Huang v Waterhouse - [2025] NSWLEC 71

Land and Environment Court

New South Wales

Medium Neutral Citation: Huang v Waterhouse [2025] NSWLEC 71
Hearing dates: 14 November 2024
Date of orders: 4 July 2025
Decision date: 04 July 2025
Jurisdiction: Class 4
Before: Pritchard J
Decision:
The Court makes the following orders:
(1) Declare that development consent 795/2006/1 granted by Woollahra Municipal Council on 26 June 2007, for “alterations and additions to existing garage / studio” at 6 Tivoli Avenue, Rose Bay lapsed on 26 June 2012.
(2) The first respondent to pay the applicant’s costs as agreed or assessed.

Catchwords:
ENVIRONMENT AND PLANNING – Consent – Construction – Whether certain conditions of development consent required compliance prior to undertaking work comprising part of the approved development – Whether work related to the approved development prevented its lapse – s 95 of the Environmental Planning and Assessment Act 1979 (NSW) — Whether work could be said to have physically commenced – Conditions required compliance prior to the work undertaken – Modification, revocation or review — s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) – Forming state of satisfaction that development was substantially the same — Whether decision to approve modification was manifestly unreasonable – Discretion

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) (as in force between 1 March 2007 and 4 July 2007) s 95
Environmental Planning and Assessment Act 1979 (NSW) (as in force on between 13 March 2012 and 6 July 2012) s 95
Environmental Planning and Assessment Act 1979 (NSW) (as in force between 1 January 2024 and 1 July 2024) s 4.55
Environmental Planning and Assessment Amendment (Development Consents) Act 2010 (NSW)
Environmental Planning and Assessment Regulation 2021 (NSW) s 96
Local Government Act 1993 (NSW)
Woollahra Residential Development Control Plan 2003 (NSW) (repealed)
Woollahra Local Environmental Plan 1995 (NSW) (repealed)
Woollahra Local Environmental Plan 2014 (NSW)

Cases Cited:
Arrage v Inner West Council [2019] NSWLEC 85
Ashmere Cove Pty Ltd v Beekink(No 2) (2007) 244 ALR 534; [2007] FCA 142
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26
Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59
Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171
Bourne v, Swan and Edgar Ltd [1903] 1 Ch 211
Cameron v Woollahra Municipal Council [2024] NSWCA 216
Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limed and Minister for Mineral Resources (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401
Coalcliff Community Association Inc. v Minister for Urban Affairs and Planning (1999) 206 LGERA 243; [1999] NSWCA 317
Conservation of North Ocean Shores Inc v Byron State Council (2009) 167 LGERA 52; [2009] NSWLEC 69
Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1; [2014] NSWCA 364
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48
Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1; [2002] NSWCA 404
Fabemu(No 2) Pty Ltd v Kiama Municipal Council (2023) 258 LGERA 229; [2023] NSWLEC 79
Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227
FG Whitley and Sons v Secretary of State for Wales (1992) 64 P&CR 296
Franklins Ltd v Penrith City Council [1999] NSWCA 134
Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30
Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123
Hitchcock v Reed [2022] NSWLEC 81
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; (2005) 140 LGERA 201; [2005] NSWCA 169
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132
Johnco Nominees vAlbury-Wodonga (NSW) Corporation (1977) 1 NSWLR 43
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23
King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505
Macquarie Units Pty Ltd v, Suchen Pty Ltd [2023] NSWCA 116
Manly Council v Hortis (2001) 113 LGERA 321; [2001[ NSWCA 81
Manning v Bathurst Regional Council (No 2) (2013) 199 LGERA 147; [2013] NSWLEC 186
May v Northern Beaches Council [2023] NSWCA 205
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; (1986) 54 LGRA 403; [1986] HCA 40
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; (1972) 26 LGRA 437; [1972] HCA 21
Parramatta City Council v Hale (1982) 47 LGRA 319
SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66
Sutherland Shire Council v Benedict [2017] NSWLEC 4
Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 59
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; (2015) 208 LGERA 361; [2015] NSWCA 158
Upper Hunter Sustainable Industries Association Inv v MACH Energy Australia Pty Ltd (No 2) (2017) 224 LGERA 261; [2017] NSWLEC 87
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Woollahra Municipal Council v Cameron [2024] NSWLEC 27
Young v Warringah Shire Council (2001) 117 LGERA 62; [2001] NSWLEC 208
Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277

Category: Principal judgment
Parties: Mincong Huang (Applicant)
David Richard Charles Waterhouse (First Respondent)
Woollahra Municipal Council (Second Respondent) (Submitting Appearance)
Michael Clive Rothner (Third Respondent) (Submitting Appearance)
Representation:
Counsel:
N Eastman SC and J Farrell (Applicant)
FM Douglas KC and D Allen (First Respondent)
Solicitors:
McCullough Robertson Lawyers (Applicant)
Ad Valorem Law (First Respondent)
Wilshire Webb Staunton Beattie Lawyers (Second Respondent) (Submitting Appearance)
Boskovitz Lawyers (Third Respondent) (Submitting Appearance)

File Number(s): 2024/00132772

JUDGMENT

Introduction

By summons filed on 10 April 2024, Mr Mincong Huang (the applicant) commenced Class 4 proceedings in relation to development consent 795/2006/1 dated 26 June 2007 for “alterations and additions to existing garage/studio” (the 2007 development consent) at lot 24 in deposited plan 2538, also known as 6 Tivoli Avenue, Rose Bay, NSW (the property). The applicant is the registered proprietor of lot 25 in deposited plan 2538 which is to the immediate west of the property, also known as 8 Tivoli Avenue, Rose Bay, NSW.
Mr David Richard Charles Waterhouse (the first respondent) has been the owner of the property since on or about August 2021.
Between 2012 and 2024, the development consent has been subject to four modification applications. On 22 May 2023, the fourth modification application DA 795/2006/5 was lodged with Woollahra Municipal Council (the second respondent) (Council) pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). On 16 January 2024, Council by its delegate Mr Max Moratelli issued a notice of determination approving modification application DA 795/2006/5 (the 2024 modification).
The applicant seeks declarations and orders that:

the 2007 development consent lapsed pursuant to s 95 (as it then was) of the EPA Act (ground 1); and

in the alternative, that the most recent modification of the 2007 development consent, being modification DA 795/2006/5 approved by Council on 16 January 2024 (the 2024 modification) was not lawfully approved and is therefore invalid (grounds 2, 3 and 4)

On 30 June 2023, Mr Waterhouse sold the property to Mr Michael Clive Rothner (the third respondent). The settlement date is on or about 31 July 2025.
On 21 June 2024, the third respondent filed a submitting appearance.
On 3 July 2024, Council filed a submitting appearance. Council is and was at all relevant times a local council constituted under the Local Government Act 1993 (NSW).
The matter was heard before me on 14 November 2024.

Issues

The issues which arise for determination are as follows:

whether the 2007 development consent lapsed, that is five years after the date from which it operated: s 95 of the EPA Act which applied when the consent was granted;

if the answer to (1) is no and the development consent remains operative, whether Council granted the 2024 modification in breach of s 4.55(3) of the EPA Act;

if the answer to (1) is no and the consent remains operative, whether Council formed the necessary mental state of satisfaction, being the state of satisfaction when granting the 2024 modification that the development to which the development consent as modified by the 2024 modification related was substantially the same development for which the consent was originally granted: s 4.55(1A)(b) of the EPA Act; and

if the answer to (1) is no, whether Council’s decision to approve the 2024 modification was manifestly unreasonable.

Outcome

I have determined the issues for determination as follows:

the 2007 development consent lapsed on 26 June 2012; that is 5 years after it was granted on 26 June 2007;

although it is strictly unnecessary to decide because of my determination in relation to the first issue, if it were necessary I would dismiss Ground 2;

although it is strictly unnecessary to decide because of my determination in relation to the first issue, if it were necessary I would dismiss Ground 3; and

although it is strictly unnecessary to decide because of my determination in relation to the first issue, if it were necessary I would dismiss Ground 4.

Evidence

Factual background

The parties tendered a statement of agreed facts (SOAF) filed on 12 November 2024. The background that follows is, in part, derived from the SOAF, in part from the facts and chronology set out in the applicant’s written opening submissions dated 6 November 2024 (in relation to which the first respondent said in his written submissions dated 11 November 2024 he had “no issue”^[1]), and largely from the evidence before the Court.

The properties at 6 and 8 Tivoli Avenue, Rose Bay

1. “…except to point out that the property at 8 Tivoli Avenue, Rose Bay (“the Property”) has been owned by members of the Applicant's family since 2009, and these proceedings are the first occasion on which any challenge has been made to the Development Consent ("DC") granted on 26 June 2007”: first respondent’s written submissions dated 11 November 2024.

The first respondent is the owner of the property at 6 Tivoli Avenue, Rose Bay identified in the image below provided by the applicant in his opening submissions dated 6 November 2024 obtained from the NSW Government Spatial Information Exchange, Six Maps and coloured in yellow with red outline. The applicant is the owner of the adjacent land at 8 Tivoli Avenue, Rose Bay, immediately to the west of the first respondent’s property:

The applicant’s property at 8 Tivoli Avenue has an existing garage at street level. It is to the right of the applicant’s house which is the beige coloured structure shown in part in the image below on the right. The image below was contained in the report titled “Section 4.55 Application Assessment Report” in relation to modification application number DA 795/2006/5 (the s 4.55 assessment report) prepared for Council by Ms L Samuels on or about 16 January 2024.
The development consent the subject of these proceedings proposes alterations and additions to the garage structure on the first respondent’s property, which is shown in the image below on the left.

The 2007 development consent for alterations and additions to existing garage/studio: 26 June 2007

On 26 June 2007, the second respondent by its delegate Mr Mark Schofield:

signed development application assessment report DA 795/2006/1 authored by Mr T Ritevski, Council assessment officer. The report stated, inter alia, that “Council’s development engineer has determined that the proposal satisfied Technical Services concerns, subject to conditions of consent”. Under the heading “CONCLUSION – THE PUBLIC INTEREST”, the report said “The proposal is acceptable against the relevant considerations under s79C and would be in the public interest”; and

issued a notice of determination granting consent to development application 795/2006/1 for "alterations and additions to existing garage/ studio" at the property, subject to conditions annexed to the consent (the 2007 development consent).

Part A of the 2007 development consent is titled “General Conditions”. Condition A.2 provides the following relevant definitions:

Approved Plans mean the plans endorsed by Council referenced by this consent as amended by conditions of this consent.
…
Work for the purposes of this consent means:
a. the use of land in connection with development,
b. the subdivision of land,
c. the erection of a building,
d. the carrying out of any work,
e. the use of any site crane, machine, article, material, or thing,
f. the storage of waste, materials, site crane, machine, article, material, or thing,
g. the demolition of a building,
h. the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land,
i. the delivery to or removal from the site of any machine, article, material, or thing,
j. the occupation of the site by any person unless authorised by an occupation certificate.
Note: Interpretation of Conditions – Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council.
Standard Condition: A2.

Condition A.3 is titled “Approved plans and supporting documents”, and provides relevantly:

Those with the benefit of this consent must carry out all work and maintain the use and works in accordance to the plans and supporting documents listed below as submitted by the applicant and to which is affixed a council stamp “Approved DA Plans” unless modified by any following condition.

