Detala Pty Ltd v Byron Shire Council

[2002] NSWCA 404

Reported Decision: 133 LGERA 1

New South Wales

Court of Appeal

CITATION:	DETALA PTY LIMITED v BYRON SHIRE COUNCIL [2002] NSWCA 404
FILE NUMBER(S):	CA 40854/01; LEC 40043/00; CA 40247/00; LEC 40043/00
HEARING DATE(S):	12,15 August 2002
JUDGMENT DATE:	18 December 2002
PARTIES :	DETALA PTY LIMITED v BYRON SHIRE COUNCIL
JUDGMENT OF:	Handley JA at 1; Santow JA at 3; Davies AJA at 4

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	LEC40043/00 LEC40043/00
LOWER COURT JUDICIAL OFFICER :	Bignold J

COUNSEL:	Appellants: Murry Tobias QC; Sandra Duggan Respondent: Tim Robertson
SOLICITORS:	Appellant: Bartier Perry Respondent: Wilshire Webb
CATCHWORDS:	LOCAL GOVERNMENT - whether development consent lapsed - whether construction works commenced within 5 years - whether breach of condition - whether developer failed to obtain authority for tree clearing- meaning of condition respecting tree clearing discussed - whether developer failed to obtain construction certificate - estoppel
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 - ss 80(12), 81A(4), 95(1), 95(4), Part 4A, 149-E Local Government Act 1919 - Part 12, s 327, s 331(1) Acts: Interpretation Act 1987 - s 30 Environmental Planning and Assessment Regulation 1994 - Part 7A Environmental Planning and Assessment (Savings and Transitional) Regulation 1988 cl. 5
CASES CITED:	Iron Gates Development Pty Ltd v Richmond-Evans Environmental Society (1992) 81LGERA 132 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 206 LGERA 243 Green v Kogarah Municipal Council (2001) LGERA 123 Young v Warringah Shire Council (2001) 117 LGERA 62 Grand United Friendly Society v Parramatta City Council [2000] NSW LEC 207 Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v The Commonwealth (1975) 134 CLR 81 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Project Blue Sky Inc v Australian Broadcasting Authority (1997) 94 CLR 355 The Queen v East Sussex County Council [2002] UKHL 8, [2002] All ER (D) 27 Formosa v Secretary Department of Social Security (1988) 46 FCR 117
DECISION:	See paragraph 64

CA 40854/01
LEC40043/00
CA 40247/00
LEC40043/00

HANDLEY JA
SANTOW JA
DAVIES AJA

18 December 2002

DETALA PTY LIMITED v BYRON SHIRE COUNCIL

Judgment

1 HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Davies AJA in draft form. I agree with his Honour’s conclusions in paras 36-60 and therefore agree that the appeal and application for leave to appeal should be dismissed with costs.

2 It is not necessary for me to express any view on the issues considered in paras 28-35.

3 SANTOW JA: I agree with Davies AJA.

4 DAVIES AJA: This is an appeal from the judgment of a Judge of the Land and Environment Court of New South Wales, Bignold J, given on 3 October 2001 in a class 4 proceeding, and also an application for leave to appeal from an interlocutory judgment of Bignold J given 14 March 2000. The latter application was filed to ensure that no point of estoppel arising from his Honour’s reasons for the interlocutory order would inhibit the appeal. The application served no purpose and should be dismissed with costs.

5 The crux of the issue was described by the learned trial Judge as follows:

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

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

6 Section 95 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) provides, inter alia:

“Lapsing of consent

(1) A development consent lapses:

(a) 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.”

7 It is not in dispute that the appellant, Detala Pty Ltd (“Detala”), who was the respondent below, carried out certain minimal works on the development site in the last one or two days before 15 March 2000, the date when the development consent expired or would have expired but for the operation of s 95(4). The trial judge described the circumstances in which the work was carried out as follows:

