Elite Construction NSW Pty Limited v Coffs Harbour City Council

[2018] NSWLEC 201

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elite Construction NSW Pty Limited v Coffs Harbour City Council [2018] NSWLEC 201

Hearing dates:

9 October and 2 November (further written submissions) 2018

Date of orders:

14 December 2018

Decision date:

14 December 2018

Jurisdiction:

Class 1

Before:

Pepper J

Decision:

The separate question is answered in the negative. The concept approval has not lapsed.

Catchwords:

SEPARATE QUESTION: whether a concept approval had lapsed – whether works physically commenced under a complying development certificate sufficient to avoid lapsing – whether the works breached the concept approval and were therefore unlawful – whether complying development certificate was a “related application” for the purposes of the concept approval – meaning of “related application” – concept approval not lapsed.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4, 75J, 75O, 75P, 75R, 75Y, 80, 81A, 85, 85A, 86, 95(4), Pt 3A

 

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, cl 3B of Sch 2

 

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Coffs Harbour Local Environmental Plan 2013

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

 

Besmaw Pty Limited v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413

 

Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44; (2013) 193 LGERA 203

 

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

 

Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240

 

House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498

 

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

 

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

 

K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23

 

Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114

 

Martin v Hume Coal Pty Ltd [2016] NSWLEC 51; (2016) 215 LGERA 289

 

Nash Bros Builders Pty Ltd v Riverina Water County Council (No 2) [2015] NSWLEC 156

 

Ousley v R [1997] HCA 49; (1997) 192 CLR 69

 

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

 

Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252

 

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

 

SJ Connelly v Ballina Shire Council [2010] NSWLEC 151; (2010) 175 LGERA 408

 

Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4

 

Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396

 

Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20

Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445

Category:

Principal judgment

Parties:

Elite Construction NSW Pty Limited (Applicant)
Coffs Harbour City Council (Respondent)

Representation:

Counsel:
S Duggan SC (Applicant)
J Lazarus (Respondent)

  Solicitors:
Dentons Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2018/122374

Publication restriction:

N/A

Judgment

Has a Concept Approval Lapsed?

1. By order of the Court dated 13 August 2018, a separate and preliminary question was set down for determination. By consent of the parties (when the matter was before the Court for hearing), the question was amended to:

Whether concept approval MP 005-0083 has lapsed in accordance with condition A6 of that approval?

2. The underlying facts giving rise to the separate question and its resolution were not in dispute and were contained in a statement of agreed facts. This obviated the need for the Court to consider the question of which party bore the onus on whether the concept approval had lapsed (Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83 at [84]).

The Concept Approval

3. Concept Plan MP05_0083 (“the concept plan”) was granted by the Minister for Planning (“the Minister”) on 20 December 2010 (“the concept approval”):

I determine:

(a) Pursuant to section 75O of the Environmental Planning and Assessment Act 1979 (the Act) to approve the concept plan referred to in Schedule 1, subject to the terms of approval and modifications in Schedule 2 and the proponent’s Statement of Commitments in Schedule 3; and

(b) Pursuant to section 75P(1)(b) of the Act, that approval to carry out the project shall be subject to Part 3A of the Act.

4. The concept approval relates to the development of the Sandy Beach North residential subdivision. It was granted pursuant to the now repealed provisions of Pt 3A of the Environmental Planning and Assessment Act 1979 (“the EPAA”).

5. Conditions A1 to A5 of the concept approval provide as follows:

A1.   Concept Plan approval only is granted to the project described generally below:

a)    Community Title residential subdivision;

b)   Associated road, cycle and pedestrian traffic routes;

c)    Indicative architectural concepts for six building types;

d)    Landscape concepts;

e)    Noise attenuation barriers;

f)    Recreational open space areas;

g)    Rehabilitation of ecological buffers and environmental protection areas;

h)    Vegetation, habitat and bushfire foreshore management concepts; and

i)    Stormwater management concepts.

As modified by the modifications in Part B of Schedule 2.

Note: The proponent sought Concept Plan approval for community title subdivision of 280 lots.

Due to environmental constraints, approval has not been granted to a scheme of this size.

Modifications to the Concept Plan are detailed in Part B of this schedule.

A2.   To avoid any doubt, this Concept Plan approval does not approve any future development within the areas described as Stage 6, Stage 2, and that part of Stage 1 east of the extension of Ti-Tree Road as depicted on the modified staging plan at Schedule 3.

Consistency of Future Development

A3.    The proponent shall carry out the Concept Plan and all related future applications generally in accordance with:

a)    Environmental Assessment;

b)    Preferred Project Report and addendum letter; and

c)    The Statement of Commitments

except for:

1)    Any modification which may be necessary for the purpose of compliance with the BCA and any Australian Standard incorporated into the BCA; and

2)    Otherwise provided by the modifications and further assessment requirements of this approval.

A4.   In the event of any inconsistency between:

a)    The modifications and further assessment requirements of this approval and the drawings/documents referred to in condition A3, the modifications and further assessment requirements of this approval shall prevail to the extent of the inconsistency; and

b)    Any drawing/document listed in condition A3, the most recent document shall prevail to the extent of the inconsistency; and

c)   The modifications and further assessment requirements of this approval and the Statement of Commitments, the modifications and further assessment requirements of this approval prevail to the extent of the inconsistency.

A5.   If there is any inconsistency between this Concept Plan approval and any further application, this Concept Plan approval shall prevail to the extent of the inconsistency.

6. At the time of grant, condition A6 of the concept approval provided that:

A6.    This Concept Plan approval shall lapse five (5) years after the date the approval is endorsed by the Minister, unless works the subject of any related application are physically commenced, on or before that lapse date. The Director-General may extend this lapse date if the Proponent demonstrates to the satisfaction of the Director-General that the project remains current, appropriate and reflective of the best use of the site at the date the approval would otherwise lapse.

7. Condition B5 of the approval stated:

B5.   Both Lots 497 and 498 DP 227298 are to be used for the access road from Pine Crescent to the site.

8. The access road over lots 497 and 498 DP 227298 could not be constructed without first demolishing the existing dwelling houses situated on those lots.

9. Condition C13 of the concept approval required a dedication of land as follows:

C13.   Prior to any construction, or as otherwise determined by the Director-General, the Proponent must provide evidence of an agreement for the dedication by the Proponent to LPMA of approximately 6 ha of land as addition to the Coffs Coast Regional Park, as committed to by letter dated 27 October 2010. Once dedicated the Proponent is not required to manage the dedicated land in accordance with the Conservation Area Management Plan.

Such an agreement must outline the Proponent’s commitment to establish boundary fences and trails satisfactory to the needs of LPMA prior to the land being added to the Regional Park. The proponent must ensure suitable funding for the amendment of existing reserve-specific fire, pest, weed and management plans. The funding should be sufficient to ensure actions within the amended plans relevant to the new additions are able to be completed.

10. The concept approval was modified on 8 May 2015 (“modification 3”). The purpose of modification was:

To amend the date the approval is liable to lapse from five years from the date of the original Concept Plan Approval to seven years from the date of the original Concept Plan Approval.

11. Modification 3 had the effect of amending condition A6 to state:

A6.    This Concept Plan approval shall lapse seven (7) years after the date the approval is endorsed by the Minister, unless the works the subject of any related development consent within the Concept Plan area are physically commenced on or before that lapse date.

