Green v Kogarah Municipal Council - [2001] NSWCA 123

NEW SOUTH WALES COURT OF APPEAL

CITATION: Green v Kogarah Municipal Council [2001] NSWCA 123

FILE NUMBER(S):
41010/99

HEARING DATE(S): 3 April 2001

JUDGMENT DATE: 02/05/2001

PARTIES:
Ross Winston Green - Appellant
Kogarah Municipal Council - Respondent

JUDGMENT OF: Mason P Giles JA Ipp AJA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40047/99

LOWER COURT JUDICIAL OFFICER: Cowdroy J

COUNSEL:
T Hale SC & E White - Appellant
J Ayling - Respondent

SOLICITORS:
Brock Partners - Appellant
Abbott Tout - Respondent

CATCHWORDS:
DEVELOPMENT CONSENT - lapse - whether building, engineering or construction work relating to the building or subdivision physically commenced on the land - activities relied on in breach of condition of development consent - activities relied on themselves carrying out development without consent - could not be physical commencement - development consent had lapsed.. D.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41010/99
LEC 40047.99

MASON P
GILES JA
IPP AJA

Wednesday 2 May 2001

GREEN v KOGARAH MUNICIPAL COUNCIL

JUDGMENT

MASON P: I agree with Giles JA.
GILES JA: The respondent granted the appellant development consent for a dual occupancy development on his land. The issue in this appeal is whether the development consent has lapsed. Dual occupancy development on the appellant’s land is no longer permitted under the relevant planning instrument, and if the development consent has lapsed it can not be granted anew.
The development consent
The appellant owns the land known as 40 Algernon Street, Oatley, a long, narrow block running from Algernon Street down to the Georges River. Erected on the land is a brick dwelling with a swimming pool.
In early 1995 the appellant caused to be prepared plans for a dual occupancy development on the land.
One plan was a plan of subdivision of the land. It is apparent from condition 18 of the development consent, to which I will shortly refer, that there was such a plan, but it was not in evidence. It must have been similar to a plan of subdivision prepared in August 1998, which was in evidence, under which the front portion of the land containing the existing dwelling was one lot and the rear portion was another lot served by a right of carriageway over the first lot. The 1998 plan of subdivision provided for a drainage easement one metre wide from the rear of the first lot by an irregular path across the second lot to the Georges River. The 1995 plan did not provide for the drainage easement.
The other plan was an architectural plan for the erection of a dwelling on the second lot. Taking account of an elevated ramp for car access and a deck, the second dwelling almost filled the width of the block between the side boundaries of the land. The architectural plan indicated three trees in or close to the footprint of the building, and that two of them were to remain and one was to be removed.
On or about 15 March 1995 the appellant applied to the respondent for development consent in relation to the subdivision and the erection of the second dwelling in accordance with the plans. By a letter dated 10 April 1995 the respondent notified the appellant that it had granted consent to his application “subject to the conditions as outlined on the attached sheet”. Notes appearing early in the letter included -
“(i) Pursuant to Section 92 of the Act this consent becomes effective from the date of this letter.
(ii) This consent will lapse 2 years from the date that it becomes effective, unless the development to which it refers is commenced by that date. (Refer to Section 99 of the Act). Your attention is drawn to the fact that where building approval is also required, such approval must be obtained before the development is commenced.”
The following pages of the letter then read, so far as is material to the appeal -
“DEVELOPMENT APPLICATION NO 56/95 - 40 ALGERNON STREET, OATLEY - D/4/40
THAT the Development application for a Dual Occupancy development comprising the erection of a detached dwelling-house and torrens title subdivision at property 40 Algernon Street, Oatley, is approved subject to the following conditions:
1.The development of the site being carried out generally in accordance with the information and plans submitted with the Development Application dated March 15, 1995, except where amended by the conditions specified hereunder.
2. The development being amended as follows -
(a)Direct access shall be provided from the living room of Dwelling No 2 to the adjoining courtyard.
(b)Dwelling No 2 being reduced in height such that no point on the ceiling exceeds a height of 3.6m from the existing ground level directly below.
(c)Dwelling No 2 and the attached patio shall be setback wholly behind the 30m foreshore building line applicable to the site. In this regard, a surveyors certificate and plan shall be submitted verifying compliance with the 30m foreshore building line.
(d)The elevated driveway shall be permitted to have a maximum grade of 1:4.5 for a maximum of 15m from the existing driveway with the remainder of the driveway being a maximum of 1:5, with an appropriate transition at the lower end.
Such details shall be indicated on the future Building Application.
3.The submission of a Building Application accompanied by complete plans and specifications conforming with the Local Government Act, the Building Code of Australia, and any other relevant Acts and Regulations.
…
9.In accordance with Council’s Tree Preservation Order, no trees other than those located within the external walls of the approved building, shall be removed without the prior written permission of Council.
10.Prior to the commencement of any site works, all trees to be retained shall be enclosed with protective fencing to prevent the tree trunk and root system being damaged during the construction period. Details shall be submitted with the Building Application.
…
EXCAVATION/EARTHWORKS
15.Excavation being limited to that necessary to permit construction of the buildings to the satisfaction of the Council’s Director of Environmental Services.
16All excess excavated material being removed from the site. In this regard, no excavated material being deposited on site except where authorised by the approved plans. Further, no excavated material being deposited in the Georges River.
17.Provision of silt control devices in the vicinity of the building site prior to commencement of land clearing and construction works. Such details shall be submitted with the Building Application.
