(4), it is not possible to dissociate this contention from the Respondent’s contention that the Council’s approval of the detailed engineering plans constituted in law the grant of approval under Part XII so that no question of compliance with s 81A(4) arose in the present case.

151. This is simply because if there had been granted an approval under Part XII in respect of an application made at any time up to 1 July 1999, in accordance with cl 5 of the Regulation, s 81A(4) would not apply to the works undertaken by the Respondent in October 1999 and March 2000, and accordingly, no question of estoppel against the Council relying upon s 81A(4) would arise in this case.

152. As has been demonstrated by the Respondent’s contention in relation to the question whether there existed in law, an approval granted under Part XII by virtue of the Council’s approval of the detailed engineering plans, there was obvious substance in the submission which only failed because of the absence of the owner’s consent to the application as required by s 331(1) of Part XII.

153. But for that fatal fact, the submission would, in all probability, have proved successful.

154. But this surely means that the Council, as much as the Respondent, was probably acting on the basis of the sufficiency of its approval of the detailed engineering plans, at least up to 13 March 2000 when it commenced the present proceedings claiming that the carrying out of the works would involve a contravention of s 81A(4) (in addition to a contravention of Condition 23 of the 1995 development consent).

155. In these circumstances there is, in my judgment, simply no factual basis for the Respondent’s asserted estoppel against the Council’s reliance upon s 81A(4). Until 13 March 2000 it would appear that the Council, as much as the Respondent, was acting upon the basis that its approval in April 1999 of the Respondent’s detailed engineering plans was sufficient to enable the approved subdivision to be commenced. In other words, it was commonly assumed that s 81A(4) did not apply to the approved subdivision.

156. Thus, when the October 1999 works were undertaken, the Council’s intervention leading to the termination of the works was based entirely upon the Council’s assertion that the requirements of Condition 23 of the 1995 development consent had not been fulfilled with the legal consequence that the works were, on that account, unlawful.

157. But the subsequent holding (as now only finally established by this judgment) that that approval did not in law, constitute a valid approval under Part XII (because there was no valid application made therefor) does not deny or neutralise or avoid, the fact that until that holding was made, both parties were acting upon the basis that the Council’s approval of the detailed engineering plans constituted in law the grant of the requisite approval to the subdivision under Part XII.

158. In these circumstances, there is simply no factual foundation for the Respondent’s asserted estoppel against the Council relying upon s 81A(4) in alleging that the works were carried out in October 1999 and March 2000 in contravention of s 81A(4). The short answer to the asserted estoppel is that the Council, as much as the Respondent, was acting (at least up to 13 March 2000) upon the basis that the April 1999 approval of the Respondent’s detailed engineering plans was a sufficient warrant or authority for the commencement of the approved subdivision, in which situation the EP&A Act s 81A(4), was commonly considered by both parties to have no application.

159. Now that it has been established that the April 1999 approval of the Respondent’s detailed engineering plans, did not in law, constitute, the requisite approval under Part XII, and the period for continuing to rely upon Part XII by lodging an application before 1 July 1999 has expired, such facts combine to produce the legal result that when the October 1999 and March 2000 works were undertaken by the Respondent on the development site, s 81A(4) applied, and because there was no relevant construction certificate in existence, that section was thereby contravened, there is nothing unconscionable in the conduct of the Council in these proceedings relying upon s 81A(4).

160. Accordingly, I conclude that there is no relevant estoppel preventing the Council from relying upon s 81A(4) in these proceedings.

161. For all of the following reasons, I would answer this question affirmatively.

Conclusion: The 1995 development consent lapsed on 15 March 2000

162. In consequence of my affirmative answers to questions (iv), (v) and (vi), I hold that since the works carried out by the Respondent on the development site in October 1999 and March 2000 were carried out in contravention of (i) Condition 23 of the 1995 development consent; (ii) the EP&A Act, s 76A(1); and (iii) EP&A Act, s 81A(4), such works do not qualify as “building, engineering or construction work relating to the subdivision” the existence of which would, conformably to the EP&A Act, s 95(4) cause the 1995 development consent not to lapse on 15 March 2000 by virtue of s 95(1).

163. In reaching this conclusion, I apply the principle enunciated in the trilogy of judgments of the Court of Appeal that I have earlier recited. The first two of those cases concerned the effect of the EP&A Act, s 99(4) (which is the legislative antecedent to s 95(4) which was considered in the third of the cases cited, Green, where Giles JA giving the judgment, agreed in by the other members of the Court, held s 95(4) to be the equivalent “in the same terms” as s 99(4)).

