Chu v Inner West Council

[2022] NSWLEC 14

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chu v Inner West Council [2022] NSWLEC 14

Hearing dates:

18 November 2021

Decision date:

24 February 2022

Jurisdiction:

Class 1

Before:

Pain J

Decision:

See [58], [142]

Catchwords:

APPEAL – question of law in Class 1 merits appeal –COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) does not extend the lapsing period for complying development certificates – statutory construction of Environmental Planning and Assessment Act 1979 (NSW) ss 4.29, 4.53

APPEAL – question of law in Class 1 merits appeal – whether complying development certificate physically commenced within time – visual inspection by asbestos consultant not physical commencement

APPEAL – question of law in Class 1 merits appeal – whether complying development certificate physically commenced within time – tree pruning not physical commencement because terms of complying development certificate not complied with

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW)

Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 1.5, 4.9, Pt 4 Div 4.5, 4.25, 4.26, 4.27, 4.28, 4.29, Pt 4 Div 4.9, 4.53, 4.54, 8.18, 9.34, (former) s 95

Environmental Planning and Assessment Regulation 2000 (NSW), Pt 7 Div 2A, cll 136AB, 136B, 136E, 136N

Interpretation Act 1987 (NSW), ss 6, 10, 33, 35

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 7.3, Sch 6 Pt 1, Sch 9 Pt 1

Work Health and Safety Regulation 2011 (NSW), cl 458

Cases Cited:

Attorney General for the State of New South Wales v XY [2014] NSWCA 466

Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26

Chief Commissioner of State Revenue (NSW) v Qantas Airways Ltd (2009) 74 NSWLR 181; [2009] NSWCA 163

Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] 11 NSWLEC 83

De Battista v Shoalhaven City Council [2020] NSWLEC 164

Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104

Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123

Henry v Shellharbour City Council and Others [2005] NSWLEC 378

Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169

Iron Gates Developments Pty Ltd v Richmond- Evans Environmental Society Inc (1992) 81 LGERA 132

K&M ProdanovskiPty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202

Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149

Owendale Pty Ltd v Anthony (1967) 117 CLR 539; [1967] HCA 52

Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21

SAS Trustee Corporation v Peter Miles (2018) 265 CLR 137; [2018] HCA 55

Sharp v Hunters Hill Council (2002) 120 LGERA 155; [2002] NSWLEC 27

Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

Texts Cited:

Second Reading Speech to the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 May 2020 at 2032-2037)

Inner West Council, Tree Management Development Control Plan (11 February 2020)

Category:

Principal judgment

Parties:

Wallace Chu (First Applicant)
Sylvia Attard (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
C Leggat SC (First and Second Applicants)
J Johnson (Respondent)

Solicitors:
Mills Oakley (First and Second Applicants)
Inner West Council (Respondent)

File Number(s):

2021/214505

Judgment

1. The Applicants Mr Wallace Chu and Ms Sylvia Attard are challenging in merits review proceedings a development control order (No 2021/0229) issued by the Inner West Council (the Council) on 30 June 2021 stopping demolition work being carried out at residential premises in Nelson Street Annandale (the site). The application is brought under s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The development control order issued under s 9.34 of the EPA Act is premised on the basis that the Applicants’ complying development certificate CDCP/2015/107 (the CDC) has expired. The Applicants obtained the CDC on 8 July 2015 and the parties agree that it expired under s 4.29 of the EPA Act on 8 July 2020 unless the Applicants succeed on one of two questions of law which are as follows:

1. Does s 4.53 of the EPA Act extend the lapsing period of a complying development certificate (CDC)?

2. If the above question is answered in the negative, was the CDC physically commenced for the purposes of s 4.29(3) of the EPA Act?

2. These are the sole issues in dispute. Section 4.53 was amended by the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) (COVID-19 Act) on 14 May 2020 to extend the period for lapsing of development consents by two years if they had commenced before and had not lapsed by 25 March 2020.

Environmental Planning and Assessment Act 1979(NSW)

3. Relevant sections of the EPA Act as currently in force follow:

Part 1 Preliminary

…

1.4 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

…

development—see section 1.5.

…

development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.

…

1.5   Meaning of “development”

(1)  For the purposes of this Act, development is any of the following—

(a)  the use of land,

(b)  the subdivision of land,

(c)  the erection of a building,

(d)  the carrying out of a work,

(e)  the demolition of a building or work,

(f)  any other act, matter or thing that may be controlled by an environmental planning instrument.

(2)  However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).

(3)  For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).

…

Part 4 Development assessment and consent

…

Division 4.3 Development that needs consent (except complying development)

4.9   Application of Division

This Division—

…

(b)  does not apply to complying development.

…

Division 4.5 Complying Development

4.25   Application of this Division

This Division applies to complying development.

4.26   Carrying out of complying development

(1)  A person may carry out complying development on land if—

(a)  the person has been issued with a complying development certificate for the development, and

(b)  the development is carried out in accordance with—

(i)  the complying development certificate, and

(ii)  any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.

(2)  An application for a complying development certificate may be made—

(a)  by the owner of the land on which the development is proposed to be carried out, or

(b)  by any other person, with the consent of the owner of that land.

(3)  The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.

(4)    (Repealed)

(5)  Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.

4.27   What is a “complying development certificate”?

(1) Terms of complying development certificate A complying development certificate is a certificate—

(a)  that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and

(b)  in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.

(2)  A complying development certificate may indicate different classifications for different parts of the same building.

(3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9.

…

(5) Other requirements for complying development certificates The regulations—

(a)  may impose other requirements concerning the issue of complying development certificates, and

(b)  may provide for the form in which a complying development certificate is to be issued.

…

4.28   Process for obtaining complying development certificates

(1)  An applicant may, in accordance with the regulations, apply to a council or registered certifier for a complying development certificate.

(2)  The regulations may specify the kind of development for which a registered certifier is not authorised to issue a complying development certificate.

…

4.29   Duration of complying development certificate

(1)  A complying development certificate becomes effective and operates from the date endorsed on the certificate.

(2)  A complying development certificate lapses 5 years after the date endorsed on the certificate.

(3)  However, a complying development certificate does not lapse if the development to which it relates is physically commenced on the land to which the certificate applies within the period of 5 years after the date endorsed on the certificate.

(4)  No proceedings may be taken before a court or tribunal to extend the 5-year period.

…

Division 4.9 Post-consent provisions

4.53   Lapsing of consent

(1)  A development consent lapses—

(a)  5 years after the date from which it operates if the development consent commences operation after the prescribed period, or

(b)  5 years after the date from which it operates if the development consent commences operation during the prescribed period, or

(c)  2 years after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before, and has not lapsed at, the commencement of the prescribed period.

(2)  A consent authority may reduce a period specified in subsection (1)(a) or (b) in granting development consent.

(3)  Subsection (2) does not—

(a)  apply to development consent granted to a concept development application under Division 4.4 for development that requires a subsequent development application and consent, or

(b)  authorise a reduction to be made that would cause—

(i)  a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or

(ii)  a development consent that commences operation during the prescribed period to lapse within 5 years after the date from which the consent operates, or

(iii)  a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.

(3A)  For a development consent that lapsed after the commencement of the prescribed period and before the commencement of subsection (1)(c)—

(a)  the development consent is taken not to have lapsed, and

(b)  subsection (1)(c) applies to the development consent.

(4)  Development consent for—

(a)  the erection of a building, or

(b)  the subdivision of land, or

(c)  the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

(5)  Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.

(7)  The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section.

(8)  In this section—

prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.

4.54   Extension of lapsing period for 1 year

…

(5)  This section does not apply to complying development.

…

4. Subsections 4.53(1) and (8) were amended and introduced respectively by the COVID-19 Act. For completeness, until 14 May 2020, s 4.53 of the EPA Act provided:

4.53   Lapsing of consent

(1)  A development consent lapses 5 years after the date from which it operates.

…

(4)  Development consent for—

(a)  the erection of a building, or

(b)  the subdivision of land, or

(c)  the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

(5)  Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.

…

(7)  The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of this section.

Environmental Planning and Assessment Regulation 2000(NSW)

5. Part 7 Div 2A “Conditions of complying development certificate” of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) includes cll 136AB, 136B, 136E and 136N as follows:

Part 7 Procedures relating to complying development certificates

…

Division 2A Conditions of complying development certificate

…

136AB   Notice to neighbours

(1)  A complying development certificate for development on land that is in a category 1 local government area and that is not in a residential release area and that involves—

(a)  a new building, or

(b)  an addition to an existing building, or

(c)  the demolition of a building,

must be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 7 days’ notice in writing of the person’s intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out.

…

(3)  In this clause—

category 1 local government area means any of the local government areas of … Leichhardt …

…

136B   Erection of signs

(1)  A complying development certificate for development that involves any building work, subdivision work or demolition work must be issued subject to a condition that the requirements of subclauses (2) and (3) are complied with.

(2)  A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out—

(a)  showing the name, address and telephone number of the principal certifier for the work, and

(b)  showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

(c)  stating that unauthorised entry to the site is prohibited.

(3)  Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

…

136E   Development involving bonded asbestos material and friable asbestos material

(1)  A complying development certificate for development that involves building work or demolition work must be issued subject to the following conditions —

(a) work involving bonded asbestos removal work (of an area of more than 10 square metres) or friable asbestos removal work must be undertaken by a person who carries on a business of such removal work in accordance with a licence under clause 458 of the Work Health and Safety Regulation 2011,

(b)  the person having the benefit of the complying development certificate must provide the principal certifier with a copy of a signed contract with such a person before any development pursuant to the complying development certificate commences,

(c)  any such contract must indicate whether any bonded asbestos material or friable asbestos material will be removed, and if so, must specify the landfill site (that may lawfully receive asbestos) to which the bonded asbestos material or friable asbestos material is to be delivered,

(d)  if the contract indicates that bonded asbestos material or friable asbestos material will be removed to a specified landfill site, the person having the benefit of the complying development certificate must give the principal certifier a copy of a receipt from the operator of the landfill site stating that all the asbestos material referred to in the contract has been received by the operator.

(2)  This clause applies only to a complying development certificate issued after the commencement of this clause.

(3)  In this clause, bonded asbestos material, bonded asbestos removal work, friable asbestos material and friable asbestos removal work have the same meanings as in clause 317 of the Occupational Health and Safety Regulation 2001.

…

136N Principal certifier to be satisfied that preconditions met before commencement of work

(1) This clause applies to building work or subdivision work that is the subject of a complying development certificate.

(2) A principal certifier for building work or subdivision work to be carried out on a site, and over which the principal certifier has control, is required to be satisfied that any preconditions in relation to the work and required to be met before the work commences have been met before the work commences.