Condition A.3 listed architectural plans prepared by Brian Lynch Architect (reference 2006/01 to 2006/09) (the original architectural plans), and a geotechnical report prepared by Jeffery & Katauskas P/L (reference 20836W) dated 31 January 2007. The undated original architectural plans depicted a three-level structure with the following details:

Roof and garage level: a garage at AHD 27.58, storeroom, stair case and roof with a peak at AHD 32.08, with zero side setback to 8 Tivoli Avenue, Rose Bay, and a 270mm dimension to the street, as depicted in the original architectural plans reproduced below:

First floor level: a studio at RL 24.58, bathroom and staircase and rear balconies.

Ground floor: a storeroom at RL 22.18 and staircase.

The original architectural plans contemplated a structure that was to be 10m in height, with a zero side setback to 8 Tivoli Avenue, Rose Bay, somewhat taller than the adjacent dwelling house, that of the applicant at 8 Tivoli Avenue, Rose Bay.
Part B of the 2007 development consent is titled “Conditions which must be satisfied prior to the demolition of any building or construction”. Condition B.1 provides as follows, inter alia, in relation to the requirement for a construction certificate prior to any demolition:

B.1 Construction Certificate required prior to any demolition
Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is “commencement of execution of building” pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act.
Note: See Over our Dead Body Society Inc v Byron bay Community Association Inc [2001] NSWLEC 124
Standard Condition: B1

Part C of the 2007 development consent is titled “Conditions which must be satisfied prior to the issue of any construction certificate”. Condition C.1 is titled “Modification of the details of the development (s80A(1)(g) of the Act)”, and provides, inter alia, in relation to the detail required to be provided in the construction certificate plans:

The approved plans must be amended and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail:
- the proposed works to the ground and first floors are to be setback from the north western boundary the same distance the existing north western wall of the garage is setback from this boundary …

Condition C.5 provides as follows in relation to the professional engineering details to be included in the construction certificate plans and specifications:

Condition C.5 Professional Engineering Details
The Construction Certificate plans and specifications, required by clause 139 of the Regulation, must include detailed professional engineering plans and specifications for all structural, electrical, hydraulic, hydro-geological, geotechnical, mechanical and civil work complying with this consent, approved plans, the statement of environmental effects and supporting documentation.
Detailed professional engineering plans and specifications must be submitted to the Certifying Authority with the application for any Construction Certificate.
Standard Condition: C36

Part D of the development consent is titled “Conditions which must be satisfied prior to the commencement of any development work”. Condition D.2 provides as follows in relation to the dilapidation report to be prepared, completed and submitted to Council with the notice of commencement and prior to the commencement of any development work at 8 Tivoli Avenue, Rose Bay:

D.2 Dilapidation reports for existing buildings
Dilapidation surveys must be conducted and dilapidation reports prepared by a professional engineer (structural) of all buildings on land whose title boundary abuts the site and of such further buildings located within the likely “zone of influence” of any excavation, dewatering and/or construction induced vibration.
These properties must include (but is not be limited to):
a. No. 8 Tivoli Ave Rose Bay
The dilapidation reports must be completed and submitted to Council with the Notice of Commencement prior to the commencement of any development work.
Where excavation of the site will extend below the level of any immediately adjoining building the principal contractor or owner builder must give the adjoining building owner(s) a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s 81A(2) of the Act not less than two (2) days prior to the commencement of any work.

Standard Condition: D4

Condition D.8 provides as follows in relation to the principal contractor or owner builder setting out, prior to the commencement of any work, by a registered surveyor of boundaries of the site, the location and level of foundation excavations, the establishment of a permanent datum point and the provision of a copy of a survey report by the registered surveyor to the Principal Certifying Authority under the EPA Act (PCA) (emphasis added):

D.8 Establishment of boundary location, building location and datum
Prior to the commencement of any work the principal contractor or owner builder must ensure that a surveyor registered under the Surveying Act 2002 sets out:
a. the boundaries of the site by permanent marks (including permanent recovery points);
b. the location and level of foundation excavations, footings, walls and slabs by permanent marks, pegs or profiles relative to the boundaries of the land and relative to Australian Height Datum (“AHD”) incompliance with the approved plans;
c. establishes a permanent datum point (bench mark) within the boundaries of the site relative to AHD; and
d. provides a copy of a survey report by the registered surveyor detailing, the title boundaries, pegs/profiles, recovery points and bench mark locations as established pursuant to this condition to the PCA.

Note: Where the principal contractor or owner builder notes any discrepancy between the approved development consent and the Construction Certificate, especially in relation to the height, location or external configuration of the building (but not limited to these issues) the principal contractor or owner builder should not proceed until satisfied that the variations as shown are consistent with the consent. Failure to do so may result in a breach of the development consent.
…

The construction certificate: 25 June 2012

On 25 June 2012, Residential Certifying Specialists issued construction certificate CC/151/12 in relation to DA795/2006/1 for “alterations and additions to existing garage/studio” at 6 Tivoli Avenue, Rose Bay (the construction certificate).
On 25 June 2012, Council received a notice of commencement of building work and appointment of principal certifying authority.
Prior to the issuance of the construction certificate, certain work was done on the property referred to in the parties’ submissions as the “D'Ambrosio works” and the “Gregg works”. There is a dispute between the parties as to whether those works were done lawfully so as to commence the 2007 development consent.

Modifications to the 2007 development consent

The 2007 development consent granted on 26 June 2007 was modified by Council’s approval of the following modification applications:

DA795/2006/2 on 14 August 2012;

DA795/2006/3 on 8 February 2018;

DA795/2006/4 on 15 June 2020; and

DA795/2006/5 on 16 January 2024 (the 2024 modification).

Modification application number DA795/2006/5 which resulted in the 2024 modification was lodged with Council pursuant to s 4.55(1A) of the EPA Act on 22 May 2023.
Modification application number DA795/2006/5 included a statement of environmental effects dated 21 April 2023 prepared by MJ Suttie Architects for the first respondent in relation to No 6 Tivoli Avenue (the SOEE). The SOEE records that the first floor studio constitutes a “self-contained dwelling” as it contains a kitchen, bathroom and independent access and that the provisions of cl 5.4(9) of the Woollahra Local Environmental Plan 2014 (NSW) (the WLEP) “permit a self-contained [dwelling] as a secondary dwelling providing that does not exceed 60m2 of 5% of the total floor area of the principal dwelling (approximately 25.53m2 in this instance), whichever is greater”.
On 22 December 2023, Graham McKee of McKees Legal Solutions (McKees) wrote to Council’s delegate, Ms L Samuels, on behalf of the applicant concerning modification application number DA795/2006/5. Mr McKee noted that the amended plans increased the “apparent visual bulk and locate[d] more of the development hard of the boundary of our client’s property”. He also noted that “the original consent was qualitatively and quantitatively different to the original development consent”. I infer that McKees meant to convey that modification application number DA795/2006/5 was different from the original development consent as the letter then noted that “any modification of consent must be considered against the original application as substantially the same development before there is jurisdiction power to approve the consent”.
On or about 16 January 2024, Ms L Samuels prepared the s 4.55 assessment report in relation to modification application number DA795/2006/5. Ms Samuels signed the s 4.55 assessment report; and recommended the application be determined by the grant of consent subject to conditions.
The s 4.55 assessment report noted that submissions concerning modification application number DA795/2006/5 had been provided by McKees on behalf of the applicant, and by Mary-Anne Wiles on behalf of Kambala School. The report outlined the issues raised in these submissions, including that the introduction of a secondary dwelling was not substantially the same development: “The proposal involves alterations and additions to the previously approved studio (secondary dwelling) and is therefore considered to be substantially the same development”. The report noted other issues raised in the submissions provided by McKees and Mary-Anne Wiles on behalf of Kambala School, including building height, overshadowing, that it was unclear whether the application was an application pursuant to s 4.55(1A) or s 4.55(2) of the EPA Act, and that the original 2007 development consent had lapsed. In relation to this last submission, Council noted that “a Notice of Commencement has been submitted to Council and confirms that the consent has not lapsed".
The s 4.55 assessment report described the 2007 development consent and the previous approved modifications, including the 2024 modification:

The 2007 development consent involved “alterations and additions to the existing detached garage/studio structure sited on the north-western corner of the site”.

DA795/2006/2 approved on 14 August 2012 involved the following modifications to the 2007 development consent:

A lift was added and there were “window changes”.

Ground level: a “store and deck” was added.

First floor/studio level: bi-fold doors and a Juliet balcony were added.

DA795/2006/3 approved on 10 May 2018 involved (but was not limited to) the following modifications to the development consent:

A “rear extension of the garage/studio structure at all three levels and pitched roof form, including a small rear balcony at first floor level and the relocation of the approved lift” was added, along with fenestration alterations to the northern corner of the dwelling-house and garage/studio structure.

Ground level: external stairs were added on both sides of the garage/studio structure. A new retaining wall to the north-western side boundary adjacent to the proposed external stairs was added. A “new section of roof over the front section of the external access area between the garage/studio structure and the main dwelling-house” and skylights were also added.

First floor/studio level: the “approved existing connection of the studio structure with the main dwelling house structure and addition of a new connection further to the rear at first floor level” was deleted. A 1.5 metre vertical extension of the north-eastern corner of the main dwelling house structure at first floor to facilitate a new laundry and bathroom was added.

DA795/2006/4 approved on 12 June 2020 involved (but was not limited to) the following modifications to the development consent:

Garage level: the size of previously approved garage was reduced from four car spaces to two.

Ground level: the store room was deleted.

First floor/studio level: the size of the one bedroom unit was reduced to create a studio, and a kitchen and bathroom within the studio and new balcony off the master bedroom were added.

The 2024 modification involved (but was not limited to) the following modifications to the development consent:

Garage level: the lift was relocated, and the width of the garage increased to 6.2m.

Ground level: the bathroom and kitchen were removed from the entertainment room and the entertainment room was reduced in size while the “undercroft area [was] retained”.

First floor/studio level: the area of the studio was reduced to 4.64m²in “order to comply with the secondary dwellings floor area control with WLEP 2014”. The rear balcony to the bedroom was replaced with two Juliet balconies and a small balcony at the rear was added. The proposed new bathroom and laundry was removed, and the connecting bridge between the garage structure and the dwelling was replaced.

Section 4 of the s 4.55 assessment report provided as follows in relation to the proposed modifications:

Section 4.55(1A) allows the modification of a development consent where Council is satisfied that the proposed modification is of minimal environmental impact. The proposed modifications are considered to be minor relative to the scope of the development consent such that the development as sought to be modified is considered to be substantially the same as that which was originally approved. The proposal involved internal and external modifications to a previously approved garage/studio structure and would have a minimal environmental impact.

Section 9.4 of the s 4.55 assessment report concerned clause 5.4(9) of the WLEP as set out below at [60] in relation to secondary dwellings. Section 9.4 of the report provided:

It is considered that the first floor level studio constitutes a self-contained dwelling as it contains a kitchen, bathroom and independent access.
The provisions of Clause 5.4(9) of Woollahra LEP 2014 permit a self-contained studio as a secondary dwelling providing that does not exceed 60m² or 5% of the total floor area of the principal dwelling (approximately 25m² in this instance), whichever is greater.
The amended plans involve reducing the size of the studio to 46.6m², which complies with the control and is consistent with the previous approval under DA 2006/795/3. The kitchen and bathroom has been removed from the ground floor entertainment room, so that only one secondary dwelling is provided on site.
Accordingly, the proposal is considered to be satisfactory with regard to the provisions of Clause 5.4(9) of Woollahra LEP 2014.
The definition of a secondary dwelling contained with the dictionary section of Woollahra LEP 2014 states:
secondary dwelling means a self-contained dwelling that—
(a)  is established in conjunction with another dwelling (the principal dwelling), and
(b)  is on the same lot of land as the principal dwelling, and
(c)  is located within, or is attached to, or is separate from, the principal dwelling.