SUBDIVISION CONDITIONS
18. Subdivision approval shall be obtained pursuant to the provisions of Part 12 of the Local Government Act 1919. In this regard, the subdivision plan shall be amended such that the western boundary of the rear allotment follows the edge of the rock face at the rear of the proposed dwelling and the proposed access ramp is located wholly within the boundaries of the rear allotment.
… “
The statutory context to the development consent
Development consent was necessary because, by s 76(2) of the Environmental Planning and Assessment Act 1979 as it stood in the first half of 1995 (“the Act (1995)”) -
“ … where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:
(a)that consent has been obtained and is in force under this Act, and
(b)the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.”
By the definition in s 4(1) of the Act (1995) development, in relation to land, relevantly meant -
“(a)   the erection of a building on that land,
(b)     the carrying out of a work in, on, over or under that land,
…
(d)     the subdivision of that land … “.
By s 4(2) of the Act (1995) “the carrying out of development” included erection of a building, the carrying out of a work, and the subdivision of land.
In the present case the specific provision of an environmental planning instrument requiring consent to the development was not identified, but it was common ground that consent was necessary. The effect of the definitions was that consent was necessary to the subdivision of the land, the erection of the second dwelling, and any associated or additional carrying out of a work on the land. “Work”, “a work” and “the carrying out of a work” were not defined or described in a manner presently relevant in the Act (1995). There was provision for a work to include a reference to any physical activity in relation to land specified in a regulation to be a work for the purposes of the Act (1995), but we were informed that no regulation had been made.
Section 77 of the Act (1995) provided for the making of a development application. By s 90, a consent authority was required to take into consideration, in determining a development application, such of a number of listed matters as were of relevance to the development the subject of the application. By s 91(1), a development application was to be determined by the granting of consent to the application, either unconditionally or subject to conditions, or the refusing of consent to the application. Section 91(3) provided that a condition might be imposed for the purposes of s 91(1) in a number of stated circumstances, including if it -
“(a) relates to any matter referred to in s 90(1) of relevance to the development the subject of the consent,
…
(f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90(1) applicable to the development the subject of the consent,
(g)modifies detail of the development the subject of the development application … “.
By s 99 of the Act (1995), a development consent lapsed at the expiry of a period of time, the period in the present case being two years from 10 April 1995, with power in the consent authority to extend the period on application for a further year. An appeal could be brought to the Land and Environment Court from refusal of an extension or failure to determine the application for an extension. An extension ran from the later of the date on which the consent would have lapsed but for the extension and the date on which the consent authority granted the extension or the Court determined the appeal.
A development consent did not lapse, however, in the circumstances stated in s 99(4) of the Act (1995) -
“(4)   Development consent for:
(a)     the erection of 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.”
None of “building work”, “engineering work” or “construction work” was defined in the Act (1995). By the definitions in s 4(1) “building” included a structure or part of a structure, but “structure” was not defined.
All these provisions were concerned with development consent. As was reflected in the development consent granted to the appellant, however, building approval and subdivision approval were necessary in addition to development consent.
Building approval was required by virtue of s 68 of the Local Government Act 1993. Section 68 provided that various activities could be carried out only with the prior approval of the relevant Council, the activities including erection of a building. Sections 75 and following provided for the making of an application for approval, for its determination, and for lapse of a building approval, very broadly following a similar scheme to the provisions of the Act (1995) in relation to development consents.
Subdivision approval was required by virtue of s 323 of the Local Government Act 1919, it falling within Pt 12 as continued in force in 1995 notwithstanding the commencement of the Local Government Act 1993 (see Local Government (Consequential Provisions) Act 1993 s 3(1) and Schedule 1). Section 323 provided that land was not to be subdivided except in accordance with the provisions of that Act. Section 327(2) provided for approval of an application in respect of subdivision of land, and later sections provided for matters to be taken into consideration by the Council (s 333), for an application being approved, approved subject to conditions, or disapproved (s 331), and for lapsing of an approval (s 335). Albeit with a more distant resemblance, again there was a broadly similar scheme to the provisions of the Act (1995) in relation to development consents.
Concerning building approval, subdivision approval and extension of the development consent
As appears from Green v Kogarah Municipal Council (1998) 99 LGERA 24, on 24 March 1997 the appellant applied to the respondent for an extension of the development consent. Before the application was determined by the respondent, on or about 8 April 1997 the appellant lodged with the respondent an application for building approval in respect of the second dwelling. The plans and specifications accompanying his application were not in evidence, nor was there evidence going to their conformity or otherwise with the architectural plan accompanying the application for development consent or to whether they contained the amendments and details called for by the conditions of the development consent.