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008(NSW), Demolition Code

6. Relevant parts of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (the SEPP) are extracted below:

Part 7 Demolition Code

…

Division 2 Conditions applying to complying development certificates under this code

7.3 Conditions specified in Schedule 9 apply

A complying development certificate for development specified under this code must be issued subject to the conditions specified in Schedule 9.

…

Schedule 9 Conditions applying to complying development certificates under the Demolition Code

Part 1 Conditions applying before works commence

1   Protection of adjoining areas

A temporary hoarding or temporary construction site fence must be erected between the work site and adjoining lands before the works begin, and must be kept in place until after the completion of works, if the works—

(a)  could cause a danger, obstruction or inconvenience to pedestrian or vehicular traffic, or

(b)  could cause damage to adjoining lands by falling objects, or

(c)  involve the enclosure of a public place or part of a public place.

2   Toilet facilities

(1)  Toilet facilities must be available or provided at the work site before works begin, and must be maintained until the works are completed, at a ratio of one toilet plus one additional toilet for every 20 persons employed at the site.

(2)  Each toilet must—

(a)  be a standard flushing toilet connected to a public sewer, or

(b) have an on-site effluent disposal system approved under the Local Government Act 1993, or

(c) be a temporary chemical closet approved under the Local Government Act 1993.

3   Waste management

(1)  A waste management plan for the work must be prepared before work commences on the site.

(2)  The waste management plan must—

(a)  identify all waste (including excavation, demolition and construction waste material) that will be generated by the work on the site, and

(b)  identify the quantity of waste material, in tonnes and cubic metres, to be—

(i)  reused on-site, and

(ii)  recycled on-site and off-site, and

(iii)  disposed of off-site, and

(c)  if waste material is to be reused or recycled on-site—specify how the waste material will be reused or recycled on-site, and

(d)  if waste material is to be disposed of or recycled off-site—specify the contractor who will be transporting the material and the waste facility or recycling outlet to which the material will be taken.

(3)  A garbage receptacle must be provided at the work site before works begin and must be maintained until the works are completed.

(4)  The garbage receptacle must have a tight fitting lid and be suitable for the reception of food scraps and papers.

4   Adjoining wall dilapidation report

(1)  If a building to be demolished is within 900mm of a boundary, and there is a wall (the adjoining wall) on the lot adjoining that boundary that is less than 900mm from that boundary, the person having the benefit of the complying development certificate must obtain a dilapidation report on the adjoining wall.

(2)  If the person preparing the report is denied access to the adjoining lot for the purpose of inspecting the adjoining wall, the report may be prepared from an external inspection of the adjoining wall.

5   Run-off and erosion controls

Run-off and erosion controls must be implemented to prevent soil erosion, water pollution or the discharge of loose sediment on the surrounding land by—

(a)  diverting uncontaminated run-off around cleared or disturbed areas, and

(b)  erecting a silt fence and providing any other necessary sediment control measures that will prevent debris escaping into drainage systems, waterways or adjoining properties, and

(c)  preventing the tracking of sediment by vehicles onto roads, and

(d)  stockpiling top soil, excavated materials, construction and landscaping supplies and debris within the lot.

Interpretation Act 1987(NSW)

7. Relevant sections of the Interpretation Act 1987 (NSW) follow:

Part 2 Words and expressions

6   Definitions to be read in context

Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.

…

10   Construction of amending Acts and instruments

Words and expressions that occur in an Act or instrument that amends or repeals some other Act or instrument have the same meanings as they have in the other Act or instrument.

…

Part 5 Construction of Acts and Instruments

…

33   Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

…

35 Headings etc

(1) Headings to provisions of an Act or instrument, being headings to—

(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or

(b) Schedules to the Act or instrument,

shall be taken to be part of the Act or instrument.

…

Evidence

Applicants’ evidence

8. The Applicants relied wholly or in part on the following affidavits:

1. The affidavit of Ms Joanne Nouseir dated 21 October 2021.

2. The affidavit of Mr Efim Eski dated 26 October 2021.

3. The affidavit of Mr Chu dated 26 October 2021. Paragraph 29 was part read.

4. The affidavit of Mr Said Mohammed Allouche dated 26 October 2021.

5. The affidavit of Mr Chu dated 16 November 2021. Paragraphs 6, 7, 10, 13, 14, 16 were not read. Paragraph 9 was part read.

9. The Applicants tendered the following exhibits:

1. a statement of agreed facts (SOAF) dated 9 November 2021 (Ex A);

2. exhibit “JN-1” to Ms Nouseir’s affidavit dated 21 October 2021 (Ex B); and

3. exhibit “WC-1” to Mr Chu’s affidavit dated 26 October 2021 (Ex C).

Statement of agreed facts

10. The SOAF states as follows, noting that the SOAF refers to “the Applicant” being Mr Chu and not Ms Attard:

1. The land that is subject of these proceedings is known as 307 Nelson Street Annandale NSW 2038 (legally identified as Lot 35 Section 15 in Deposited Plan 1865) (Site).

2. The Applicants are the landowners of the Site.

3. The Site is zoned R1 General Residential.

4. On 8 July 2015 the Applicant was issued with Complying Development Certificate No. 257/15 by Building Certificates Australia (CDC) which granted approval for the demolition of all existing structures on the Site (Exhibit WC-1 tab 2).

5. On 10 July 2015, the Applicant lodged the CDC with the Respondent Council.

6. On 5 April 2019, Leichhardt Local Environment Plan 2013 (Amendment No 17) came into force and introduced a new heritage map applying to the Site. The Site is now located in a Heritage Conservation Area.

7. On 5 August 2020 the Applicant lodged Development Application No. DA2020/0627 with the Respondent that sought consent for the construction of terrace style dwelling houses and associated works including a swimming pool and carport fronting Nelson Lane (‘DA’).

8. On 23 February 2021, the Inner West Local Planning Panel approved the DA.

9. On 30 June 2021, the Respondent issued the Development Control Order to the Applicant via email requiring the Applicant To not demolish the premises at 307 Nelson Street Annandale NSW 2038 Lot 35 Sec 15 DP 1866.

10. The Respondent gave the following reasons for issuing the order:

1. Council’s records reflect that a Complying Development Certificate referenced CDCP/2015/107, lodged with Council 10 July 2015 has expired.

2. Information received by Council from Department of Planning, confirms that Complying Development Certificates do not qualify for a two (2) year extension in line with exemptions provided to Development Consents under 4.53 of the Environmental Planning and Assessment Act 1979.

11. On 27 July 2021, the Applicant commenced these Class 1 proceedings.

Complying development certificate

11. Relevant extracts of the CDC granted to Mr Chu by Building Certificates Australia Pty Ltd dated 8 July 2015 (in Ex B) are as follows:

…

Description of Building Works: Demolition of all existing structures including single story [sic] dwelling, rear garage, perimeter fencing and retaining walls.

…

BEFORE YOU BEGIN WORK – YOU MUST!

…

3. Two days before any site works, building or demolition begins, the applicant must: (if not already done)

a) forward a Notice of Commencement of Work and Appointment of Principal Certifying Authority to the Council;

b) notify PCA that you intend to commence work; (Have you a PCA? [sic])

When you notify your PCA, you must demonstrate that all Pre-Commencement Conditions have been satisfied within you [sic] consent. Ensure that;

1. Protection of adjoining areas

2. Toilet Facilities

3. Waste Management

4. Adjoining wall dilapidation report

5. Run-off and erosion controls

6. Tree Protection Measures

4. 7 days before works commence, inform the adjoining owners in writing that work will commence, (We have attached a letter for you to use) You must keep a record of when and who you notified)

5. Before any site works, building or demolition begins;

a) notify the council of the name, address, phone number and licence number of the builder; and

b) erect a sign at the front of the property with the builder’s name, licence number, site address and the number given by the Council to the application for the complying development certificate; and

c) provide a temporary on-site toilet if access to existing toilets is not adequate; and

d) protect and support any neighbouring buildings and land; and

…

j) comply with any other conditions prescribed by the Environmental Planning and Assessment Regulation 2000 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

12. Clauses of Pt 7 Div 2A of the EPA Regulation (extracted above in [5]) were also reproduced in the CDC as conditions imposed pursuant to that division. Schedule 6 “Conditions applying to complying development certificates under certain complying development codes” of the SEPP was also included in the CDC in evidence but was not referred to by the parties. The Council referred to Sch 9 “Conditions applying to complying development certificates under the Demolition Code” of the SEPP extracted above in [6].

Second reading speech related to the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020(NSW)

13. Relevant extracts from the Attorney-General’s second reading speech in relation to the COVID-19 Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 May 2020 at 2032-2037 (the Second Reading Speech)) some of which was contained in Ex B are as follows:

The last three months have been a time of unprecedented pain for members of our community.

…

The Government has made various adjustments to government processes and systems to ensure that essential services can continue to be provided while practising social distancing and reducing personal contact in adherence with NSW Health guidelines and health orders. Many of these were enabled by or implemented by the COVID‑19 Legislation Amendment (Emergency Measures) Act 2020. I thank the House for its swift consideration and enactment of those measures. Over the past two months we have seen significant changes to our ways of life. As we have all adapted to these tumultuous times, the experiences of and feedback from a range of New South Wales government agencies, non‑government organisations, peak bodies and other stakeholders have shown further adaptations are needed to ensure that a wider variety of services and functioning can continue to be delivered while current restrictions and social distancing practices are in place and to put our State in the best possible position for economic recovery as restrictions continue to ease.

These bills will amend 40 New South Wales Acts and four New South Wales regulations across multiple portfolios. … Some of the amendments proposed in these bills are significant. As with provisions in the recent emergency Act, most of these bills' provisions have sunset clauses and will subsequently lapse in September this year on the same date as the majority of the provisions enacted in the previous emergency Act. Time limits are included in recognition that these measures are extraordinary and are proposed in response to an unprecedented and rapidly evolving public health emergency.

…

I turn now to the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020, or, for short, the third bill, which includes amendments to legislation administered by other Cabinet colleagues.

…

The third bill amends the Environmental Planning and Assessment Act 1979 to extend the dates upon which consents for development would otherwise have lapsed to at least five years from the date that consent was granted. It will help support businesses and land owners whose businesses may be shut down or who are facing difficulties in securing development finance, materials and labour during the pandemic to undertake approved developments once economic conditions have improved.

…

Mr Chu’s affidavit dated 26 October 2021

14. Mr Chu deposed that on 12 March 2020, he contacted Mr Elski of EFLE Pty Ltd t/as Grafton Projects and requested him to attend the site to undertake an inspection and assess the presence of any asbestos containing material in accordance with condition 136E of the CDC. He instructed Mr Elski to undertake a visual inspection of the site and not to take any samples or undertake destructive investigation.