"On the same day (13 March 2000), I heard as a matter of urgency, the Council's application for an interlocutory injunction restraining the Respondent from " carrying out development or any work ” on the development site.
The Council's claim to the interlocutory injunction was founded upon the allegation that the carrying out of the proposed works on the development site would relevantly involve a breach of the EP&A Act, by virtue of being in contravention of (i) Condition 23 of the 1995 development consent; and (ii) the EP&A Act, s 81A(4).
Although I upheld both legal foundations of the Council's claim to interlocutory injunction (the parties had fully argued the case and had invited me to finally determine the disputed issues, notwithstanding the interlocutory context of the proceedings), I refused the interlocutory injunction (instead accepting the Respondent's undertaking to carry out only minimal works on the development site) for the reasons given in my judgment delivered on 14 March 2000 (see [2000] NSWLEC 48) because I concluded "that the balance of convenience favours an acceptance of the Company's undertaking so as to provide it with the last opportunity to carry out the small amount of work it proposes today' (par 35)."

8 It is not in dispute that the works which his Honour refused to restrain were sufficient to activate the operation of s 95(4) provided that they were in works in accordance with the development consent.

CONDITION 23

9 When application for development consent was originally made to it, the Byron Shire Council refused consent. However, an appeal was lodged in the Land and Environment Court and, on 15 March 1995, Assessor T Bly directed that development consent be granted. The land in respect of which consent to subdivision and development was sought was in an environmentally sensitive area both because it was in an area of a rare clay heath and because the scrubland enhanced the amenity of the Byron Bay area.

10 Assessor Bly imposed the following condition, inter alia, on the development consent:

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

11 In the proceedings below, neither side tendered the tree preservation order which was in operation at the time of Assessor Bly’s order. However, the tree preservation order of 1991 (“the 1991 TP0”) was tendered to this Court during the hearing of the appeal. The 1991 TPO provided, inter alia:

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

12 It was the principal contention of the counsel for the respondent, Byron Shire Council, Mr T F Robertson SC, that the work that was carried out by the appellant on 13 and 14 March 2000 involved some removal of "coastal heathlands" and that no "approval of Council's Planning Manager” had been granted.

13 Mr M H Tobias QC, with whom Mr S A Duggan of counsel appeared for Detala, submitted that the word "trees" in condition 23 did not incorporate the low scrub which covered much of the land. In my opinion, the term "tree" in condition 23 must be read in the light of the 1991 TPO and encompassed all flora with which that order dealt, including "All coastal heathlands ... of any height".

14 Another aspect of condition 23 in issue is the reference to "prior to any works commencing". It was submitted by Mr Robertson that condition 23 made the approval of a tree plan a condition precedent of commencement of any works on the land. This submission was tied with the submission that condition 23 required consent under whatever tree preservation order was current at the time when works commenced.

15 In my opinion, condition 23, which was only one of 29 conditions required by Assessor Bly, was not of sufficient force to require it to be a condition precedent to any works whatever commencing. In my view, the word "works" in condition 23 refers to works involving removal of flora to which a tree preservation order applies. This interpretation makes the condition consistent in its operation with the other six conditions in which words to the same general effect are used.

16 It appears that, for some time after the development consent was granted, the processes of development, the preparation of plans and the obtaining of necessary approvals proceeded in the normal manner, both the appellant and its advisors and the officers of the Council being co-operative in the furtherance of the project. The principal plans for the development submitted by the appellant were approved by an officer of the Council on 8 April 1999.

17 One of the approvals which the appellant required was approval under condition 23 for the removal of trees. A vegetation clearing plan was forwarded to the Council on 18 October 1999. A further plan showing trees, as distinct from shrubs, to be removed was submitted to the Council on 27 October. A third plan was prepared on 8 November. On the following day, representatives of the appellant and Mr Paul Montgomery, the Council's Tree Preservation Officer, walked over the land and discussed the plan. Mr Montgomery mentioned such changes to the plan as he considered should be made. The plan was then redrawn. Mr Montgomery approved of the changes but indicated that formal approval to the plan should be granted by Mr Chris Pratt, Director of Local Approvals and Compliance Services, who had taken over the duties of Planning Manager, an office which had been abolished.

18 The plan, amended as Mr Montgomery required, was forwarded to the Council on 9 November. On 10 November, Mr Fryar, Principal Development Officer, sent the plan to Mr Pratt with this note.

“The plan was prepared in consultation with Council Officers and every attempt has been made by the developer to minimize the amount of land to be cleared.