The two year period after which the development consent would lapse expired two days after the application for building approval was lodged. By a letter to the appellant’s wife date dated 4 July 1997, after referring to the application for building approval the respondent said -
“Your application to extend the Development Consent by 1 year is being considered by Council and you will receive a reply within two weeks.
The plans submitted with your Building Application require amendment to reflect the ground levels of the site.
I would suggest that you withdraw your Building Application at this time and resubmit it at a later date with plans that provide accurate details of the driveway.
If Council determines the application and it is refused no fees can be refunded.”
What then happened about the application for building approval can be seen only indirectly. An internal memorandum of the respondent dated 15 September 1997 directed to its accounts department stated, “Please refund $330 for Building application 139-97. Cancellation due to Development Consent lapsing.” An endorsement on the memorandum indicated that $330 was refunded on 10 October 1997. It should be inferred, in my opinion, that the respondent did not determine the application for building approval, and that the appellant withdrew it as suggested in the letter of 4 July 1997. The perceived reason for the withdrawal may have been that at the time the development consent had lapsed, rather than that the plans were deficient, but if the respondent had determined the application for building approval adversely to the appellant on the ground that the development consent had lapsed it appears that it would not have refunded the $330. The trial judge in the present case referred to the application for building approval as withdrawn.
Referring again to Green v Kogarah Municipal Council, on 7 July 1997 the respondent resolved that consideration of the application for an extension of the development consent be deferred so that the appellant could provide a site plan detailing certain levels and dimensions material to the second dwelling; on 5 September 1997 the respondent resolved to refuse the application for an extension because the appellant had not provided the plan; the appellant appealed to the Land and Environment Court; and on 6 March 1998 Talbot J upheld the appeal. Accordingly, the development consent remained in force until the expiry of one year from 6 March 1998.
On 2 February 1999 the appellant applied for a subdivision certificate under s 109C(1)(d) of the Environmental Planning and Assessment Act as it stood in February-March 1999 (“the Act (1999)”). For this purpose, it seems, the appellant had caused to be prepared the 1998 plan of subdivision. On 1 March 1999 the respondent’s Development Assessment Committee resolved that the respondent “release and sign the subdivision linen plans and issue the subdivision certificate for 40 Algernon Street, Oatley on payment of the section 94C contributions”. Notice was given of an intention to move a motion of rescission at the next meeting of the Council. On 8 March 1999 the respondent resolved to defer debate and that “on receipt of further legal advice the matter be reported back to Council”. The evidence did not indicate the outcome.
The activities in February-March 1999
In August 1998 the appellant’s surveyor had prepared a survey establishing the 30 metre foreshore building line applicable to the site. The surveyor had also pegged out the foundations for the second dwelling (as to which see more below). Between September 1998 and the beginning of March 1999 some scrub and small trees within the footprint of the proposed building had been removed.
On 26 February 1999 the surveyor replaced some pegs which had been disturbed in the clearing work.
On 1 March 1999 the appellant had a labourer dig some trenches ostensibly for the footings for the second dwelling. The excavation for the footings was incomplete, in that at some points the load-bearing material was already exposed and was left undisturbed. The appellant caused his engineer to attend at the site on 5 March 1999, and the engineer wrote a letter addressed to the respondent stating -
“The footings excavation, at the subject project, has been inspected and the foundation material is considered to be of a load bearing capacity of at least 600 kPa rock which is considered adequate for the proposed dwelling under construction”.
The position of the excavations was not appropriate for the building shown in the architectural plan submitted to the respondent with the development application. First, compliance with the condition requiring amendment to the development reducing the height of the building and setting it back wholly behind the 30 metre foreshore building line meant that the second dwelling had to be moved at least approximately 500mm closer to Algernon Street and 600mm closer to one of the side boundaries of the land. Secondly, because it almost filled the width of the land this in turn meant that the second dwelling could not be of the dimensions indicated on the architectural plan. Of course, greater movement could have had more radical consequences, but the second building had at least to be made approximately half a metre narrower, with potential impact on its internal configuration and overall design. Thirdly, and apparently due to a survey error, the excavations would provide footings for a building approximately 1.7 metres narrower (across the land) and 3.5 metres shorter (down the land towards the Georges River) than the building depicted on the architectural plan accompanying the development application. (This last matter was disputed in the evidence, but was accepted by a finding that due to a survey error “the proposed building would be narrower than that shown on the plan”.)
The surveyor provided to the appellant a letter dated 26 August 1999 in which he said that on 5 March 1999 he checked and confirmed “that the footing foundations for the new residence had been correctly excavated”. The only plan the surveyor held was the architectural plan accompanying the development application, and whatever he had pegged out in August 1998 and considered to be correct in March 1999 could only have been a similar building moved in its location on the land to accommodate the condition requiring amendment to the development. Even then, the footings had not been correctly excavated. Little weight can be given to the surveyor’s letter.