It is considered that the subject self-contained dwelling is consistent with the above-mentioned definition.

As noted previously, on 16 January 2024, Council by its delegate Mr Max Moratelli signed a notice of determination to approve the 2024 modification application (DA795/2006/5).
The notice of determination provided under the heading “Statement of Reasons for Decision” that the application was “assessed within the framework of the matters for consideration” pursuant to s 4.15 of the EPA Act and was recommended for approval because:

∙ The development consent as proposed to be modified, is considered to be substantially the same as the originally approved development.
∙ The proposal satisfies section 4.55 of the Environmental Planning and Assessment Act 1979.
∙ It is considered to be satisfactory with all relevant planning policies including the objectives of WLEP 2014 and WDCP 2015.
∙ It will not have adverse effects on the local built and natural environment nor any adverse social and economic impacts in the locality.
∙ All likely impacts to adjoining properties including any submissions made have been addressed in the report, or are considered to be satisfactory.
∙ The site is suitable for the proposed development.
∙ The proposal is in the public interest.

Condition A.8 of the DA795/2006/5 is titled “Approved Amended (section 4.55) Plan and Supporting Documents”, and provides:

Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the approved plans and supporting documents listed in the original consent, as amended by the amended architectural approved plans to which is affixed a Council stamp …

Condition A.8(a) identified the approved amended architectural plans “added on 16/01/2024 under DA 795/2006/5”, being the plans dated 23 December 2018 prepared by TESSERARCH (reference numbers C010, C100-103 B, and C110-C112 B) (the amended architectural plans). The amended architectural plans depict:

Roof and garage level: nil setback to the street, new roof, new connection to the dwelling house with lift, removal of storeroom, removal of internal stairs.

First floor level: a studio with relocated windows and doors, and an external staircase.

Ground floor: a new configuration including storage, relocated lift and an outdoor entertainment area.

The addition of a kitchen and bathroom.

Amended architectural plan reference C010, titled “Site Plan” and dated 23 December 2018 is reproduced below:

Amended architectural plan reference C110 titled “Garage Section” and dated 23 December 2018 is reproduced below:

Further evidence

The applicant read the affidavit of Ms Kara Mezinec, solicitor for the applicant, dated 11 July 2024, and [1]-[5] of the affidavit of Ms Kara Mezinec dated 12 November 2024. The applicant also tendered:

the SOAF dated 12 November 2024 from which part of the factual background outlined above derives;

Exhibit KRM-1 to the affidavit of Ms Mezinec dated 11 July 2024; and

the applicant’s bundle of tender documents contained in tabs 3 to 10 of the Evidence Book. These documents included a letter from Trico Constructions Pty Ltd (Trico Constructions) titled “RE: Proposed Asbestos removal / work plan” to Council dated 19 June 2012 which stated that construction works would be carried out at the property, including the demolition of a two story building “garage and studio over”, and advising that pre-construction was to commence on Monday, 6 August 2012, with demolition and construction commencing on 27 August 2012.

The first respondent read the following affidavits:

affidavits of Mr Robert Gregg, former owner of the property, dated 28 July 2024 and 29 October 2024;

affidavits of Mr Angelo D’Ambrosio, structural engineer, dated 24 October 2024 and 8 November 2024; and

affidavit Mr David Waterhouse, the first respondent, dated 1 October 2024.

The first respondent tendered:

a number of documents contained in tabs 15 to 32 of the Evidence Book under the heading “Respondent’s evidence”;

transfer AF208649G dated 21 December 2009 for Lot 25 in Deposited Plan 2538 (also known as 8 Tivoli Avenue, Rose Bay, NSW) which records a transfer of an estate in fee simple from the transferer to the applicant (in 60/100 share), Minwei Huang (in 20/100 share) and Minshan Huang (in 20/100 share) as tenants in common for consideration in the amount of $9.5 million;

a survey of the property (6 Tivoli Avenue, Rose Bay) prepared by Peter French Surveyors and dated 10 March 1999 (the 1999 survey plan):

; and

transfer AP358926R dated 24 June 2019 for Lot 25 in Deposited Plan 2538 (also known as 8 Tivoli Avenue, Rose Bay, NSW) which records a transfer of an estate in fee simple from the transferer Minwei Huang to the applicant as “tenants in common in unequal shares” for consideration of $2.00, and a title search dated 8 November 2024 which records that the applicant (in 8/10 share) and Minshan Huang (in 2/10 share) hold an estate in fee simple as tenants in common for Lot 25 in Deposited Plan 2538 (also known as 8 Tivoli Avenue, Rose Bay, NSW).

Mr Gregg: previous owner of the property (6 Tivoli Avenue, Rose Bay)

In his affidavit dated 28 July 2024, Mr Gregg deposed that he was the owner of the property (6 Tivoli Avenue, Rose Bay) before he sold it to the first respondent “in or around August 2021” and moved to the Gold Coast, and further that:

he was 82 years old at the date of the affidavit and had not kept any original papers or engineers’ reports;

he had obtained “various … DA approvals” from Council starting with the 2007 development consent for a garage and the floor below the garage, and the three s 4.55 applications (DA795/2006/1-3) “on the original DA”. The second s 4.55 application “on the” 2007 development consent for the enclosure of a balcony off the main bedroom was approved in 2012 and the balcony was enclosed by November 2012.

Mr Gregg did not give evidence in relation to the third s 4.55 application, but noted that the fourth amendment was the last development consent approved in June 2021; and

he modified and made changes to the floor below the garage in November 2011, “changing the area into two areas”, one a larger office and a smaller room “which is consistent with the 2007 approval”.

In his affidavit dated 29 October 2024, Mr Gregg deposed that:

He did not obtain a construction certificate for the changes he made to the floor below the garage in November 2011 because “it was my view at the time that as no construction work other than internal changes [was] required, I did not need a Construction Certificate”.

He believed he needed to obtain a construction certificate for the balance of the 2007 development consent (DA795/2006/1) to do all other things to comply with the development consent. In early 2012, he engaged Trico Constructions to provide a quotation for the work remaining to be done. Trico Constructions came on site in or about April 2012.

He was aware that the development consent (DA795/2006/1) would expire on 26 June 2012 unless building, engineering or construction work relating to the building subdivision or work contemplated by the development consent was physically commenced on the land to which that consent applied.

Prior to 26 June 2012, he engaged Paul Pearce of Residential Certifying Specialists to do any required certification work to ensure that he could meet the requirements of s 95 of the EPA Act (as it then stood).

He engaged Mr D’Ambrosio of D’Ambrosio Consulting Pty Ltd (D'Ambrosio Consulting) to provide a certificate of structural adequacy.

While he was living on the property and “awaiting the completion of the necessary documents and pre-conditions of the development consent” he observed employees of Trico Constructions doing “certain preliminary works”, including digging out around the garage, and trenching drains “which were ultimately to be used for drainage pipes for the ongoing work” (the Gregg works).

Prior to 25 June 2012, he observed Mr Paul Pearce, Mr D’Ambrosio and their employees “doing work in relation to their respective tasks”. In particular, he saw employees of D’Ambrosio Consulting carry out digging works in the fill around the garage which he “assumed was for the purposes of ascertaining the structural adequacy of the underlying sandstone”.

While preparing to have “the work done”, his wife was concerned “that we were both getting old and we may need a lift”. Mr Gregg engaged the architect Bruce Stafford to amend the existing approved DA (DA795/2006/1). Mr Stafford finished the drawings by 2 July 2012 and these were lodged with Council on 10 July 2012 as an application pursuant to s 96 of the EPA Act (now s 4.55 of the EPA Act). The plans were approved by Council on 14 August 2012 (DA795/2006/2).

It then took Mr Gregg a “considerable period” before proceeding with the new plans, DA795/2006/2, because of health issues.

Mr Gregg lodged a further modification application with Council in 2018 which was approved.

In cross-examination, Mr Gregg confirmed that he had not engaged Mr Pearce at the time of the work on the property in November 2011. He could not remember if he and Mr Pearce went through a checklist of the conditions of the 2007 development consent that needed to be satisfied before Mr Pearce undertook his work. He could not recall any other consultants on the property in June 2012 apart from Trico Constructions, Mr D’Ambrosio and Mr Pearce. Nor did he recall engaging a registered surveyor any time prior to June 2012 after the 2007 development consent, DA795/2006/1, was issued in 2007. During re-examination, Mr Gregg said his memory “is not as good as it used to be”.

Mr D’Ambrosio: structural engineer

In his affidavit dated 24 October 2024, Mr D’Ambrosio deposed that:

He owns D'Ambrosio Consulting. In or about late April 2012, Mr Gregg employed D'Ambrosio Consulting to provide structural engineering services in relation to a proposed construction on the property at 6 Tivoli Avenue, Rose Bay pursuant to the 2007 development consent. These services were to involve approximately three metres of excavation at the rear of the garage and two metres of excavation on the western boundary adjacent to 8 Tivoli Avenue.

Before 4 June 2012, he was sent a geotechnical and environmental investigation report dated 31 January 2007 prepared by Jeffery & Katauskas Pty Ltd which detailed certain investigation works which they had carried out on the property. Under the heading “Investigation Procedure”, that report provided:

One borehole (BH2) was hand augered to refusal at a depth of 0.75m. Dynamic Cone Penetrometer (DCP) tests were carried out adjacent to the borehole and at two additional locations to depths between 0.4m and 1.09m to assist with the assessment of the compaction of the fill and to attempt to probe for rock…

On 4 June 2012, he attended 6 Tivoli Avenue and started work with his team. At the commencement, he noticed that foundation tanking had been carried out on the bottom level of the garage two levels below street level. There were also dugout holes in the area around the base of the garage which Mr D’Ambrosio said were in positions such as were required to enable the pre-conditions of clause C.6 of the 2007 development consent to be carried out.

In order to carry out his work in relation to questions of structural adequacy, Mr D’Ambrosio and his team conducted a limited inspection of the wall bases around the garage by digging a small hole until they hit the Hawkesbury sandstone on the existing hillside to the south and the west. This digging work was “to provide reference points to bear on sandstone”. The minimum allowable bearing capacity was 700 kilopascals on this type of sandstone.

During this period of three weeks, Mr D’Ambrosio and his team spent “a lot of time” carrying out investigation work on the land “comprised around the garage foundations”. A major concern was the excavation immediately adjacent to the property to the west, 8 Tivoli Avenue, at which excavation was to be around two metres below street level. The subsurface investigation indicated a shallow contour of sandfill above the sandstone. The digging and investigation work commenced by Mr D’Ambrosio and his team on 4 June 2012 were referred to by the applicant and the first respondent as the D’Ambrosio works.