The plan is referred to you for your approval. Could you also advise the Developers Consultant Mr Chris Jack, Dames & Moore Pty Ltd (card attached) of the approval and that they have satisfied the requirements of condition 23."

19 At this stage, the matter became the subject of a notice of motion before the Council at its meeting on 16 November 1999. A letter from Mr Fryar to the appellant's solicitors dated 17 November 1999, records as follows:

"On the 10 November, 1999 1 referred the matter to Mr Pratt, Director of Local Approvals and Compliance Services for approval. However, the matter was subject of a Notice of Motion tabled before Council at its Ordinary Meeting held on 16 November, 1999. At that meeting, Council resolved as follows:

1 . That Council write to the Minister for Planning and the Director of the Heritage Council to support the application made by BEACON to request an interim Heritage Order for the protection of the Detala site.

2. That Council write to the Minister of the Environment in support for the request by BEACON for an Interim Protection Order for the Detala site and inform the Minister of the Scientific Committees recent Preliminary Listing presented on 29 October,1999. Determination to support the proposal to list Byron Bay Dwarf Graminoid Clay Heath Community as an Endangered Ecological Community and the nomination of the unnamed orchid as an Endangered Species under the Threatened Species Conservation Act 1995.

3. That Council write to the Premier advising him of the recent Preliminary Determinations by the Scientific Committee for the Byron Bay Dwarf Graminoid Clay Heath Community and the unnamed orchid and request as a matter of urgency a reconsideration of the option to join Byron Shire Council in a joint acquisition of the Detala site.

4. That Council seek additional, specific environmental legal advice regarding the Detala development with particular reference to the Tree Preservation Issue and the Condition of Consent 23.

5. That a Council delegation seek a meeting with the owners to explore options. Such delegation to comprise the Mayor, two (2) Councillors and the General Manager.

As a consequence of item 4 of the above resolution, approval to the plan submitted under condition 23 will not be granted until Council has obtained the specific environmental legal advice referred to above."

20 As can be seen, the Council raised objections to the development on environmental grounds. Because of the Council's resolution, officers of the Council were unable to give an approval to any clearance of the land. No approval to clear any part of the land or any trees or flora on the land was granted.

21 The course of events strongly suggests that a plan would have been approved by Mr Pratt but for the resolution of the Council of 16 November. Mr Pratt's affidavit evidence merely said:

“The position of Planning Manager was abolished before the lodgement of these plans. However, I carry the functions which had been previously delegated to the Planning Manager and I carried out those functions during the period the said plans were submitted for approval. I did not approve either of those plans. Annexed hereto and marked “C” is a copy of a letter dated 12 November 1999 from Bartier Perry Solicitors to the Council."

22 The letter to which Mr Pratt referred sought approval of the plan. The letter was responded to by the letter of Mr Fryar of 17 November 1999. Mr Pratt was not cross-examined but it can be inferred from his evidence and the course of events that he did not deal with the appellant's plan because the issue was to be raised before the Council on 16 November, and that, subsequently, as a result of the Council's resolution, he lacked authority to grant approval.

23 After the Council's resolution of 16 November 1999, any hope of a sensible resolution of the administrative step, the approval of a plan, disappeared. A new tree preservation order (“the 1996 TPO”) had been proclaimed in 1996. This required an applicant for tree removal to seek development consent to that step. The Council had received advice from experts, written in the spirit of the 1996 TPO, who reported that the heathland scrub was of a type of which only a relatively small area remained and that it contained rare and endangered shrubs and plants. The expert advice was that there should be no interference with the heathland and that, if there was to be any interference with it, the flora should be painstakingly investigated to identify the rare species which required protection.

24 The experts' reports did not address the point that the relevant tree preservation order was the 1991 order and that Assessor Bly, by granting development approval to the proposed subdivision, approved destruction of so much of the native habitat as was necessary for residential development in accordance with the plans which were before him.

25 In my opinion, the grant of development consent by Assessor Bly constituted the grant of approval under the 1991 TPO to the removal of such vegetation as was necessary to carry out the development. The destruction of heathland was very much an issue in the proceedings before Assessor Bly. He granted development consent notwithstanding that it involved destruction of valuable heathland because the land was zoned residential, and had been so zoned for some considerable time.

