Hunter Development Brokerage Pty Ltd v Cessnock City Council - [2005] NSWCA 169

No judgment structure available for this case.

Reported Decision:
63 NSWLR 124
140 LGERA 201

Court of Appeal

CITATION:
Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169

HEARING DATE(S):
14 April 2005

JUDGMENT DATE:

23 May 2005

JUDGMENT OF:
Santow JA at 1; Tobias JA at 2; Stein AJA at 131

DECISION:
Hunter Development Brokerage Pty Limited v Cessnock City Council CA 40779/04:; (1) Appeal allowed; (2) Order 1 made by Bignold J on 17 August 2004 be set aside; (3) Order that the proceedings be remitted to the Land and Environment Court for determination by that Court in accordance with the decision of this Court; (4) Order that the respondent pay the appellant's costs of the appeal, but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified; Tovedale Pty Limited v Shoalhaven City Council CA 40812/04:; (1) Appeal allowed; (2) Order 1 made by Bignold J on 28 August 2004 be set aside; (3) Declare that the development consent granted by the respondent on 28 September 1989 (Council reference SF6559) for the subdivision of Lot 6 DP714802 and Lot 8 DP740045 at Old Southern Road, South Nowra has not lapsed; (4) Order that the respondent pay the appellant's costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

CATCHWORDS:
LAND AND ENVIRONMENT- Devlopment consents for subdivision of land - Whether consents had lapsed - Under Environmental Planning and Assessment Act, consent lapsed unless "building, engineering or construction work relating to" development was "physically commenced" upon land to which consent applied - Whether expression "building, engineering or construction work" was capable of including survey work and/or geotechnical investigation work - Whether survey work and/or geotechnical investigation work carried out by respective appellants was, in fact, engineering work and whether it was "physically commenced" - Relevance of whether work was "merely preparatory" - Whether work in each case "related to" approved development - STATUTORY CONSTRUCTION - "Relating to" - Ambit in context of reference, in lapsing provisions of Act, to work "relating to" the development

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Local Government Act 1919
Surveying Act 2002
Land and Environment Court Act 1979

CASES CITED:
Iron Gates Developments Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132
Green v Kogarah Municipal Council (2001) 115 LGERA 231
Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170
Young v Warringah Shire Council (2001) 117 LGERA 62
Richard v Shoalhaven City Council [2002] NSWLEC 11
Noble House Corporation Pty Limited v Sydney City Council [1999] NSWLEC 190
Day v Pinglen Pty Limited (1981) 148 CLR 289
North Sydney Municipal Council v Middle Harbour Investments Pty Limited (1963) 10 LGRA 41
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350
Liverpool City Council v Home Units Australia Pty Limited [1973] 2 NSWLR 61
Auburn Municipal Council v F N Eckold Pty Limited [1974] 2 NSWLR 148
Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632
Waverley Municipal Council v Ladec Holdings Pty Limited (1978) 36 LGRA 188
Ex parte Dackfield Pty Limited [1983] 1 Qd R 10
Biwazu Pty Limited v Cessnock City Council [2004] NSWLEC 411
Cariste Pty Limited v Blue Mountains City Council (Unreported, Supreme Court of NSW, Court of Appeal, Clarke and Beazley JJA, and Simos A-JA, 18 November 1996)
Besmaw Pty Limited v Sutherland Shire Council (2003) 127 LGERA 413
Owendale Pty Limited v Anthony (1967) 117 CLR 539
Marks & Spencer Limited v London County Council [1952] Ch 549
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
Detala Pty Limited v Byron Shire Council (2002) 133 LGERA 1
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243

PARTIES:
Hunter Development Brokerage Pty Limited
Cessnock City Council
Tovedale Pty Limited
Shoalhaven City Council

FILE NUMBER(S):
CA 40779/04; 40812/04

COUNSEL:
A: T S Hale SC / Jeff Kildea (Hunter Dev)
R: J Ayling QC / Jane Jagot (Cessnock Ccl)
A: T F Robertson SC / J Gibson (Tovedale P/L)
R: J Webster SC / Jane Jagot (Shoalhaven Ccl)