15. On 30 April 2020, Mr Chu engaged Universal Tree and Yard Services Pty Ltd to undertake tree pruning works at the site. He was living at the site at the time and so he was present and witnessed the works being undertaken. The tree works were necessary for demolition to take place. Mr Chu deposed that the works undertaken were exempt tree works which did not require a permit. The works included:

1. Pruning the Angophora Costata and Evergreen Alder canopies which were overhanging onto the roof of the house and the attached laundry. The trees were pruned so that there was a clear three metres distance between the trees and the house so that the canopy trees would not interfere with the demolition of the site.

2. Pruning low hanging branches on an Evergreen Alder tree located near the existing deck to ensure a clear space of two and a half metres from the ground to the lowest branch on the tree. This was also crucial to ensure that the tree would not interfere with the demolition of the deck.

3. Removing dead branches from the Angophora Costata and Evergreen Alder.

16. On 14 April 2020, Mr Chu met with Mr David Marshman of Sydney Demo Group Pty Ltd to inspect the site to identify what demolition works were required and to organise site access arrangements. During the inspection Mr Chu walked on the site with Mr Marshman and took him through the front and rear yards of the site, the attached laundry, detached carport, the rear lane and house interiors. Whilst on the site, Mr Marshman undertook crude measurements for the works involved, using steps of approximately one metre and pacing the length and breadth of the structures. They also discussed the existing trees and what works could be undertaken to facilitate demolition and safety of the workers on the site, in addition to the need to protect the trees during demolition.

Mr Allouche’s affidavit

17. Mr Allouche, an arborist and the proprietor of Universal Tree & Yard Services Pty Ltd, deposed that on 29 April 2020 he attended the site for an inspection and met with Mr Chu. Mr Allouche completed a site inspection by taking a walk around the entire site commencing in the front yard and ending in the rear yard. The purpose of this inspection was to ascertain what works were required as part of the demolition of the building on the site, the site access requirements and to provide Mr Chu with a cost estimate.

18. Mr Chu accompanied Mr Allouche during this site inspection and walk of the site. During the site inspection, Mr Chu advised him that the purposes of the tree works were to remove tree canopies situated within three metres of any structure on the site and to remove dead or low hanging branches as part of the demolition of the house and ensure that safety of the site was secured for demolition. Upon the completion of the site inspection, Mr Allouche advised Mr Chu that the following works were required as part of the site demolition:

1. removal of canopy on Evergreen Alder and Angophora Costata within three metres of structures on the site;

2. removal of dead branches on Angophora Costata;

3. cut and removal of all dead branches, removal of loose branches, and removal of branches located less than two and a half metres from the ground on the Evergreen Alder Tree.

19. On 30 April 2020, the trees were pruned by three workers from Universal Tree and Yard Services Pty Ltd so that there was a clear three metres distance between the trees and the structures on site. Low hanging branches of the Evergreen Alder were pruned to ensure a clear space of two and a half metres from the ground to the lowest branch on the tree, and dead or loose branches were removed. Dead branches were removed from the Angophora Costata. Upon completion of the tree pruning, the canopy and branches that had been pruned and cut, were removed from the site in a utility van. Payment of $660.00 was made to Universal Tree and Yard Services Pty Ltd for the pruning and removal of the trees.

Mr Elski’s affidavit

20. Mr Elski, the sole director and secretary of EFLE Pty Ltd t/as Grafton Projects, deposed that on 22 April 2020, under the instruction of Mr Chu, he attended the site to undertake an inspection and assess the presence of any asbestos containing material (ACM) in accordance with the conditions of the CDC. Mr Elski attended the site alone. He understood the purpose of the inspection and report was to provide an independent assessment of the potential presence of ACM on the site to allow an informed decision on the need for further investigations. Mr Chu requested that the inspection be limited to a visual inspection and that no sampling or destructive investigations were to be carried out.

21. Mr Elski deposed that his inspection involved looking at the building exterior, laundry, detached garage, rear retaining wall and the interior of the house. He engaged in physical tapping of internal and external wall cladding to assess for the presence of potential ACM.

22. Mr Elski prepared a report of the inspection dated 30 April 2020. It noted that the methodology of the visit was visually inspecting each accessible area of the building and that the presence of ACM can only be confirmed once a visual inspection is completed and validated with a sample analysis in an accredited laboratory. The report also stated that it should be kept on-site and any tradesmen working in or on the building should be provided with a copy of it prior to carrying out any work on the building.

Mr Chu’s affidavit dated 16 November 2021

23. Mr Chu’s second affidavit dated 16 November 2021 was affirmed in response to Ms Diana Keilar’s affidavit dated 5 November 2021 (see below in [27]-[30]). Mr Chu deposed that he disagreed with her description of the nature of the tree works undertaken. The focus of the work was to remove branches away from any structures, although there were some dead branches that needed removing. There were overhanging branches over both his and Ms Keilar’s properties. There were low overhanging branches on the Evergreen Aldar that were pruned to facilitate demolition of the house, attached laundry and deck. Mr Chu deposed that his version of events was supported by later text messages to Ms Keilar.

24. Mr Chu deposed that, in line with his first affidavit in which he deposed that the tree works did not require council approval (see above in [15]), the tree works were allowed under the Council’s tree protection order. The tree works consisted of removing parts of a tree within three metres of structures, canopy lifting to two and a half metres and removal of dead limbs, which brought the works within exemptions to the tree protection order.

25. Ms Keilar requested that some branches not be removed and upon those instructions Mr Chu instructed the arborist to cease those works. In response to Ms Keilar’s evidence about the lack of a formal notification as she understood was required by the CDC (see below in [27]), Mr Chu deposed that the tree works were not, in his mind, demolition or building works and as such he did not have to notify his neighbour in line with the CDC. He did not know whether the tree works were site works. They were in his mind purely a necessary step to enable demolition.

26. In response to Ms Keilar’s evidence below in [29], Mr Chu accepted that she was correct in so far as those things did not occur. Mr Chu deposed that the two year extension of the CDC (presumably referring to the amendments to s 4.53 of the EPA Act effected by the COVID-19 Act) gave him time, such that the measures raised by Ms Keilar did not need to occur before July 2020. He did not arrange for a waste bin on-site during the tree work as there was no need for one and it was more efficient to remove the branches from the site via the contractor’s truck. The costs of a waste bin would have been excessive given the site.

Council’s evidence

27. The Council relied on the affidavit of Ms Keilar dated 5 November 2021 read in part. Paragraphs 9, 10, and 14-16 were not read or read in part. Ms Keilar is the joint owner of an adjacent property in Nelson Street. On 28 April 2020, Mr Chu sent a text message to Ms Keilar stating that he had arranged to have “dead limbs from the gum tree” removed, being the Angophora Costata. Mr Chu said he could do this without council approval as it was being done to remove dead/dying branches for the health of the tree. On 30 April 2020, Ms Keilar heard chainsaws and upon investigating saw a tree contractor perched on the Angophora Costata about to chainsaw through a substantial and seemingly healthy branch. Ms Keilar was concerned at the scope of the work and that the work had started earlier than she was told it would. The concern grew when she saw the contractor about to remove one of the tree’s major limbs predominately overhanging her property and about which she had written to Mr Chu, asking him not to remove it. Ms Keilar and her husband provided an assurance to Mr Chu that he would not be liable for any damage to their property resulting from the branches overhanging their property and signed a letter to that effect (in Ex C).

27. Ms Keilar was aware of the Applicants’ CDC. She understood there to be a requirement for a formal notification of commencement of demolition and deposed that she never received any correspondence advising that a principal certifier had been appointed for any work on-site or that any works relating to demolition were going to take place.

28. Ms Keilar never observed any:

1. hoarding on the site;

2. portable toilets on the site that might be needed if the house was to be demolished;

3. garbage receptacle on the site that might be suitable for demolition works or the tree lopping;

4. run-off or erosion controls;

5. tree protection measures such as a tree guard or a fence or barrier of any kind; or

6. any assessment by a certified Australian Qualification Framework level five consulting arborist.

30. Ms Keilar never received any communication relating to preparatory demolition works.

31. The Council also tendered a letter dated 6 July 2015 from Mr Thomas Dale Lenden, Associate Senior Structural Engineer at ACOR Consultants Pty Ltd, addressed to Mr Adam Mainey of Building Certificates Australia Pty Ltd (Ex 1). It stated that the walls to be demolished by the Applicants in accordance with the CDC were within 900 millimetres of the boundary.

Question 1: does s 4.53 of the EPA Act (as amended in 2020) extend the lapsing period of a CDC?

32. Question 1 raises a statutory construction question concerning the operation of the EPA Act in light of the amendment of s 4.53 by the COVID-19 Act on 14 May 2020.

Applicants’ submissions

33. The Applicants submitted that s 4.53(1) refers to “development consent” and that term is defined in the EPA Act as including a CDC, unless expressly excluded. There is no express exclusion. Accordingly, the reference to “development consent” in s 4.53(1) is taken to include a CDC.

34. The applicable legal principles of statutory construction are not in doubt. President Bell identified those principles recently in Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204 (Sydney Seaplanes) at [25]-[42] (Leeming JA and Emmet AJA agreeing). The starting point for ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ). Context includes legislative history and extrinsic materials: Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).

35. Section 33 of the Interpretation Act requires that legislation be read in light of its purpose. It recognises that purpose may not always be found in the express terms of the statutes being construed: Sydney Seaplanes. One clear purpose of the COVID-19 Act according to the Second Reading Speech extracted above in [13] is “support[ing] businesses and land owners whose businesses may be shut down or who are facing difficulties in securing development finance, finance, materials and labour during the pandemic to undertake approved developments once economic conditions have improved”. The additional two years for the lapsing of a CDC is consistent with the purpose referred to in the Second Reading Speech. Further, the Second Reading Speech does not say or imply that the benevolent two-year extension will not apply to a development consent constituted by a CDC. It would be a curious statutory purpose of the COVID-19 Act to seek to assist developers undertaking approved developments so long as the approved development is not a development consent constituted by a CDC.

36. The text of s 4.53 of the EPA Act includes the phrase “development consent”. Section 1.4 of the EPA Act states, “[i]n this Act, except in so far as the context or subject matter otherwise indicates or requires – development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate”.

37. Section 10 of the Interpretation Act states that “words and expressions that occur in an Act or instrument that amends or repeals some other Act or instrument have the same meaning as they have in the other Act or instrument”. As the COVID-19 Act amended s 4.53 of the EPA Act and used the words “development consent”, “development consent” has the same meaning in the COVID-19 Act as the words “development consent” has in the EPA Act. That means that “development consent” in the COVID-19 Act means and includes a CDC (unless expressly excluded).