In his affidavit dated 8 November 2024, Mr D’Ambrosio deposed that:

After being asked by the first respondent on 7 November 2024 if he was in possession of any survey plans which he had used when preparing his “Dilapidation Report for 8 Tivoli Ave, Rose Bay” dated 19 June 2012 (the June 2012 dilapidation report) he went into his system which showed, as at 20 June 2012, the existence of a survey plan which provided basic outlines and ground spot levels which he then used to complete his dilapidation report. He recalled that he was supplied a survey plan in June 2012 by the architect.

On 19 June 2012, “an Asian man” whom Mr D’Ambrosio identified as the owner of number 8 Tivoli Avenue, opened a locked gate to enable Mr D’Ambrosio to take photographs of 8 Tivoli Avenue for the purpose of the June 2012 dilapidation report in relation to 8 Tivoli Avenue.

Some days later, Mr D’Ambrosio left a copy of the June 2012 dilapidation report in the mailbox of 8 Tivoli Avenue.

In cross-examination, Mr D’Ambrosio agreed that given that the survey plan exhibited to his affidavit of 8 November 2024 was dated 10 March 1999, the survey plan did not include any markings of levels, foundations, footings or walls which were the subject of the 2007 development consent.

Mr Waterhouse: the first respondent

In his affidavit dated 1 October 2024, Mr Waterhouse, the first respondent, deposed that:

He owned the property at 6 Tivoli Avenue, Rose Bay which he purchased in or about August 2021.

He observed that “work that had been carried out to the property that was not consistent with the age of the dwelling”, being “a room under the garage and the veranda off the bedroom”.

In 2021, his architect Mr Michael Suttie informed him that the Council approvals were confusing. Mr Suttie soon thereafter contacted the office of the original certifier, Mr Paul Pearce who carried out the inspection in June 2012, Residential Certifying Pty Ltd.

By email from Mr Troy Pearce, the son of the original certifier Mr Paul Pearce, to Mr Suttie dated 18 October 2021, Mr Troy Pearce said:

I think its best we get a legal advice letter exactly the same as the Elizabeth bay project.
Reason being is the construction certificate was issued on the 25^th June 2012 and the DA lapsed on the 26^th June. Even though there was an inspection carried out Council requires minimum 48 hours’ notice therefore any works carried out before the 26^th June could be classified as unlawful.
There is sufficient engineers documents in the file I which in my opinion, constitutes physically engineering however require legal advice.

In 2023, he decided that he wanted to renovate the garage. He had a meeting on 3 March 2023 with Mr Economou (of Council), Mr Suttie (the first respondent’s architect), Mr Akpinar (who worked for Mr Suttie and Mr Waterhouse) at which Mr Economou said words to the effect that “[t]he 2006 DA has commenced and [was] current”, and that the amendments had “superseded” the previous approved DA so that if Mr Waterhouse wanted the original approved DA, he could “proceed by way of a s 4.55 to current DA or lodge a new DA.”

On 21 April 2023, Mr Suttie lodged a modification application pursuant to s 4.55 of the EPA Act to “DA06/0795”, “which was approved soon after by Woollahra Council”.

On 30 June 2023, he sold the property to the third respondent, Michael Rothner. The settlement was to be in 25 months’ time, that is, on or about 31 July 2025. The contract allowed the third respondent the right of occupation from 5 January 2024, and he has had possession of the property since 5 January 2024.

Mr Economou: manager, development assessment division, Council

Mr Economou, manager of the development assessment division at Council, gave evidence viva voce in relation to documents produced informally at the hearing on 14 November 2024 in response to a subpoena to give evidence and to produce.
During examination in chief, Mr Economou said that he had worked at Council since 1993 and was there in 2006 when the original development application, DA795/2006/1 was lodged. While he “wasn’t involved in the initial DA”, he could comment on the “process” of Council. At the time of the original development application and considering the “scope of the works for this DA”, Council considered the survey to be required. At that time (namely, June 2007), condition D8 in DA795/2006/1 was a standard condition of Council. Conditions with the prefix “C” were conditions which must be satisfied prior to the issue of a construction certificate. Conditions with the prefix "D” did not necessitate a construction certificate.
Mr Economou was not required for cross-examination.

Relevant legislation and legislative history

Subsections 95(1), (2) and (4) of the EPA Act as in force between 1 March 2007 and 4 July 2007 (when the 2007 development consent was granted) provided in relation to the lapsing of a development consent (emphasis added):

95 Lapsing of consent
(1) A development consent lapses 5 years after the date from which it operates.
(2) However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to a development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and 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.

Subsections 95(1) and (4) of the EPA Act were in the same terms on 26 June 2012 in relation to the lapsing of a development consent.
Section 4.55 of the EPA Act as in force between 1 January 2024 and 1 July 2024 (modification DA 795/2006/5 was approved on 16 January 2024) provided relevantly in relation to the modification of consents (emphasis added):

4.55 Modification of consents—generally
(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification.
Note—
Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.

(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with—
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with—
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
…

Section 96 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), which commenced on 1 March 2022, provides in relation to the physical commencement of works:

96 When work is physically commenced—the Act, s 4.53(7)
(1) Work is not taken to have been physically commenced merely by the doing of 1 or more of the following—
(a) creating a bore hole for soil testing,
(b) removing water or soil for testing,
(c) carrying out survey work, including the placing of pegs or other survey equipment,
(d) acoustic testing,
(e) removing vegetation as an ancillary activity,
(f) marking the ground to indicate how land will be developed.

(2) This section does not apply to a development consent granted before 15 May 2020.

Clause 5.4(9) of the WLEP has provided at all relevant times as follows in relation to secondary dwellings on land other than land in a rural zone:

Controls relating to miscellaneous permissible uses
…
(9) Secondary dwellings on land other than land in a rural zone If development for the purposes of a secondary dwelling is permitted under this Plan on land other than land in a rural zone, the total floor area of the dwelling, excluding any area used for parking, must not exceed whichever of the following is the greater—
(a) 60 square metres,
(b) 5% of the total floor area of the principal dwelling.

The Dictionary to the WLEP provides the following definition of secondary dwelling:

secondary dwelling means a self-contained dwelling that—
(a) is established in conjunction with another dwelling (the principal dwelling), and
(b) is on the same lot of land as the principal dwelling, and
(c) is located within, or is attached to, or is separate from, the principal dwelling.

Clause 6.2 of the WLEP, which was inserted on 23 January 2015, provides that development consent is required for earthworks and associated construction dewatering, subject to certain exceptions:

6.2 Earthworks
(1) The objective of this clause is to ensure that earthworks and associated construction dewatering for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
(2) Development consent is required for earthworks and associated construction dewatering unless—
(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or
(b) the earthworks and associated construction dewatering are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.
(3) In deciding whether to grant development consent for earthworks and associated construction dewatering (or for development involving ancillary earthworks), the consent authority must consider the following matters—
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity and structural integrity of surrounding properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

The Woollahra Development Control Plan 2015 (NSW) (the WDCP) commenced on 23 May 2015 and provided as follows in relation to on-site parking, including garages:

On-site parking, including garages, carport, hardstand areas and driveways, must be carefully designed to not detract from the appearance of the development and the streetscape.
In particular, on-site parking should not dominate the street frontage, and driveway openings should be limited to protect pedestrian safety and to preserve streetscape amenity such as trees and on-street parking. On-site parking should also be designed to limit the extent of impervious surfaces and excavation and to allow landscaped area in the front setback.

Ground 1: Whether the 2007 development consent has lapsed: s 95 of the EPA Act

The first ground raises whether the 2007 development consent had lapsed by 26 June 2012, that is five years after the date from which it operated: s 95 of the EPA Act which applied when the consent was granted on 26 June 2007.

Legal principles in relation to the lapsing of development consents

At the time when the 2007 development consent was granted, 26 June 2007, s 95 of the EPA Act provided that a development consent lapses five years after the date from which it operates. Council did not reduce the period of five years pursuant to s 95(2) which provided that a consent authority may reduce that period of five years in granting development consent. Accordingly, the focus in this case was on the test of physical commencement in s 95(4), and the works said to have been carried out by 26 June 2012.
There has been extensive consideration of the language of s 95(4) and the meaning of “physically commenced”; in particular by the Court of Appeal in Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council^[2] (Hunter Brokerage). The relevant principles can be distilled from Hunter Brokerage as follows:
2. (2005) 63 NSWLR 124; (2005) 140 LGERA 201; [2005] NSWCA 169 (Tobias JA) (Santow JA and Stein AJA agreeing).

the expression “engineering works” is capable of including physical works on the land involving the application of surveying skills resulting in the taking of levels, placing of pegs, the removal of vegetation and the establishment of permanent survey marks;^[3]
3. Hunter Brokerage at [80]-[85] (Tobias JA) (Santow JA and Stein AJA agreeing).

the work must be physical activity that is commenced as distinct from office design and planning. There is an element of fact and degree in each case;^[4]

the erection of a dwelling begins with the clearing of the site followed by its pegging out and then the digging of trenches for footings;^[5]

“engineering work” should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the work authorised by the consent;^[6]

the work must relate to the building, subdivision or work the subject of the consent, and a real nexus between them is required. The required connection is satisfied if the work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of land or the carrying out of the work which is authorised by the consent;^[7] and

the work must not be merely a sham. It must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved.^[8]
4. See Hunter Brokerage at [72], [86] (Tobias JA) (Santow JA and Stein AJA agreeing).
5. Hunter Brokerage at [98] (Tobias JA) (Santow JA and Stein AJA agreeing).
6. Hunter Brokerage at [83] (Tobias JA) (Santow JA and Stein AJA agreeing).
7. Hunter Brokerage at [86], [104] (Tobias JA) (Santow JA and Stein AJA agreeing).
8. Hunter Brokerage at [86] (Tobias JA) (Santow JA and Stein AJA agreeing).

It is to be noted that the provisions of s 96 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) which limit the scope of physical commencement apply only to consents granted after 15 May 2020, and accordingly do not apply to the 2007 development consent the subject of these proceedings.
Applying Hunter Brokerage, three questions arise in relation to the question of whether work was physically commenced on the property so as to prevent the 2007 development consent from lapsing on 26 June 2012:

was the work building, engineering or construction work;

if so, did the work relate to the development approved by the 2007 development consent;

if so, was it physically commenced on the land to which the 2007 development consent applied prior to the relevant lapsing date (26 June 2012).^[9]
9. Hunter Brokerage at [111] (Tobias JA) (Santow JA and Stein AJA agreeing) cited in Upper Hunter Sustainable Industries Association Inv v MACH Energy Australia Pty Ltd (No 2) (2017) 224 LGERA 261; [2017] NSWLEC 87 at [7] (Pain J) and Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 9) [2016] NSWSC 155; (2016) 215 LGERA 137 at [80] (Kunc J).

These three questions are subject to a qualification: work prohibited by the development consent is not “building, engineering or construction work relating to the building, subdivision or work” within the meaning of of s 95(4) of the EPA Act, as considered immediately below.