12. Condition A3 of the concept approval, as amended by modification 3, provided that:

A3.   The proponent shall carry out the Concept Plan and all related future applications generally in accordance with the:

(a)   Environmental Assessment;

(b)   Preferred Project Report and addendum letter; and

(c)   The Statement of Commitments;

(d)    Modification Application (05_0083 MOD 3) with supporting documentation titled Application for Modification of Concept Plan Approval pursuant to section 75W prepared by Gaden Lawyers, dated 16 March 2015.

13. The “Environmental Assessment” referred to in condition A3 relevantly states that:

The site has an area of 49.59 hectares and is currently undeveloped. Lot 497 is developed with a residence which will be demolished to permit access from Pine Crescent.

14. The concept approval was modified again on 21 April 2017 (“modification 4”).

15. Modification 4 had the effect of amending condition A6 as follows:

A6.    This Concept Plan approval shall lapse seven (7) years after the date the approval is endorsed by the Minister, unless the works the subject of any related development consent, including a complying development certificate, within the Concept Plan area are physically commenced on or before that lapse date.

16. It was common ground that the lapsing date under condition A6 was 20 December 2017. The works relied upon to establish physical commencement were the demolition works undertaken on Lots 497 and 498 DP 2272928 in conformity with condition B5 (“the works”).

17. The concept approval therefore lapsed on 20 December 2017, unless the works were physically commenced before that date as specified in condition A6.

18. Finally, condition A7 stated that:

A7.   To avoid any doubt, this approval does not permit the construction of any component of the Concept Plan (including any clearing of vegetation).

The Statement of Commitments

19. As contained in the statement of agreed facts, the Statement of Commitments referred to in condition A3 stated the following:

Project Component	Environmental Outcome (Commitment)	Measure (Commitment)	Purpose of measure	Timing for Completion	Monitoring and Reporting
1. Erosion and Sediment Control (Construction Phase)	1.1 Minimise the escape of wind-borne particles by complying with the final version of the Environment Site Management Strategy prepared by Conacher Environmental Group in accordance with the requirements of Coffs Harbour Council.	1.1.1 Minimise disturbed area.	To ensure that air pollution does not exceed DECCW standards.	Ongoing during the construction phase. All erosion and sediment control measures are to be in place prior to any work commencing on site.	Any complaints to be recorded in a Complaints Register and valid claims to be acted on within one hour.
		1.1.2 Promptly rehabilitate disturbed areas.
		1.1.3 Regularly water disturbed areas of the site.	Visual monitoring shall be carried out by the Project Manager on a weekly basis. Details of all complaints and inspections to be included in monthly Compliance Report.
		1.1.4 Erect sedimentation fences, inlet filters, hay bale barriers and diversion drains as required.	To ensure that the quality of the receiving waters (Hearnes Lake) is not decreased by sediment or nutrient loads.
		1.1.5 Maintain erosion and sediment controls during the construction phase and defects liability period.
3. Site Safety and Security	3.1. Minimise risk of injury to contractors or employees. 3.2 Provide suitable security to the site at all times.	3.1.1 The principal contractor shall prepare a Health and Safety Plan and a Traffic and Pedestrian Management Plan as part of a Construction Management Plan (CMP) which is to be submitted to the Project Manager and the PCA for approval. The contractor shall comply with the approved Plans.	To ensure Occupational Health and Safety Act 2000, Occupational Health and Safety Regulations 2001 and relevant Codes and Practices. To ensure traffic and pedestrian management during the construction phase complies with relevant standards.	Prior to commencement of any work on site and to be maintained until the completion of construction.	Monitoring and reporting of incidents to be recorded in the Incident Register and included in the monthly Compliance report. WorkCover to be notified in appropriate circumstances.
		3.2.1 Site security shall include the installation of lockable security gates, security fencing around the perimeter, security lighting within the site, and controlled access through site control office, visitor reception and site personnel management.
5.Construction of New Building and Subdivision Works	5.1 Minimise noise, dust and vibration and amenity impacts by generally complying with the Construction Noise Management Plan and Health and Safety Plan.	5.1.1 The contractor shall prepare a Construction Noise Management Plan as part of the Environmental Site Management Plan (ESMP).	To mitigate adverse construction impacts. To designate suitable areas of the site for construction compounds. To ensure that only small areas of the site are disturbed at any one time.	ESMP to be approved and implemented by PCA prior to commencement of any works on site and to remain in force for the life of the construction.	Project Manager to address in monthly Compliance Report.
12. Community Consultation	12.1 To keep the Community and Government Agencies appraised of progress of the development.	12.1.1 Provide information updates on a publically accessible website to keep the community informed of progress.	To ensure that the community are advised of progress on site and that they have an avenue for dialogue with the developer/contractor.	Prior to commencing work on site.	Project Manager to address compliance in monthly Compliance Report.
		12.1.2 Establish and maintain a Community Consultation Program for the life of the project.		Prior to commencing work on site and throughout the life of the project.
		12.1.3 Consult with Coffs Harbour Council and all relevant Government agencies throughout the course of the project.		Prior to commencing work on site and throughout the life of the project.

Complying Development Certificates Are Issued

20. On 1 March 2017, the applicant, Elite Construction NSW Pty Limited (“Elite”), applied to Acheson Building Certification for:

1. a complying development certificate (“CDC”) for the demolition of the existing dwelling and ancillary structures and associated clearing on Lot 497 DP 227298 at 15 Pine Crescent, Sandy Beach; and

2. a CDC for the demolition of the existing dwelling and ancillary structures and associated clearing on Lot 498 DP 227298 at 17 Pine Crescent, Sandy Beach.

21. On 1 March 2017, Acheson Building Certification issued:

1. CDC 17001 for demolition of dwelling and ancillary structures on Lot 497; and

2. CDC 17002 for demolition of dwelling and ancillary structures on Lot 498.

22. Each CDC included an approved Site Plan and Statement of Environmental Effects (“the SEE”) prepared by ADW Johnson dated March 2017.

23. The relevant planning instrument under which the CDCs were issued was the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“the SEPP”).

24. Lots 497 and 498 were at all material times, zoned R2 Low Density Residential under the Coffs Harbour Local Environmental Plan 2013.

The Demolition Works

25. On or about 5 April 2017, Elite issued the respondent, Coffs Harbour City Council (“the Council”), with:

1. a Notice of Commencement of Building Work for works under CDC 17001; and

2. a Notice of Commencement of Building Work for works under CDC 17002.

26. At some time prior to 4 May 2017, the demolition of a dwelling house and other ancillary structures was carried out on Lots 497 and 498 (that is, the works as defined above).

27. It was not in dispute that the works were carried out in accordance with the CDCs.

28. On 4 May 2017 Acheson Building Certification issued:

1. occupation certificate no 17001, applying to the demolition of a dwelling and ancillary structures at 15 Pine Crescent, Sandy Beach; and

2. occupation certificate no 17002, applying to the demolition of a dwelling and ancillary structures at 17 Pine Crescent, Sandy Beach.