On 2 March 1999 the appellant began to cut down or lop trees on the site. The tree in the position of the tree marked on the plan as to be removed was removed. So also, it seems, was at least one of the trees indicated on the plan as to be retained, because according to the evidence all trees were removed from within the excavations for footings.
On 3, 4 and 5 March 1999 the appellant had a drainage contractor dig a trench line for a drainage pipe and a silt arrestor pit. Two 100mm PVC pipes were placed in the trench, one running from the first lot and the other from approximately where the second dwelling would be situated. The drainage contractor charged the appellant $2,120.00. The trench line followed the course of the drainage easement on the 1998 plan of subdivision.
Officers of the respondent inspected the site on 4, 5 and 8 March 1999. One of the officers wrote a letter dated 12 March 1999 stating -
“Photos indicated that the following works had been carried out prior to the expiry of the consent.
1.Drainage lines and pits installed along western boundary. The 100 mm PVC pipes service the existing premises and were provided to hook up the new dwelling when constructed.
2.Excavation on the footprint of the dwelling down to bedrock to enable building work to commence.
3.Trees removed from inside the building footprint.
4.Sediment control fence erected along the southern boundary (not visible from photos).”
What was said about excavation on the footprint of the dwelling must be read as subject to what I have earlier said. In an internal memorandum of the respondent dated 8 March 1999 it was said, “Silt fence along bottom of site is satisfactory”. This appears to have been the same as the sediment control fence to which the letter referred.
The new statutory context
By March 1999 the Act (1995) had been substantially amended. The successor in the Act (1999) to s 76 of the Act (1995) was s 76A, by which -
“If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a)such a consent has been obtained and is in force, and
(b)the development is carried out in accordance with the consent and the instrument.”
The definition of “development” in s 4 of the Act (1999) was expanded, but relevantly included “the subdivision of land”, “the erection of a building” and “the carrying out of a work”. There was a provision as to “the carrying out of development” equivalent to that in the Act (1995). It was common ground that as at February-March 1999 consent would be necessary for the development for which the appellant had earlier obtained consent.
“Work”, “a work” and “the carrying out of a work” were still not defined or described in the Act (1999) in a manner presently relevant.
It is not necessary to detail the provisions of the Act (1999) in relation to the making of a development application and granting of development consent. The appellant’s development consent remained in force notwithstanding the new provisions (see s 109B).
The lapsing of a development application was dealt with in ss 95 and 95A of the Act (1999), provisions similar in content to s 99 of the Act (1995). Specifically, the equivalent to s 99(4) was s 95(4), in the same terms as its predecessor. In the Act (1999) “building work” was defined to mean “any physical activity involved in the erection of a building”. “Engineering work” and “construction work” were still not defined; the definition of “building” was expanded but for present purposes unchanged; and “structure” was still not defined.
The common ground in the appeal included that transitional provisions accompanying the principal amendments to the Act (1995) in 1998 meant that the lapsing of the appellant’s development consent fell to be considered under the Act (1999). Reference was made to cl 22(2) of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (“the 1998 regulation”), by which an extension granted under s 99 of the Act (1995) is taken to be an extension granted under s 95A of the Act (1999). As I have said, the key provision, s 95(4) of the Act (1999), is in the same terms as s 99(4) of the Act (1995).
The Act (1999) largely took over regulation of building approvals and subdivision approvals. It enabled combined application for development consent and other approvals (s 78A(3)), so that separate application for the approvals was not required. It is not necessary to go into the Act (1999) in this respect, or into underlying amendments in relation to building applications and subdivision approvals. By cll 5 and 36 of the 1998 regulation applications for subdivision approval and for building approval respectively could be made until 1 July 1999 as if the rump of the Local Government Act 1919 had not been repealed and the Act (1995) had not been amended. The common ground in the appeal included that the references to building approval and subdivision approval in the appellant’s development consent remained meaningful as at March 1999.
The decision at first instance
The appellant brought class 4 proceedings in the Land and Environment Court, seeking declarations and orders founded on the development consent still being in force because s 95(4) of the Act (1999) was satisfied by his activities in February-March 1999 (“the activities”) and the development consent had not lapsed. In a judgment delivered on 6 December 1999 Cowdroy J ordered that the proceedings be dismissed with costs. His Honour gave two grounds for his decision, and contemplated a third ground.
The first ground rested upon the decision of this Court in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 123.
Cowdroy J considered that in the absence of building approval the activities, said by the appellant to be building, engineering or construction work, could not qualify as such because the work could not be carried out without building approval. His Honour said -
“The difficulty in the applicant’s submission lies in the fact that there was no ‘building’ to which any work relied upon could be referable as required by s 95(4) of the Act. The terms of that subsection are predicated upon building or engineering or construction work being undertaken in relation to a building which can be constructed lawfully. The consent was made expressly conditional upon the submission of a building application for the work comprising the development. The conditions as set out above make it clear that council’s approval was required before the commencement of any building work.
In these circumstances any work that was undertaken on the site could not be work to which the provisions of s 95(4) apply. In Irongates [sic] Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 the New South Wales Court of Appeal held that work of an engineering nature undertaken by a developer in the absence of approval by the council of engineering plans could not be regarded as building, engineering or construction work relating to the development. Handley JA said at 135 -
