Gosford City Council v Dabski
[2002] NSWLEC 166
•09/30/2002
Reported Decision: 123 LGERA 84
Land and Environment Court
of New South Wales
CITATION: Gosford City Council v Dabski and Anor [2002] NSWLEC 166 PARTIES: APPLICANT
RESPONDENTS
Gosford City Council
Dabski and AnorFILE NUMBER(S): 40097 of 2001 CORAM: Pearlman J KEY ISSUES: Development Consent :- subdivision - whether lapsed
Construction and Interpretation :- construction certificate - condition - proper interpretation of condition - whether condition invalid
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 81A(4), s 95
Environmental Planning and Assessment Regulation 1994 cl 79A, s 79H
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 cl 3, cl 20, cl 49A
Local Government Act 1919 pt XIICASES CITED: Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446;
John Hancock Consulting Pty Ltd v Gosford City Council (Bannon J, NSWLEC, 21 July 1995, unreported);
Green v Kogarah Municipal Council (2001) 115 LGERA 231;
Newbury District Council v Secretary of State for the Environment [1981] AC 578;
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470DATES OF HEARING: 26/06/2002 DATE OF JUDGMENT:
09/30/2002LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr D P Wilson (Barrister)
SOLICITORS
P J Donnellan & Co
Mr C W McEwen (Barrister)
SOLICITORS
Peninsula Law
JUDGMENT:
40097 of 2001
30 September 2002Pearlman J
- Applicant
- First Respondent
- Second Respondent
Introduction
1 This case concerns the proper interpretation of a condition imposed on a construction certificate and a determination of whether or not that condition is valid.
2 These issues arise in this way. Mr and Mrs Dabski, the respondents, have the benefit of a development consent in respect of their land. That development consent would have expired unless construction work had physically commenced upon the land. Some construction work has been carried out, but the applicant, Gosford City Council, alleges that the respondents are in breach of the particular condition of the construction certificate. Accordingly, so it alleges, the works carried out are illegal and cannot constitute works which would keep the development consent on foot.
3 In these circumstances, the council seeks a declaration that the development consent has lapsed. The respondents, by cross application, seek a declaration, first, that the development consent has not lapsed, and, secondly, that the particular condition is invalid.
4 The resolution of the competing claims in these proceedings requires the determination of two issues. They are:
a What is the proper interpretation of condition 2; and
b Is condition 2 beyond the power of the council to impose, and therefore void and of no effect?
5 Before turning to those issues, it is necessary to outline the factual background to the proceedings.
The factual background
6 On 21 July 1995, in the determination of a class 1 appeal in this Court, Bannon J granted development consent subject to conditions to a development application for the subdivision of land described as lot 1 DP 816220, known as 11A The Sanctuary, Umina (“the subdivision land”) (John Hancock Consulting Pty Ltd v Gosford City Council (Bannon J, NSWLEC, 21 July 1995, unreported)).
7 Access to the subdivision land was to be provided by way of a road running within lot 246, a property adjacent to the subdivision land. This access, described in the approved plan as “6000 wide access driveway” was to be the only access to the subdivision land. As at the date of the grant of development consent, no right of way in favour of the subdivision land had been registered on the title to lot 246, but, at that time, both the subdivision land and lot 246 were in the ownership of related parties. In any event, a right of carriageway of variable width was registered in 1996 burdening lot 246 in favour of the subdivision land.
8 In 1997, the respondents purchased the subdivision land, and later in that year, lot 246 was sold. In May 1999, the respondents received notice of a proposal by the new owners of lot 246 to construct a residence, the western edge of which was to be parallel and close to the edge of the right of carriageway. That residence has now been constructed.
9 On or about 2 March 2000, the respondents applied to this Court for modification of the development consent in respect of the configuration of the access way to the subdivision land. Those proceedings are in abeyance pending the result of the present proceedings.
10 At about the same time, the respondents applied to the council for a construction certificate to carry out subdivision works the subject of the development consent. The council granted a construction certificate on 3 July 2000, subject to a number of conditions, the impugned condition being condition 2, which required the consent of the owners of lot 246 and the precise terms of which are set out in par 12. It is common ground that the council has not received any such written consent.
11 It is also common ground that, pursuant to s 95 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”), the development consent would have lapsed on 22 July 2000, unless building, engineering or construction work had been physically commenced on the subdivision land prior to that date. Before 22 July 2000, the respondents carried out certain work upon the subdivision land, including the partial formation of the proposed concrete access way and the partial laying of the water main and associated hydrants.
The first issue – the interpretation question
12 Condition 2 provides as follows:
- 2. Prior to the commencement of work written consent must be submitted to Council from the owner(s) of Lot 246 DP 714926, 11 The Sanctuary, Umina agreeing to all construction within the right of carriageway within this property.