26 In Grand Unitied Friendly Society v Parramatta City Council [2000] NSWLEC 207 Talbot J held that a development consent may, by implication, incorporate an approval under a tree preservation order. His Honour said, inter alia:

“It is the Court's view that when consent was granted in matter No 10799 of 1994 for the construction of a SEPP 5 retirement village, it was intended to be a consent for all relevant purposes under the provisions of the EP&A Act to the carrying out of the development proposed in the application and identified by the plans.
Condition 48 of the consent in proceedings No 10799 of 1994 expressly contemplates that trees will be removed. The condition requires only that detailed tree removal plans and planting schedules be submitted to the council prior to the removal of any trees. If there had been any intention to require a submission as a precursor to the grant of further consent it might reasonably be expected that condition 48 would have contained a statement to that effect.
It is illogical and impractical to regard the development consent in matter No 10799 of 1994 as permitting the appellant to carry out the initial subdivision and construction of the SEPP 5 retirement village development without recognising that an integral and necessary consequence of acting on the consent would be the loss of trees."

27 Assessor Bly said, inter alia, in his reasons for judgment:

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

Mr Lembit also acknowledged the regional conservation significance of this low heath community which occupies an area of about 10 ha of which 7 ha are zoned for Environmental Protection - Coastal Habitat Approximately 0.2 ha of the site's low heath will be retained as part of the land to be dedicated as open space.
In relation to the significance of the low heath, the NPWS supported a proposal to have the subject land, together with other adjoining lands also zoned 2(a), rezoned to 7(f 2) Coastal Lands Acquisition. This proposal was not supported by the Department of Planning and the zoning remains unchanged.
Taking the opinion of the NPWS together with Miss Martin's evidence that only 5 ha of low clay heath remains would tend to lead one to the conclusion that this land should be preserved in its present state. I do not, however, accept this for several reasons. Firstly the loss of less than 1 ha out of 5 ha (Martin) or even 10 ha (Lembit) is significant but this nevertheless leaves either just over 4 ha or just over 10 ha of undeveloped heathland. Some of this heathland exists in conjunction with other substantial natural areas in environmental protection zones and there was no suggestion that it could not continue to survive in this situation particularly if the abovementioned drainage scheme is to be effectively implemented.

Secondly, from a visual inspection of this particular area there is nothing conspicuous in terms of a change in the nature of the vegetation, soils or topography to distinguish the site from adjoining lands to the east. Despite this, the decision was made in 1988 to zone the site for residential development and to zone the adjacent land for environmental protection. Moreover, there were no submissions made that the zoning of the subject land was wrong or that there were any moves afoot to rezone the land. These factors together with the fact that there is no intention to bring this site into public ownership leads me to the conclusion, subject to any presently applicable statutory provisions, that the site is available for residential development. Inevitably this will result in a significant loss of site vegetation."
Whilst I can understand why the residents would prefer to have the site retained in its undeveloped state, the site is nevertheless zoned for residential development. It is therefore not unreasonable to expect that residential development will occur on it in the form of roads, houses, and gardens.

28 The manner in which the dispute was put to Assessor Bly and the manner in which the Assessor dealt with the matter is inconsistent with the contention that the appellant did not seek and obtain consent to the removal of such heathland flora as was required to be removed for the purposes of the development. Assessor Bly decided the environmental issue and he decided in favour of the appellant, basically for the reason that the land was zoned Residential.

29 Moreover, such an approach is inconsistent with condition 23 itself, which dealt with "any tree or trees which require removal", that is to say which required removal for the purposes of the development. Condition 23 did not require that application for the removal of such trees should be made but only that a plan be submitted for the approval of the Council's Planning Manager.

30 The grant of development consent was thus a "written consent of Council" for the purposes of the 1991 TPO and it authorised such destruction and removal of vegetation as was necessary to carry out the development. However, the consent was subject to the specific condition that a plan be provided to and approved by the Council's Planning Manager prior to work commencing.

31 In my opinion, the condition did not authorise the Council's Planning Manager to frustrate the development by refusing consent on the ground that development was inappropriate. That issue was decided by Assessor Bly. Mr Pratt's task was to give effect to the development consent.