‘In my opinion the work in question was not work “relating to that development” for the purpose of s 99(2)(a) because it was prohibited by the consent, and was therefore not “the subject of that consent” within s 99(1)(a).’
Section 99 of the unamended Act is the equivalent of s 95 of the Act. Work in that case was ‘prohibited’ because it was carried out contrary to the requirements of the consent. Similarly in the present case any work undertaken could not be work “relating to” the proposed dwelling for the reasons stated by Handley JA.”
His Honour came to the same conclusion having regard to other conditions in the development consent. He said -
“The consent makes it apparent that the proposed development was to take place provided that the conditions therein were satisfied. It is plain that a building application and approval was required before building work commenced and that the preliminary steps be undertaken to ensure that environmental issues such as protection of trees (condition no 10) and silt retention measures be provided (condition no 17). Although the applicant has submitted to the contrary, there is no distinction between the circumstances confronting this Court compared to those before the New South Wales Court of Appeal in Irongates. It follows that the applicant was prohibited from undertaking work for the development in breach of the conditions of the consent.”
The provision material to the decision in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc, to which his Honour referred as “Section 99 of the unamended Act”, was the predecessor to s 99 of the Act (1995). It will be necessary to refer to its terms in more detail, and they may conveniently now be set out to the extent necessary; I also will refer to the provision as s 99 of the unamended Act -
“99(1) A consent granted under this Division to a development application shall lapse -
(a)unless the development the subject of that consent is commenced -
(i)… within two years … of the date upon which that consent becomes effective …
(2) For the purposes of subsection (1)(a) -
(a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work) of land … that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies … ”
For the second ground, his Honour considered that the work on which the appellant relied was purely preparatory, and did not constitute “building, engineering or construction work” irrespective of its relationship to the proposed second dwelling. His Honour referred to a number of authorities on the concept of substantial commencement found in a more distant predecessor to s 95(4) of the Act (1999), s 315 of the Local Government Act 1919. He noted that Cripps J “applied such principle to the provisions of s 99 of the unamended Act” in Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170. From those authorities his Honour took that he was entitled to consider whether the work relied upon was purely preparatory work, which he said involved a consideration of the nature and extent of the work performed compared to the work to complete the project. It is evident that his Honour’s conclusion was influenced by the facts that there were no approved building plans and that “none of the work undertaken is referable to any building specification which has been considered by council”.
Cowdroy J also noted the respondent’s submission to the effect that the appellant had contravened s 22B of the Rivers and Foreshores Improvement Act 1948, in that he had carried out excavations within 40 metres of the Georges River without a permit, and that the appellant could not rely on the excavation work for the purposes of s 95(4) of the Act (1999) because he would be relying on his own wrong. His Honour recorded the respondent’s citation of Alghussein Establishment v Eton College (1988) 1 WLR 587 and TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130. He said that “this is not a matter which needs to be determined in these proceedings in view of the findings already made”.
The Iron Gates ground
In Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc the Council had granted development consent for the subdivision of land on 20 October 1988. The subdivision was to take place in four stages. The development consent was subject to a condition, Condition 2, that the road proposed in an associated development application “be constructed in accordance with any conditions of consent imposed prior to the commencement of stage 1”. Some work of clearing and removal of top soil was carried out on the land, which the owner of the land contended was commencement within s 99 of the unamended Act. The necessary terms of that provision have been set out earlier in these reasons.
Handley JA, with whom Mahoney JA and Rogers AJA agreed, said (at 134-5) -
“The work done on the subject land prior to 21 October was associated with stage 1 of the project. The judge held that condition 2 of the development consent prohibited any work on stage 1, including setting out the internal access road, until the external access road had been constructed. There was no dispute that the external access road had not been constructed. In these circumstances the judge concluded that the developer ‘may not be permitted to rely on the work done on the subject site because it was done unlawfully in breach of condition 2’.
Senior counsel for the appellant did not challenge the construction of condition 2 accepted by the trial judge or question the validity of the condition. His submission to this Court was that the physical work done on the site in breach of condition 2 was nevertheless work ‘relating to that development’ for the purposes of 99(2)(a) , so that ‘the development the subject of [the] consent’ had been commenced in time.
The imposition of conditions on the grant of development consent is authorised by s 91 and such conditions are enforceable as if they were part of the Act: see ss 122(b)(iii), 123, and 125. In my opinion the work found to be engineering work which was relied upon by the appellant to save its consent from lapse was prohibited and illegal and the persons offending against that prohibition were guilty of offences against the Act for the purposes of s 125(1). It is not necessary in this case to explore the possible application of the principle that a person may not rely upon his own wrong: compare Alghussein Establishment v Eton College [1988] 1 WLR 587. In my opinion the work in question was not work ‘relating to that development’ for the purposes of s 99(2)(a) because it was prohibited by the consent, and therefore was not ‘the subject of that consent’ within s 99(1)(a).”