29. It was not in dispute that prior to commencing the works:

1. Elite did not provide evidence to the Council of any agreement for the dedication by it of land as an addition to the Coffs Coast Regional Park (condition C13 of the concept approval);

2. silt mesh barriers and silt socks were installed at various locations on Lot 497 and Lot 498;

3. Elite did not prepare a Health and Safety Plan and a Traffic and Pedestrian Management Plan as part of a Construction Management Plan, and therefore, did not submit those plans to the Project Manager and Principal Certifying Authority for approval;

4. site security fencing was installed for Lot 497 and Lot 498. Double locked gates were installed at the entrance to Lots 497 and 498, together with “No Unauthorised Access” signage and bunting. Security lighting within the site was, however, not installed;

5. Elite did not have an Environmental Site Management Plan approved and implemented by the Principal Certifying Authority;

6. Elite did not establish a publicly accessible website to keep the community informed of progress;

7. Elite did not establish a Community Consultation Program for the life of the project; and

8. Elite did not consult with the Council and all relevant government agencies.

30. It was also not in contention that:

1. the construction of the access road was required by condition B5 of the concept approval as described in condition A1b);

2. the demolition of the buildings by Elite was work preparatory to the construction of the access road referred to above;

3. the works, by their nature and scope, were capable of comprising “physical commencement” within the meaning of condition A6 of the concept approval;

4. the works were carried out within the relevant period, that is, on or before 20 December 2017;

1. the works were required to give effect to the concept approval; and

2. save for the issues raised in the third contention (discussed in detail below), the works were capable of comprising works the subject of a CDC, being works identified as complying development in the SEPP, and moreover, that they were carried out in accordance with the issued CDCs.

Statutory Framework Governing the Determination of the Separate Question

31. The relevant provisions of Pt 3A of the EPAA in force at the time of the original determination, were helpfully summarised by the Court of Appeal in Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44; (2013) 193 LGERA 203 (at [8]-[19]), a case concerning a challenge to the concept approval the subject of these proceedings. Nevertheless, it is convenient to set out the salient statutory framework governing the determination of the separate question.

32. Thus s 75O(3)-(5) of the former Pt 3A of the EPAA states:

75O Giving of approval for concept plan

(3) In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

(4)    Approval for a concept plan may be given under this Division with such modifications of the concept plan as the Minister may determine.

(5)    Approval for the concept plan may be given under this Division subject to satisfactory arrangements being made, before final approval is given for the project or any stage of the project under this Part or under the other provisions of this Act, for the purpose of fulfilling the obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).

33. Section 75P is in the following relevant terms:

75P Determinations with respect to project for which concept plan approved

(1) When giving an approval for the concept plan for a project, the Minister may make any (or any combination) of the following determinations:

(a)    the Minister may determine the further environmental assessment requirements for approval to carry out the project or any particular stage of the project under this Part (in which case those requirements have effect for the purposes of Division 2),

(b)   the Minister may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act (in which case the project or that stage of the project ceases to be a project to which this Part applies),

(c) the Minister may determine that no further environmental assessment is required for the project or any particular stage of the project (in which case the Minister may, under section 75J, approve or disapprove of the carrying out of the project or that stage of the project without further application, environmental assessment or report under Division 2).

…

(2)    If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply:

(a)    the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan,

(a1)    any consent granted for the project or that stage of the project under Part 4 is to be subject to such conditions as the Minister directs for the purpose of fulfilling the obligations in a statement of commitments submitted by the proponent (in which case those conditions cannot be modified without the approval of the Minister and a person cannot appeal to the Court under this Act in respect of the direction or any such conditions imposed by the consent authority),

(b)    the project or that stage of the project is not integrated development for the purposes of Part 4,

(c)    any further environmental assessment of the project or that stage of the project under Part 4 or Part 5 is to be undertaken in accordance with the requirements determined by the Minister when approving the concept plan (despite anything to the contrary in that Part),

(c1)    a provision of an environmental planning instrument prohibiting or restricting the carrying out of the project or that stage of the project under Part 4 (other than a project of a class prescribed by the regulations) does not have effect if the Minister so directs,

(d)    the Minister may, by order, declare that that stage of the project (or any part of it) is exempt or complying development for the purposes of this Act,

(e)    the Minister may, by order, declare that that stage of the project (or any part of it) is not designated development for the purposes of this Act,

(f)    the Minister may, by order, revoke or amend (as the case requires) the declaration of the project under this Part.

An order under paragraph (d), (e) or (f) is to be published in the Gazette and has effect according to its tenor.

34. And s 75R relevantly provides:

75R Application of other provisions of Act

(1)    Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project).

(2)    Part 3 and State environmental planning policies apply to:

(a)    the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and

(b)    the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.

(3)    Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.

35. Condition A6 was imposed pursuant to s 75Y of the former EPAA, which stated as follows:

75Y   Lapsing of approvals

(1)     An approval under this Part may be subject to a condition that it lapses on a specified date unless specified action with respect to the approval has been taken (such as the commencement of work on the project or the submission of an application for approval to carry out a project for which concept approval has been given).

(2) Any such condition may be modified under this Part to extend the lapsing period. The Minister is to review the approval before extending the lapsing period and may make other modifications to the approval (whether or not requested by the proponent).

36. Section 95 did not apply to Pt 3A projects, and accordingly the regime governing the lapsing of approvals was different. Instead of a statutory five year lapsing period in which the consent had to be “physically commenced”, s 75Y left the issue of the lapsing of the concept approval to the decision-maker granting approval, by empowering the Minister to impose a condition that the approval lapsed on a specified date unless specified action with respect to the concept approval has been taken.

37. Relevantly for present purposes, CDCs are governed by s 85(1) of the EPAA:

85 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.

38. Section 85A(1) and (6) further state:

85A Process for obtaining complying development certificates

(1)    Application

An applicant may, in accordance with the regulations, apply to:

(a)    the council, or

(b)    an accredited certifier,

for a complying development certificate

…

(6) Determination

The council or an accredited certifier may determine an application:

(a)    by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or

(b)    by refusing to issue a complying development certificate.

39. Section 95(4) of the former EPAA (in force at the time) is in the following terms:

95 Lapsing of 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

40. The term “development consent” is defined in s 4 of the EPPA to mean:

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

41. Finally, cl 3B of Sch 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (“EPA Transitional Regulation”) provides that:

3B   Provisions applying with respect to approval of concept plans

(1) This clause applies to development (other than an approved project) for which a concept plan has been approved under Part 3A, before or after the repeal of Part 3A, and so applies whether or not the project or any stage of the project is or was a transitional Part 3A project.

(2) After the repeal of Part 3A, the following provisions apply to any such development (whether or not a determination was made under section 75P(1) (b) when the concept plan was approved):

(a)     if Part 4 applies to the carrying out of the development, the development is taken to be development that may be carried out with development consent under Part 4 (despite anything to the contrary in an environmental planning instrument),

(b)     if Part 5 applies to the carrying out of the development, the development is taken to be development that may be carried out without development consent under Part 4 (despite anything to the contrary in an environmental planning instrument),

(c)     any development standard that is within the terms of the approval of the concept plan has effect,

(d)     a consent authority must not grant consent under Part 4 for the development unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan,

(e)     a consent authority may grant consent under Part 4 for the development without complying with any requirement under any environmental planning instrument relating to a master plan,

(f)     the provisions of any environmental planning instrument or any development control plan do not have effect to the extent to which they are inconsistent with the terms of the approval of the concept plan,

(g) this clause applies instead of section 75P(2), but any direction, order or determination made under section 75P(2) in connection with the concept plan continues to have effect.