32 It is unnecessary to consider the 1996 TPO. That TPO was generally similar to the 1991 TPO but required that "all appellants seeking approval under the Tree Preservation Order submit development applications". This requirement necessitated that an appellant obtain a Species Impact Statement under the Threatened Species Conservation Act 1995, if applicable. The view taken below by counsel for both parties was that a development application for the removal of trees and shrubs from the subject land was required under the1996 TPO. In my opinion, that view was unsound. Approval under the 1991 order had been granted. That approval continued to have force and effect by virtue of s 30 of the Acts Interpretation Act 1987.

33 It was contended by Mr Robertson that the plan which was submitted to Mr Pratt for his approval was not one which could have been approved by Mr Pratt for it designated the removal of heathland in areas outside the area which would necessarily be affected by the development. It was also submitted that there was not sufficient particularity and detail of the trees to be removed. In my view, those submissions have no significance. Had the Council's officers progressed the matter in the spirit of Assessor Bly's order, I am satisfied that an adequate plan of tree removal would have been approved. The plans which were tendered to the Council may have had deficiencies. Mr Pratt may have required more detail of trees to be removed. He had a discretion to exercise and was not bound by the views of Mr Fryar and Mr Montgomery. However, absent the Council's resolution of 16 November 1999, a plan would have been worked out and approved just as all other matters concerning the development in the way of plans and details were worked out and approved. The one matter which stopped the approval of a plan for the removal of flora was that the Council formed the view that the heath on the land should be preserved.

IRON GATES

34 In Iron Gates Development Pty Ltd v Richmond-Evans Environmental Society (1992) 81 LGERA 132, Handley JA with whom Mahoney JA and Rogers JA agreed, said (at 135):

“The imposition of conditions on the grant of development consent is authorised by s 91 and such conditions are enforceable as if they were part of the Act: see ss 122(b)(iii), 123, and 125. In my opinion the work found to be engineering work which was relied upon by the appellant to save its consent from lapse was prohibited and illegal and the persons offending against that prohibition were guilty of offences against the Act for the purposes of s 125 (1). It is not necessary in this case to explore the possible application of the principle that a person may not rely upon his own wrong: compare Alghussein Establishment v Eton College [1988] 1 WLR 587. In my opinion the work in question was not work “relating to that development” for the purposes of s 99(2)(a) because it was prohibited by the consent, and therefore was not “the subject of that consent” within s 99(1)(a)
Although this conclusion flows from the language of s 99 which I consider to be quite unambiguous, it is relevant to note that the same conclusion has been reached by the courts in England on the corresponding provisions of the Town and Country Planning Act 1971 (UK): see s 41(1), s 41(2), and Schedule 24, par 20(1) “the development to which the permission relates must be begun”; see Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35 at 41, and Oakimber Ltd v Elmbridge Borough Council (1991) 62 P & CR 594 at 609, 616. In the latest case F G Whiteley & Sons Ltd v Secretary of State for Wales (1992) 64 P & CR 296, so far only available to me Woolf LJ said:
“The permission was controlled by and subject to the conditions. If the operations contravened the conditions they could not be properly described as commencing the development authorised by the permission. If they did not comply with the permission they constituted a breach of planning control and for planning purposes would be unauthorised and thus unlawful. That was the principle clearly established by the authorities. It was a principle which made good sense since … when s 41(1) of the Town and Country Planning Act 1971 made the planning permission subject to a condition requiring the development to be begun by a specified date, it could (not) have been referring to development other than that which was authorised by the Act. The mining operations to which the permission related were those authorised by the permission, not those which were unauthorised because they contravened conditions contained in the planning permission.”

35 That principle has since been applied in Coalcliff Community Association Inc. v Minister for Urban Affairs and Planning (1999) 206 LGERA 243; Green v Kogarah Municipal Council (2001) 115 LGERA 231; and Young v Warringah Shire Council (2001) 117 LGERA 62.

36 I would distinguish those cases in so far as there was a breach of condition 23. That is because the appellant did all that on its part ought to have been done to obtain compliance with condition 23. The reason why approval was not granted was that the Council itself determined to obstruct the development. In that circumstance, it would be wrong to hold that the work done by the appellant was not work "relating to the building, subdivision or work" for the purposes of s95(4) of the EPA Act. The failure to comply with condition 23 was the failure of the Council through Mr Pratt to give the approval to which the appellant was entitled.