His Honour went on to note that the conclusion to which he had come had been reached by the courts in England on the corresponding provisions of the Town And Country Planning Act 1971 (UK), referring to Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35 at 41; Oakimber Ltd v Elmbridge Borough Council (1991) 62 P & CR 594 at 609, 616; and F G Whiteley & Sons Ltd v Secretary of State for Wales (1992) 64 P & CR 296. He cited a passage from the last of these cases in which it was said that if operations contravened the conditions “they could not properly be described as commencing the development authorised by the permission”. His Honour concluded that the subdivision consent lapsed on 21 October 1991.
The reasoning of Handley JA was that the work on which the owner of the land relied was prohibited by the development consent and illegal. Being so prohibited and illegal, it was not work “relating to that development”: it could not properly be described as commencing the development. It therefore could not be said that “the development the subject of that consent” had commenced. Why was the work prohibited by the development consent? On the construction of condition 2 accepted by the trial judge, and unchallenged on appeal, the condition prohibited any work on stage 1 until the external access road had been constructed. The external access road, being the road proposed in the associated development application, had not been constructed. So the prohibition stood, and was given effect because a breach of the unamended Act could be restrained (s 123) and was an offence (s 125), a breach of the unamended Act including a breach of a condition subject to which a development consent was granted (s 122(b)(iii)).
It will be noted that the reasoning involved a prohibitory effect of the condition of the development consent itself. Condition 2 in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc did not in terms prohibit work on stage 1. It said that the road had to be constructed before stage 1 could be commenced. The unchallenged construction of condition 2 was therefore important.
In Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 one of the issues was whether a development consent for the emplacement of coal refuse had lapsed. The material provision was s 99 of the unamended Act. The development consent had been granted on conditions which included that the owner of the land enter into a particular deed with the Minister “prior to the commencement of any work on the land in relation to the proposed development” (condition 9) and that an operations manual to do with the emplacement be prepared and submitted for the approval of the Council “prior to the commencement of construction of the proposed development” (condition 13). Neither of these things was done. The owner of the land relied on work it had carried out prior to the lapsing date by way of commencement of the development. It was held, by Stein JA and Hodgson CJ in Eq in separate reasons with Meagher JA agreeing with both, that the development consent had lapsed.
Stein JA said (at 256) that the conditions were clear, and that compliance with them was a precondition to work commencing on the site. After citing from Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc, his Honour said (at 257) -
“Although this case was decided in 1992, it is my respectful opinion that the interpretation of the provision, included in the statute in 1979, was obvious. That is, that work done unlawfully under the consent cannot count as commencement to prevent the lapsing of a consent under s 99. Applying Iron Gates means that none of the work done on the site from July 1984 up to November 1985 can be taken into account. That work was performed in breach of the consent because it occurred before either condition 9 or 13 were complied with. Both conditions were required to be complied with prior to the commencement of any works on the land. As I have said, they were preconditions to any work taking place on the site.
It must follow that the consent lapsed on 9 November 1985 pursuant to s 99 of the Act because it had not been physically commenced within two years.”
Hodgson CJ in Eq said (at 262-3) -
“In my opinion, if there is a requirement that one do X before one does Y, this normally means one is required not to do Y until one has done X; so that if one in fact does Y before doing X, there is a breach of the requirement which can be characterised both as ‘failing to do X before one did Y’ or as ‘doing Y in circumstances where one had not previously done X’; and there is a breach of the requirement under the latter description just as much as the former.
There may however be some cases in which a requirement to do X before one does Y is not fairly interpreted as a requirement not to do Y until one has done X: for example, if it is plain between the giver and receiver of the requirement that if, for whatever reason, the receiver does not do X before the expected time comes to do Y, the receiver should nevertheless go ahead and do Y. As one instance of this, if a parent says to a child ‘tidy your room before you go to school’, both may understand very well that if the room is not tidied before the proper time for going to school, the child should nevertheless go to school at the proper time. In such a case, the failure to tidy the room would be a breach of the requirement, whereas going to school at the proper time would not be, even if the room had not then been tidied. If the proper time for going to school was 8 am, the instruction would be interpreted as a requirement to tidy the room before 8 am and not as a requirement to refrain from going to school at 8 am if the room was not then tidy. By contrast, an instruction by a parent to a child to ‘finish your homework before you watch television’ would most likely be understood as meaning ‘do not watch any television until you have finished your homework’.
In the case of both condition 9 and condition 13, I think it is clear as a matter of construction that Kembla was required to refrain from commencement until it had done what those conditions had required. There is no basis in the consent or in the circumstances for any suggestion of a common understanding that commencement was to go ahead at some expected time, even if these things had not been done by them. On the contrary, having regard to the significance of the requirements, and the difficulties that could arise (and in the case of condition 9 at least, did arise) if they were not attended to before commencement, the terms of the consent and the circumstances in fact confirm that Kembla was required not to commence before complying with the requirements of condition 9 and condition 13.
Accordingly, as found by Stein JA, all work done by Kembla was unlawful, and the Iron Gates principle applies.”