Work prohibited by a condition of consent

Work which is undertaken in breach of a condition of consent and hence, prohibited and illegal, cannot be work “relating to” the development because it was prohibited by the consent and therefore cannot be the subject of the consent. Such work cannot be relied upon to physically commence a consent: Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc^[10] (Iron Gates).
10. (1992) 81 LGERA 132 (Handley JA, Mahoney JA and Rogers AJA).
In Iron Gates, the Court of Appeal heard an appeal in relation to whether a development consent for subdivision had lapsed. The development consent required that road works be constructed to Council’s standards after full engineering plans were submitted and approved by Council’s engineering department. Prior to the critical date for lapsing of the consent, a bulldozer had cleared the area for an internal access road. The internal access road work was prohibited until the external access road had been constructed, as required by a condition of the consent. There was no dispute that the external access road had not been constructed. Handley JA (Mahoney JA and Rogers AJA agreeing) held at 135 (noting that the references to s 99 are to the lapsing provisions prior to the commencement of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments)) as follows (emphasis added):

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

In my opinion therefore the subdivision consent lapsed on 21 October 1991 …

In determining whether the 2007 development consent was lawfully commenced prior to 26 June 2012, it is necessary to have close regard to the preconditions to the carrying out of work under the consent.

Onus of proof

In relation to the onus of proof, the applicant submitted that the first respondent as the “holder” of the 2007 development consent bears the onus of proof in establishing the matters necessary to prevent the consent from lapsing under s 95(4) of the EPA Act, relying on the authority of the Court of Appeal in Cando Management and Maintenance Pty Ltd v Cumberland Council^[11] (Cando Management). Although in that case Parramatta City Council (the successor to Cumberland Council) brought the proceedings, White JA (Beazley P and Meagher JA agreeing) held that Cando Management had the onus of establishing, in the words of Mr Eastman SC for the applicant, that “the matters to prevent the consent from lapsing were demonstrated”, referring to [96]-[97] of the decision in Cando Management where White JA (Beazley P and Meagher JA agreeing) held:

… the judicial interpretation of s 95(4) is that compliance with the conditions of consent is a necessary element of a party’s establishing that the work “relates to” the development for which consent has been given.
A fortiori, Cando had the onus of establishing that water disconnection amounted to the carrying out of a building, engineering or construction work and not merely the turning off of a tap.
11. (2019) 237 LGERA 128; [2019] NSWCA 26 at [92] and [97] (White JA) (Beazley P and Meagher JA agreeing).

The first respondent submitted “in terms of onus” that the applicant’s claim will fail unless the Court “is satisfied that no relevant work was done”. The first respondent did not refer to any authority in relation to whether he bears the onus of proof in establishing the matters necessary to prevent the consent from lapsing under s 95(4) of the EPA Act.
I find, in accordance with Cando Management, that the first respondent as the owner of 6 Tivoli Avenue, Rose Bay, the property which has the benefit of the 2007 development consent bears the onus of proof in establishing the matters necessary to prevent the consent from lapsing under s 95(4) of the EPA Act (as it then stood).

(a) Was the work relied on building, engineering or construction work?

The applicant did not appear to press any submission that the work relied on by the first respondent, and referred to as the D’Ambrosio works and the Gregg works, was not “building, engineering or construction work” within the meaning of s 95(4). His written submissions proceeded on the basis that the so called “D’Ambrosio works” (see above at [49(5)]) were “engineering work” within the meaning of s 95(4) of the EPA Act.
In relation to whether the work relied on was “building, engineering or construction work”, the first respondent relied upon the affidavit of Mr Angelo D’Ambrosio dated 24 October 2024 which detailed the “D’Ambrosio works” which were said to have been “done for the purposes of satisfying condition C.5 of the development consent”, and the affidavit of Mr Robert Gregg dated October 2023, which set out the “Gregg works” (see above at [47(6)]) undertaken by employees of Trico Constructions at the property prior to 25 June 2012. At the hearing, Mr Douglas KC submitted for the first respondent that Mr Gregg gave evidence about the fact that the builder had been on site, but that the records in relation to the works undertaken by Mr D’Ambrosio were “much clearer”.
I find that the work relied on by the first respondent as satisfying commencement of the 2007 development consent namely, the D’Ambrosio works and the Gregg works, is work capable of satisfying the description of “engineering work” within the meaning of s 94(4) of the EPA Act.

(b) Did the work relied on by the first respondent for the purpose of commencement relate to the approved development?

In relation to whether the work related to the development approved by the 2007 development consent, a preliminary issue arises as to whether the summons properly raises the issue in relation to non-compliance with conditions D.2 and D.8(d) of the 2007 development consent requiring, prior to the commencement of any work, the provision of a dilapidation report to the adjoining building owner, and the provision of a copy of a survey report by the registered surveyor detailing the title boundaries, pegs/profiles, recovery points and bench mark locations and established pursuant to this condition to the PCA.
However, the principal focus of the parties’ submissions was whether the work relied on by the first respondent for the purpose of establishing physical commencement of the 2007 development consent related to the approved development. At the hearing, Mr Douglas KC for the first respondent submitted that this:

point really turns on a question of construction of the development consent, and whether in fact one had to have the dilapidation report and the survey before one actually did the work to enable one to get a construction certificate.

Applicant’s submissions

The applicant submitted that the 2007 development consent contains a number of preconditions to the commencement of work. Condition A.2 as set out above at [16] defines “work” “exhaustively” as:

(d) the carrying out of any work
(e) the use of any site crane, machine, article, material or thing;
…
(h) the piling, piering cutting boring drilling rock breaking or excavation of land

The consequence of this definition, the applicant submitted, was that (with the potential exception of surveying work referred to below) any physical activity or “product of labouring operations”^[12] is caught by the definition of “work”.
12. Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; (1972) 26 LGRA 437; [1972] HCA 21 (Brickworks) at 24-25 (Gibbs J) (Barwick CJ agreeing at 3, Menzies J concurring at 3 and Owen J and Walsh concurring at 4).
The applicant submitted that conditions D.2 and D.8 were the primary preconditions to the commencement of any work. Condition D.2 provided relevantly:

Where excavation of the site will extend below the level of any immediately adjoining building the principal contractor or owner builder must give the adjoining building owner(s) a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s81A(2) of the Act not less than (2) days prior to the commencement of any work.

As set out above, a dilapidation report was prepared by D’Ambrosio Consulting and dated 19 June 2012; that is, after the work relied upon by the first respondent in relation to physical commencement was carried out from 4 June 2012 onwards.
Condition D.8 provided relevantly in (d) that prior to the commencement of any work, the principal contractor or owner builder must ensure that a surveyor registered under the Surveying Act 2002 provides a copy of a survey report by the registered surveyor detailing, the title boundaries, pegs/profiles, recovery points and bench mark locations as established pursuant to this condition to the PCA.
The applicant submitted that the purpose of this condition was to ensure precision in all work to be carried out on the property and to ensure accuracy in investigations relating to footings, wall and slabs. The note to Condition D.8 provided: “Where the principal contractor or owner builder notes any discrepancy between the approved development consent and the construction certificates, especially in relation to the height, location or external configuration of the building (but not limited to these issues) the principal contractor or owner builder should not proceed until satisfied that the variations are shown are consistent with the consent finally to do so may result in a breach of development consent.”
The applicant submitted that “no such survey” was in evidence. Further, the D’Ambrosio works breached condition D.8 of the 2007 development consent for the following reasons:

the relevant “digging” was either “excavation work” or “work involving the use of a machine, article, material or thing” or “the physical product of labouring operations to land.”^[13] These works were prohibited by condition D8 prior to the provision of a copy of a survey report by the registered surveyor detailing, the title boundaries, pegs/profiles, recovery points and bench mark locations as established pursuant to this condition to the PCA; and

the “investigation work” was likewise prohibited assuming it was carried out with a tool or instrument and involved the physical product of labouring operations to land.
13. Brickworks at 24-25 (Gibbs J).

Nor could the Gregg works be said to relate to the approved development. Clearing existing drains could not be said to relate to the development approved by the 2007 development consent and, in any event, would be work within the meaning of condition D.8. For the purpose of condition D.2, the excavation of the site was to extend to at least RL 22.18, being the ground floor level of the structure, some two levels down. This was clearly below the level of any immediately adjoining building. In these circumstances, the principal contractor or owner builder was to give the adjoining building owner(s) at 8 Tivoli Avenue a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s 81A(2) of the Act not less than (2) days prior to the commencement of any work.
The applicant submitted that this did not occur for two reasons:

the dilapidation report for 8 Tivoli Avenue is dated 19 June 2012 which is two weeks after Mr D’Ambrosio commenced engineering work on the property at 6 Tivoli Avenue; and

there was no evidence that the dilapidation report was provided to the owner of 8 Tivoli Avenue prior to works commencing, or at all, there being no covering letter in the documents produced by the certifier, Residential Certifying Pty Ltd, or by Council.

For these reasons, the works relied upon by the first respondent as constituting commencement were in breach of the 2007 development consent, and cannot be relied upon having regard to the reasoning of the Court of Appeal in Iron Gates. Although these works were carried out prior to 26 June 2012, they did not “relate to” the consent. Nor were any “building works” carried out after the issue of the construction certificate by Residential Certifying Specialists on 25 June 2012. Mr Gregg said construction was postponed following his health issues and further modifications.
To the extent that the first respondent relied upon the “presumption of regularity” in contending that the determination of the modifications “revived” the 2007 development consent, the applicant said that:

the presumption is a principle of administrative law, and does not apply in circumstances involving whether a consent has lapsed; and

even if that is wrong, nowhere did Council properly consider whether the preconditions to the commencement of work under conditions D.2 and D.8 were satisfied in determining any modification application.

It follows, the applicant submitted, that there was no building, construction or engineering work within the meaning of s 94(4) of the EPA Act that was lawfully carried out on the property pursuant to the development consent prior to 26 June 2012, and that could be said to relate to the approved development, and accordingly the applicant is entitled to a declaration that the development consent has lapsed.

First respondent’s submissions

The first respondent submitted that the issue in relation to non-compliance with condition D.8 (and D.2) was not one which clearly arises from the summons. In the summons, the applicant alleged:

[12] The Notice of Commencement does not evidence the physical commencement of any building, engineering or construction work relating to the proposed building the subject of the Development Consent that would be capable of constituting physical commencement of the Development Consent as required by Section 95 of the EPA Act.

The first respondent noted that the applicant did not challenge the fact that work was carried out on the property on or before 26 June 2012, but submitted instead that that work did not “relate to” the consent because it was not lawful. In light of the decision of Pepper J in Norlex Holdings Pty Ltd v Wingecarribee Shire Council^[14] (Norlex), the first respondent submitted that the applicant’s submission was “understandabl[y] … limited”. In that case, Pepper J held at [92]-[93]:

92 I am unable to meaningfully distinguish between, in the present case, the extraction of the spring water by use of the pump and its bottling for subsequent laboratory analysis, and the excavation of the soil samples for external testing in Zaymill. In both the work was commenced on the land and was a necessary step in the process of carrying out the consent.
93 But was the actual operation of the pump to extract the water for scientific analysis “engineering” work? In Hunter the term “engineering” work was broadly construed “to include all those activities associated with and forming a necessary part of, the discipline of engineering applicable to” (at [83]) the carrying out of a work. In the present case this means the extraction of the spring water. In Hunter Tobias JA rejected a submission to the effect that what was required was “some action or work of a civil, mechanical or structural nature required to be performed on the relevant land” (at [76] and [80]). All that was required was, “the application of labour which manifests itself on the land” (at 87]). As the evidence of Mr Tuite and Mr Calverly demonstrated, a degree of effort was involved in collecting the water samples. Certainly more was required than the mere “flicking of a switch” as was suggested by the council. In my opinion, the work involved was sufficiently labour intensive to constitute “engineering” work.