164. The principle enunciated in Iron Gates is found in the following passage at 135 to 136 in the judgment of Handley JA:

In my opinion the work found to be engineering work which was relied upon by the appellant to save its consent from lapse was prohibited and illegal and the persons offending against that prohibition were guilty of offences against the Act for the purposes of s 125 (1).

and

relating to that development

the subject of that consent

165. In Coalcliff, Stein JA (with whose judgment the other members of the Court agreed) applied the principle in Iron Gates in the following passage at 263:

Handley JA said that this conclusion flowed from the language of s 99 which was

. Mahoney JA and Rogers AJA agreed. Although this case was decided in 1992, it is my respectful opinion that the interpretation of the provision, included in the statute in 1979, was obvious. That is, that work done unlawfully under the consent cannot count as commencement to prevent the lapsing of a consent under s 99. Applying

means that none of the work done on the site from July 1984 up to November 1985 can be taken into account. That work was performed in breach of the consent because it occurred

either condition 9 or 13 were complied with. Both conditions were required to be complied with

to the commencement of any works on the land. As I have said, they were preconditions to any work taking place on the site.

166. In Green, Giles JA applied the principle in Iron Gates in the following passage at par 60 (see also par 62):

In my opinion conditions 10 and 17 were conditions which, as a matter of construction of the development consent, had the effect of prohibiting the commencement of any site works and the commencement of land clearing and construction works. To adopt the analysis by Hodgson CJ in Eq in

, their requirements to do X before doing Y amounted to requirements not to do Y until X had been done. There was therefore a prohibition, indeed there were two prohibitions. If the conditions were not satisfied and the activities on which the appellant relied fell within the prohibitions, on the reasoning in

the appellant’s development consent lapsed notwithstanding the activities.

167. However, Giles JA at par 63 to par 73 (inclusive) considered an alternative basis of reasoning to that expressed by Handley JA in Iron Gates which at par 67 Giles JA considered to be “a more satisfactory basis”.

168. This extended basis as explained in the extended passage I have cited is to the effect that where the works undertaken (to avoid statutory lapsing) involve the carrying out of works or activities that are prohibited by the EP&A Act (s 76A(1)) (even if not prohibited in terms by the conditions of development consent) those works do not qualify as works the existence of which avoids the statutory lapsing provided for by s 95(4).

169. Giles JA encapsulated the essence of the alternative reasoning in the following passage at par 67:

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.

170. The importance to the present case of the extended reasoning adopted in Green concerns its application to my finding that the Respondent’s works were undertaken in contravention of s 81A(4). The prohibition contained in that subsection is not reflected in any of the conditions imposed on the grant of the 1995 development consent (obviously so, because s 81A(4) only came into force on 1 July 1998).

171. However, the “extended” principle enunciated in Green would nonetheless be attracted by my finding that the relevant works were undertaken in breach of s 81A(4), with the legal result that such works do not qualify in terms of s 95(4) as works, the existence of which would avoid the statutory lapsing.

172. At the time the Respondent originally advanced its submissions, Green had not been decided. That submission was to the effect that Iron Gates and Coalcliff had only enunciated the principle that works would not qualify as the requisite works in terms of s 95(4) avoiding statutory lapsing, where such works were declared or rendered unlawful by the development consent itself. Thus, in its written submissions, the Respondent argued:

The terms of s 95(4) do not require any inquiry beyond the terms of the consent itself

…

The unlawful nature of the work is not determined by reference to any Act or any other document other than the terms and construction of the consent.

173. Although the Respondent, in its ultimate address (given after Green had been decided) claimed support from that case for its primary submissions, I am unable to accept that submission. As I would understand the “extended” principle adopted in Green, it is legitimate, once it is concluded that work has been undertaken in contravention of a condition of consent (as in the present case in respect of Condition 23 of the 1995 development consent), to enquire whether that work involves a contravention of a relevant prohibition (including a prohibition provided outside the conditions of the consent—for example, the prohibition on the carrying out of works without the requisite development consent and in accordance with that consent contained in the EP&A Act, s 76A(1)).

174. There appears to be no reason in principle why that enquiry should not also extend to EP&A Act, s 81A(4) where the relevant prohibition on the carrying out of subdivision work without the requisite construction certificate is encountered.

175. In this respect, I note that very recently, Cowdroy J in Young v Warringah Shire Council [2001] NSWLEC 208 has held that work which was undertaken in contravention of s 81A(4) could not be relied upon for the purposes of avoiding the statutory lapsing of the development consent in terms of the EP&A Act, s 95(4). At par 20, his Honour held:

Such work was unauthorised by the consent and was contrary to the EP&A Act and therefore cannot be regarded as work in fulfilment of a consent: see

176. The Respondent fairly conceded in argument that if the Court found that Condition 23 of the 1995 development consent had been contravened by the Respondent carrying out the October 1999 and March 2000 works, then the principle established by Iron Gates would apply and those works would not qualify as works within EP&A Act, s 95(4), with the ultimate legal consequence that the 1995 development consent must be held to have lapsed in terms of EP&A Act, s 95(1).