Section 95(4) of the Act (1999) is in different terms from s 99 of the unamended Act. It does not speak of work “relating to that development”, instead speaking of work “relating to the building, subdivision or work”. It does not speak of commencement of “the development the subject of that consent”, instead speaking of the physical commencement of building, engineering or construction work “on the land to which the consent applies”. These differences do not, in my opinion, detract from the application of the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. If the building, engineering or construction work in question was prohibited and illegal, it was not work “relating to the building, subdivision or work”, that is, the building, subdivision or work the subject of the development consent; it could not properly be described as commencing the building, subdivision or work the subject of the development consent.
The Act (1999) contained provisions equivalent to ss 122(b)(iii), 123 and 125 of the unamended Act, see its ss 122(b)(iii), 123 and 125. Accordingly, on the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc if the activities were prohibited by the development consent and illegal, the appellant’s development consent was not saved from lapsing.
It is convenient first to refer to condition 3 of the development consent, concerning the submission of a building application, to which much of the argument in the appeal was directed. The appellant submitted that condition 3 was not in truth a condition, but simply a reminder that a building application was necessary; that if condition 3 was in truth a condition, it was not a condition the imposition of which was authorised by s 91(3) of the Act (1995); that the condition had been satisfied according to its terms, because a building application had been lodged on 8 April 1997 even though it may have been withdrawn; that on the proper construction of the development consent the condition did not have the effect of prohibiting the carrying out of the development if it was not satisfied; and that in any event the activities did not fall within any prohibition which might be found on the proper construction of the development consent.
I do not think it necessary to address this array of arguments in relation to condition 3. The last two submissions were in substance taken up in relation to other conditions, to which I now go. It is there that the outcome of the appeal sufficiently lies.
For the other conditions of the development consent, it is enough to refer to condition 10 concerning tree protection and condition 17 concerning silt protection devices. They were expressed as conditions to be satisfied prior to the commencement of any site works and prior to commencement of land clearing and construction works respectively. The language was the same as that in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning.
In my opinion conditions 10 and 17 were conditions which, as a matter of construction of the development consent, had the effect of prohibiting the commencement of any site works and the commencement of land clearing and construction works. To adopt the analysis by Hodgson CJ in Eq in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning, their requirements to do X before doing Y amounted to requirements not to do Y until X had been done. There was therefore a prohibition, indeed there were two prohibitions. If the conditions were not satisfied and the activities on which the appellant relied fell within the prohibitions, on the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc the appellant’s development consent lapsed notwithstanding the activities.
Condition 17 may or may not have been satisfied. The sediment control fence or silt fence said by a council officer to be satisfactory did not necessarily constitute provision of silt control devices in the vicinity of the building site as required by the condition. This was not really investigated at the trial and was not the subject of an express finding, although the tenor of what Cowdroy J said in the second passage from his reasons earlier set out was that silt retention measures had not been provided as required.
I put condition 17 aside, and turn to condition 10. It is plain that there were trees on the site outside the footprint of the second dwelling as cleared in March 1999, and that they were not enclosed with protective fencing as required by condition 10. Cowdroy J inferentially so held, see the same passage from his Honour’s reasons, and the fact is clear. If the activities were site works, therefore, they were prohibited. On the ordinary meaning of the phrase, I consider that they were site works. The objective of condition 10 was that the trees on the site should be protected while any work was carried out, and that called for protection from the beginning and at least from when the clearing and excavation was carried out early in March 1999. On the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc, then, the appellant’s development consent lapsed notwithstanding the activities.
The respondent submitted that there was an alternative basis for prohibition of the activities, a basis otherwise taking up the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc and leading to the same result. On the facts in that case, it was said, when the owner of the land commenced stage 1 by carrying out the physical work of subdivision it did so without development consent, because although development consent had been granted the carrying out of the development was conditioned on the happening of an event, namely, the construction of the road. Quite apart from a prohibition by the development consent itself, there was a prohibition because the development could only be carried out with development consent and in accordance with any conditions of the development consent, see s 76 of the unamended Act (which remained as s 76 of the Act (1995) set out earlier in these reasons). So in the present case, as the argument related to condition 10 of the development consent, if that condition had not been satisfied and the activities were carrying out development within s 76 of the Act (1995) or s 76A of the Act (1999) (it did not matter which was taken), because they were the erection of a building, the subdivision of land or the carrying out of a work, the activities were prohibited and illegal.
This alternative basis still required that the activities were site works, since the carrying out of the development had to be conditioned on the happening of an event, as related to condition 10 the provision of tree protection, prior to the commencement of any site works. It differed from the basis in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc in that the development consent did not have to contain a prohibition within itself - it was enough that the activities were not authorised by the development consent.
The alternative reasoning gains support from the English cases cited by Handley JA in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. In particular in F G Whiteley & Sons v Secretary of State for Wales Woolf LJ said (at 302) -
“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. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities. It is a principle which I would have thought made good sense since I cannot conceive that when section 41(1) of the 1971 Act made the planning permission subject to a condition requiring the development to be begun by a specified date, it could have been referring to development other than that which is authorised by the permission. The position is the same so far as regulation 7 and condition 11 are concerned. 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.”