It is plain from the authorities summarised above in relation to s 4.15 of the EPA Act that as a mandatory relevant consideration under s 4.55(3), a consideration of the reasons given for the grant of a consent is a fundamental precondition to the validity of an approved modification, and a failure to consider them will vitiate the decision to modify the consent,^[38] provided that the factor is not “so insignificant that the failure to take it into account could not have materially affected the decision”.^[39]
38. Parramatta City Council v Hale (1982) 47 LGRA 319 (Parramatta City Council v Hale) at 335 (Street CJ) (Moffitt P concurring at 336 and Reynolds JA dissenting at 362).
39. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40 (Mason J); MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ) and [86] (Gordon and Steward JJ).

Applicant’s submissions in relation to Ground 2

The applicant submitted that by signing the 2007 assessment report and determining to grant consent subject to the conditions recommended in the assessment report, the delegate adopted the content of the 2007 assessment report as his reasons for the grant of consent. The reasons for granting consent included the following:

engineering concerns had been resolved, subject to conditions of consent; and

the proposal was acceptable in light of the planning controls in the Woollahra Local Environmental Plan 1995 (NSW) and Woollahra Residential Development Control Plan 2003 (NSW) and under s 79C of the EPA Act (as it then was), and was in the public interest.

Further, the applicant submitted, when Council determined the 2024 modification application, it relied on the s 4.55 assessment report dated 16 January 2024 which:

did not refer to the relevant requirements in s 4.55(3), including the requirement in s 4.55(3) to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified; and

did not refer to the 2007 assessment report which contained those reasons.

On the material before Council, there was no indication that Council was aware of the requirement to take into consideration the reasons for the grant of the 2007 development consent.
Applying Feldkirchen Pty Ltd v Development Implementation Pty Ltd^[40] (Feldkirchen) at [63]-[77] (Preston CJ of LEC) (Macfarlan and Meagher JJA agreeing), the applicant submitted that there was “implicitly” an obligation on Council to ascertain the reasons for the development consent, or whether there were any objectively identifiable reasons at all. Council “did not engage with the relevant legal tests or ask itself what the reasons were”. Nor did the SOEE which was included in the 2024 modification “engage with the relevant subject”.
40. (2022) 254 LGERA 114; [2022] NSWCA 227 (Preston CJ of LEC) (Macfarlan and Meagher JJA agreeing).

First respondent’s submissions in relation to Ground 2

In relation to the applicant’s submissions concerning Council’s consideration in determining the 2024 modification, of the reasons given for the grant of the 2007 development consent, the first respondent noted that the material before Council included representations made by McKees by letter dated 22 December 2023 on behalf of the applicant (as set out above at [31]), and the SOEE dated 21 April 2023 prepared by MJ Suttie Architects on behalf of the first respondent. It was clear from the s 4.55 assessment report that the submissions received from McKees on behalf of the applicant were considered as the submissions and issues raised therein were addressed in the report (as set out above at [33]). There was no basis for saying that those matters were not “taken into account and considered by Council”.
As to the applicant’s complaint in relation to the fact that the s 4.55 assessment report did not refer to the relevant requirements in s 4.55(3), and did not refer to the 2007 assessment report which contained the reasons for the grant of the 2007 development consent, “there [was] no reason to believe that the lack of a reference to that provision or to that report meant that they were not taken into account”. The first respondent submitted that it was quite clear from the s 4.55 assessment report, “read as a whole, that the previous approvals and assessments were taken into consideration and that the proposed development was compared” with those development consents, particularly having regard to the issues which had been raised by McKees and by Kambala School, but also more generally in carrying out “its s 4.15 assessment”.^[41] The first respondent submitted:

Section 4 of the development consent poses the question to whether the proposed modifications are minor relative to the scope of the development consent such that the development as sought to be modified is considered to be substantially the same as that which was originally approved, immediately preceding that, in s 2 is a consideration of the original approved development and the subsequent modifications to that development. It then goes on to assess that approval and those modifications pursuant to s 4.15 of the EPA Act.
41. The reference to the s 4.15 assessment is a reference to the evaluation of a development applicant in accordance with s 4.15 (previously s 79C) of the EPA Act.

This, the first respondent submitted, was entirely appropriate and in accordance with s 4.55(4) which provides that the modification of a development consent in accordance with s 4.55 is taken not to be the granting of development consent, but a reference in the EPA Act or any other Act to a development consent includes a reference to a development consent as so modified. This would include s 4.55(3), as well as the reasons for the previous modifications to the consent. The comparison is not simply to the original consent, but to the consent as modified. That would include the 2024 modification, DA705/2006/4, approved on 12 June 2020.

Conclusion in relation to Ground 2

In Feldkirchen, the chief judge said at [63] that in determining a modification application Council cannot have failed, in breach of s 4.55(3) of the EPA Act, to have taken into consideration reasons which were not given for the grant of a consent. The obligation in s 4.55(3) is to “take into consideration such reasons as might be given by the consent authority for the grant of the consent that is sought to be modified”. At [66] the chief judge said that for the purposes of s 4.55(3), in determining to grant consent, Council could state “that its reasons for the grant of the consent were the reasons given in the consent assessment report”. Such a statement by Council would be a statement of reasons given for the grant of the consent for the purposes of s 4.55(3). And at [76]-[77] the chief judge said:

76. In circumstances where the Council as the consent authority did not give reasons for the grant of the consent, it cannot be in breach of the obligation in s 4.55(3), in determining an application for modification of the consent, to take into consideration reasons given by the consent authority for the grant of the consent that is sought to be modified. This is so irrespective of whether there is or is not an implicit obligation under s 4.55(3) for the consent authority to ascertain the reasons given by the consent authority for the grant of the consent. If no reasons were given by the consent authority for the grant of the consent, there can be no reasons to be ascertained. A consent authority cannot breach the statutory obligation under s 4.55(3) to take into consideration reasons that have not been given for the grant of the consent.
77. In light of this factual finding that no reasons were given by the Council for the grant of the consent, there is no need to determine Feldkirchen’s challenge to the primary judge’s alternative finding that, if the notice of determination could be said to contain the reasons given for the grant of consent, the Council considered those reasons in determining the application to modify the consent. There is also no need to determine Development Implementation’s notice of contention that the Council was not obliged to give reasons for the grant of the consent.

In relation to Ground 2, I find if it be necessary, that the applicant (upon whom the onus lies in respect of this ground) has failed to establish that in determining to approve the fourth modification on 16 January 2024, DA795/2006/5, Council failed to take into consideration the reasons given by Council for the grant of the 2007 development consent.
I accept that consideration of the reasons given by the consent authority for the grant of the consent that is sought to be modified was a mandatory relevant consideration: s 4.55(3). While the s 4.55 assessment report here did not in terms refer to the requirements of s 4.55(3), the material before Council included the representations made by McKees by letter dated 22 December 2023 on behalf of the applicant, and the SOEE. It is clear from the s 4.55 assessment report that the submissions by McKees were addressed. There is no basis for inferring that Council had inadequate acquaintance with the facts and issues referred to in the submissions. The McKees letter to Council dated 22 December 2023 made a number of references to s 4.55, setting out subsection 4.55(2) in full and concluding “Based on the information available, it appears that the development is not substantially the same development as the original consent. Council therefore lacks the power to grant a modification of consent pursuant to 4.55 of the EPA Act 1979”.
In Parramatta City Council v Hale^[42] Street CJ considered s 90 of the EPA Act, a predecessor to s 79C and 4.15 of the Act, which required Council, in determining a development application, to take into consideration of specified matters. His Honour held at 335 that the principle of de minimis applied to mandatory relevant considerations (emphasis added)^[43]:

The law is clear that a provision such as s. 90(1) necessitates, as a precondition to the validity of a council's decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers or duties, that, too, will vitiate the decision.
All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court: it need not be shown to be of critical or decisive significance in the council's decision; on the other hand de minimis non curat lex …
42. (1982) 47 LGRA 319.
43. Cited in Walker v Minister for Planning [2007] NSWLEC 741; 157 LGERA 124 at [31] (Biscoe J); Boulton & Ors v Burwood Municipal Council [1988] NSWLEC 128 (Hemmings J).

Likewise, in Kindimindi Investments Pty Ltd v Lane Cove Council^[44] Basten JA held at 295 [66] (Handley JA and Hunt AJA agreeing) that:

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
44. (2006) 143 LGERA 277.

The applicant, upon whom the onus lies in relation to Ground 2, has failed to establish how the two reasons given for the granting of the 2007 development consent relied upon for the purpose of Ground 2 (set out at [123]-[124] above) could have sensibly been the subject of consideration by Council in determining to grant the 2024 modification application, or materially affected Council’s decision to grant approval.
I would dismiss Ground 2.

Ground 3: Substantially the same development as the development for which consent was originally granted

Legal principles in relation to Ground 3

The 2024 modification was approved pursuant to s 4.55(1A) of the EPA Act. In that subsection, paragraph (b) provides that a consent authority may, inter alia, modify the consent if (emphasis added):

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all).

The existence of Council’s mental state of satisfaction that “the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted” is a precondition to the engagement of a statutory power and is therefore a jurisdictional fact capable of review by the Court.^[45] The existence of the requisite mental state of satisfaction is an “‘essential condition’ or preliminary to the exercise of the power” to modify the consent.^[46]
45. Trives v Hornsby Shire Council (2015) 89 NSWLR 268; (2015) 208 LGERA 361; [2015] NSWCA 158 at [30]-[35] (Basten JA) (Macfarlan and Meagher JJA agreeing); King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 at [61]-[63], [77] (King v Bathurst Regional Council) (Jagot J). The Court of Appeal has held that a consent authority must form the necessary opinion of satisfaction that the development consent to which the consent as modified relates is the same or substantially the same development as the original consent pursuant to s 4.55(2)(a) before exercising the power to approve the modification application, making the existence of Council’s mental state of satisfaction under s 4.55(2)(a) amenable to judicial review: Feldkirchen at [95], [104]-[115], [110] (Preston CJ of LEC) (Macfarlan JA agreeing at [1] and Meagher JA agreeing at [2]); Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 (Preston CJ of LEC); Arrage v Inner West Council [2019] NSWLEC 85.
46. See Franklins Ltd v Penrith City Council [1999] NSWCA 134 at [28] (Stein JA) (Powell and Giles JJA agreeing); Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81 at [38], [28] (Powell, Giles and Fitzgerald JJA); Conservation of North Ocean Shores Inc v Byron State Council (2009) 167 LGERA 52; [2009] NSWLEC 69 at [86]-[88] (Preston CJ of LEC).
As the chief judge held in Arrage v Inner West Council,^[47] the consent authority must form the positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development. The comparison required by the test in s 4.55(2) is between two developments: the development as modified and the development as originally approved. The Court of Appeal applied this test in Feldkirchen.^[48] In Feldkirchen, Preston CJ of LEC (Macfarlan and Meagher JJA agreeing) held that the comparison between the development as modified and the development as originally approved could involve identifying and comparing the “material and essential features” of the two developments.^[49] However, these suggested ways of undertaking the comparison between the two developments were not such as to displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways.^[50]
47. [2019] NSWLEC 85 at [31] (Preston CJ of LEC).
48. Feldkirchen at [112] (Preston CJ of LEC) (Macfarlan JA agreeing at [1] and Meagher JA agreeing at [2]).
49. Feldkirchen at [112] (Preston CJ of LEC) (Macfarlan JA agreeing at [1] and Meagher JA agreeing at [2]) citing Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 (Bignold J); [1999] NSWLEC 280 at [55], [56] and [58] and Arrage v Inner West Council [2019] NSWLEC 85 at [26] (Preston CJ of LEC).
50. Feldkirchen at [112] (Preston CJ of LEC) (Macfarlan JA agreeing at [1] and Meagher JA agreeing at [2]) citing Arrage v Inner West Council [2019] NSWLEC 85 at [27], [28] (Preston CJ of LEC).
In Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council^[51] Duggan J likewise at [80] held that substantially the same means essentially or materially having the same essence and the verb “modify” in context means “to alter without radical transformation”.^[52] Her Honour concluded at [98]-[100] that a modification application which allowed a power plant to burn an alternative fuel was not essentially the same as the original approval for the burning of coal tailing as “the disposal of coal tailings was a fundamental element of the proposal, which if altered to a material degree would have the potential to alter an essential or material component of the development the subject of the” originally approved development consent.
51. [2022] NSWLEC 64 (Duggan J).
52. [2022] NSWLEC 64 at [80] (Duggan J).
Again, in relation to Ground 3, it is clear that the applicant bears the onus of establishing that Council did not form the required state of satisfaction on the balance of probabilities.^[53] The onus must be discharged “in accordance with proper legal requirements and by inference not suspicion”. Such an inference should be drawn only “after anxious consideration, but when the inference is available and ought to be drawn, the court should … not hesitate to give effect to the inference it has drawn”.^[54]
53. Caroona Coal Action Group Inc v Coal Mines Australia Pty Limed and Minister for Mineral Resources (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1 at [58]-[60] and [68]-[70] (Preston CJ of LEC) affirmed in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353 at [35]-[41] and [72]-[73] (Tobias JA) (Giles and Hodgson JJA agreeing); Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30 at [80]-[83] (Pain J).
54. Parramatta City Council v Hale at 345 (Moffitt P); King v Bathurst Regional Council at [62] (Jagot J).