37 The work that was done accorded with the specific terms of the development consent save that the Council failed to issue an approval under condition 23, the duty to issue which was imposed upon it by the development consent. In my opinion, the Council cannot rely upon that failure to ground an argument that the work done did not comply with s 95(4). This is not to put the case on the basis of estoppel or waiver. Nor is it to dispute the cases to which counsel referred. It is merely to put the point that the work that was done was done in accordance with the consent save for the technicality that Mr Pratt failed to give an approval which the consent required him to give. As I have said, the order of Assessor Bly gave consent in principle to the removal of such flora as was necessary for the carrying out of the development. The evidence does not suggest that, in the present case, the appellant removed any flora unnecessarily, that there was any gratuitous cutting down of heathland. The only flora that was affected was flora that was required to be removed by reason of the works which had been approved and for which development consent had been obtained. The Court has inspected the photographs which are in evidence. These photographs suggest that only the heath scrub which was necessary to be removed for the limited works which were carried out was removed.

38 Mr Robertson submitted that the works which were carried out did not accord with the approved plans as, erosion having occurred, the drainage works were carried out on the appellant's land towards the head of a gully rather than partly on the appellant's land and partly on Crown land. In my opinion, what was done was no more than a sensible variation of the approved plan well within the discretion of the appellant's engineers. The evidence does not suggest that the work that was done was not proper or that it was not competently done.

Section 81A Environmental Planning and Assessment Act 1979

39 S81A of the EPA Act, which came into force on 1 July 1998, provides inter alia:

(4) Subdivision work in accordance with a development consent must not be commenced until:

(a) a construction certificate for the subdivision work has been issued by:
(i) the consent authority, or
(ii) an accredited certifier, and

(b) the person having the benefit of the development
consent:
(i) has appointed a principal certifying
authority, and
(ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and

(c) the person having the benefit of the development consent has given at least 2 days' notice to the council of the person's intention to commence the subdivision work.

40 In Young v Warringah Shire Council, Cowdroy J held that where a construction certificate was required, s 95(4) of the EPA Act did not apply if work had been carried out without the necessary certificate being applied for or granted and that such work did not protect the development consent from lapse.

41 In the present case, no construction certificate was sought and no officer of the Council suggested that one was necessary. It may be that the Officers of the Council were totally unaware of the requirements of s 81A, although that seems unlikely having regard to the new regime which was introduced by provisions such as those in Part 4A of the EPA Act and those in Part 7A of the Environmental Planning and Assessment Regulation 1994.

42 On 28 October 1999, an Officer of the Council's Planning Department sent to the appellant a standard document setting out the Council's requirements. The document read, inter alia:

“1. COMMENCING WORK. Following approval of the engineering drawings, the following formalities are required before work can commence:

(a) Advice to Council of the name of, and procedure for contacting the authorised Superintendent of the works. All site instructions will be directed to this person (or his nominated delegate).

(b) Advice to Council of the name of the Certifying Engineer who will be responsible for inspecting and certifying the works to be in accordance with the approved plans and specification.

(c) Advice to Council of the name of the contractor(s) who will be performing the works, and in the case of sewerage works, their NSW Drainers Licence Number.

(d) In the event that the approved drawings call for works to be performed outside the development site in a public road or road reserve, or to be connected to any live water or sewer main, the written conditional approval to open such works shall first be obtained by the proponent or contractor from the Works & Services Division.

(e) Advice to Council of the Insurers carrying out Public Liability Cover for the Principal or his agents to the value of five (5) Million dollars, and evidence of the currency of the Policy is required.

Acknowledgment of receipt of this information by council where appropriate will be accompanied by formal approval to commence construction . Commencement without approval will result in an immediate “stop-work” order and may incur the penalties provided in the Local Government and Environmental Planning Assessment Acts.