13 The council claims that the phrase “… [p]rior to the commencement of work …” refers to the work that is the subject of the development consent, whether that work is to be carried out on the subdivision land or on lot 246. In the submission of Mr Wilson, appearing for the council, that construction is to be preferred for two reasons derived from the context. Firstly, the whole development to be carried out on the subdivision land will have an impact upon the amenity of the occupants of lot 246, because, although there is a right of carriageway which permits the access across lot 246, that access is the only access to the subdivision land. Secondly, the council was likely to have been concerned that an upgraded access road was available before works were carried out upon the subdivision land, it being unacceptable that works should be carried out upon the subdivision land in the absence of safe and suitable access to that land.
14 It would follow from this submission that, there being no agreement from the owners of lot 246, the commencement of work has been carried out in breach of condition 2. On the authority of Green v Kogarah Municipal Council (2001) 115 LGERA 231, works carried out illegally cannot constitute building work for the purpose of lapse of a development consent.
15 In response, the respondents claim that, properly construed, condition 2 relates only to construction work upon lot 246. Read as a whole, it refers to construction work upon only one parcel of land, namely, lot 246, and its operation must be confined to lot 246. Condition 2 does not operate to require that consent be obtained before work is commenced on the subdivision land, and, accordingly, the work that has been carried out on the subdivision land may properly be taken into account so as to constitute physical commencement and thus prevent the lapse of the development consent.
16 I have concluded that, on its proper construction, condition 2 requires the written consent of the owners of lot 246 to be submitted to the council before any works are commenced upon lot 246, and it does not operate to require such consent before any works are carried out on the subdivision land. I have come to that conclusion for three reasons.
17 First, I agree with the submission of Mr McEwen, appearing for the respondents, that the only construction work to which condition 2 refers is construction work within the right of carriageway on lot 246. Read as a whole, condition 2 governs such construction work, and the reference to “work” in the opening words of the condition must, in the context of the whole condition, be taken to be a reference to that construction work and not to work generally upon the subdivision land.
18 Secondly, such an interpretation is supported by reference to other conditions to which the construction certificate is subject. For example, conditions 1, 7, and 10 refer to “work” in general terms, without reference to any particular land, yet condition 2 is specific in its reference to lot 246. In this regard, condition 2 is particularly revealing in its contrast with condition 3. Condition 3 provides as follows:
- 3. Written consent being submitted to Council from the owner(s) of any adjoining property prior to any physical interference with that property as a result of the required construction.
The generality of this condition suggests that it is directed to the preservation of amenity of adjoining owners as a consequence of the impact of the carrying out of works the subject of the development consent, which is the particular aspect to which Mr Wilson referred in his submission. Condition 2, in this context and by contrast, is specific, and is concerned with the preservation of the amenity of lot 246 from the impact of works carried out upon lot 246.
19 Thirdly, it cannot be the case that the council intended, in imposing condition 2, to give the owners of lot 246 the ability to veto the whole of the development the subject of the development consent simply by refusing to give written consent. It is not to be supposed that the council intended such a result. That consequence might usefully be compared to the consequence identified by the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470. The issue for determination in that case was the proper construction of s 77(1) of the EP&A Act which, as it then stood, required a development application to be accompanied by “… the consent in writing of the owner of the land to which that development application relates”. The High Court held, at pp 477 - 478, that the word “relates” did not simply include all other land in the locality because the consequence would be that the owner of that other land would have the power to veto the development simply by withholding consent, a consequence which could not have been intended by the legislature.
20 The conclusion I have reached makes it technically unnecessary to deal with the invalidity issue. That is because no works have been carried out on the right of carriageway, and, accordingly, the respondents were not in breach of condition 2 when they carried out construction works upon the subdivision land. Hence those works were not illegal, and they can be taken into account in order to determine if physical commencement has occurred so as to preserve the life of the development consent.
21 However, the invalidity issue was fully argued, and, in case I am wrong in my interpretation of condition 2, I turn to deal with that issue.
The second issue – the invalidity issue
22 The development consent was granted in 1995, before the coming into force of amendments to the EP&A Act. Clause 20 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (“the transitional regulation”) provides that such a consent shall be deemed to have been granted under the EP&A Act as amended.
23 Section 81A(4) of the amended EP&A Act provides that subdivision work in accordance with a development consent must not be commenced until a construction certificate for the subdivision work has been issued by the consent authority. The respondents made an application for the construction certificate in March 2000.
24 Clause 49A of the transitional regulation governs the imposition of conditions on a construction certificate in the circumstances of this case. It relevantly provides as follows:
49A(1) This clause applies to a building or work (including work in the nature of subdivision work) authorised or required by:
(a) a development consent granted under the unamended EP&A Act 1979 before the appointed day,
referred to in this clause as the “original development consent”.