Applicant’s submissions in relation to Ground 3

The applicant referred to condition A.3 of the 2007 development consent which refers to approved plans and supporting documents, and requires those with the benefit of the consent to “carry out all work and maintain the use and works in accordance to the plans and supporting documents listed below as submitted by the applicant and to which is affixed a council stamp ‘Approved DA Plans’ unless modified by any following condition.” This included a reference to the original architectural plans prepared by Brian Lynch Architect (as set out above at [18]-[19]). The 2024 modification was the fourth modification of the 2007 development consent. The newly approved plans prepared by TESSERARCH (see above at [40]) were incorporated pursuant to condition A.8(a).
Importantly, the applicant submitted, a kitchen and bathroom had been added by the 2024 modification, meaning that the proposed garage structure was now to be characterised as a dwelling,^[55] and as a secondary dwelling under the WLEP, as acknowledged by the s 4.55 assessment report.
55. SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 (Preston CJ of LEC).
The applicant submitted that no consideration was given in the s 4.55 assessment report to the “new use” as a secondary dwelling. This was submitted to be critical because in Vacik Pty Ltd v Penrith City Council^[56] (Vacik) Stein J found that if the development as modified involves an additional and distinct use, it is not substantially the same development as originally approved.^[57] In that case, the “additional and distinct use” of waste disposal was not “incidental or ancillary to the dominant use” of extractive industry. However, Stein J said at 6 in relation to s 102 of the EPA Act “Modification of consents” as it then was:

In approaching the s.102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry - and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s.102.
56. [1992] NSWLEC 8 (Stein J).
57. Vacik at 6 (Stein J).

Although Council said on several occasions that it was satisfied that the 2007 development was substantially the same as that proposed in the 2024 modification application, there was no before and after analysis or comparison between the 2007 development consent and the 2024 modification. The SOEE did not carry out this analysis. Nor did the s 4.55 assessment report, describing only the changes to the proposal over time. Further, the following conditions had been added since the original development consent was granted on 26 June 2007: conditions A.6, A.7; A.8; A.8(a); A.9; A.10; B.2; C.1; C.9; C.10; C.11; C.12; E.14; H.4; H.5; H.6; I.1; I.2; and K.11.
The applicant submitted that there was no analysis in the s 4.55 assessment report or in the decision-making documents of the effect of these conditions and whether they rendered the development outside the scope of “substantially the same”. It was apparent that the proposed garage structure had evolved significantly over the course of four modifications, including a new use being added. In determining the 2024 modification (DA 795/2006/5), Council was required to decide whether the development before it was “substantially the same” development as the development for which consent was originally granted based on a comparative exercise. It did not do so, and the 2024 modification should be set aside on that basis.

First respondent’s submissions in relation to Ground 3

The first respondent submitted that it was clear from the s 4.55 assessment report that a comparison exercise was carried out. It was likewise clear from the s 4.55 assessment report that Council was aware that the first-floor level studio constituted a self-contained dwelling as it contained a kitchen, bathroom and independent access, but that a kitchen and bathroom had been removed from the ground floor entertainment room so that only one secondary dwelling was provided on site. Having noted this, the s 4.55 assessment report determined that the proposal was considered to be satisfactory with regard to the provisions of cl 5.4(9) of WLEP and the definition of "secondary dwelling” contained therein. These matters were also noted in the SOEE.
Moreover, the letter from McKees to Council dated 22 December 2023, on behalf of the applicant, made a “very clear representation” in relation to s 4.55(2)(a) of the EPA Act and the question of the whether the development as proposed to be modified by the 2024 modification application was “substantially the same development” as that the subject of the 2007 development consent. Contrary to the representations by McKees, the s 4.55 assessment report concluded that "this Development Consent as proposed to be modified, is considered to be substantially the same as the originally approved development”. There was no reason to believe that Council did not conduct a before and after analysis or comparison between the 2007 development consent and the 2024 modification in determining that the development was substantially the same. There was no substance to the applicant’s suggestion that a comparative exercise was not carried out.

Applicant’s submissions in reply in relation to Ground 3

In reply, the applicant submitted that the first respondent “implicitly acknowledged” that objectively identifiable reasons were imposed as part of the decision to grant the development consent:

Whilst Council may have dealt with a variety of merit issues in the 2024 assessment report, they were addressed as merit issues. No reference to the reasons for the decision was made. Council did not address these issues as a separate (and indeed higher and jurisdictional) consideration, being reasons for the grant of the consent.

Further, in reply, the applicant submitted the test in s 4.55(3) is a comparison between the development as approved, and as proposed to be modified. The comparative analysis required a “consideration and comparison of the approved built form, the building use and conditions of consent”. That exercise was not undertaken by Council and was not in any document before Council. As such, the Court would draw the inference on the balance of probabilities that Council did not form the necessary opinion of satisfaction under s 4.55(2)(a) before it decided to approve the modification application.^[58]
58. Feldkirchen at [115] (Preston CJ of LEC) (Macfarlan and Meagher JJA agreeing).

Conclusion in relation to Ground 3

In relation to Ground 3, I conclude as follows:

On a fair reading of the s 4.55 assessment report, it is clear that a comparison between the original architectural plans and the amended architectural plans prepared by TESSERARCH pursuant to condition A.8(a) was carried out. The s 4.55 assessment report considered the McKees letter to Council dated 22 December 2023, noting that it raised the issue that “The introduction of a secondary dwelling is not substantially the same development”. The McKees letter contained a side-by-side comparison of the original architectural plans and the amended architectural plans for each floor of the proposed development. The report also described the works involved in the original architectural plans (at a high level) and the amended architectural plans (in some detail), as set out above at [34].

There was, it is true, a significant evolution of the proposed garage structure over the course of the modifications. However, it is clear from the s 4.55 assessment report that Council was aware that the first floor level studio was proposed to be a self-contained dwelling containing a kitchen, bathroom and independent access. The assessment report (set out at [32]-[36] above) referred to the “Provision of a kitchen and bathroom within the studio”, and the SOEE likewise noted that the first floor studio constituted a “self-contained dwelling” as it contained a kitchen, bathroom and independent access, as set out at [30] above.

Moreover, the McKees letter to Council dated 22 December 2023 which is referred to in the s 4.55 assessment report made, as submitted by the first respondent, a “very clear” representation in relation to s 4.55(2)(a) of the EPA Act and the question of whether the development as proposed by the 2024 modification application was substantially the same development as that for which consent was originally granted.

The s 4.55 assessment report concluded that “this Development Consent as proposed to be modified is considered to be substantially the same as the originally approved development”.

For the foregoing reasons, I am not satisfied that the applicant, on whom the onus lies in relation to Ground 3, has established that Council failed to undertake a comparative exercise between the development as approved by the 2007 development consent and the development as proposed to be modified by the 2024 modification application. I draw the inference on the balance of probabilities that Council formed the necessary opinion of satisfaction under s 4.55(2)(a) before it decided to approve the 2024 modification application.
I would dismiss Ground 3.

Ground 4: Whether Council’s decision to approve the 2024 modification was manifestly unreasonable

In Ground 4, the applicant contends that (a) no reasonable consent authority would have concluded that the development to which the 2024 modification related was substantially the same as the development for which the development consent was originally granted as required by s 4.55(1A)(b) of the EPA Act; and (b) the conclusion that the development proposed under modification application number 795/2006/5 was substantially the same development lacked any evidence or intelligible justification.

Applicable legal principles in relation to Ground 4

Ground 4 relies on legal unreasonableness which is an available ground for review in this Court of administrative decisions.^[59] As submitted by the applicant, it is trite that any body exercising public power must first satisfy itself that the preconditions to the exercise of the power have been satisfied.^[60] The requirement of legal reasonableness, derived from implication from the legislative scheme, is presumed unless there is an affirmative basis in the statutory power, or the nature and statutory context of that power, for its exclusion or modification.^[61] A decision will be legally unreasonable if it is lacking an evident or intelligible justification, irrational or illogical, or is plainly unjust, arbitrary, capricious, or lacking common sense.^[62]
59. Cameron v Woollahra Municipal Council [2024] NSWCA 216 (Payne JA) (White JA and Price AJA agreeing); Woollahra Municipal Council v Cameron [2024] NSWLEC 27 (Pritchard J).
60. Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1; [2014] NSWCA 364 at [187] (Leeming JA).
61. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [63] (Hayne, Kiefel and Bell JJ) and [92] (Gageler J); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21 (Brennan J); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [43] (French CJ).
62. Li at [25], [28] (French CJ), and [72] [76] (Hayne, Kiefel, and Bell JJ)
The applicant said that Ground 4(a) relies on its submissions made in relation to Ground 3, particularly in reliance on the authority in Vacik, that the development as modified involved an additional and distinct use, and cannot be substantially the same development as that originally approved in the 2007 development consent. On any view of the approved structure, the presence of a kitchen and bathroom contemplates a completely different use to the originally approved proposal. The applicant said that Ground 4(b) also relies on its submissions made in relation to Ground 3, particularly in relation to the absence of any relevant comparison exercise having been undertaken by Council. Such comparison was required given the “modification creep”, the changes to the built form, and the long list of conditions that had been imposed since 2007.
Finally, the applicant submitted, it could not be said that a finding of “substantially the same” was open to Council on the material before it. It was open to infer legal error if the result of the decision appears unreasonable, assuming the correct question was addressed and the law was followed in the making of the decision.^[63]
63. Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [5] (Allsop CJ), referring to Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; [1949] HCA 26 (Dixon J).