Commencement approval may then be withheld until any illegal work is rectified and/or accepted”. (emphasis added)

43 This document made no mention of a construction certificate. It did, however, mention “formal approval to commence construction" and advised that commencement without approval would attract a stop-work order. No such formal approval was granted because, of course, the Council considered that condition 23 was not satisfied. It may be that, had the Council been satisfied as to compliance with condition 23, the Council would have granted formal approval by issuing a construction certificate. There is no evidence on that point, the proceedings below being conducted on the assumption that there was a mutual mistake as to the need for a construction certificate.

44 As no construction certificate issued, the work that the appellant carried out was unlawful, being in breach of s81A(4) of the EPA Act. Mr Tobias submitted that non-compliance with s81A(4) did not render the work illegal so as to bring into operation the principle enunciated in Iron Gates and the other authorities I have mentioned. Mr Tobias referred to the power of a Council to issue a building certificate under ss 149A-D, the effect of the issue of which would be that the Council would be prevented from making an order that "no building" be "demolished, altered, added to or rebuilt". See s149E.

45 However, a construction certificate has a much wider operation than a building certificate. For example, s 80(12) of the Act provides:

“If a consent authority or an accredited certifier endorses plans and specifications in accordance with section 81A (2) or (4), the plans and specifications are taken to form part of the relevant development consent"

46 In particular, the effect of the carrying out of the work without a construction certificate was not merely that building work occurred but also that heath scrub was destroyed. In my opinion, because the subject work was carried out without a construction certificate having being sought or issued, the work that was done cannot be regarded as work failing within the provisions of s95(4).

47 Had the appellant sought a construction certificate but been refused only because the Council considered that condition 23 was not satisfied, the provision s 95(4) may have been satisfied. However, the appellant did not do all that on its part that it ought to have been done to obtain a construction certificate. Regulation 79A of the Environmental Planning andAssessment Regulation 1994 provided for the making of an application for a construction certificate in the form set out in Form 11 in Schedule 5 to the Regulation. The appellant did not seek to obtain the construction certificate which 81A(4) required it to obtain. Ignorance of the provision is no excuse.

48 Mr Tobias submitted that the Council was estopped from relying upon a fact: the failure to obtain a construction certificate. Mr Tobias submitted that the Council by its officers had represented by words and actions that the appellant had all the necessary approvals required in order to commence the work the subject of the development consent.

49 That submission cannot be accepted. Although the officers of the Council did not mention the necessity for a Construction Certificate, the officers of the Council made it plain to the appellant both orally and in writing that the view of the Council was that the appellant was not entitled to commence work on the development. It was the expressed view of the Council that any work that the appellant undertook was illegal.

50 The following correspondence, inter alia, passed between the parties. On 28 October 1999, the solicitors for the appellant wrote:

"As you know, the first works Detala is required to do is to provide drainage control measures. The most significant aspect of those measures is the stabilisation of the head of the eroding gully and its formation into a sediment control basin.

We will assume unless you let us know in writing by 4.00 pm on 1 November 1999 that Byron Council approves of the removal of the trees in the head of the eroding gully."

51 Mr Pratt, Director Local Approvals and Compliance Services, responded:

"I refer to your letter of 28 October 1999 and confirm that we have received the plan from Bob Canty. Condition 23 of the development consent requires:

’.. approval of Council's Planning Manager prior to works commencing’.'

Therefore no works are to proceed until you are in receipt of that approval."

52 The Council indeed sought an injunction restraining the appellant from carrying out the work. In this circumstance, the factual sub-stratum for any estoppel must fail.

53 In any event, s 81(4) is a mandatory provision, by which I mean a statutory requirement the failure to comply with which will result in invalidity or unlawfulness. See Tasker v Fullwood [1978] 1 NSW LR 20; Victoria v The Commonwealth (1975) 134 CLR 81; Hunter Rescources Ltd v Melville (1988) 164 CL4 234; Project Blue Sky Inc v Australian Broadcasting Authority (1997) 94 CLR 355. The Council did not issue a construction certificate or represent that it had done so. It cannot be estopped from alleging that no certificate issued. See The Queen v East Sussex County Council [2002] All ER (D) 27. Formosa v Secretary Department of Social Security (1988) 46 FCR 117. The present is not a case where there was substantial compliance with a procedural requirement.