(3) Conditions imposed under subclause (2):(2) After receiving an application for a construction certificate under the amended EP&A Act 1979 for a building or work to which this clause applies, the certifying authority for the development … may impose such conditions on the construction certificate:
(a) …
(b) in the case of work in the nature of subdivision work, as it could have imposed on a subdivision approval under Part 12 of the repealed LG [Local Government] Act 1919.
(a) are not to deal with matters of a kind that, under the amended EP&A Act 1979 or the amended EP&A Regulation 1994, must be done before the construction certificate is issued, and
(b) are not to be inconsistent with any conditions to which the original development consent is subject.
25 It can be seen that there are effectively three requirements governing the imposition of conditions upon a construction certificate in this case. Firstly, the condition must be such as could have been imposed under pt XII (referred to in cl 49A(2)(b) as “part 12”) of the repealed Local Government Act 1919 (“the repealed LG Act”). Secondly, it must not deal with matter of a kind that must be done before the construction certificate is issued. Thirdly, it is not to be inconsistent with any condition to which the development consent was subject. It is the respondents’ case that condition 2 fails to meet any of these three requirements (although most emphasis was placed by Mr McEwen on its failure to meet cl 49A(3)(a) and (b)).
26 As to the first requirement, cl 49A(2)(b), it is to be noted that pt XII of the repealed LG Act dealt generally with subdivision regulation. It provided, in s 327, for application for approval of a subdivision. Section 331(1) provided for any such application to be submitted to the council by an owner of land, and s 331(2) empowered the council to approve of any such application, or to approve subject to conditions, or to disapprove. Section 331(2A) provided that the power to approve an application subject to conditions included a power to impose a condition requiring the making good of any damage as a consequence of construction work. Apart from this specific reference, pt XII is silent as to the nature of the conditions which could have been imposed upon a subdivision approval. Mr Wilson submitted that, on general principle, conditions which could be imposed under pt XII are those as are reasonably related to the subdivision approval function of the council, and, accordingly, encompass a condition which is related to the protection of the amenity of the owners of neighbouring land. Hence, in his submission, condition 2 is of this kind, and does not infringe the first requirement under cl 49A(2)(b). I think condition 2 meets the first requirement under cl 49A(2)(b), because it reasonably relates to the work the subject of the development consent (including in particular the work to be carried out on the right of carriageway with lot 246) and, in accordance with general principle (cf Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599), it could for that reason have been imposed on a subdivision approval under pt XII.
27 Mr McEwen submitted that condition 2 infringes the second requirement, cl 49A(3)(a), in that it amounts to a requirement for the furnishing of an owner’s consent, being a matter of a kind that must be done before the construction certificate is issued. In other words, it is a condition that should have been resolved or satisfied prior to the issue of the construction certificate.
28 Although Mr McEwen did not specifically say so, I take it that his reference to owner’s consent is a reference to relevant requirements in the amended the EP&A Regulation, to which cl 49A(3)(a) expressly refers. The expression “the amended EP&A Regulation 1994” is defined in cl 3 of the transition regulation. It means the EP&A Regulation 1994, as amended by the Environmental Planning and Assessment Amendment Regulation 1998 and the Environmental Planning and Assessment Further Amendment Regulation 1998. Clause 79A of the EP&A Regulation 1994, as so defined, provides that an application for a construction certificate must be in the form set out in the relevant part of Form 11, and must be accompanied by the information required by Form 11. Form 11 has a part headed “consent of all owner(s)”. That part of Form 11 contains a space for signature as well as the words “I/we consent to this application”.
29 Hence, I understand Mr McEwen’s submission to be that condition 2 is in the nature of a requirement for the consent of the owner of the land to which the construction certificate relates, because the construction certificate relates both to the subdivision land and to lot 246. In order, therefore, to comply with Form 11, the consent of the owner of lot 246 was required, but it was to be provided via the operation of condition 2, and, therefore, in Mr McEwen’s submission as I understood it, it was a “matter of a kind that, … under the amended EP&A Regulation 1994, must be done before the construction certificate is issued”. Hence, in his submission, condition 2 fails to meet the requirement specified in cl 49A(3)(a).
30 However, in my opinion, this argument does not accord with the proper construction of cl 49A(3)(a). I do not think that cl 49A(3)(a) is concerned with compliance with the requirements of an application for a construction certificate. The failure of such an application to be in the form required by the relevant part of Form 11, or to contain the information required by Form 11, might, in certain circumstances, mean that there has been no proper application at all (cf Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446). But there is no challenge here to the validity of the construction certificate application, nor to the construction certificate itself. The challenge is simply that condition 2 fails to meet the requirement stipulated in cl 49A(3)(a).