SOLICITORS:
A: Thompson Norrie, Maitland (Hunter Dev.)
R: Cleaves Mallik Gibbs (Cessnock Ccl)
A: Kearns & Garside, Kiama (Tovedale P/L)
R: Morton & Harris, Nowra (Shoalhaven Ccl)

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 11564/03; LEC 40525/04

LOWER COURT JUDICIAL OFFICER:
Bignold J,

CA 40779/04
L&E 11564/03

CA 40812/04
L&E 40525/04

SANTOW JA
TOBIAS JA
STEIN A-JA
Monday 23 May 2005

HUNTER DEVELOPMENT BROKERAGE PTY LTD v CESSNOCK CITY COUNCIL

TOVEDALE PTY LIMITED v SHOALHAVEN CITY COUNCIL

Both appeals (heard together because of the common issues of law which they raised) involved the granting by, in the one case, Cessnock City Council to Hunter Development Brokerage Pty Limited (Hunter) and, in the other, Shoalhaven City Council to Tovedale Pty Limited (Tovedale) of development consent to the subdivision of land into residential lots. With respect to each consent, the relevant council contended that it had lapsed. Hunter and Tovedale challenged those contentions.

The statutory provisions relevant to the issue of whether the respective consents had lapsed (namely, s 95(4) of the Environmental Planning and Assessment Act 1979 as at 24 February 2003 in the case of the Hunter consent and s 99(1)(a) of that Act as at 28 September 1991 in the case of the Tovedale consent) both relevantly provided to the effect that a development consent for the subdivision of land would lapse after a specified period of time unless "building, engineering or construction work relating to" the development was "physically commenced" upon the land to which the consent applied.

Each subdivision involved the carrying out of physical work such as the provision of roads, water and sewerage reticulation and drainage. In each case survey work had been carried out prior to the relevant lapsing date. With respect to the Hunter consent, further work had been carried out in the nature of geotechnical investigations and landscape work.

In each case, the primary judge upheld the contention of the council that the consent had lapsed. It was from those decisions that Hunter and Tovedale appealed to the Court of Appeal.

HELD by Tobias JA (Santow JA and Stein A-JA agreeing):

(1) The natural and ordinary meaning of the expression "engineering work" is capable of including physical survey work of the nature and extent of that the subject of the appeals ([80], [83]-[85]).

Richard v Shoalhaven City Council [2002] NSWLEC 11 applied.

(2) The relevant work 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 ([86]).

(3) The physical survey work carried out by Tovedale and Hunter respectively, and the geotechnical investigation work carried out by Hunter, was neither notional nor equivocal; was, in fact, engineering work; and was physically commenced ([87], [91]).

(4) Whether one describes the relevant work as "merely preparatory" is irrelevant ([97]-[98], [106], [111]). Once it is determined that the work relied upon falls within the expression "building, engineering or construction work" and has been "physically commenced" upon the land to which the consent applies, the only remaining issue is whether that work was work "relating to" the development the subject of the consent ([100], [106], [111]).

Green v Kogarah Municipal Council

(2001) 115 LGERA 231 applied.

Besmaw Pty Limited v Sutherland Shire Council

(2003) 127 LGERA 413 applied.

(5) The expression "relating to" involves at the very least some real relationship or connection between the relevant work and the development in respect of which consent has been granted. The required relationship is satisfied if the work is a necessary step in, or part of, the process required for the development ([104], [106], [112]). If the work serves more than one purpose, it is sufficient that one of those purposes bears a real relationship to the development ([115], [117]).

(6) In each of the present cases, the work relied upon "related to" the approved subdivision ([102]-[103], [110]).

(7) The survey work in each case and the geotechnical investigation work in Hunter was:

(a) engineering work

(b) related to the approved subdivision, and

(c) physically commenced upon the land to which the consent applied before the relevant lapsing date. As a result, neither consent lapsed ([129]).