(3) If a determination was not made under section 75P(1)(b) in relation to the project (or any stage of the project) when any such concept plan was approved and the project (or that stage) can no longer be approved under Part 3A, Part 4 is taken to apply to the carrying out of the development in relation to the project (or that stage) for the purposes of subclause (2) (unless an environmental planning instrument provides that it is development that may be carried out without development consent or it is exempt development).

(4)     For the purposes of determining whether development to which Part 4 applies is State significant development, a provision of this clause that permits the development to be carried out with development consent under Part 4 is taken to be a provision of an environmental planning instrument.

(5)     This clause does not apply to development that is State significant infrastructure.

(6)     The amendments made to this Schedule by the Environmental Planning and Assessment Amendment (Transitional) Regulation 2016 extend to things done before the commencement of those amendments

42. Because there was no determination under s 75P(1)(b) of the EPAA, the effect of cl 3B of Sch 2 is that:

1. Pt 4 of the Act is taken to apply to the carrying out of the development in relation to the project (cl 3B(3));

2. the development is taken to be development that may be carried out with development consent under Pt 4 (despite anything to the contrary in an environmental planning instrument: cl 3B(2)(a));

3. a consent authority must not grant consent under Pt 4 for the development unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan (cl 3B(2)(d)); and

4. the provisions of any environmental planning instrument or any development control plan do not have effect to the extent to which they are inconsistent with the terms of the concept approval (cl 3B(2)(f)).

43. Clause 3B of Sch 2 applies to development for which a concept plan has been approved under Pt 3A, irrespective of whether or not the project, or any stage of the project, is a “transitional Part 3A project” (cl 3B(1)). This is important because the project the subject of these proceedings is not a “transitional Part 3A project” (it was removed from the scope of Pt 3A prior to the repeal of that Part on 1 October 2011).

44. Therefore, if the concept approval has lapsed, then, as the parties agreed, it has done so by reason of the operation of condition A6, and not by force of statute.

The Council Contends that the Concept Approval Has Lapsed for Three Reasons

45. The Council contends that the concept approval has lapsed essentially for three reasons, namely:

1. first, condition A3 requires Elite to carry out the concept plan and all related future applications generally in accordance with, inter alia, the Statement of Commitments. The Statement of Commitments required certain steps to be taken prior to the commencement of works on site, which were not undertaken prior to the works having commenced (“contention 1: breach of condition A3”);

2. second, Elite did not satisfy condition C13 of the approval prior to carrying out the works, which requires evidence of an agreement to dedicate approximately six hectares of land as an addition to the Coffs Coast Regional Park “prior to any construction” (“contention 2: breach of condition C13”); and

3. third, it was not lawful for a CDC to be issued for any part of a project the subject of a concept plan approval unless the Minister made an order under s 75P(2)(d) of the former EPAA, which the Minister did not (“contention 3: unlawfulness of condition A6”).

The Proper Construction of Condition A6 of the Concept Approval

46. At the outset, the determination of the separate question requires a consideration of the proper construction of condition A6 of the concept approval.

47. The Council sought to construe condition A6 by reference to s 95 of the EPAA on the basis that, notwithstanding that the condition was not imposed pursuant to s 95 of the Act, it transposed statutory concepts from s 95(4), even if by analogy, into the condition:

1. first, the expression “physically commenced” was found in s 95(4) and was intended to bear the same meaning as the construction given to those words in numerous authorities (for example, Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169; (2005) 63 NSWLR 124); and

2. second, the word “related” in condition A6 was intended to convey the same concept as the words “related to” in s 95(4). That is, work will satisfy the relationship required by the expression “relating to” if it is a necessary step in, or part of, the process required for, or involved in, the carrying out of the work which is authorised by the instrument granting consent. But if work is undertaken as part of a development that is not undertaken in accordance with the approval, it will not “relate to” the development to which approval has been given, notwithstanding that the work would have to be performed to complete the development.

48. Although “related” is usually a word of wide import, in the present context it has a limited meaning. Thus, the word “related” in condition A6 means related to the concept approval, which was consistent with the reference to “all related applications” in condition A3. A consent or CDC could not “relate” to the concept approval unless it was one that was contemplated by, and consistent with, it.

49. It was therefore the Council’s submission that the word “related” in condition A6 had a meaning analogous to the words “related to” in former s 95(4) of the EPAA, and an approval that authorised the carrying out of development otherwise than in accordance with the concept approval was not “related” in the requisite sense. The Council relied on the so-called ‘Iron Gates principle’ (Iron Gates Development Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132. See also K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [12] and the authorities referred to thereat) in support of this proposition.

50. The principle in Iron Gates was discussed at length in K and M by Meagher JA (at [15]-[20]):

15 In s 95(4)“relating to” is used to distinguish between work which is to be taken to constitute the commencement of a development, so as to prevent the relevant consent from otherwise lapsing, and work which is not to be so taken. The development is defined and described by the instrument constituting the consent, which ordinarily includes conditions imposed under s 80A of the EPA Act. Those conditions may specify or regulate the manner and sequence of performance of the development. If work is undertaken as part of a development, such as the erection of a building or the subdivision of land, but is not undertaken in accordance with the consent, it will not “relate to” the development to which consent has been given. That is so notwithstanding that the work would have to be performed to erect the building or complete the subdivision.

16 This construction of the words “relating to” in s 95(4) is adopted in the cases referred to above. In Iron Gates Developments Pty Ltd, which concerned the application of the lapsing provisions in an earlier version of the EPA Act, the developer had commenced work on stage 1 of an approved subdivision contrary to a condition requiring that an external access road be constructed before that work commence. The Court held that the work was not work “relating to” the development which had been approved because the condition prohibited that work from being undertaken before the access road was constructed. It followed that the work was unlawful because the breach of a condition was, by s 122(b) of the Act, a breach of the Act itself. That was the position notwithstanding that the work which had been commenced would have had to be undertaken at some stage of the development.

17   The principle applied in Iron Gates Developments Pty Ltd was drawn from the English cases cited by Handley JA and, in particular, a passage from the judgment of Woolf LJ in FG Whitely & Sons v Secretary of State for Wales (1992) 64 P&CR 296 (at 302). That passage is cited (with an additional first sentence) by Giles JA in Green v Kogarah Municipal Council at [65]:

“As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question; are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. … The mining operations to which the planning permission relates are those authorised by the planning permission, not those which are unauthorised, because they contravene conditions contained in the planning permission.”

18   The reasoning in Iron Gates Developments Pty Ltd was that the work did not “relate to” the development consent because it was prohibited by a specific condition of the consent. However, as Giles JA noted in Green v Kogarah Municipal Council at [60], the principle also applies to the broader prohibition against the carrying out of a development otherwise than in accordance with the consent and relevant planning instrument: see s 76A of the EPA Act.