Handley JA cited all but the first sentence of this passage. While the basis for the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc involved the prohibitory effect of the condition of the development consent itself, the principle which his Honour thereby accepted extended the reasoning to prohibition because the development which the landowner claimed to have commenced was not “permitted by the planning permission read together with its conditions”.
To my mind this is a more satisfactory basis for the reasoning. Even if a development consent on its proper construction amounts to a requirement not to do Y until X has been done, it is necessary to ask why the landowner is precluded from doing Y in the first place - why there can be imposed the precondition of doing X. The answer is that Y can not be done without consent, and the underlying prohibition is the prohibition on carrying out the development without consent.
The appellant responded that the activities were not carrying out development, for which consent was required. He sought to walk a fine line. The activities were not themselves carrying out development, he said, because they were not building work. He said that they were engineering work or construction work, so s 95(4) of the Act (1999) was fulfilled, but he eschewed the description of building work, it seems in part to avoid any suggestion that condition 3 of the development consent stood in his path but also to defeat the respondent’s alternative basis. The appellant categorised the activities as engineering work or construction work preparatory to carrying out a development - pegging out, clearing, excavating for footings, digging drainage trenches, making provision for silt control - but not as themselves carrying out development.
Perhaps the appellant’s response should have addressed erection of a building, not building work, as it may be that there is a difference between “building work” within s 95(4) of the Act (1999), relevant when considering lapse of a development consent, and “the erection of a building” part of the definition of development and the carrying out of development in the Act (1995) or the Act (1999), relevant when considering the need for development consent. Any distinction is blurred by the definition of building work in the Act (1999). Excavation for the footings of a building can constitute building, engineering or construction work for the purposes of lapse of a development consent (see for example North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41 at 45; Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 361; and as an illustration of ordinary usage, the engineer’s letter to the respondent referring to the second dwelling as “under construction”). Can it, and the other of the activities, constitute erection of a building when considering the need for development consent?
The concept is carrying out development, relevantly erection of building, the act or process as distinct from the product of the act or process. In my opinion it would be unrealistic to sever work of the nature of the activities from later steps in the erection of the second dwelling on the appellant’s land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work. The erection of the second dwelling would begin with clearing of the site, pegging out, and digging trenches for footings; then or at later times there would be silt control measures and the digging of trenches for drainage pipes. Clearing to make a garden or digging for a fish pond may not be erection of a building, but the totality of the activities and their purpose informs the nature of the activities: so in North Sydney Municipal Council v Middle Harbour Investments Pty Ltd Hardie J said (at 45) that “The laying of the foundation was the most important and substantial part of the work; it was fundamental to and the first essential step in the building process …”.
In the present case the scope and purpose of the activities was the erection of the second dwelling. In my opinion, as a matter of fact, the activities were part of the erection of a building, and were for that reason carrying out a development. The appellant’s response can not be accepted. On the respondent’s alternative basis, because condition 10 was not complied with the activities were prohibited and illegal. The appellant’s development consent lapsed notwithstanding the activities.
If this be incorrect, in my opinion the activities constituted carrying out of a work when considering the need for development consent. The definition of “development” in the Act (1995) included the carrying out of a work in, on, over or under the land and the definition in the Act (1999) included the carrying out of a work. As I have indicated, the concept of work, a work or the carrying out of a work is not greatly elucidated in other definitions. “Work” refers to something done to the land itself, the physical result of labour done on land (Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 24-5), but again attention must be focussed on the act or process. It is a question of fact and degree: in Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25, speaking of depositing filling on land, Street J said (at 31) -
“As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as ‘work’, and thus a ‘development’, within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a ‘work’. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a ‘work’. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance.”
In my opinion the activities, whether or not they be categorised as only engineering work or construction work, were of such significance and for such a purpose that they constituted the carrying out of a work within the definition of “development” in either the Act (1995) or the Act (1999). Because condition 10 was not complied with, again they were prohibited and illegal, and the appellant’s development consent lapsed notwithstanding the activities.
I have no doubt that the submissions on appeal were more wide ranging and more detailed than those made to Cowdroy J. Although at more length, I have come to the same conclusion as his Honour. In my opinion the appellant’s development consent lapsed at the expiry of one year from 6 March 1998.
The other grounds
In these circumstances it is unnecessary to deal with the other ground on which the decision of Cowdroy J was based, or the ground left open by his Honour.
I should add, however, that I have some doubt about his Honour’s apparent acceptance of substantial commencement as a principle applied by Cripps J to s 99 of the unamended Act in Smith v Wyong Shire Council (No 3). Cripps J did refer to substantial commencement and cited from a number of decisions on s 315 of the Local Government Act 1919. He did so, however, in the context of a submission that what had been done was not relevantly referable to that for which consent was granted. His Honour said (at 174-5) that, whatever might have been the position under that Act “the matter is now regulated by s 99”. It is necessary to adhere to the language of (now) s 95(4) of the Act (1999), which speaks not of substantial commencement but of physical commencement.
The result
I propose that the appeal be dismissed with costs.
IPP AJA: I agree with Giles JA.
_________

LAST UPDATED: 07/05/2001