CA 40779/04
L&E 11564/03

CA 40812/04
L&E 40525/04

SANTOW JA
TOBIAS JA
STEIN A-JA
Monday 23 May 2005

HUNTER DEVELOPMENT BROKERAGE PTY LTD v CESSNOCK CITY COUNCIL

TOVEDALE PTY LIMITED v SHOALHAVEN CITY COUNCIL

Judgment

1 SANTOW JA: I agree with Tobias JA

2 TOBIAS JA: These appeals, although separately instituted, were heard together because of the common issues of law which they raised. Both involved the granting by, in the one case, Cessnock City Council (Cessnock) to Hunter Development Brokerage Pty Limited (Hunter) and in the other, Shoalhaven City Council (Shoalhaven) to Tovedale Pty Limited (Tovedale) of development consent to the subdivision of land into 67 rural/residential lots in the case of Cessnock (the Hunter consent) and into 54 residential lots in the case of Shoalhaven (the Tovedale consent).

3 The Hunter consent was granted on 24 February 1998 whereas the Tovedale consent was granted on 28 September 1989. With respect to each consent, the relevant council contended that it had lapsed. Hunter and Tovedale challenged those contentions. In each case the primary judge, Bignold J, in decisions dated 17 August 2004 with respect to the Hunter consent (the Hunter judgment) and 28 August 2004 with respect to the Tovedale consent (the Tovedale judgment), upheld the contention of the relevant council that the consent had lapsed. It is from those decisions that Hunter and Tovedale appeal to this Court.

4 The Hunter appeal concerned the interpretation of s 95(4) of the Environmental Planning and Assessment Act 1979 (the EPA Act), whereas the Tovedale appeal concerned the interpretation of s 99(1)(a) of that Act. The former provision governed the lapsing of the Hunter consent as it was the relevant provision of the EPA Act in force as at 24 February 2003 which was the date at which the question of the lapsing of that consent arose. Section 99(1)(a) was the relevant provision of the EPA Act governing the lapsing of the Tovedale consent as at 28 September 1991 which was the date at which the lapsing of that consent was required to be considered. Each of those dates I shall refer to as "the lapsing date". However, to all intents and purposes, the provisions were the same and the contrary was not suggested. However, it is appropriate that I should set out each of those provisions.

5 Section 95 of the EPA Act was, relevantly, in the following terms:

Section 95 Lapsing of consent

(a) 5 years after the date from which it operates, except as provided by (b), or

…

(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.

6 Section 99 of the EPA Act was, relevantly, in these terms:

Section 99 Lapsing of consent

99(1)

(a) unless the development the subject of that consent is commenced –

(i) … within 2 years … of the date upon which that consent becomes effective …

…

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

(a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work on land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided) – 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; or

(b) … .

7 Each consent was for the subdivision of land and each subdivision involved the carrying out of physical work such as the provision of roads, water and sewerage reticulation and drainage. In each case survey work was carried out prior to the lapsing date which involved some clearing of vegetation, the digging of holes, the placement of permanent marks on or under the surface and the placement of pegs or stakes to act as recovery marks. With respect to the Hunter consent, further work was carried out in the nature of geotechnical investigations and landscape work. With respect to the Tovedale consent, the survey work also included the survey of a site for a proposed sewerage pumping station allegedly required as a condition of that consent and which resulted in the re-subdivision of the land the subject of the consent into two lots – one of which was for the proposed pumping station and the other as a residue lot to be subdivided into the approved 54 residential lots. The foregoing is a general summary of the works in question – I shall refer to the details later in these reasons.

8 The issue which arose in each case was whether any or all of the work referred to was "engineering … work relating to" the subdivision the subject of each consent which had been "physically commenced on the land to which the consent applied". The primary judge answered that question in the negative in each case with the result that each consent had lapsed.

The findings of fact relevant to the Hunter consent

9 The Hunter consent was granted on 24 February 1998. It related to Stage 5 of what was known as the Henwood Estate. The consent was, so the primary judge found, both a development consent under the EPA Act and a subdivision consent under s 331 of Part XII of the Local Government Act 1919 (the LG Act). The consent was subject to 58 conditions of which only Condition 27 need be noticed. It was in the following terms:

"Prior to commencing any works, a detailed landscaped plan, prepared by a suitably qualified professional, is to be submitted to Council to the satisfaction of the Manager, Development Services for the provision of a dense landscape screen within the 25 metre noise buffer strip located on those lots fronting Main Road 220."