19   In Green v Kogarah Municipal Council the consent to a dual occupancy development imposed a condition that certain tree protection steps had to be taken before the commencement of any works on the site. Engineering work was commenced and relied upon as preventing the lapse of the consent. That work was commenced in breach of that condition. It was held not to have been undertaken in accordance with the development consent and therefore did not relate to the development which was the subject of that consent: at [67], [71].

20   The issue in Hunter Development Brokerage was whether survey and geotechnical investigation work necessarily undertaken as part of a subdivision development prevented a consent from lapsing. As Tobias JA observed, at [109], a development consent may expressly or by implication authorise work which is a necessary step in the process required for or involved in the subdivision, notwithstanding that the work may not, if conducted separately and unrelated to a development, constitute a development for which consent is required. Work, such as preliminary survey and geotechnical work, will satisfy the relationship required by the expression “relating to” if it “is a necessary step in or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent”: at [104] per Tobias JA.

51. Applying the Iron Gates principle, the Council relied on the agreed facts (outlined above) to claim that by reason of asserted breaches of the Statement of Commitments (denied by Elite), the works carried out by Elite were unlawful, and therefore, could not ‘relate to’ the instrument of approval, namely, the concept approval.

52. By contrast, Elite submitted that the proper construction of condition A6 was that, provided that the works were the subject of another approval (not the concept plan) and that approval was “related to” the concept approval (that is, it facilitated the carrying out of the development described in conditions A1 to A5), physical commencement of those works would prevent the lapse of the approval.

53. Applying this construction to the agreed facts, it was Elite’s position that:

1. the works relied upon for physical commencement were works necessary to facilitate the carrying out of the roadworks envisaged in the concept approval;

2. the work was authorised by another consent, namely, the CDC, and therefore, “related” to the concept approval; and

3. the form of consent, the CDC, was specifically authorised by condition A6 as being a form of consent which would permit work to be physically commenced and prevent lapsing.

54. On this basis, contentions 1 to 3 raised by the Council were irrelevant.

55. The principles of construction of instruments of approval are well known and have been set out in numerous authorities. They were summarised by the Court in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (at [93]. See also House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [37]-[41]; Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 (at [357]-[358]; Nash Bros Builders Pty Ltd v Riverina Water County Council (No 2) [2015] NSWLEC 156 at [140]; Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252 at [21]-[28] per Biscoe J and SJ Connelly v Ballina Shire Council [2010] NSWLEC 151; (2010) 175 LGERA 408 at [59]-[61]). Those principles are adopted, without express repetition, and applied to the facts of this separate question.

56. In K and M Meagher JA stated, in a passage of particular relevance to the present case, as follows (at [23]):

23   The principles governing the construction of the consent are not in issue and were summarised by this Court in House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], [37]-[41] per Mason P (Stein and Giles JJA agreeing). The meaning of the language is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant. In this case the relevant context is provided by the June 2004 report, which explains the reasons for the requirement of the further geotechnical investigation and the purpose for the imposition of Conditions 6 and 13. The consent specifically stated that the development was to be carried out in compliance with the plans and documents listed, including the June 2004 report.

57. This is consistent with the authorities that emphasise that conditions attached to a concept plan approval are to be construed having regard to the desirable inherent flexibility that the statutory scheme in Pt 3A of the EPAA promotes (see Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [23] per Jagot J and Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 at [80] per Preston J).

58. As Elite, correctly in my view, submitted, resolution of the proper construction of condition A6 turned not on the statutory language of s 95(4) of the EPAA, but on the language of the condition itself, construed within the context of the concept approval. This is because the approval was given pursuant to Pt 3A of the EPAA, and its lapsing governed by s 75Y, the latter of which left it to the conditions of the actual concept approval to set out any requirements governing the circumstances upon which it would lapse. That Pt 4 - which includes s 95 - did not apply was made explicit by s 75R(1).

59. In short, while there may be some common usage of terminology between s 95(4) and condition A6, it is, as the authorities referred to above make plain, the text and context of condition A6 that is determinative. As Elite noted, there are sufficient differences between the text and context of condition A6 and s 95(4), that previous authority dealing with the application of s 95(4) of the EPAA must be treated with some caution.

60. In my opinion, when the authorities referred to above are applied to the separate question for determination presently before the Court, the submissions of Elite must be accepted with respect to the construction of condition A6. There are several textual and contextual reasons why this is so:

1. first, the text of condition A6 expressly refers to a CDC as a form of consent that will, provided that the works are the subject of that consent, and provided that the consent relates to the concept approval, be sufficient to avoid the lapsing of the concept approval;

2. second, unlike s 95(4) of the EPAA, condition A6 does not state that the works must “relate to” the consent, the CDC, or even the concept approval. Rather, it is the future consent that must be related to the concept approval. Thus there must be a nexus between, first, the works, and second, the consent and the consent and the concept approval;

3. third, if the Minister had wanted to replicate the same conceptual elements of s 95(4) in condition A6, identical language could have been employed. It wasn’t;

4. fourth, when regard is had to the content and structure of Pt 3A, there is no statutory warrant for importing concepts inherent (or explicit) in s 95(4) into s 75Y, and therefore, into condition A6;

5. fifth, as both parties agreed, the concept approval was not intended to authorise the totality of the works for which approval was sought. This is made plain both by Div 3 of Pt 3A (as at the relevant date), the concept approval when read as a whole, and conditions A3 and A7. In other words, the concept approval clearly envisaged that other instruments of approval are required to carry out the development the subject of the concept plan. This is reflected in condition A6 itself. It is also reflected in the concept approval when that document is read as a whole. As Elite observed, “Part C – Further Environmental Assessment Requirements” mandates the matters that require assessment at the next stage of consideration of the concept, that is, the implementation of the concept into a working consent. On this basis, the CDC is the other instrument of consent, which plainly relates to the concept approval;

6. sixth, that the term “development consent” in condition A6 is defined in the EPAA only by reference to Pt 4 does not matter. Condition A6 expressly included a CDC as a relevant instrument of approval for the purposes of satisfying that condition;

7. seventh, condition A5, a condition of paramountcy, states that to the extent of any inconsistency with any “future applications”, the concept approval prevails. Contrary to the submission of the Council, this condition reinforces, rather than derogates from, the construction of condition A6 posited above. This is because it states unequivocally that it is the “future application” (whether it be a development application, an application for a complying development certificate, or some other application for an instrument of approval) that must be consistent with the concept approval. The comparison is between the concept approval and some other putative application. The two conditions are harmonious insofar as there must be consistency between the content of the development consent, or CDC, and that of the concept approval;

8. eighth, the preferred interpretation of condition A6 is also consistent with condition A3. Thus in both, it is the future application – in this case the CDC – that must relate to the concept approval in the manner described; and

9. ninth, that the term “related” does not appear in condition A5 does not assist the Council, in my view. Condition A5 affords paramountcy to the concept approval over “any future application”. Condition A5 is (together with conditions 3 and 4) directed to a very different purpose than that contained in condition A6 (namely, consistency). Moreover, if, as the Council submitted, by reason of condition A5, the terms of the concept approval contemplated that all “related” applications were those consistent with the concept approval, this would restrict, if not render otiose, the work to be performed by conditions A3 and A4. This suggests that the deliberate inclusion of the word “related” in conditions A3, A4 and A6 - and conversely, its deliberate omission in condition A5 – is intended to convey the necessity for any works to be the subject of another approval that is related to the concept approval. The focus of conditions A3, A4 and A6 are on the physical works, whereas condition A5 is directed to a comparison of the instruments of approval.