38. The phrase “expressly excluded” is not defined in the EPA Act. However, there are many examples in the EPA Act where complying development has been expressly excluded. For example, see Division 4.3, s 4.9(b) which states “does not apply to complying development”. Another example is Division 4.9, s 4.54(5) which states “this section does not apply to complying development”.

39. There is no express exclusion:

1. in s 4.53;

2. in the Division in which s 4.53 appears;

3. in the relevant amending instrument the COVID-19 Act;

4. anywhere in the EPA Act; or

5. anywhere in the EPA Regulation.

40. It would be a curious, inconsistent and unlikely approach for the EPA Act to adopt the use of express text on prior occasions to indicate express exclusion but on this occasion (in s 4.53 EPA Act) an inference is relied on that “development consent” does not include a CDC rather than the usual approach in the EPA Act of using express words in the text.

41. The words in s 1.4 of the EPA Act “except in so far as the context or subject matter otherwise indicates or requires” have not been the subject of any consideration in the context of the phrase “development consent”. The text sets out a high and onerous standard by the use of the phrase “otherwise indicates or requires”.

42. It seems likely that the relevant indication ought to occur in words somewhere in the EPA Act and/or the EPA Regulation. The Applicants have not been able to find any such words. The word “requires” sets similarly what might be described as a high and onerous standard. The context in which the word “requires” occurs is a provision which has the potential consequence of altering the definition of “development consent” from including a CDC to a definition of “development consent” which excludes a CDC or “complying development”. The Court should be reluctant to find that such an alteration has occurred in the absence of a clear written statement setting out such an indication or requirement. This is particularly so where, as here, there are examples in the EPA Act where such an indication has been set out.

43. In reply submissions the Applicants submitted that they are not contending that s 4.53 as amended repeals s 4.29, rather the provisions work together in that s 4.29 governs years one to five of the CDC whereas s 4.53 as amended governs years six to seven.

Council’s submissions

44. When the EPA Act is read as a whole no basis to read s 4.53(1) as the Applicants submitted exists. To do so renders the legislative scheme incoherent.

45. The EPA Act contains different and distinct provisions in different sections of the Act with respect to the lapsing of a development consent and the lapsing of a CDC. In particular, a development consent does not lapse if the “building, engineering or construction work relating to the building, subdivision or work [authorised by the development consent] is physically commenced…” (s 4.53). Whereas with respect to a CDC, the test is that it does not lapse if “the development to which it relates is physically commenced on the land” (s 4.29). Division 4.5 of the EPA Act is headed “Complying development” and the heading is part of the Act: s 35 of the Interpretation Act.

46. Section 6 of the Interpretation Act as well as s 1.4 of the EPA Act confirm that the definition of “development consent” in the EPA Act would apply to CDCs except in so far as the context or subject matter otherwise indicates or requires.

47. It is clear that s 4.29 sets out a separate regime for the lapsing of CDCs as opposed to development consents. In these circumstances the context indicates or requires that the meaning of “development consent” where it appears in s 4.53 must be read so as to exclude reference to CDCs. The amendment of s 4.53 by the COVID-19 Act in relation to development consents had no impact on the regime under s 4.29 for CDCs. Had Parliament wished to change the lapsing period for CDCs it could readily have done so. It did not do so and confined its amendment to s 4.53. It left the operation of s 4.29 unchanged. The contrast could not be clearer. The COVID-19 Act amendments to s 4.53 do not apply to CDCs.

Consideration of question 1

48. The principles of statutory construction are well known. They were recently summarised in Sydney Seaplanes at [26]-[41] as follows:

The applicable principles of statutory construction

…

26.   The literal meaning of words in a statute will not always, however, correspond to their legal meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (Project Blue Sky)) and it is axiomatic that questions of statutory construction cannot be resolved merely by resort to the literal meaning of statutory language: Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298 at [77] (Park Trent).

27.   The modern approach to statutory interpretation, as Sir Anthony Mason observed more than 35 years ago in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48, “insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise” (emphasis added). The importance of context has routinely been emphasised by the High Court in cases concerned with statutory interpretation: see, for example, Project Blue Sky at [69]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (CIC); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; [2004] HCA 14 at [11]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57]; and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (SZTAL).

28.   More recent statements to the effect that the process of statutory interpretation must start and end with a consideration of the text of the statute (see, for example, Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 at [116]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (Consolidated Media); Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [324] (Maloney); and Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 at [85]) were not intended to and did not demote or relegate the importance of context in the process of statutory interpretation: see, for example, Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [13]–[15]. As was said in Consolidated Media at [39]:

“The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.”

29.   In SZTAL, Kiefel CJ, Nettle and Gordon JJ observed at [14] that:

“Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”

30.   It has also been emphasised that “context” is to be understood in a broad sense and not confined to the immediate context supplied by other provisions in a statute of which one or more provisions are the subject of the immediate inquiry by the Court. Context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy: see, for example, CIC at 408; Maloney at [324]; SZTAL at [14].

…

34. Section 33 recognises that a statutory purpose or object may not always be found in the express terms of the statute being construed. As McHugh J observed in Saraswati v The Queen (1991) 172 CLR 1 at 21; [1991] HCA 21:

“Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes.”

35.   Some statutes will identify the “Objects of the Act” or of a Part or Division of the Act. Others will explicitly spell out the purpose of the Act. These are not “exercise[s] in apologetics” but may give practical content to particular terms used in a statute which may otherwise be elastic in their meaning: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5].

36.   It will not, however, always be easy to identify or discern the purpose of any given statute or statutory provision, and care must be taken against ascribing an overly broad purpose based upon a priori assumptions as to the legislation’s intended reach: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; [2005] HCA 28 at [28].

... 

37.   The purpose of a statute may also be expressed with such generality that it is not a useful or completely satisfactory guide to a court seeking to construe a particular statutory provision: Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54 at [33]. On the other hand, the nature and context of a particular statute’s enactment may reveal its purpose.

…

39.   The purpose of a statute or statutory provision, or the “mischief” which a statute is intended to address, may sometimes also be identified in an explanatory memorandum to a parliamentary bill or in the second reading speech although these sources of potential enlightenment, particularly the explanatory memorandum, are frequently of limited utility in this regard, often being little more than summaries or paraphrases of provisions of the bill. Although the occasions when such assistance will in fact be given have been said to be “rare”, they nevertheless sometimes present themselves: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 605; [2011] HCA 10 at [86].

…

41. Although s 34(1) of the Interpretation Act 1987 (NSW), which is in virtually identical terms to s 15AB of the Acts Interpretation Act 1901 (Cth), would appear to constrain the use of extrinsic materials such as explanatory memoranda and second reading speeches in the identification of statutory purpose and only permit recourse to them either to confirm the “ordinary meaning” of a statutory provision or in cases of ambiguity or obscurity or where giving effect to the ordinary meaning would lead “to a result that is manifestly absurd or is unreasonable”, the modern common law of statutory interpretation permits recourse to such extrinsic materials in the absence of ambiguity and has, perhaps somewhat surprisingly, been held to authorise such use even in circumstances where that use would not be permitted under the Acts Interpretation Act and, by parity of reasoning, the Interpretation Act: see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112; [1997] HCA 53; Consolidated Media at [39], quoted in [28] above; and see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [8.160], [8.200].

…

49. Applying these principles requires consideration of the text of the statute in the context of the statute as a whole. The Applicants’ principal argument focussed on the Second Reading Speech which provides a general statement about the purpose of the COVID-19 Act. No express object or purpose is stated in the COVID-19 Act itself. No mention is made of CDCs in the COVID-19 Act or extract of the Second Reading Speech relied on by the Applicants. The general statement of purpose in the Second Reading Speech may inform statutory construction as identified in Sydney Seaplanes at [41] but these are also identified as of limited utility, at [39]. Nor does any statement which may inform consideration of purpose mean that the Applicants’ approach is correct.

50. The starting point is the text of the statute, read in context and in light of its purpose. The definition of “development consent” in s 1.4(1) of the EPA Act includes a CDC “unless expressly excluded”. That definition is also subject to the opening words of s 1.4 being “except in so far as the context or subject matter otherwise indicates or requires”, which also appear in s 6 of the Interpretation Act. One question that may be asked in discerning whether Parliament intended for a defined expression to operate otherwise than in accordance with the definition is whether, if the definition were applied, the provision would “not appropriately work” or operate in a way which clearly the legislature did not intend: Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108 (Mahoney JA); Chief Commissioner of State Revenue (NSW) v Qantas Airways Ltd (2009) 74 NSWLR 181; [2009] NSWCA 163 at [32]-[35] (Macfarlan JA, Ipp and Campbell JJA agreeing).

51. The Council’s approach applies the appropriate construction of the EPA Act as a whole. I agree with the Council that separate divisions in the EPA Act have been carefully drafted to apply differentially to development consents and CDCs in relation to lapsing of these different instruments. This is a strong contextual indication that the COVID-19 Act did not intend to adopt the definition of development consent in s 1.4 of the EPA Act to extend the lapsing period of CDCs as well as development consents. Parliament could have chosen to amend s 4.29 and did not do so.

52. An astute observation by the Council is that the relationship between ss 4.29 and 4.53 was the same before and after the COVID-19 Act came into force. In other words, before the COVID-19 Act the two sections provided different controls for the period of lapsing as between development consents and CDCs, as the EPA Act continued to do after the COVID-19 Act was passed.

53. In this case, viewed in context, it is unlikely that Parliament intended to render s 4.29(2) otiose even having regard to the undoubtedly beneficial purpose of the legislation. As Basten JA observed in Attorney General for the State of New South Wales v XY [2014] NSWCA 466 at [153]:

… an important presumption is that all parts of the statute should have work to do and, in the case of apparent contradiction, a construction which gives work to each section is preferable to one which renders one or other section nugatory.

54. To say that s 4.53 as amended does not render s 4.29 otiose because it governs years six and seven, not years one to five, is a bootstraps argument unsupported by any statutory provision. Before the amendment CDCs did not have a sixth or seventh year of operation. The absence of amendment of s 4.29 to regulate years six and seven of a CDC suggests such a change was not intended.

55. The context provides a contraindication in respect of the application of the definition of development consent to CDCs, within the meaning of s 1.4 of the EPA Act that “except in so far as the context or subject-matter otherwise indicates or requires”. Therefore it is irrelevant that there was no express exclusion of a CDC from the definition.

56. It can be readily accepted that the COVID-19 Act was designed to ameliorate the disruptive impact of the pandemic on development in New South Wales, as the Second Reading Speech suggests. Extending the lapsing period for development consents promotes this purpose given that development consents can now lapse a further two years “after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before, and has not lapsed at, the commencement of the prescribed period” being 25 March 2020. While under s 4.53(1) development consents lapse after five years, a consent authority can reduce that period under subs (2). A development consent to demolish or erect a building or subdivide land cannot be reduced to a lapsing date less than two years from the date of its operation (subs 3(b)). Pursuant to these provisions many development consents are likely to lapse after less than five years. The construction I give to the COVID-19 Act is not one that would fail to promote its purpose or object and I am not obliged by s 33 of the Interpretation Act to prefer the Applicants’ construction.