10 The relevant documentary evidence before the primary judge comprised a large number of written witness statements prepared by various persons concerning the works claimed to have been carried out on the land the subject of the consent which, so it was contended, avoided the statutory lapsing thereof. Those statements were tendered as witness statements and, except in relation to one, none of the authors were cross-examined. The works relied upon by Hunter comprised survey works, geotechnical investigation and landscape works.

11 His Honour found (at [45(i)]) that the relevant survey works were

"undertaken for the purposes of the approved Stage 5 subdivision."

12 Relevantly, those works were described by Mr Oberman as follows:

"(a) In August 1998 he carried out survey work by fixing survey reference marks on the land comprising Stage 5. This work involved installing galvanised iron pipes underground as permanent reference works and inserting pegs at ground level. This work was intended to provide reference points for the future internal subdivision road within the approved Stage 5;

(b) In November 1999 he placed road pegs at ground level adjacent to proposed lots 96-98 and 106 and 107 in the approved subdivision plan for Stage 5;

(c) In December 1999 he pegged out lots 60, 61 and 68 of the approved subdivision plan for Stage 5;

(d) In May 2000 he carried out survey work on the location of the proposed circular internal road to Stage 5 in order to determine the levels of contours of the existing ground surface. The results of this work were provided to Hunter to be used in the preparation of engineering plans for the final design of that road;

(e) In May 2001 he placed permanent marks in several of the road angles comprising the approved subdivision plan for Stage 5 … [These] permanent marks will also fix the final position of the internal road to the Stage 5 subdivision layout."

13 According to the witness statement of Mr David England, consulting civil engineer, the survey work undertaken by Mr Oberman was work that was

"… invariably carried out in the land development industry in relation to subdivisions, after the grant of development consent for the subdivision and prior to application for a construction certificate"

14 With respect to the geotechnical investigation work, his Honour found (at [45(ii)]) that those works were as described by Mr Mark Allman and were carried out on Stage 5. The work comprised the excavation of test pits and the collection of soil samples from them. The work was undertaken by a civil engineer over two days in November 2003. The soil samples were subjected to laboratory tests and the results were used for the purpose of enabling the preparation of engineering plans and specifications for the proposed subdivision road payments (see [33]). His Honour held (at [61]) that that work clearly qualified as "engineering work" within the meaning of s 95(4).

15 As to the landscaping works, the primary judge found (at [45(iii)]) that that work was as described in a witness statement of Mr Mark Burns, a bushland expert, and was carried out on the Stage 5 land in September 1999. It is unnecessary for present purposes to describe the nature and extent of that work as his Honour found that at the time the work was carried out, Cessnock had not approved the landscaping plan pursuant to which they were performed. He therefore held (at [97]) that that work had been carried out in contravention of Condition 27 of the consent as a result of which it did not qualify as work that could avoid statutory lapsing: Iron Gates Developments Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Green v Kogarah Municipal Council (2001) 115 LGERA 231. Furthermore, his Honour considered (at [60]) that such work did not relevantly qualify as "engineering or construction work".

The primary judge's reasoning with respect to the lapsing of the Hunter consent

16 The primary judge posed for himself these questions:

(a) Did the work relate to the subdivision approved by the development consent?

(b) Was the work undertaken on the Stage 5 land relevantly "engineering or construction work"?

(c) Had the development consent lapsed?

17 With respect to the first question, the primary judge found (at [46]) that each of the survey work, geotechnical investigation work and landscape work which he had found to have been undertaken upon the land

"related to the subdivision approved by the development consent, in the sense that they were undertaken for a purpose relating to the approved subdivision."

18 Although (at [47]) his Honour asserted that this finding was not intended to exhaust the full meaning of the relevant "relationship" between the work and the approved development which had developed as a consequence of the judicial gloss placed upon the relevant expression by cases such as Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170, it seems to me that his Honour has answered the first question he posed for himself in the affirmative.