61. In light of the text and context of condition A6, the preferred interpretation of that condition is provided that, within seven years, there is physical commencement of works that are lawfully the subject of another approval that is related to the concept approval, that is, insofar as it facilitates the carrying out of the development in a manner that is consistent with the concept approval (as required by conditions A3 to A5), then the concept approval will not have lapsed.

62. Elite argued that because the works relied upon for physical commencement were necessary to facilitate the carrying out of the roadworks authorised by the CDC, and that these works were contemplated by conditions B5 and A1(b) of the concept approval, the concept approval had not lapsed.

63. The next question, therefore, is whether the works were authorised by the CDC and whether the CDC related to the concept approval.

64. It was not in dispute that the works were carried out lawfully in accordance with the CDC.

65. And while not a matter of formalised agreement, it could also not be seriously contended that the CDC was not, as condition A6 is defined above, an approval that related to the concept approval. Plainly it was.

66. The works having physically commenced within the time specified in condition A6, the concept approval has therefore not lapsed.

67. However, if, contrary to the conclusion reached above, the works authorised by the CDC had to be in compliance with the terms of the project approval, then it is necessary to determine whether the conditions of the project approval were breached by their performance.

Contention 1: Breach of Condition A3

68. Condition A3 required Elite to carry out the Concept Plan and all related future applications “generally in accordance with” the Statement of Commitments. The Statement of Commitments has statutory authority (see ss 75F(6), 75H(6)(c) and 75O(5)), and was expressly incorporated into the concept approval by virtue of condition A3 and by reason of paragraph (b) of the determination by the Minister on 20 December 2010.

69. The Statement of Commitments required, amongst other things, various management plans and other steps to be taken “prior to the commencement of any works on site”, including the actions and works relating to: erosion and sediment control measures; site safety and security; construction of new building and subdivision works; safe and efficient vehicular access; and community consultation.

70. The Statement of Commitments also prescribed the temporal nature of the various commitments: some measures are to be complied with “prior to any work commencing on site” or “prior to the commencement of any work on site”; while others are required to be completed “prior to the issue of a subdivision certificate” or “prior to the issuing of a construction certificate”.

71. It was not a matter in dispute that some of these requirements had not been wholly complied with by Elite prior to the commencement of the works:

1. commitment 3.1.1 – Elite did not prepare a Health and Safety Plan and a Traffic and Pedestrian Management Plan and did not submit those plans to the project manager and principal certifying authority (“PCA”) for approval;

2. commitment 3.2.1 - although Elite installed site security measures including lockable security gates, security fencing around the perimeter, and controlled access to the site, security lighting within the site was not installed prior to the commencement of the works;

3. commitment 5.1.1 - Elite did not have an Environmental Site Management Plan approved and implemented by the PCA;

4. commitment 12.1.1 - Elite did not establish a publicly accessible website to keep the community informed of the progress of the project;

5. commitment 12.1.2 - Elite did not establish a Community Consultation Program for the life of the project; and

6. commitment 12.1.3 - Elite did not consult with the Council and all relevant regulatory agencies.

72. There is no doubt that the works met the ordinary meaning of that term (Martin v Hume Coal Pty Ltd [2016] NSWLEC 51; (2016) 215 LGERA 289 at [63]-[64] per Preston J, citing Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 at 24-25).

73. The Council submitted that although condition A3 did not impose a requirement of strict compliance with the Statement of Commitments, the obligation to carry out the development “generally in accordance with” the Statement of Commitments permitted only “minor” deviation from it (relying on Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [48] per Biscoe J and the cases cited therein).

74. In circumstances where, according to the Council, “substantial and important” requirements relating to site safety and security, construction, and community consultation were not complied with at all, the failure to carry out the concept plan in accordance with condition A3 had the consequence that the works were unlawful and could not be relied upon for the purposes of establishing physical commencement within the meaning of condition A6.

75. Assuming for present purposes that, contrary to the conclusion as to the proper construction of condition A6 reached above, the works carried out by Elite were required to be consistent with the concept approval in order for the CDC to relate to that consent, in my view, something more than mere identification of partial non-compliance with a condition is necessary to establish breach of condition A3. Rather, what is necessary is a determination of whether the concept approval intended to prohibit the works upon which reliance is placed by Elite (Hunter Development Brokerage Pty Limited v Cessnock City Council; Tovedale Pty Limited v Shoalhaven City Council [2005] NSWCA 169; (2005) 63 NSWLR 124 at [104] and Iron Gates at [135]).

76. Read as a whole, in my opinion, the Statement of Commitments was not intended to act as an approval instrument, partial non-compliance with which would result in a breach of the concept approval in all circumstances. This is evident not only from the operation of condition A3 which imports a notion of “generally in accordance with” into the concept approval, thereby obviating the need for complete compliance, but also condition A4(c) which indicates that the Statement of Commitments is subservient in the event of an inconsistency with the express terms of the concept approval (and which is also consistent with s 75P(2)(a1) of the EPAA).

77. Alternatively, the Council submitted (applying the Iron Gates principle at this stage also) that if a breach of condition A3 is established by reason of non-compliance with the Statement of Commitments, then irrespective of any authorisation of the works by the CDC, the works would be unlawful and could not therefore be relied upon for the purpose of condition A6.

78. In support of this submission, the Council relied on condition A5 which, as referred to above, provided for the paramountcy of the concept approval over any inconsistency with “any future application” to the extent of inconsistency, namely, the CDC. For example, in Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445 the Court held that buildings were not an “existing dwelling house” for the purposes of a local environmental plan (“LEP”) because they had been unlawfully constructed by reason of a failure to satisfy all of the essential preconditions to occupation in a development consent and building approval. In construing the LEP to incorporate a requirement of lawfulness in this regard, Biscoe J applied, by analogy, the Iron Gates principle to hold that the construction works had to be lawful (at [75]-[79]).

79. At the risk of repetition, the difficulty with this submission is that, first, unlike either s 95(4), there is no requirement in the text of condition A6 that the works undertaken under some future application relate to the concept approval. Rather, it is the future application that must relate to the concept approval. As stated above, provided that the works performed pursuant to the future application are lawful (which, it was agreed, they were under the CDC) and that that application itself is lawful (which, for the reasons discussed below, the CDC is) with respect to the concept approval, both can be relied upon for the purpose of condition A6. The relationship for which the Council contends does not appear either from the text or context of condition A6 or, for that matter, s 75Y of the EPAA.

72. Second, again as discussed above, strict compliance with the Statement of Commitments was not required in order to satisfy condition A3 as indicated by the words in that condition, namely, “generally in accordance with”. As is demonstrated by the facts governing this application, the works were undertaken generally in accordance with the Statement of Commitments, especially when viewed in their totality. In other words, there was no breach of condition A3 which rendered the works ineligible to be relied upon by Elite to prevent the concept approval lapsing. Nothing in condition A5 derogates from this conclusion; there is nothing in the CDC that the Council identified as being inconsistent with the project approval.