54. No mention is made of CDCs in the Second Reading Speech. The general statement of purpose in the Second Reading Speech does not suggest a context for statutory construction contrary to what I have concluded.

Conclusion on question 1

58. The answer to question 1 is that s 4.53 of the EPA Act as amended by the COVID-19 Act did not extend the lapsing period of the CDC.

59. Given that I have found against the Applicants on question 1, it becomes necessary to consider whether the CDC has commenced because the development to which the CDC relates was physically commenced on the land to which it applies within five years.

Question 2: was the CDC physically commenced for the purposes of s 4.29(3) of the EPA Act?

60. The issues in dispute in relation to question 2 were refined in the course of the hearing. Firstly, the Applicants relied on the asbestos inspection of Mr Elski to submit that physical commencement for the purposes of s 4.29(3) of the EPA Act had occurred as at 8 July 2020. No issue arose of whether the work was a sham in the sense used by Tobias JA in Hunter Development Brokerage v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 (Hunter Development) at [86] (Santow JA and Stein AJA agreeing). Nor did any issue in relation to lawfulness arise.

61. Secondly, and separately to Mr Elski’s inspection, the Applicants relied on tree work as outlined in the affidavits of Mr Allouche, summarised above in [17]-[19], and Mr Chu, in [14]-[16] and [23]-[26], to submit that physical commencement for the purposes of s 4.29(3) had occurred. The legal issue in relation to the tree work is whether it was conducted lawfully.

1. Asbestos consultant activity

62. The asbestos consultant activity is to be considered first because if the Applicants are successful in their argument that the work amounts to physical commencement of the CDC, they will be successful in the proceedings and the tree work need not be relied on for that purpose.

Applicants’ submissions – asbestos

63. The affidavit of Mr Elski (see above in [20]-[22]) details the inspection he undertook in relation to identifying asbestos at the site and the ensuing report he provided. The asbestos inspection was carried out in April 2020, prior to 8 July 2020 and prior to the expiration of 5 years following the issuing of the CDC. The asbestos work carried out by Mr Elski was sufficient to give rise to physical commencement of the demolition work approved under the CDC. The Applicants accept that they have the onus of establishing that the asbestos work amounted to physical commencement: Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 (Cando CA) at [92], [97], [98] (White JA, Beazley P and Meagher JA agreeing).

64. Although in their written submissions the Applicants submitted that the inspection was to be equated with building, engineering or construction work seeking to draw an analogy with s 4.53, this argument was not pressed in oral submissions, appropriately so in my view. That part of the written submissions is not therefore summarised below.

65. First, the Applicants submitted that the asbestos work involved work preparatory to the demolition in the sense that the demolition work cannot proceed without the former. The asbestos work was a necessary step in, or part of, the process involved in the demolition: Tobias JA at [116] in Hunter Development. The reason why the asbestos work was a necessary step preparatory to demolition is apparent from the terms of condition 136E of the CDC (or cl 136E of the EPA Regulation), which required, among other things, the identification of the presence of asbestos material in order for such material to be removed (see above in [5], [12]).

66. Second, the demolition of a building may commence or begin with the physical action of Mr Elski physically tapping the external wall cladding, tapping internal wall lining and internal wall cladding, tapping the detached garage and rear retaining walls, as part of his activities on-site to assess potential asbestos: see Mr Elski’s affidavit above in [21]. Condition 136E of the CDC required identification of the asbestos material. In such circumstances it can be said that that the Applicants undertook physical activity that in “a real sense” related to the demolition works approved: Hunter Development at [86].

67. Third, there is an analogy between preliminary investigation work, preparatory work such as design and preliminary construction works, which can be relied on for physical commencement, and the asbestos work carried out here preparatory to the demolition work: De Battista v Shoalhaven City Council [2020] NSWLEC 164 (De Battista) at [64] (Pain J); Hunter Development at [83], [98], [108], [109]; Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149 (Norlex) at [80],[90] (Pepper J).

68. Fourth, there is an analogy between a pilot study as a preliminary necessary step being part of the process required and involved in the carrying out of the approved work, and the asbestos work needed to address condition 136E of the CDC: Henry v Shellharbour City Council and Others [2005] NSWLEC 378 (Henry) at [33] (Talbot J).

69. Fifth, there is an analogy between the “initiatory step” taken in the building operations to erect a building where trees and shrubs were cleared away and a site was levelled preparatory to building, and the asbestos work as an initiatory step in the demolition operations: Owendale Pty Ltd v Anthony (1967) 117 CLR 539; [1967] HCA 52 at 596 (Taylor J); Cando CA at [60], [116], [117].

70. In closing submissions counsel for the Applicants submitted that the test in s 4.29 is easier to satisfy than s 4.53 because the words “building, engineering or construction work” were words of limitation and any work that satisfies those categories would satisfy s 4.29.

Council’s submissions – asbestos

71. Tapping a wall does not constitute physical commencement, any more than opening and closing a door to inspect a room constitutes physical commencement.

72. In oral submissions, the Council submitted that there were no cases which came close to recognising the level of activity on the site that occurred in this case as sufficient to amount to physical commencement for the purposes of s 4.53 of the EPA Act. Further, caution must be exercised in using cases related to s 4.53 of the EPA Act in the context of s 4.29, especially when there is no need to classify the work required as “building, engineering or construction work”.

Consideration of asbestos activity

73. Adopting the reasoning in Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83 (Cando LEC) at [84] (Pain J) and Cando CA at [96]-[97] in relation to development consents under s 4.53, the Applicants bear the onus of establishing physical commencement in order to prevent lapsing of the CDC, as they properly accepted.

74. Identification of what the CDC authorised informs the issue of whether it has been physically commenced. The CDC is for “demolition of all existing structures including single story dwelling, rear garage, perimeter fencing and retaining walls”. Mr Elski’s evidence about conducting an asbestos inspection at the site inter alia is summarised above in [20]-[22] and accurately identified in the Applicants’ submissions in [63]-[66].

75. The question of the proper construction and application of “physically commenced” in s 4.29 of the EPA Act arises for the first time in this matter as far as I am aware. No case addressing the meaning of the section was identified by the parties. Several cases such as Cando LEC, Cando CA, Hunter Development, De Battista, Henry and Norlex were referred to in submissions. All considered s 4.53, which is drafted in different terms, namely physical commencement of “building, engineering or construction work relating to the building, subdivision or work … on the land to which the consent applies”. The Applicants’ submissions changed in the course of the hearing from their written submissions which sought to argue that the asbestos consultant’s activity was building, engineering or construction work. Section 4.29 does not use such terms. Submitting that work which would satisfy s 4.53 must also satisfy s 4.29 ignores the fact that the sections are differently drafted. Whether work is “building, engineering or construction work” or whether that “building, engineering or construction work” relates to the “building or subdivision or work” authorised by a CDC need not be determined under s 4.29. Ultimately the Applicants appropriately sought to demonstrate that the asbestos consultant’s physical inspection amounted to physical commencement for the purposes of that section.

76. The Applicants submitted that the s 4.53 cases referred to could be applied by analogy and supported their argument. The Council submitted that care must be exercised in their application to s 4.29. As will become clear I consider that the cases referred to provide some assistance in the circumstances of this case. While the sections are differently drafted both refer to physical commencement and how that has been considered in various cases is useful to consider.

77. Section 4.53 has been the subject of several cases in this Court and the Court of Appeal which identify the complexity of answering the question of physical commencement in various circumstances relating to whether building, engineering or construction work has commenced. A brief overview of these cases follows. In Hunter Development, the Court of Appeal held that carrying out survey work to establish the correct location of elements of a subdivision was capable of falling within the expression “engineering work”: at [85]. That work in particular involved the “physical fixing on the relevant land of survey reference marks as permanent reference points marking the whole or part of the centreline of one or more of the approved roads, or the proposed drainage and/or sewerage lines serving the proposed lots within that subdivision”: at [82]. Geotechnical investigations involving the excavation of test pits and collection of soil samples undertaken by a civil engineer over two days (at [14]) were also held to constitute physical commencement: at [129]. Tobias JA found, in respect of whether the survey work was engineering or construction work, that “simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not … necessarily qualify. There is an element of fact and degree in each case”: at [86]. His Honour went on to state at [86]:

86 … In particular, the concept that the work must be “physically commenced”, requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved: cf Besmaw Pty Ltd (at 436 [111]).

78. His Honour found at [87]-[88]:

87 … the physical survey work carried out by Tovedale … was physically commenced … the statutory concept requires only some application of labour which manifests itself on the land. …

88 … the only statutory requirement is that the relevant work is commenced upon the land in a physical sense (as was clearly the position in the present cases). What is to be distinguished is work which is not physically commenced on the relevant land but is off-site work such as design and planning work. In my respectful opinion, Cowdroy J went too far when he held that the engineering work must result in a material change to the physical nature of the land. The statutory provisions contain no such requirement.

79. In Henry, the work which amounted to physical commencement was a pilot study including “significant physical work” involving the marking of planting sites in an arrangement of four grids enclosed by temporary fencing, the construction of stormwater works, excavation and completion of earthworks and collection of saltmarsh plants from Shellharbour swamp and transplanting to the pilot study site: at [31]. I note that the applicants’ case in Henry was primarily that the work carried out was unlawful and therefore the work was not “relating” to the development for the purposes of the predecessor to s 4.53. It was not an essential part of their case that there had not been physical commencement: at [12].

80. In Norlex, the development consent was for the purpose of the “collection of spring water extracted under commercial licence” in accordance with the relevant plans and subject to conditions: at [9]. It authorised the “erection of a building being a water storage tank and the carrying out of work including landscaping, internal driveways, turning areas, four off-street vehicular parking spaces, road pavement reconstruction and the erection of signage. The consent also authorised the use of the land, the proposed building and proposed work, as well as the existing shed and pump for collection and extraction of spring water”: at [9]. The applicant relied on the following “building, engineering or construction work” as being physical commencement on the land, at [77]:

…

(a) the testing for water quality and fitness for purpose carried out after 30 August 1995 was engineering work;

(b) the acoustic work performed by Mr Challis in at least September 1999 was engineering work; and

(c) the fence and gate repair and maintenance was building and/or construction work.