19 As to the second question which his Honour regarded as one of mixed law and fact, he held (at [58]) that notwithstanding the decisions of Cowdroy J in Young v Warringah Shire Council (2001) 117 LGERA 62 at 66 and Talbot J in Richard v Shoalhaven City Council [2002] NSWLEC 11, in the context of the expression "building, engineering or construction work" in s 95(4) of the EPA Act

survey work

'engineering work

construction work

as a fact

engineering work

engineering or construction work relating to

20 His Honour made the same finding with respect to the landscape work. However, as I have observed, he considered (at [61]) that the geotechnical investigation work did qualify as "engineering work".

21 The third question raised what the primary judge regarded as the major issue in the case, namely, whether the geotechnical investigation work did not qualify as "engineering work" as it was, in truth, only "preparatory work". He considered that the resolution of that issue would be determinative of that question.

22 Cessnock had submitted that even assuming the survey work qualified as "engineering work", nevertheless both that work and the geotechnical investigation work were merely preparatory and on that account did not relevantly qualify as "engineering work relating to the subdivision" for the purposes of s 95(4). Hunter on the other hand submitted that the concept of "preparatory work", although relevant under the lapsing provisions of the LG Act and in particular s 315 thereof, was foreign to s 95(4). That contention was said to be supported by dicta of Talbot J in Noble House Corporation Pty Limited v Sydney City Council [1999] NSWLEC 190 and Richard as well as some dicta of Giles JA in Green.

23 It is unnecessary to consider the dicta of Talbot J in Noble House as I do not consider that it advances, or was intended by his Honour to advance, the resolution of the present issue. However in Richard, Talbot J stated the position more decisively when he said:

"10. Let me say at the outset that whether the works are preparatory or not is not the question to be determined. That is a distinct question from the question of whether engineering work is physically commenced. The expression relating to preparatory work arose historically under the provisions of the Local Government Act 1993 (sic) prior to its recent amendments and in particular s 315. The present legislative regime speaks only of work being physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section."

24 The primary judge did not consider that this statement of Talbot J constituted an "authoritative ruling" on the issue. In one sense that is true as the applicant in Richard was seeking a declaration that the relevant consent had not lapsed but there was no contradictor as the council, although joined as a respondent, had filed a submitting appearance. However, I shall return to Talbot J's decision later in these reasons for the purpose of resolving the issue as to whether survey work is capable of constituting "engineering work" within the meaning of s 95(4).

25 In [81] and [82] of his judgment, the primary judge referred to the following passage in the judgment of Giles JA (with whom Mason P and Ipp A-JA agreed) in Green (at 243-4 [45]):

Smith v Wyong Shire Council (No 3)

26 According to the primary judge (at [82]), Giles JA in Green did not find it necessary to deal with the issue encapsulated in [45] of his judgment but contented himself with the following observations (at 251):

mith v Wyong Shire Council (No 3)

Local Government Act 1919 (NSW

27 I shall also return to the judgment of Giles JA in Green later in these reasons as I consider the observations of his Honour in [68]-[72] thereof to be of assistance in resolving the issues in the present case as to whether survey work is "engineering work" or whether it is only "preparatory".

28 Having expressed the view that there was no authoritative ruling on the issue, the primary judge considered (at [84]) that it was necessary for him to examine the question as a matter of principle for himself,

"recognising of course that ultimately the answer lies in the proper construction of the statutory language."

29 His Honour commenced his consideration of this issue by reference to the decision of Cripps J in Smith (No 3). As this decision was pivotal to his Honour's ultimate conclusion, I shall consider it in some detail.

30 In Smith the applicant obtained development consent to erect a six-storey residential flat building. Shortly prior to the expiration of the two year period within which the development was required by s 99(2) of the EPA Act (as it then stood) to be commenced, two employees of the developer went onto the subject land and carried out minor demolition work and excavated approximately 450m² of earth to a depth of between 600-900mm to determine what materials were likely to be encountered in the intended basement area of the proposed building. Cripps J held that that work had no real relation to the erection of the approved building but was for the purpose of inspecting the site to determine the design of the basement. In so holding, his Honour applied the decision of the High Court in Day v Pinglen Pty Limited (1981) 148 CLR 289.