177. Because of my finding that the only works carried out on the development site prior to 15 March 2000 (being the expiry of the five year lapsing period prescribed by s 95(1)) were works which contravened (i) Condition 23 of the 1995 development consent; (ii) EP&A Act, s 76A(1) and EP&A Act, s 81A(4) and on that account, (ie on account of those contraventions considered both severally and jointly), such works did not qualify as works within s 95(4) of the Act (the existence of which works would avoid statutory lapsing of the consent) it necessarily follows, and I so hold, that the 1995 development consent lapsed on 15 March 2000.

178. Accordingly, for all of the foregoing reasons, I hold that the 1995 development consent lapsed on 15 March 2000 pursuant to the EP&A Act, s 95(1).

F. THE RESPONDENT’S AMENDED CROSS-APPLICATION

179. My conclusion that the 1995 development consent lapsed on 15 March 2000 means that it is not necessary to separately adjudicate upon the various claims contained in the Respondent’s amended cross-application because they were all premised upon the 1995 development consent not having lapsed. This conclusion applies to all of the claims (as was freely conceded by the Respondent) except for that contained in par 2B which claims a declaration that the Council’s Tree Preservation Order is partially invalid.

180. Accordingly, flowing directly from my determination that the 1995 development consent lapsed on 15 March 2000, I would formally refuse the declaratory relief claimed in pars 1, 2, 3, 4 and 5 of the Amended Cross Application.

181. This leaves outstanding the question whether I should nonetheless determine the Respondent’s challenge to the validity of the Council’s Tree Preservation Order. It was this discrete claim which occurred very late in the original hearing and gave rise to the need for the re-opening of the hearing.

182. The Respondent’s challenge to the validity of the Council’s Tree Preservation Order (TPO) arose in the course of final addresses at the original hearing when it appeared that the Council would rely upon a contravention of the TPO by the Respondent carrying out the October 1999 works which involved the removal of coastal heathland vegetation on the development site by the excavation of the trench some 8 m in length and 1.5 m in width, but only if the Court were ultimately to hold that the carrying out of those works (including the works carried out in March 2000) did not involve any contravention of (i) Condition 23 of the 1995 development consent; and (ii) the EP&A Act, s 76A(1); and (iii) the EP&A Act, s 81A(4).

183. It was to negate that ultimate reliance by the Council upon the TPO that the Respondent sought and obtained leave to amend its Cross-Application to include a challenge to the validity of the TPO, such challenge being limited to that part of the TPO that purported to apply to “coastal heathland”.

184. The relevance to the present case of a contravention of the TPO would be that it would constitute a contravention of the EP&A Act, s 76A(1): see Winsloe.

185. If it were held that the contravention of the TPO constituted a breach of EP&A Act, s 76A(1), then the work undertaken by the Respondent would not qualify as requisite works for the purpose of EP&A Act, s 95(4) upon the extended principle established in Green.

186. However, having regard to my primary conclusion that the 1995 development consent lapsed on 15 March 2000 for reasons wholly unconnected with the purported application of the TPO to “coastal heathland”, it is obvious that the Respondent would gain no benefit in the result of these proceedings even if it obtained the declaration it seeks that the TPO is invalid to the extent that it purports to apply to “coastal heathland”.

187. Given this fact, and given the context of the claim in the Respondent’s Cross-Application, not only would there appear to be no utility to the Respondent in making the declaration claimed, but the granting of such relief would appear to involve some disbenefit to the public interest in maintaining the integrity of the TPO which has apparently been in operation these past five years without legal challenge, in circumstances where the declaration would be supported only by a holding of the Court by way of obiter dictum.

188. For all these reasons, in the exercise of my discretion, I would be disinclined to entertain the Respondent’s claim in the context of this judgment.

189. I am acutely aware of the Respondent’s expressed desire that this Court deal in its judgment with all matters in dispute, so that in the event of the Respondent pursuing its appeal rights, the Court of Appeal will have the benefit of findings and holdings of the trial court on all matters in dispute.

190. Nonetheless, I do not see how a holding, by way of obiter dictum, of the validity or partial invalidity of the TPO will provide any assistance to the Court of Appeal. Even if I were to determine the question in favour of the Respondent, I would for the reasons given in the exercise of discretion, decline to make the declaration founded solely on obiter dictum.