81. Relevant for present purposes is the testing of the water for quality and fitness for purpose. At [28] the judgment records that the water testing involved a person coming onto the property, connecting a hose to a tap in the bore, running a pump for at least 30 minutes to flush out sediments and impurities and finally collecting and leaving the property with sterile water samples and taking the water to a laboratory. The extraction and testing of water was considered engineering work necessary to be performed under the consent: at [88]-[89], [93]-[95]. All that was required, citing Hunter Development, was “the application of labour which manifests itself on the land”: at [93]. In relation to whether the work of extracting and pumping water was sufficient for physical commencement, Pepper J held the following at [91]-[92]:

91 A question remains, however, as to whether or not the work was physically commenced on the land. In Hunter Developments the notion that the work had to result in a material alteration to the physical nature of the land was rejected (at [88]). All that was necessary was that the work was physically commenced on the property and was not commenced “off-site” (at [88]). Thus in Hunter Developments and Zaymill [Zaymill Pty Ltd v Ryde City Council [2009] NSWLEC 86], the excavation and testing of the soil samples was engineering work that had been physically commenced on the land notwithstanding that the soil was analysed elsewhere. The excavation of the soil samples and their subsequent testing was a necessary step in the satisfaction of the conditions of the consent.

92 I am unable to meaningfully distinguish between, in the present case, the extraction of the spring water by use of the pump and its bottling for subsequent laboratory analysis, and the excavation of the soil samples for external testing in Zaymill. In both the work was commenced on the land and was a necessary step in the process of carrying out the consent.

82. In De Battista, the work accepted as physical commencement included preliminary investigations consisting of engineering analysis of soil and a geotechnical assessment which included a recommended pavement thickness design: at [43]-[46], [64], citing Hunter Development.

83. In Cando CA, the “construction work” held to satisfy s 4.53 was the clearing of shrubs, which ‘related to the development’: at [116].

84. The Applicants submitted that the physical attendance of Mr Elski on-site and his thorough visual inspection and tapping of walls amounted to physical commencement of the development to which the CDC relates for the purposes of s 4.29. While Mr Elski undertook work as an asbestos consultant physically on the land by his personal attendance to undertake visual inspections and tap walls no activity in the sense of doing physical work permitted by the CDC took place. What had to be physically commenced for the purposes of s 4.29 was the demolition the subject of the CDC.

85. I agree with the Council’s submissions that there is no basis for concluding that such a trivial degree of physical activity on land by Mr Elski, with no manifest effect on the land whatsoever, amounts to physical commencement for the purposes of s 4.29. Undertaking a visual inspection in person, which includes tapping of walls, and preparation of a report off-site is not physical commencement of the development to which the CDC relates for the purposes of s 4.29 in this case.

86. The facts of this case do not enable any useful analogy with cases which considered s 4.53 of the EPA Act to support the Applicants’ arguments. None of the cases cited which considered s 4.53 involved activity having no physical manifestation on the land. In that respect the s 4.53 cases are a useful comparison in terms of considering “physical commencement” in s 4.29. As identified in Hunter Development at [86] whether physical commencement, in that case in the form of building, engineering or construction work, has occurred is a question of fact and degree in every case. Norlex which the Applicants particularly relied on to argue that physical change to land is not needed was determining whether engineering work had taken place for the purposes of s 4.53, a different question. In any event the work relied on successfully in that case did involve activity which physically manifested on the land. The other s 4.53 cases summarised above in [77]-[83] all involved physical work which “manifested on the land” in question (Tobias JA in Hunter Development) accepting that material alteration of the land is not required.

87. The Applicants’ submissions about the work being preparatory to the work approved by the CDC, which can be accepted as a description of what Mr Elski was doing, (their first, second, third, fourth and fifth points above in [65]-[69] all of which substantially overlap) do not answer the question of whether physical commencement occurred to avoid lapsing because on the facts of this case there was no relevant physical commencement, preparatory or otherwise. Hunter Development (the Applicants’ points one, two) must be read as a whole and I have found does not support the Applicants. Nor do De Battista (the Applicants’ point three), Henry (the Applicants’ point four) or Cando CA (point five) assist the Applicants, as I have identified above.

88. The Applicants cannot rely on the visit to the site by Mr Elski as constituting physical commencement under s 4.29.

89. It is now necessary to consider the tree work relied on by the Applicants given my finding in relation to the asbestos inspection.

2. Tree work

90. Mr Allouche’s affidavit summarised above in [17]-[19] identifies the tree work undertaken at Mr Chu’s request, as also identified in Mr Chu’s affidavits summarised above in [15] and [23]-[26]. The purpose of the tree work was to clear branches close to the roof of the house to be demolished at the site and branches close to the ground. If unlawful it cannot be relied on as physical commencement: Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 (Iron Gates) at 135 (Handley JA, Mahoney JA and Rogers AJA agreeing). It was agreed that if the tree work was carried out lawfully it constituted physical commencement for the purposes of s 4.29 of the EPA Act.

Applicants’ submissions – tree work

91. The Applicants submitted that there is no evidence that the pruning of the trees amounted to a contravention of any law, so that the pruning of the trees can and does avoid statutory lapsing: Cando CA at [90]-[96] referring to Iron Gates; Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123 (Green).

91. The five conditions contained in the CDC (see above in [11]) do not prevent the pruning of the trees from being sufficient to commence the CDC. That is because the pruning of trees was a step which occurred prior to site works, building or demolition occurring.

92. On the proper construction of the five conditions in the CDC, it is apparent that the nature of the requirements set out at condition 3(b)(1) to (5) apply (and are intended to apply) to actual demolition and construction. That is apparent from the content of the requirements. For example, condition 3(b)(4) and (5) require an “adjoining wall dilapidation report” and “run-off and erosion controls”. The need for such requirements prior to actual demolition and prior to actual construction is self-evident. It is equally self-evident that a preparatory step like tree pruning does not require run-off and erosion controls to be in place (condition 3(b)(5)). Nor does tree pruning give rise to the need for an adjoining wall dilapidation report (condition 3(b)(4)).

93. On the proper construction of the CDC, each of the five conditions in the CDC come into effect at the same time. That is because there is nothing in the text of the conditions that permits a gloss to be added to the effect that condition 5(b) commences at some unspecified date prior to other conditions. When construing the intended operation of the CDC as to the activity sought to be the subject of the requirements in the conditions, one looks at the nature of the requirement that arises and the purpose for that requirement arising at that time. When that exercise is carried out it is apparent that a condition like 3(b)(5) requiring run-off and erosion controls is irrelevant to the activity of Universal Tree and Yard Services Pty Ltd undertaking tree pruning at the site.

94. Similarly, condition 5(b) requiring the erection of a sign at the front of the site with the builder’s name and licence number etc is an understandable step to occur prior to the builder physically constructing the building. However such information is utterly irrelevant when it comes to the worker from the tree pruning service attending at the site to prune trees.

95. The above examples demonstrate that as a matter of legal construction of the terms of the CDC, such terms do not apply to the tree pruning preparatory step. Accordingly, the tree pruning work was not subject to the five conditions in the CDC. The tree pruning did not need to comply with the CDC requirements in order for the tree pruning to be lawful.

96. Such a conclusion is consistent with and analogous to the approach taken by Pain J in Cando LEC at [86] which approach was not criticised on appeal: Cando CA at [114], [115]. Further, as Pain J observed in Cando LEC at [86] such an approach had been taken by the Court of Appeal in K&M ProdanovskiPty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 (K&M) at [34] (Meagher JA, Leeming JA and Sackville AJA agreeing) and in Sharp v Hunters Hill Council (2002) 120 LGERA 155; [2002] NSWLEC 27 (Sharp) at [46]-[59] (Bignold J).

Council’s submissions – tree work

98. The tree work was carried out in breach of the conditions of the CDC as augmented by the EPA Regulation and the SEPP and therefore the work could not amount to physical commencement of the development to which the CDC relates: Cando CA at [91]-[92], [96]-[97].

99. The CDC (see above in [11]) sets out a range of preconditions to the commencement of any development to which it relates. The onus is on the Applicants to demonstrate that these steps had been completed before development to which the CDC relates had physically commenced, otherwise the works were not lawful and cannot be relied upon as physical commencement.

100. There are two categories of conditions which were breached: those relating to notices and those relating to waste management.

101. Condition 3 of the CDC states that two days before any “site works, building or demolition begins” the applicant must do a range of things. The pruning of trees is properly encompassed by the description contained in this condition. If not demolition, pruning of trees must fall within the description “site works”, being preparatory works to ready the site: Green at [29], [62]. It makes complete sense to protect adjoining areas, install tree protection measures and have a waste management plan in place before undertaking any form of work on the site. There is no evidence that any one of these preconditions were met, let alone all of them.

102. Condition 4 relates to “works”. The pruning of trees, if able to be relied upon as “development to which the CDC relates”, is properly encompassed by the broad description “works”. There is no evidence that the Applicants gave seven days’ notice to adjoining owners of commencing works under the CDC.

103. Condition 5 relates to “site works, building or demolition”. Again, pruning trees fits within this description and there is no evidence the conditions were complied with.

104. The SEPP (see above in [6]) provides in cl 7.3 that: “A complying development certificate for development specified under this code must be issued subject to the conditions specified in Schedule 9.”

105. Clause 3 of Sch 9 to the SEPP deals with waste management. It is found in Pt 1 “Conditions applying before works commence”. There is no evidence that a waste management plan was prepared before work commenced on the site. The intent of the requirement was to identify all waste before it was created, the contractor transporting it and the waste facility to which it would go. The purpose of this condition was defeated because the tree waste was already created and there is no indication of where it was disposed of: see Mr Allouche’s affidavit above in [19].

106. Clause 4 of Sch 9 to the SEPP deals with adjoining walls and is found in Pt 1 “Conditions applying before works commence”. The evidence is that the site the subject of the CDC is within 900 millimetres of its boundaries with adjoining properties (see above in [31]). The obvious purpose of this clause is to provide protection to neighbours by documenting the existing state of the adjoining property before any works commence in reliance on the CDC. There is no evidence that this precondition was satisfied before works commenced.

107. The obvious purpose of cl 136E of the EPA Regulation (see above in [5]) is to ensure the protection of occupational safety and public health and to ensure that systems for the proper disposal of asbestos and other wastes are in place before any works commence in purported reliance on the CDC, including tree works which might result in damage to the dwelling and which will and did generate waste: see Mr Allouche’s affidavit above in [19].

108. There is no suggestion, let alone evidence, of any of the following which must be undertaken before commencement of the development to which the CDC relates:

1. a waste management plan prepared in accordance with cl 3 of Sch 9 to the EPA Regulation;

2. a contractor identified who will dispose of waste material, in accordance with cl 136E(1)(a) and (b); and

3. the principal certifier being provided with a copy of a signed contract with a person who carries on a business of such removal work in accordance with a licence under cl 458 of the Work Health and Safety Regulation 2011 (NSW) before any development pursuant to the CDC commences, as required by cl 136E(1)(b) of the EPA Regulation.