31 The relevant factual finding of Cripps J was as follows (at 173-4):

"Mr Smith and Mr Toft, a civil and structural engineer advising Mr Smith, had given evidence concerning the circumstances of the excavation. Mr Toft advised Mr Smith that it would be necessary to investigate the site to determinate what materials were likely to be encountered in the area to be occupied by the basement of the building. He advised Mr Smith either to have the site test drilled on a regular grid pattern or to excavate certain critical areas of the site to expose fully the various strata levels. Mr Smith chose the second alternative and it was for that reason that the excavation was carried out."

32 Cripps J recorded the submissions of the respondent council at 175. Upon the assumption that excavation work was relevantly building work, it was submitted that what was done in the present case was work preparatory to building work and that the provisions of EPA Act had not affected the distinction referred to in the reported cases between what was preparatory work (and, therefore, not relevantly part of the "development" or "building work" as the case may be) and what was not. It was therefore submitted that what was done was work preparatory to the erection of the approved building because the purpose of the excavation and subsequent inspection was to permit a proper design of the basement of that building to be achieved. The council further submitted that although the excavation work was "engineering work", it had not been shown to be only (or at least clearly and unambiguously) referable to the erection of the proposed building for the reason that what was done was only relevantly referable to the design of its basement.

33 According to Cripps J (at 176) these submissions constituted three ways of saying the same thing, namely, that what was done was not relevantly referable to that for which the consent was granted.

34 Cripps J then referred (at 176) to the fact that prior to the commencement of the EPA Act, most planning schemes contained a provision that development consent would be void if the development to which it referred was not substantially commenced within a certain time. Such a provision was reflected in s 315 of the LG Act which was in the following terms:

"Any approval given under this Part, or under any ordinances made thereunder, shall be void if the building work to which it refers is not substantially commenced within 12 months after the date of the approval."

35 His Honour then noted that the cases to which he referred thereafter were concerned with the meaning of "substantial commencement". The first of these was North Sydney Municipal Council v Middle Harbour Investments Pty Limited (1963) 10 LGRA 41 at 45 where Hardie J said:

"The use of the adverb 'substantially' in the context, in my view, emphasises two points, or perhaps two different approaches to the one point. One is that the commencement must be some positive unequivocal step indicating that the building for which consent or approval has been obtained has actually been commenced; in other words that some work has been done on the site which is referable to and only referable to the particular building or structure that has been approved; in that sense, it emphasises that the commencement must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement."

substantially

36 Cripps J then cited the following passage from the judgment of Gibbs J (with whom the rest of the High Court agreed) in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 360:

"Clearly the work and development which s 315 of the Act and cl 38(2) of the Ordinance require should have been substantially commenced is that to which the approval or consent itself refers, and it would seem to follow that work or development is not commenced when nothing more has been done than acts preparatory to the work or development which is the subject of the approval or consent. It may therefore be assumed, although it is not necessary to decide, that the demolition of the existing houses should not be regarded as commencement of the work in the present case."

37 The above passage from the judgment of Gibbs J in Lebnan was also cited by the primary judge in [88] of his judgment. It is to be observed, however, that like Hardie J in Middle Harbour Investments, Gibbs J was construing the expression "substantially commenced". Further, the demolition of the existing houses upon the relevant land in Lebnan was indeed preparatory in the sense that although that demolition was necessary before the developer could proceed to erect the approved residential flat building, that demolition did not itself require consent so that, in truth, it could be said that the development consent was not itself referable to that demolition and vice versa. Furthermore, Gibbs J held that the other work relied upon as constituting "substantial commencement", namely, the excavation for the footings of the approved building, was not only a commencement but also a substantial commencement of that building. There was therefore no issue but that that excavation was referable to the development which was the subject of the consent.

38 Cripps J next made reference to the decision of Hutley JA (sitting as a single judge in the Equity Division of the Supreme Court) in Liverpool City Council v Home Units Australia Pty Limited [1973] 2 NSWLR 61. Again, that was a case where the development consent was for the erection of a residential flat building. It was also a case of excavation work being carried out upon the site of the proposed development, which was held by his Honour to constitute substantial commencement.