First respondent’s submissions in relation to Ground 4

The first respondent submitted that the hurdle in relation to unreasonableness is a high one. It could not be said that the decision-making process in this case exhibited any basis on which the allegation of unreasonableness could be substantiated.

Conclusion in relation to Ground 4

The hurdle in relation to unreasonableness is undoubtedly a high one. The applicant’s complaint in relation to Ground 4 is essentially the same as in relation to Ground 3. The applicant has not established any relevant unreasonableness in Council’s decision-making process here.
I would dismiss Ground 4.

Discretion

Applicant’s submissions in relation to discretion

In relation to discretion, the applicant referred to the “pleading” by the first respondent in its further amended response to summons filed on 31 October 2024 that as a matter of discretion, the Court would not make the orders sought. However, the first respondent had not identified any reason, nor provided any evidence, addressing the issue of discretion. For present purposes, however, the applicant submitted that:

in relation to Ground 1: if the 2007 development consent has lapsed, there is no evidence that it has been relied upon in respect of building works carried out: “There is no matter of discretion that would justify the exercise of discretion not to make the orders sought” by the applicant; and

in relation to Grounds 2 to 4: a declaration of invalidity usually flows from a finding of jurisdictional error.^[64] That is because a decision that involves jurisdictional error is a decision that “lacks legal foundation and is properly regarded, in law, as no decision at all”.^[65]
64. May v Northern Beaches at [23] (Meagher and Payne JJA)..
65. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51] (Gaudron and Gummow JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24] (Kiefel CJ, Gageler and Keane JJ).

Rather, the Court would make the orders sought by the applicant given the changes to the relevant planning controls since the granting of the 2007 development consent which:

require a more stringent assessment of earthworks, particularly in relation to the effect on existing and likely amenity and structural integrity of surrounding properties: cl 6.2 of the WLEP which was inserted on 23 January 2015. An equivalent condition requiring development consent for earthworks in certain circumstances does not appear to have existed in the Woollahra Local Environmental Plan 1995 which was in force on 26 June 2007, when the 2007 development consent was granted; and

seek to minimise the visual impact of garages and to ensure that garages do “not detract from the appearance of the development and the streetscape” by including controls to this effect in Part B3.6 of the WDCP.^[66]
66. Cf, for instance, the Rose Bay Centre Development Control dated 29 August 2012 cl 6.6.2 (repealed by the WCDP on 23 May 2015) which provided the following design principles in relation to on-site parking:

First respondent’s submissions in relation to discretion

In relation to discretion, the first respondent submitted that the conduct of the applicant, including the prior unexplained conduct of his family in failing to challenge the development consent before the fourth modification application dated 22 May 2023, was “a perfectly good discretionary reason” not to grant the relief sought, particularly in circumstances where “they rely upon an absence of evidence to establish the invalidity of the consent”.
Further, this was a clear case of laches.^[67] In Macquarie Units Pty Ltd v Suchen Pty Ltd^[68], the Court of Appeal held that equitable relief may be refused on the ground of laches in circumstances where there has been delay in bringing proceedings by a party seeking equitable relief which has allowed a situation to arise such that if it were disturbed, it would be unjust or “prejudicial” to the defendant: Meagher JA at [80]-[84] (White JA agreeing at [121] and Brereton JA agreeing at [122]). In this context, “delay” presupposes that a “diligent plaintiff sufficiently apprised of the facts and their rights would have commenced proceedings at some earlier stage”: Meagher JA at [85]. In Macquarie Units Pty Ltd v Suchen Pty Ltd the appellants knew about the unauthorised transfer on the day that it occurred and waited four years to bring proceedings: Meagher JA at [86].
67. Bourne v, Swan and Edgar Ltd [1903] 1 Ch 211; Macquarie Units Pty Ltd v Suchen Pty Ltd
68. [2023] NSWCA 116.
The first respondent submitted that in the absence of any explanation, “the defence of laches should not differentiate between the period of time during which 8 Tivoli Avenue was held by the applicant's father since 2009 and the period subsequent to that time when it was gifted to the applicant”.

Applicant’s submissions in reply in relation to discretion

In reply, the applicant submitted that in circumstances where the planning controls had changed, there is good reason to consider that if a further application were made for consent for a three storey garage and secondary dwelling with a nil setback to 8 Tivoli Avenue, that application might be refused (or approved in a substantially different form away from the boundary).
The applicant brought these proceedings as soon as possible after being notified of the approval of the fourth modification application, the most recent modification application, on or around 22 May 2023, and being made aware that the first respondent intended to proceed with works under the 2007 development consent. There “being no building works pursuant to the development consent”, there is no discretionary reason that would justify a departure from the “usual order”.

Conclusion in relation to discretion

Having considered the parties’ submissions in relation to discretion, I do not consider it appropriate in the circumstances of these proceedings to exercise the Court’s discretion to decline to grant the relief sought by the applicant.

Costs

In relation to costs, at the hearing, Mr Eastman SC for the applicant submitted that costs should follow the event. In the event a different costs order were sought, Mr Eastman requested to make submissions on costs “within a relevant period of time”, and noted that he would be content for the matter to be dealt with on the papers.
The first respondent did not make any submissions in relation to costs.

Conclusion and orders

For the foregoing reasons, the Court makes the following orders:

Declare that development consent 795/2006/1 granted by Woollahra Municipal Council on 26 June 2007, for “alterations and additions to existing garage / studio” at 6 Tivoli Avenue, Rose Bay lapsed on 26 June 2012.

The first respondent to pay the applicant’s costs as agreed or assessed.

**********

Endnotes

A particular application of the maxim which is relevant to this case is stated in Broom's Legal Maxims, 10th ed (1939) at 642 as follows:

“… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium — everything is presumed to be rightly and duly performed until the contrary is shown.”

(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 2 years (or, if the consent authority so approves ... 3 years) of the date on which that consent becomes effective...

(ii)

(b) ...

(2) For the purposes of subsection (1)(a)

(a) where development comprises ... 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.

Facilitate the redevelopment or incremental development of narrow sites by implementing a parking contributions scheme to provide public car parking.

Ensure the impact of car parking on the site and streetscape is handled discretely.

Ensure the design of on-site car parking is safe and efficient, and integrated with the overall site and building design.

Maximise natural light and ventilation to parking areas where possible.

[2023] NSWCA 116.

Decision last updated: 04 July 2025

Medium Neutral Citation:	Huang v Waterhouse [2025] NSWLEC 71
Hearing dates:	14 November 2024
Date of orders:	4 July 2025
Decision date:	04 July 2025
Jurisdiction:	Class 4
Before:	Pritchard J
Decision:	The Court makes the following orders: (1) Declare that development consent 795/2006/1 granted by Woollahra Municipal Council on 26 June 2007, for “alterations and additions to existing garage / studio” at 6 Tivoli Avenue, Rose Bay lapsed on 26 June 2012. (2) The first respondent to pay the applicant’s costs as agreed or assessed.
Catchwords:	ENVIRONMENT AND PLANNING – Consent – Construction – Whether certain conditions of development consent required compliance prior to undertaking work comprising part of the approved development – Whether work related to the approved development prevented its lapse – s 95 of the Environmental Planning and Assessment Act 1979 (NSW) — Whether work could be said to have physically commenced – Conditions required compliance prior to the work undertaken – Modification, revocation or review — s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) – Forming state of satisfaction that development was substantially the same — Whether decision to approve modification was manifestly unreasonable – Discretion
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) (as in force between 1 March 2007 and 4 July 2007) s 95 Environmental Planning and Assessment Act 1979 (NSW) (as in force on between 13 March 2012 and 6 July 2012) s 95 Environmental Planning and Assessment Act 1979 (NSW) (as in force between 1 January 2024 and 1 July 2024) s 4.55 Environmental Planning and Assessment Amendment (Development Consents) Act 2010 (NSW) Environmental Planning and Assessment Regulation 2021 (NSW) s 96 Local Government Act 1993 (NSW) Woollahra Residential Development Control Plan 2003 (NSW) (repealed) Woollahra Local Environmental Plan 1995 (NSW) (repealed) Woollahra Local Environmental Plan 2014 (NSW)
Cases Cited:	Arrage v Inner West Council [2019] NSWLEC 85 Ashmere Cove Pty Ltd v Beekink(No 2) (2007) 244 ALR 534; [2007] FCA 142 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59 Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 Bourne v, Swan and Edgar Ltd [1903] 1 Ch 211 Cameron v Woollahra Municipal Council [2024] NSWCA 216 Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 Caroona Coal Action Group Inc v Coal Mines Australia Pty Limed and Minister for Mineral Resources (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353 Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401 Coalcliff Community Association Inc. v Minister for Urban Affairs and Planning (1999) 206 LGERA 243; [1999] NSWCA 317 Conservation of North Ocean Shores Inc v Byron State Council (2009) 167 LGERA 52; [2009] NSWLEC 69 Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1; [2014] NSWCA 364 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1; [2002] NSWCA 404 Fabemu(No 2) Pty Ltd v Kiama Municipal Council (2023) 258 LGERA 229; [2023] NSWLEC 79 Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 FG Whitley and Sons v Secretary of State for Wales (1992) 64 P&CR 296 Franklins Ltd v Penrith City Council [1999] NSWCA 134 Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30 Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123 Hitchcock v Reed [2022] NSWLEC 81 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; (2005) 140 LGERA 201; [2005] NSWCA 169 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Johnco Nominees vAlbury-Wodonga (NSW) Corporation (1977) 1 NSWLR 43 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 Macquarie Units Pty Ltd v, Suchen Pty Ltd [2023] NSWCA 116 Manly Council v Hortis (2001) 113 LGERA 321; [2001[ NSWCA 81 Manning v Bathurst Regional Council (No 2) (2013) 199 LGERA 147; [2013] NSWLEC 186 May v Northern Beaches Council [2023] NSWCA 205 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; (1986) 54 LGRA 403; [1986] HCA 40 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; (1972) 26 LGRA 437; [1972] HCA 21 Parramatta City Council v Hale (1982) 47 LGRA 319 SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 Sutherland Shire Council v Benedict [2017] NSWLEC 4 Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 59 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; (2015) 208 LGERA 361; [2015] NSWCA 158 Upper Hunter Sustainable Industries Association Inv v MACH Energy Australia Pty Ltd (No 2) (2017) 224 LGERA 261; [2017] NSWLEC 87 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Woollahra Municipal Council v Cameron [2024] NSWLEC 27 Young v Warringah Shire Council (2001) 117 LGERA 62; [2001] NSWLEC 208 Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Category:	Principal judgment
Parties:	Mincong Huang (Applicant) David Richard Charles Waterhouse (First Respondent) Woollahra Municipal Council (Second Respondent) (Submitting Appearance) Michael Clive Rothner (Third Respondent) (Submitting Appearance)
Representation:	Counsel: N Eastman SC and J Farrell (Applicant) FM Douglas KC and D Allen (First Respondent) Solicitors: McCullough Robertson Lawyers (Applicant) Ad Valorem Law (First Respondent) Wilshire Webb Staunton Beattie Lawyers (Second Respondent) (Submitting Appearance) Boskovitz Lawyers (Third Respondent) (Submitting Appearance)
File Number(s):	2024/00132772