73. With these conclusions and findings in mind, it is necessary to examine the specific breaches of condition A3 relied upon by the Council.

74. First, commitment 3.1.1 was intended to be completed in order to “minimise the risk of injury to contractors or employees”. Elite argued that the commitment did not apply because the demolition works (the demolition of buildings preparatory to the construction of the required access road) were not “construction” for the purposes of the commitment.

75. The commitment, however, is enlivened “prior to the commencement of any work”, and therefore, whether or not the demolition constituted “construction” is irrelevant, in my view, the works plainly constituted “any works”. Although the word “construction” is not defined in the concept approval, the terms of the concept approval suggest that, at a very general level, the expression should not be given a narrow meaning and that demolition falls within the ambit of that term. For example, condition A7 provides that “this approval does not permit any construction of any component of the Concept Plan (including any clearing of vegetation)”. Put another way, the concept approval contemplates that clearing of vegetation falls within the concept of “construction”.

76. This is reinforced, albeit only by analogy and with the caution identified above applied, with authorities considering the meaning of the composite term “construction work” in s 95(4) of the then EPAA. Thus it has been held that the levelling out of a road in preparation for roadworks is “construction work” for the purpose of that provision (Hunter Development Brokerage at [116]). Likewise, demolition work has been found to fall within the statutory description in s 95(4) of “building, engineering or construction work” (Besmaw Pty Limited v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413 at [101] and [107] and Sharp v Hunters Hill Council [2002] NSWLEC 27; (2002) 120 LGERA 155 at [23]-[40]).

77. To the extent that Elite relied on the recent Court of Appeal decision in Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240 in support of its argument that demolition is not included within the ambit of “construction” in condition C13, in my opinion, this authority is of limited assistance to it.

78. In Hakea one of the issues for determination on appeal was whether the primary judge had erred in holding that the construction of a road had breached s 81A(2) of the EPAA because it involved the erection of a “building” without a construction certificate. Elite submitted that applying the description adopted by the Court of Appeal in Hakea of construction being “the putting together of disparate parts” (at [95] per Basten JA), the present demolition works could not constitute construction for the purpose of the Statement of Commitments.

79. But as the Council noted, the relevant issue in Hakea was whether the construction of a road was “the erection of a building” within the meaning of s 81A of the EPAA. The passage by Basten JA, relied upon by Elite, was only directed to the meaning of the expression “building work” in s 4(1) of the Act. His Honour’s observation that “construction” is a wider concept than “erection” is uncontroversial and does not take the matter further. Even if the future access road could be considered to be building for the purposes of the EPAA (a possibility the Court of Appeal left open), this does not determine whether or not the demolition of a house preparatory to the building of a road constitutes “construction” for the purposes of the Statement of Commitments.

80. Elite further argued that the use of the term “any work” in commitment 3.1 was a “shorthand reference to the works that will trigger the requirement to carry out the commitment, ie works comprising the construction in the physical sense of the action” as alluded to in Hakea, and was not some broader notion of “construction works” as contained in s 95(4) of the EPAA. However, even if this were correct (which it is doubted), this provides no comfort to Elite because the commitment was immediately engaged upon the commencement of “any works”, however so defined.

81. Having regard to the terms of the commitment including the temporal requirement for its completion, commitment 3.1.1 was not met.

82. But given the limited nature of the works undertaken by Elite upon which it sought to rely for the purpose of condition A6, upon the proper construction of condition A6 was it intended that the works be rendered prohibited, and therefore, beyond the scope of the concept approval, in circumstances where commitment 3.1.1 had not been fulfilled at a very preliminary stage of the project?

83. There is authority for the proposition that even a minor departure from the terms of a consent can be sufficient for those works to not relate to the consent, and therefore, for the consent to have lapsed (Iron Gates at 136).

84. However, it must be reiterated that this was a concept approval which did not seek to authorise every aspect of the project and which contemplated the need to seek further approvals for any works undertaken pursuant to it, and where compliance needed only to be “generally in accordance with” the Statement of Commitments. Although there has been non-compliance with commitment 3.1.1, when regard is had to the overall level of compliance with the Statement of Commitments by Elite in carrying out the works, and when regard is had to the site safety and security measures carried out by Elite under the CDC (for example, conditions 136B, 136H, 136, the conditions contained in Parts 1 and 2, and the SEE), it cannot be concluded that the works relied upon by Elite to prevent lapsing under condition A6 were rendered unlawful by the non-provision of the health and safety plan and a traffic and management plan.

85. Second, in relation to commitment 3.2.1, all requirements of this commitment were met with the exception of the installation of security lighting. In circumstances where the gravamen of the commitment was to provide “suitable” security, that suitability must be judged by reference to the works undertaken. The site was not rendered unsafe or insecure by the failure to provide security lighting given the nature and scope of the works being carried out. In all the circumstances, it could not be said that the provision of security by Elite was sufficiently unsuitable such that all works were rendered prohibited by the non-provision of the security lighting (again reliance is placed on the conditions of the CDC referred to above and the SEE).

86. Third, the terms of commitment 5.1.1 indicate that it is engaged only upon the “Construction of New Building and Subdivision Works” as stated in commitment 5.1. Irrespective of the breadth of the term “construction” (see the debate and conclusions above in relation to commitment 3.1), it is clear, on any reading of commitment 5.1, that the expression “construction” only relates to “new buildings and subdivision works” and not to the construction of the access road in question and works carried out in furtherance of the completion of that road. In this context, Elite’s reliance on Hakea is, to the extent that the case stands for the proposition that a road which follows the natural lie of the land is not a building for the purposes of s 81A of the EPAA, let alone a “new building”, misplaced. The reference to “prior to the commencement of any works on site” in commitment 5.1.1 must be read in this context. That is, the reference to “any works” is a reference not to all works, but only to the works associated with the construction of new buildings and subdivision works. This is reinforced by the use of the term “works” and not “work” as is contained elsewhere in the Statement of Commitments (for example, in commitments 3 and 12).

87. Accordingly, the time for this commitment to be completed has not expired and it has not been breached.

88. Fourth, as Elite submitted commitment 12 is advisory only. That is, it is not consultation which is a necessary pre-condition to the granting of any approval. Nor does the consultation directly concern the control, limitation or management of environmental impacts on the site. Although not fulfilled, given the limited nature of the works undertaken by Elite for the purpose of condition A6, on a proper construction of that condition, it was not intended that the works were rendered unlawful and beyond the scope of the concept approval if this commitment was not fulfilled at this preliminary stage of the project.

89. I therefore find no breach of condition A3 of the concept approval sufficient to preclude reliance by Elite on condition A6.

Contention 2: Breach of Condition C13

98. The Council similarly argued that Elite’s failure to comply with condition C13 (which requires evidence of an agreement to dedicate approximately 6 ha of land as an addition to the Coffs Coast Regional Park “prior to any construction”) before the works had commenced had the consequence that, by reason of the breach, the concept approval has lapsed.

99. Elite submitted that because condition C13 demanded compliance prior to any “construction”, and because the works only constituted demolition and not “construction”, time for compliance with this environmental assessment requirement had not yet arisen.