109. As noted above a range of provisions in cll 3, 4 and 5 of the CDC and the EPA Regulation ensure that advance notice is given of who is carrying out work, of what work is being done and that pre-commencement requirements have been met. These include the following obligations:

1. Forwarding a Notice of Commencement of Work and Appointment of Principal Certifying Authority (PCA) to the Council before any site works, building or demolition begins under the CDC (condition 3(a) of the CDC).

2. Notifying the PCA that you intend to commence work (condition 3(b) of the CDC).

3. Ensuring that the PCA is satisfied that all pre-commencement conditions have been met before any site works, building or demolition begins under the CDC (condition 3(b) of the CDC and EPA Regulation 136N).

4. Informing the adjoining owners in writing seven days before works commence that work will commence (condition 4 of the CDC and cl 136AB of the EPA Regulation).

5. Notifying the council of the name, address, phone number and licence number of the builder before any site works, building or demolition begins (condition 5(a) of the CDC).

6. Erecting a sign at the front of the site with the builder’s name, licence number, site address and the number given by the council to the application for the CDC before any site works, building or demolition begins (condition 5(b) of the CDC and cl 136B of the EPA Regulation).

110. There is no evidence that any of these requirements were complied with before the Applicants carried out site works in purported reliance on the CDC.

111. In closing submissions, the Council submitted, adopting the language of Giles JA in Green at [68], that the Applicants were endeavouring to “walk a fine line”. The Applicants were submitting that while the tree pruning work was sufficient to satisfy the requirements of s 4.29 for “physical commencement”, it was insufficient or inapt to be labelled as “works” under the SEPP or condition 4 of the CDC or “site works, building or demolition” under conditions 3 and 5 of the CDC, to avoid a finding that the CDC conditions had to be complied with. The Council submitted that, as in Green, that approach should not be permitted.

Consideration of tree work

112. As already noted above in [75], the issue of physical commencement of a CDC has not arisen in any case to date identified by the parties. The Council accepted that the tree work the subject of evidence was sufficient to physically commence the CDC for the purposes of s 4.29. The terms of the CDC are extracted above in [12]. The evidence of Ms Keilar above in [27]-[30] and Mr Chu above in [25]-[26] confirms that the conditions required by the CDC before “site works, building or demolition” or “works” commence were not undertaken before the tree work was carried out.

113. Mr Chu’s evidence referred to a tree protection order which his solicitor confirmed was a reference to the Council’s Tree Management Development Control Plan adopted 11 February 2020. Section three, entitled “Tree work that does not require Council Consent”, at cl C1, states that “canopy lifting to 2.5 metres above ground level; selective pruning to a 3 metre clearance above the roof or from the face of all structures; and the pruning of deadwood that does not have hollows or provide habitat for native fauna” are exempt from Council consent. The selective pruning of tree limbs close to a structure, pruning of deadwood and canopy lifting (collectively, “limited pruning”) before building or demolition work was undertaken (see above summary of Mr Allouche’s affidavit in [18]). This is the language used by Mr Chu in his affidavit of 16 November 2021 (summarised above in [24]) to describe the limited pruning activity that occurred. The Council did not dispute this evidence. It was agreed that the limited pruning was necessary preparation to enable the carrying out of demolition.

114. The Applicants and the Council agreed during the hearing that the issue the Court had to determine was whether the limited pruning relied on by the Applicants was lawful as identified in Iron Gates at 135. Iron Gates considered whether a development consent was lawfully commenced, finding that work which was subject to the conditions of a development consent which was carried out not in compliance with the conditions of development consent could not give rise to lawful commencement. The parties agreed the same consideration would apply to whether a CDC had been lawfully commenced.

115. The statutory framework for CDCs extracted above in [3]-[6] includes provision in the EPA Act for the carrying out of complying development (s 4.26), the terms of a CDC (s 4.27), and the process for obtaining a CDC (s 4.28). The duration of a CDC is five years under s 4.29(2). The EPA Regulation in Pt 7 Div 2A specifies mandatory conditions for CDCs including notice to neighbours (cl 136AB), erection of signs (cl 136B) and requires that a principal certifier be satisfied that preconditions are met before work commences (cl 136N). Under the SEPP a demolition code is provided in Pt 7 and Sch 9, extracted in [6] above.

116. I am construing s 4.29(3) and the terms of the CDC, applying the usual principles of statutory construction of considering the plain meaning of the words in light of their purpose and context (see above in [48]). There is no debate for present purposes about the scope of physical commencement (unlike in relation to the asbestos work discussed above). At issue is the meaning of “the development to which it [the CDC] relates …” in the context of this CDC. Section 4.29(3) states that a CDC does not lapse if “the development to which it relates is physically commenced…” within five years. Development is broadly defined in s 1.5 of the EPA Act including the carrying out of work. At issue is whether the otherwise permissible limited pruning should be considered to be “any site works, building or demolition” or “work” to which the CDC relates, or alternatively preliminary works not subject to the CDC conditions which amount to physical commencement for the purposes of s 4.29(3). The Council submitted that the limited pruning fell within “works” as referred to in condition 4 of the CDC or “any site works, building or demolition”, focussing particularly on site works or demolition, as referred to in conditions 3 and 5 of the CDC. The Applicants submitted that the limited pruning was not subject to these conditions and that compliance with these conditions was not necessary to constitute physical commencement of the CDC.

117. “Site works” is not defined in the EPA Act or the EPA Regulation. “Site” is relatively self-explanatory meaning place. “Works” has a wide meaning including in the context of development as defined in the EPA Act. As identified in Green at [72] “work”, “a work” or “the carrying out of work” is not defined in the EPA Act. Justice Giles held:

72    …The definition of “development” in the Act (1995) included the carrying out of a work in, on, over or under the land and the definition in the Act (1999) included the carrying out of a work. As I have indicated, the concept of work, a work or the carrying out of a work is not greatly elucidated in other definitions. “Work” refers to something done to the land itself, the physical result of labour done on land (Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 24-5), but again attention must be focussed on the act or process. It is a question of fact and degree: in Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25, speaking of depositing filling on land, Street J said (at 31) -

“As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as ‘work’, and thus a ‘development’, within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a ‘work’. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a ‘work’. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance.”

118. Condition 3 of the CDC requires an applicant to notify the council and appointed PCA of certain matters two days before “any site works, building or demolition begins”. Condition 3(a) requires notification to the council of commencement of work and appointment of a PCA . Condition 3(b) requires an applicant to notify the PCA appointed of commencement of work and those matters in italicised text in condition 3(b). Condition 3(b) appears to be intended to ensure compliance with cl 136N of the EPA Regulation concerning the PCA being satisfied that preconditions have been satisfied before work commences. I note that cl 136N applies to the giving of notice of “building work or subdivision work” to a principal certifier, which may or may not include demolition work. Nothing arises from that observation in this context. Both parties submitted that the italicised list in condition 3 should be understood as containing shorthand references to the conditions imposed by the SEPP in Sch 9 “Conditions applying to complying development certificates” under the Demolition Code, Pt 1 “Conditions applying before works commence” being cll 1 (protection of adjoining areas), 2 (toilet facilities), 3 (waste management), 4 (adjoining wall dilapidation report), and 5 (run-off and erosion controls), extracted above in [6]. While no reference was made in argument by the parties to Sch 6 of the SEPP “Conditions applying to CDCs under certain complying development codes” (including the General Housing Code), that schedule is part of the CDC in evidence and includes cl 6 “Tree protection measures”. Since no reference was made to Sch 6 it is not extracted above. In any event, under the SEPP all relevant codes must be complied with, as also stated in condition 5(j) of the CDC.

119. Condition 4 is to be fulfilled 7 days before “work” commences. The condition reflects cl 136AB(1) of the EPA Regulation, which applies to demolition work and to the relevant land by virtue of subclause (3). Clause 136AB requires the person having the benefit of the CDC to “give at least 7 days’ notice in writing of the person’s intention to commence the work authorised by the certificate (italics added) to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which work is to be carried out”.

120. Condition 5 is to be fulfilled before “any site works, building or demolition begins”. Condition 5 requires notification to the council of the name of the builder, the erection of a sign at the front of the property with the builder’s details and the number of the CDC inter alia.

121. Conditions 3 and 5 refer to “any site works, building or demolition” (emphasis added). “Site works” is to be construed broadly, albeit as a question of fact and degree. “Any” is an inclusive provision with broad application. Applying this construction suggests the limited pruning did constitute “any site works, building or demolition” being the development to which the CDC relates.

122. Construing the scope of s 4.29(3) by reference to the requirements in the individual CDC conditions is on one view unnecessary given the unambiguous description of the development to which the CDC relates identified above. As the Council submitted the conditions applying to CDCs are largely fixed by the EPA Regulation and the SEPP. There is little ability for fine-tuning by a certifier in contrast to the grant of a development consent under Pt 4 Div 4.3. The conditions issued by a PCA must largely adopt what the legislative scheme requires.

123. As to whether the terms of the CDC support either of the parties’ arguments, both parties argued that as a matter of legal construction the terms of the CDC should be interpreted to commence at the same time, which I accept as a correct construction of the operation of the CDC, subject to its terms in that different timeframes are specified in different conditions. The Applicants argued this supported their approach as the conditions were clearly not applicable to the preliminary lopping of tree branches. The Council’s contention was that some of the conditions were directly relevant to the limited pruning, referring to several of the matters specified in condition 3 such as having a waste management plan in place, protection of adjoining areas and implementation of tree protection measures. Ultimately none of these arguments are particularly helpful on the construction of s 4.29(3) and the application of the CDC given the reference to “any site works, building and demolition” in conditions 3 and 5.

118. Another matter of construction to consider is whether the reference to “works” in condition 4 should be construed differently to “any site works, building or demolition”. As noted above in [119] condition 4 reflects cl 136AB(1) of the EPA Regulation which applies to demolition work. Clause 136AB(1) refers to notice of “the work authorised by the certificate” to be given to occupiers of nearby dwellings. The CDC authorises demolition and site works for that purpose. Condition 4 should be construed as having the same scope of operation as cl 136AB(1), a consequence of which is that the scope of “works” in that condition should not be interpreted differently to “any site works, building or demolition” in conditions 3 and 5. Such a finding further supports my conclusion that the limited pruning which is necessary to enable demolition was subject to the CDC.