191. I am also aware of the potential cost consequences of not determining the question, given the fact that it was this discrete cross-claim that necessitated the re-opening of the hearing. Obviously, if it were necessary for the costs question in the proceedings to be agitated, the Respondent, as the unsuccessful party in the proceedings in this Court, should not be prejudiced in any way, from seeking a determination by this Court on the issue raised in the disputed cross-claim, if that is a matter that necessarily influences the question of costs in these proceedings.

192. However, I think that it is decidedly preferable that my adjudication upon cross-claim be reserved to the occasion, if it arises, of my consideration of costs.

193. By so providing, the Respondent is not disadvantaged, and a determination of the issue in the context of consideration of the question of costs in the proceedings provides the appropriate basis and cause for such a determination (which would not be translated into any declaratory relief).

194. Accordingly, and for all of the foregoing reasons, I would reserve any adjudication upon the Respondent’s claim in par 2B of its amended Cross-Application to the occasion, if it arises, of consideration of the question of costs in the proceedings.
G. CONCLUSIONS AND ORDERS

195. For all the foregoing reasons, I would uphold the Council’s Amended Application and dismiss the Respondent’s Amended Cross-Application, but reserving to the occasion, if it arises, of any determination on the question of costs, any adjudication upon par 2B of the Respondent’s Cross-Application.

196. The only submission advanced by the Respondent on the question of the exercise of the Court’s discretion was that which was premised upon the failure of the Council’s case except for that part of it that was founded upon its allegation of contravention of EP&A Act, s 81A(4). The Respondent had submitted that if that contravention was the only basis upon which the Council had been successful, the Court in the exercise of its discretion, would decline relief.

197. Since I have held that the works relied upon by the Respondent so as to avoid the statutory lapsing on 15 March 2000 of the 1995 development consent, did not qualify as works for the purposes of the EP&A Act, s 95(4) because the works were carried out by the Respondent in contravention of (i) Condition 23 of the 1995 development consent; (ii) the EP&A Act, s 76A(1); and (iii) the EP&A Act, s 81A(4), the Respondent’s submission on the exercise of the Court’s discretion does not, and cannot, avail the Respondent.

198. There is no reason, in the exercise of my discretion, why I should not declare that the 1995 development consent lapsed on 15 March 2000 in accordance with EP&A Act, s 95(1). The restraining order sought by the Council is consequential upon that declaration.

199. Accordingly, I make the following orders:
1. Declare that the development consent granted by the Court on 15 March 1995 for the community title subdivision of land situate at Pacific Vista Drive, Byron Bay lapsed on 15 March 2000 pursuant to the Environmental Planning and Assessment Act 1979, s 95(1).
2. Order the Respondent, by itself, its servants, agents and contractors be restrained from carrying out development in reliance upon the aforesaid development consent.
3. Order that the Respondent’s Amended Cross-Application be dismissed, except that any adjudication upon the claim made in par 2B be reserved to the occasion, if it arises, of any determination of the question of costs in the proceedings.
4. Reserve the question of costs.
5. The exhibits may be returned.

CITATION:	Byron Shire Council v Detala Pty Ltd [2001] NSWLEC 234
PARTIES:	APPLICANT: Byron Shire Council RESPONDENT: Detala Pty Ltd
FILE NUMBER(S):	40043 of 2000
CORAM:	Bignold J
KEY ISSUES:	Development Consent :- whether or not lapsed-whether works relied upon to avoid statutory lapsing were unlawful being in contravention of condition of consent and/or the EP&A Act s 76A(1 s 81A(4).
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 95(1) and s 95(4) Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 Environmental Planning and Assessment Amendment Act 1997 (Act No 152) Local Government Act 1993 Local Government Act 1919 Part XII
CASES CITED:	Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243; Green v Kogarah Municipal Council (2001) NSWCA 123; Grand United Friendly Society v Parramatta City Council (2000) NSWLEC 207; Hornsby Shire Council v Winsloe 101 LGERA 117; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Meriton Apartments Pty Ltd v Ryde City Council (2000) 108 LGERA 352; Mison v Randwick Council (1991) 73 LGERA 349; Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125; Rao v Canterbury City Council (2000) NSWCCA 471
DATES OF HEARING:	20-22/11/00, 01/12/00, 02/03/01, 07/05/01, 24/05/01, 08/06/01
DATE OF JUDGMENT:	10/03/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr T Robertson, Barrister SOLICITORS Wilshire Webb REPONDENT: Mr M Tobias QC with Ms S Duggan, Barrister SOLICITORS Bartier Perry