100. In my opinion, for the reasons given above with respect to commitment 3.1, the terms of the approval suggest that, at a very general level, the expression “construction” in condition C13 should not be given the narrow meaning proffered by Elite and that demolition works can fall within the ambit of that expression.

101. Having said this, it must nevertheless be observed that condition C13 is contained in Part C of the concept approval, which deals with “further environmental assessment requirements” applying “with respect to future stages of the project”. Accordingly, notwithstanding the analysis above concerning the scope of the word “construction”, when construed within the context of this condition, it is more than arguable that the term “construction” in condition C13 is, as Elite argues, to be interpreted as meaning something other than mere demolition because it is a condition that is expressly stated to apply to “future stages of the project”.

102. Therefore, having regard to the location of this condition in Part C it cannot properly be considered to be a pre-condition to the lawfulness of carrying out the works.

103. Even if it were, on a proper construction of condition C13, it cannot be concluded that it was intended that non-compliance with that condition was sufficient to render unlawful the works relied upon by Elite for the purposes of condition A6.

Contention 3: Unlawfulness of Condition A6

104. The 2017 modification of condition A6 (modification 4) permitted works undertaken pursuant to a related CDC to be sufficient if those works were physically commenced within seven years, to avoid the concept plan approval lapsing.

105. Notwithstanding the express language of condition A6, the Council submitted that the legislative regime did not permit any part of a Pt 3A project to be approved by way of CDC.

106. The reasons it gave were essentially two-fold. First, the only express statutory mechanism by which part of a Pt 3A project can become complying development was by the Minister exercising the power conferred by s 75P(2)(d) of the EPAA to make an order declaring that a stage of a project, or part thereof, was complying development for the purposes of the Act. No such order was made in this case. The reference in s 75P(1)(b) to “subject to the other provisions of this Act” was explained by the Council by the specific reference contained in s 75P(2)(a) to a “development application” and the requirement for its determination to be generally consistent with the terms of a concept plan approval. In addition, the reference to “any consent” in s 75P(2)(a1) was a reference to a development consent and not a CDC. As a matter of statutory language, a consent authority could grant “consent” to a development application (see s 80(1) of the EPAA), whereas a council or certifier ‘determined’ an application by “issuing” a CDC (s 85A(6)).

107. And, in contrast to a consent authority’s wide powers under s 80A, a certifying authority’s power to impose conditions on a CDC was limited to “the extent required by the regulations, an environmental planning instrument or a development control plan” (s 85A(6)(a)). Conditions such as those referred to in s 75P(2)(a1) imposed for the purpose of fulfilling the obligations in the Statement of Commitments could not lawfully be imposed by issuing a CDC. In other words, a CDC could not lawfully require compliance with requirements set out in the Statement of Commitments.

108. Second, the Pt 3A transitional provisions did not contemplate that the approval of any part of a Pt 3A project could be dealt with by the complying development provisions of the EPAA because:

1. one of the central provisions which prohibits a “consent authority” from granting consent, unless satisfied that the development is generally consistent with the terms of the concept plan approval (cl 3B(2)(d)), does not apply in the case of complying development because a private certifier is not a “consent authority” (see s 4(1) of the EPAA which defines a “consent authority” as either the council or a planning body having the function of the council. A private certifier is a “certifying authority” under Div 3 of Pt 4). It was not intended that part of a Pt 3A project could be approved without any consideration of its consistency with the concept plan approval. The reference to “any consent” in s 75P(2)(a1) could therefore only be a reference to a development consent rather than a CDC. Although “development consent” is defined in the EPAA to include a CDC (s 4), the word used in condition A6 is “consent”, and not “development consent”. As a matter of statutory language, a consent authority may grant “consent” to a development application (s 80(1)), whereas a council or accredited certifier determines an application by issuing a CDC (that is, there is no reference to the grant of “consent”) (s 85A(6)); and

2. cl 3B(2)(c) provides that “any development standard that is within the terms of the approval of the concept plan has effect”, whereas the complying development provisions in Div 3 of Pt 4 limit the consideration of development standards to the instruments referred to therein and require the certifying authority to issue a CDC if those development standards are complied with (ss 85(6) and 85(12) of the EPAA). This inconsistency is an additional indication that CDCs were not intended to be an available approval mechanism for part of a project the subject of an approved concept plan under Pt 3A.

109. According to the Council, this conclusion is reinforced by the terms of the Statement of Commitments incorporated into the concept approval. There are numerous steps required to be undertaken in that document prior to issuing a construction certificate, including minimising disturbance of acid sulphate soils by limiting excavations to approximately 2m in depth (commitment 4.1); preparing a Vegetation Management and Rehabilitation Plan for those parts of the site outside the development footprint (commitment 9.1.1); preparing a bushfire plan of management (commitment 14.1.1); the preparation of an appropriate acoustic model (commitment 15.1.1); and the preparation of a waste management plan (commitment 16.1.1). There is no requirement for a construction certificate to be obtained for complying development (s 86 of the EPAA). A construction certificate could only be obtained for particular development where there was already a development consent authorising the carrying out of that work in force (ss 80(12) and 81A(2)).

110. The Council’s arguments with respect to this contention can be dismissed for the following reasons. First, the power to confer a limitation on the approval contained in s 75Y with respect to the lapsing of a Pt 3A approval is not confined in the manner suggested by the Council. The power is discretionary. Section 75Y states that a condition imposed pursuant to it can provide that the concept approval lapses on a specific date “unless specified action with respect to the approval has been taken”. Condition A6 expressly specifies what action may be taken, including (but not limited to) work undertaken pursuant to a CDC.

111. Second, the power referred to in s 75P(2)(d) is a power to declare, for the purposes of Pt 3A, development that is not otherwise exempt or complying development by operation of another environmental planning instrument. Nowhere in the text of s 75P(2)(d) is an intention evinced to, absent such a declaration, limit the nature or scope of relevant instruments of approval only to development consents. This is in conformity with ss 75R(3), 75J(3) and 75P(1)(b) of the EPAA. If, as the Council submits, the reference to the term “consent” in s 75P(2)(a1) is a reference to a development consent, then, as that term is defined in s 4 of the former EPAA, this “includes, unless expressly excluded, a complying development certificate”.

112. Third, the concern that reliance on a CDC could lead to inconsistency with the concept approval is, in my view, misconceived. If the CDC is not consistent with the concept approval it will not satisfy condition A6 insofar as it is unlikely to be a “related…complying development certificate”, and therefore, cannot be relied upon to prevent lapsing of the approval.

113. Finally, as Elite submitted, while courts permit collateral challenges to administrative action (Ousley v R [1997] HCA 49; (1997) 192 CLR 69 at 98-99), in the present case the separate question before the Court requires consideration of the proper construction of condition A6. Condition A6 forms part of a concept approval which is in force and valid until declared otherwise. At no time has the Council sought to impugn the validity of the concept approval (by way of Class 4 judicial review proceedings or otherwise as part of its contentions in the Class 1 proceedings) on the basis that the imposition of condition A6 was beyond power. Condition A6 must therefore be construed on the assumption that it has been validly imposed.

Conclusion and Orders

114. For the reasons given above, it follows that the concept approval has not lapsed pursuant to condition A6 of that approval and the separate question is determined in the negative.

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Decision last updated: 12 June 2020