119. The cases referred to in argument address s 4.53(4) in Pt 4 Div 4.9 of the EPA Act which provides that a development consent does not lapse “if building, engineering or construction work relating to the building, subdivision or work is physically commenced …” within the required time. While both sections refer to physical commencement the nature of what must be commenced is differently drafted. Under s 4.53(4) the phrase “building engineering or construction work relating to the … work” gives rise to physical commencement of a development consent. Under s 4.29(3), the activity relied on as physical commencement must commence the development to which the CDC relates. That the development to which the CDC relates must be physically commenced supports a finding that the CDC conditions apply to “any site works” in order to give rise to physical commencement. I will nevertheless consider the cases referred to by the parties.

120. Returning to Green, various works were relied on unsuccessfully as physical commencement because the lawfulness of the works was subject to compliance with specific development consent conditions which were not complied with. Development consent was granted for “a Dual Occupancy development comprising the erection of a detached dwelling-house and Torrens title subdivision”: at [8]. At issue was whether a development consent had commenced for the purposes of s 95(4) of the EPA Act (now s 4.53) by virtue of survey pegs being laid out, lopping and clearing of shrubs and small trees in the footprint of a proposed building, digging of some trenches for footings for a proposed building (in the wrong place), digging a trench line for a drainage pipe and placement of pipe sections in the trench.

121. A condition of development consent required that no tree be removed without prior written approval of the council (condition 9). Another condition of development consent stated that prior to the commencement of any site works all trees to be retained had to be protected by fencing with details to be submitted with a building application (condition 10). Another condition required that silt control devices be provided on the building site prior to commencement of land clearing and construction works (condition 17). A further condition required a building application to be lodged (condition 3). The works relied on were said by the applicant to constitute engineering or construction work, but not building work to which the terms of the development consent applied.

122. The Council particularly relied on Green at [29] which described the cutting down or lopping of trees on the site, seeking to align the facts of Green with this matter. Additional work carried out is identified in [24]-[28], [30]. The reasoning in Green considered the activities relied on by the applicant as a whole. Justice Giles (Mason P, Ipp AJA agreeing) held at [59]-[60], [62]:

59    For the other conditions of the development consent, it is enough to refer to condition 10 concerning tree protection and condition 17 concerning silt protection devices. They were expressed as conditions to be satisfied prior to the commencement of any site works and prior to commencement of land clearing and construction works respectively. The language was the same as that in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning.

60    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 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning, 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 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc the appellant’s development consent lapsed notwithstanding the activities.

…

62 I put condition 17 aside, and turn to condition 10. It is plain that there were trees on the site outside the footprint of the second dwelling as cleared in March 1999, and that they were not enclosed with protective fencing as required by condition 10. Cowdroy J inferentially so held, see the same passage from his Honour’s reasons, and the fact is clear. If the activities were site works, therefore, they were prohibited. On the ordinary meaning of the phrase, I consider that they were site works. The objective of condition 10 was that the trees on the site should be protected while any work was carried out, and that called for protection from the beginning and at least from when the clearing and excavation was carried out early in March 1999. On the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc, then, the appellant’s development consent lapsed notwithstanding the activities.

129. In Green trees were cut down as well as pruned, the pruning of trees alone was not considered separately, and these activities were considered as part of various other activities relied on to establish physical commencement: at [24]-[30]. Green does not greatly assist in construing s 4.29(3). The paragraphs of Green that the Council identified (Green at [29], [62]) provide limited support for a finding that site works should be construed to include the limited pruning because the reasoning process of the Court of Appeal does not consider such work separately.

130. The Council also relied on [68] in Green which stated:

68 The appellant responded that the activities were not carrying out development, for which consent was required. He sought to walk a fine line. The activities were not themselves carrying out development, he said, because they were not building work. He said that they were engineering work or construction work, so s 95(4) of the Act (1999) was fulfilled, but he eschewed the description of building work, it seems in part to avoid any suggestion that condition 3 of the development consent stood in his path but also to defeat the respondent’s alternative basis. The appellant categorised the activities as engineering work or construction work preparatory to carrying out a development - pegging out, clearing, excavating for footings, digging drainage trenches, making provision for silt control - but not as themselves carrying out development.

131. This argument was not accepted at [69]-[70].

132. The “fine-line” argument in Green at [68] does not directly address the facts of this case or the wording in s 4.29(3). The reasoning at [68] does lend support to the Council’s argument that the limited pruning should be regarded as “any site works” or “demolition” undertaken to progress the development the subject of the CDC, and should not be considered as preliminary work which amounts to physical commencement but does not require compliance with CDC conditions.

133. Sharp was relied on by the Applicants. In Sharp the applicant sought a declaration that a development consent had not lapsed for the purposes of s 95(4) (now s 4.53) as building, engineering and construction work had been carried out within the statutory lapsing period. Excavation, drainage, landscaping and partial demolition works were relied on to establish commencement: at [5]. One question concerned whether the partial demolition of an existing dwelling required a construction certificate to be issued before it was undertaken, posed at [47]:

47. However, in contending that the partial demolition works relevantly qualify as the commencement of building work relating to the building authorised to be erected by the development consent for the purposes of s 95(4) but that the carrying out of such partial demolition works does not constitute “the commencement of the erection of the building” in accordance with the development consent for the purposes of s 81A(2), are the Applicants seeking “to walk a fine line”, to adopt the words of Giles JA (describing the appellant’s submission) in the preface to the passage I have earlier recited from Green?

134. In examining the question posed in [47], Bignold J found that there may be a relevant difference between “the physical commencement of building work” in s 95(4) and “the erection of a building” in s 81A(2) given different textual and contextual differences between s 95(4) and s 81A(2): at [49]-[54]. His Honour held that a construction certificate was not required for the demolition because that did not constitute the commencement of the erection of a building: at [59]. It was a matter of fundamental significance that the EPA Regulation did not refer to demolition of a building either expressly or impliedly but made detailed provision with respect to certification of development: at [58]. There are differences between the statutory provisions and context considered in Sharp and this matter. At a high level of generality, Bignold J reasoned that works can fall within the ambit of one phrase but outside the ambit of a similar phrase depending on the text and context. Given that s 4.29(3) is differently drafted to the section considered in Sharp that analysis does not assist here.

135. At issue in Cando LEC was whether a development consent had lapsed for the purpose of s 95(4) (now s 4.53) because conditions in the consent had not been complied with when work sought to be relied on as physical commencement was undertaken. The development consent was for the demolition of an existing dwelling and the erection of a multi-unit development: at [12]. Relevant works relied on by the respondent developer, the lawfulness of which was questioned, included clearing the property of trees and shrubs and the erection of a temporary safety fence: at [79]. Condition 27 required approval by a PCA of temporary safety fencing: at [62]. Condition 29 required the appointment of a PCA and the giving of a notice of intention to the council in respect of the erection of a building prior to the commencement of work: at [62]. Condition 44 required that all pruning and tree removal must be carried out by a qualified tree surgeon/arborist in accordance with the provisions of AS 4373-199 Pruning Amenity Trees and the Tree Works Industry Code of Practice (WorkCover NSW): at [14]. I made findings in relation to the various types of work sought to be relied on as to whether these were lawful in light of the conditions of development consent which had not been complied with.

136. Most relevantly in relation to the clearing of trees and shrubs, I held that as condition 44 was not complied with the clearing of trees and shrubs did not amount to lawful commencement: at [89], [92]. Cando CA held that clearing shrubs on the site was construction work which was related to the work approved in the development consent and was sufficient to commence the development consent and was conducted lawfully: at [112]. Condition 44 did not apply to the clearing of shrubs of a few feet in height: at [113]. No condition of development consent had to be complied with before shrub clearing took place because the development consent did not treat the removal of shrubs as demolition work: at [115]. The clearing of shrubs was not therefore a breach of the development consent and constituted physical commencement of construction work sufficient to prevent lapsing: at [115], [118].

137. Also relevant to this matter is the operation of condition 29. I held in Cando LEC at [86]:

86. A complete answer according to the Council to the further work now relied on is Condition 29 which required a PCA to be appointed before work commenced. The Council asserted in reliance on K&M Prodanovski CA at [33] this meant the further work. Contrary to that submission, in K&M Prodanovski CA one submission of the respondent council that the consent in question had lapsed was not accepted in relation to an analogous argument concerning a condition in similar terms to Condition 29. The Court of Appeal held that a condition requiring the appointment of a PCA prior to any work commencing by the person with the benefit of the consent and a construction certificate did not mean that a PCA had to be appointed before any preliminary work (in that case geotechnical investigations) conducted by the appellant could occur, at [34] (Meagher JA, Leeming JA and Sackville AJA agreeing). Work in the relevant condition was held to mean building work at [34]. The same conclusion was arrived at in Sharp v Hunters Hill Council [2002] NSWLEC 27; (2002) 120 LGERA 155 at [46]-[59] addressing whether a construction certificate was required before demolition could occur. Applying the same reasoning, Condition 29 is not engaged in relation to the further work relied on by the Respondent and does not therefore assist the Council’s submissions.

138. My reasoning in Cando LEC at [86] was not overturned by the Court of Appeal in Cando CA at [59], [114] and [115].

139. Cando LEC at [86], Cando CA and K&M recognised the possibility that preliminary work can occur before obligations are imposed by a development consent in the context of s 4.53(4). In K&M the requirement for a person having the benefit of the development consent and a construction certificate to appoint a PCA prior to “commencement of work” was held not to arise in relation to work which was not building work, namely preliminary geotechnical investigations: at [4], [34]. In Cando CA no requirements were found to be imposed in the development consent on the clearing of shrubs, which was found to be sufficient preliminary work to amount to commencement of the development consent for demolition and building work.

140. While the Applicants relied on these aspects of these cases as supportive of their approach to construction, as noted in [125] above, the different wording in s 4.53(4) and the different terms of the development consents mean that the question being considered did not reflect the terms of s 4.29(3). Any application of s 4.53(4) cases to inform the construction of s 4.29(3) must be mindful of this drafting difference. I consider that the cases referred to are of little assistance given the relatively clear terms of the CDC to be construed and the different drafting of s 4.53(4) and s 4.29(3). Section 4.29(3) specifies that physical commencement must be of the development the subject of the CDC. Here demolition required site works which included the limited pruning and that is therefore the subject of the development to which the CDC relates for the purposes of s 4.29(3). That the limited pruning does not otherwise require council approval in this case is not relevant to the construction exercise I am undertaking.

141. The Applicants have not established that the CDC has been physically commenced lawfully for the purposes of s 4.29(3) of the EPA Act by the limited pruning identified in the evidence.

Conclusion on question 2

142. In light of my findings above in [88] and [141], the answer to question 2 is that the CDC was not physically commenced for the purposes of s 4.29(3) of the EPA Act.

143. The parties will need to consider the consequences of these findings for the Class 1 proceedings.

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Decision last updated: 25 February 2022