54 Mr Tobias submitted alternatively that s81A(4) did not apply. He submitted that, before 1 July 1999, the appellant had applied for and obtained approval under Part 12 of the Local Government Act 1919. (“LGA”)Section 81A became effective on 1 July 1998. The Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, clause 5, provided that an application for approval for a sub-division under Part 12 might be made on or after 1 July 1998 and before 1 July 1999 as if Part 12 had not been repealed. The clause read:

“5 Certain applications for approvals may continue to be made

(1) An application for approval for the subdivision of land or the opening of a public road may be made on or after the appointed day under Part 12 of the repealed LG Act 1919, as if that Act had not been repealed, in the following circumstances:

(a) where the application is for the same development as a development consent granted under the unamended EP&A Act 1979 on or after the appointed day,

(b) where the application is for the same development as a development consent granted under the unamended EP&A Act 1979 on or after the appointed day in response to a development application made under that Act before the appointed day.

(2) An application may not be made under subclause (1) on or after 1 July 1999.

(3) Nothing in this clause prevents a development application for the subdivision of land (including the opening of a public road by a person other than the Crown) from being made under the amended EP&A Act 1979 in the circumstances referred to in subclause (1)."

55 It is not in dispute that, if cl 5, 6 and 7 of the Regulation applied in respect of the sub-division, then the requirements of s81A did not apply.

56 Mr Tobias submitted that the relevant plans of the sub-division were approved by the Council under Part 12 because the relevant plans, with amendments noted on them, were stamped "approved", and, on 12 April 1999, the acting Development Services Manager of the Council wrote to consultants for the appellant to say:

“the Council has assessed and approved plans for the above sub-division subject to the notations 'shown in red'."

The letter went on to refer to certain fees which would become payable.

57 A difficulty with the submission put by Mr Tobias is that the appellant did not apply for the Council's approval under Part 12 of the LGA. Section 327 of the LGA provided, inter alia:

"Subject to the provisions of this Act a public road shall not be opened, and in a case where a subdivision provides for the opening of a public road land shall not be subdivided until ... an application in respect thereof accompanied by plans and specifications thereof has been approved under this Act

58 No such application was lodged with the Council. Indeed, there are reasons why the appellant may have been reluctant to lodge a fresh application for subdivision with the Council. The council had refused a development consent and had vigorously defended the proceedings before Assessor Bly. The appellant would have wished to rely upon the development consent granted by Assessor Bly, as cl 5(3) of the Regulation entitled it to do.

59 Having reviewed the evidence before the Court, I am satisfied that the appellant did not seek nor did the Council consider granting an approval of the subdivision under Part 12 of the LGA. The approvals that were given were merely the specific approvals that were required to be obtained under the many conditions imposed by Assessor Bly. In particular, conditions 7(a) and 9 required engineering plans for the construction of and drainage of roads and for sewerage and water mains to be approved by the Council's Development Engineer prior to the commencement of work. The plans which were approved were engineering plans of that description.

60 Another difficulty with Mr Tobias's argument, and one that was pointed out by the trial judge, is that raised by s331(1) of the LGA which provided:

"Applications under this Division shall be submitted to the council by the owner of the land or by some person authorised by him in writing"

61 Although the work with which we are concerned in this present proceeding was carried out entirely upon the appellant's land, some of the drainage works had been planned to be carried out on adjoining Crown land. No consent from the Crown to works taking place on its land had been obtained. Subsequently, the appellant obtained an easement over the Crown land, but that did not occur prior to 1 July 1999. Had an application for a Part 12 approval been lodged in early 1999, the consent of the relevant owner is one of the matters to which attention would have been given.

62 It is unnecessary to discuss the issue as to whether any approval granted under Part 12 of the LGA could have been severed so as to validly apply insofar as it related to the land owned by the appellant, and therefore to the area where the subject work was performed.

63 In the result, therefore, as the appellant breached the provisions of s81A(4) by commencing work without obtaining a construction certificate, and as s80(12) provides that a construction certificate will form part of the actual development consent, the appellant has not shown that the work which it carried out on 13 and 14 March 2000 was work which attracted the provisions of s95(4) of the EPA Act.

ORDERS

64 For these reasons, the appeal and the application for leave to appeal should be dismissed with costs.

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