31 In my opinion, the matters to which cl 49A(3)(a) are directed are matters which are, in essence, matters which must be “done” by an applicant before a construction certificate can be issued. I place some emphasis on the word “done”. That word indicates that attention is to be paid to matters which are required to be carried out, as distinct from complied with, by an applicant before the issue of a construction certificate. Such matters are specified in cl 79H of the amended EP&A Regulation 1994. That clause obliges the certifying authority not to issue a construction certificate for subdivision work unless it is satisfied that conditions requiring the provision of security under s 80A(6) of the EP&A Act have been complied with, that conditions requiring payment of a monetary contribution under s 94 of the EP&A Act have been complied with, and that each other condition of the development consent that must be complied with before a construction certificate may be issued has been complied with. Clause 79H may not contain an exhaustive list of the type of “matters” contemplated by cl 49A(3)(a) – there may be others, but those specified in cl 79H seem to me to be the type of matters so contemplated.
32 There was no evidence of any such matters not being “done” by the respondents. Their challenge was directed to the consent of the owners of lot 246, and, for the reasons I have furnished, I do not consider that the requirement for that consent is a matter of a kind that must be done before the construction certificate is issued, and hence I do not consider that condition 2 is invalid on this ground.
33 Turning now to the third requirement, cl 49A(3)(b), the respondents’ claim is that, because condition 2 requires the furnishing of the consent of the owners of lot 246, it potentially contemplates an outcome that would be inconsistent with the development consent. The owners of lot 246 may refuse to give consent. Whether condition 2 relates to work only upon lot 246 (which, as I have set out in pars 16 - 19, I think it does) or whether it relates to the whole of the work on the subdivision land, its potential effect is to empower the owners of lot 246 to veto the carrying out of the work the subject of the development consent. That would be, in Mr McEwen’s submission, an outcome inconsistent with the development consent and therefore condition 2 fails to meet the requirement specified in cl 49A(3)(b).
34 It is to be noted, however, that cl 49A(3)(b) is directed, not to inconsistency with the development consent, but to inconsistency with any conditions to which the development consent is subject. I would reject, therefore, a submission that condition 2 fails to meet the requirement of cl 49A(3)(b) because it has the potential to operate to prevent the works on lot 246 being carried out at all. That might be inconsistent with the development consent, which contemplates such works being carried out, but it is to the conditions, not to the development consent itself, that regard must be had.
35 In this connection, Mr McEwen pointed to the following part of condition 10 imposed on the development consent:
a 6mwide x 150mm thick reinforced concrete with concrete kerb one side between The Sanctuary and the common boundary of proposed Lot 4/5 with a minimum curve radius of 12.5 metres.Construction of the right of carriageway to the following standards:
36 Mr McEwen’s submission was that this part of condition 10 specifies work which is to be carried out on lot 246 and that work is clearly a part of the development the subject of the development consent. Condition 2 could operate to prevent that work being carried out, and, in his submission, condition 2 is therefore inconsistent with this part of condition 10.
37 I do not think, however, that any inconsistency is demonstrated by reference to condition 10 or to any other conditions to which the development consent is subject. Condition 2 might have the effect, if the owners of lot 246 withheld consent, of preventing works being carried out on lot 246, but that does not render condition 2 inconsistent with condition 10. Condition 10 stipulates certain requirements with respect to the carrying out of work the subject of the development consent, as, indeed, do most of the other conditions to which the consent is subject. If the work is to be carried out, then condition 10 and other conditions must be complied with. Condition 2 has nothing to say about those requirements, and it is not inconsistent with them.
38 For all these reasons, I do not consider that condition 2 fails to meet the requirements specified in cl 49A, and it was not, by reason of those requirements, beyond the power of the council to impose.
Physical commencement
39 This case was argued solely in respect of condition 2 – its proper interpretation and its validity. There was no issue at the hearing about whether the works carried out on the subdivision land amounted to physical commencement within the meaning of s 95(4) of the EP&A Act. Mr Wilson was unclear about his instructions in this regard, but he made no submissions contrary to a finding that construction work had physically commenced. Nor was there any dispute as to what works had been carried out.
40 In these circumstances, and so far as it is necessary, I am prepared to make a finding that construction work relating to the subdivision has physically commenced on the land the subject of the development consent.
Orders
41 It follows from the foregoing that the respondents are not in breach of condition 2 of the construction certificate, and that, certain construction works having been carried out, the development consent has not lapsed. Accordingly, the council is not entitled to the declaration which it seeks, but the respondents are entitled to the first declaration that they seek in their cross application (to the effect that the development consent has not lapsed), but not to the second declaration that they seek (as to the invalidity of condition 2).
42 My formal orders are therefore as follows:
1 I declare that development consent granted by this Court on 21 July 1995 in respect of lot 1 DP 816220 known as 11A The Sanctuary, Umina has not lapsed.
2 I reserve the question of costs.
3 The exhibits may be returned, with the exception of ex ‘A’, which shall be retained on the file of the original proceedings, No 10400 of 1995.
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