39 After referring to the passage from the judgment of Hardie J in Middle Harbour Investments cited in [35] above, Hutley JA observed (at 69):

"It was suggested that that passage [that is, the passage from the judgment of Hardie J] means that in determining whether work has been substantially commenced, work off site was to be disregarded, such work being preparatory work. Though the passage lays it down that there has to be work done on the site for there to be substantial commencement, it does not mean that work done off the site which is referrable to a particular building or structure is to be disregarded. Such work though preparatory work in one sense can be part of the unequivocal step indicating that the building has been commenced.

The law is not compelled to disregard the transformation in building practice brought about by prefabrication on a large scale in the development of the means of erecting buildings in situ by the assembly of prefabricated sections …

It would be ridiculous to disregard prefabricated work or firm contracts for the prefabricated work in determining whether the building is substantially commenced as in such work the great bulk of the expenditure on the building work may be made. … A small amount of work on site may well be preceded by a great amount of work.

The distinction between preparatory work and other work is that work leading up to the making of the building contract is preparatory work, work which is part of the contract to erect is not preparatory work. Design work for incorporation in the contract is preparatory work, design work in consequence of the contract is not. Preparatory work is not work off site.

The erection of a structure has not substantially commenced if all that has happened is that planning has started to enable a contract to be let or the work of erection to be started but, provided some contract work has been done on site, all the work which is part of the contract can be looked at to answer the question."

40 It is to be noted that neither Cripps J in Smith nor the primary judge in the present case saw fit to cite the above passages from the judgment of Hutley JA in Home Units. This is unfortunate because, in my opinion, those passages make it clear that his Honour considered that even work off-site such as design work when performed pursuant to a contract for that work, and which is referable to the approved development, is capable of constituting the substantial commencement of that development provided some further work has been performed on site.

41 Cripps J next referred to the decision of Mahoney J in Auburn Municipal Council v F N Eckold Pty Limited [1974] 2 NSWLR 148. Again the case involved consent to the erection of a residential flat building. The only work relied upon as constituting "substantial commencement" was the demolition of one of three dwellings on the land. After referring to what Gibbs J said in Lebnan, Mahoney J (at 153) made the point that a

"… development consent may by implication be a consent to matters incidental to the development".

42 Thus, in Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632 at 637 Hope JA (with whom Jacobs and Manning JJA agreed) construed a consent to the erection of a service station as requiring the service station to be erected on a flat or horizontal surface at a level approximating the level of the roads to which the site had frontages. Accordingly, it was held that the consent impliedly authorised any filling of the land which was necessary for the purpose of producing such a surface. Such work, therefore, would not be regarded as preparatory to the development the subject of the consent but as work necessarily involved in that development.

43 However, following what Gibbs J said in Lebnan, Mahoney J considered (at 154) that demolition alone did not qualify as substantial commencement as it was an act preparatory to the development rather than an act

"necessarily involved in the development."

44 Cripps J then referred (at 177) to Waverley Municipal Council v Ladec Holdings Pty Limited (1978) 36 LGRA 188, where Rath J held that demolition work was not work referred to in a development consent for the erection of 14 townhouses. However, the erection of a retaining wall did qualify because there was a proved relationship between that work and the development as approved.

45 Finally, Cripps J cited the following passage from the joint judgment of the High Court in Day v Pinglen at 298:

"However, it remains necessary to consider, applying an objective test, whether, firstly, there was a commencement of the building work, and if so whether that commencement was substantial. There are some persuasive indicators pointing to a conclusion that there was no commencement of the building work in March 1977. There was, of course, the construction of a concrete slab but the detailed drawings for the approved project had not been prepared. Tenders had not been called, and no contract had been let. The casual arrangement by which a builder, already engaged in another project for the owner, transferred some of his men on the site for the three or four days that were necessary to complete the particular work to which he was assigned strongly suggests that this was an isolated work that had no real relation to the building work for which approval had been given. The job was an end in itself. It was the construction of a concrete slab."

46 Cripps J then concluded (at 178):

Day v Pinglen

What the section requires is that the development the subject of the consent is commenced within a period of two years. That commencement occurs when the building, engineering or construction work relating to the development the subject of the consent is physically commenced. In my opinion, there has not been established a sufficient nexus or relation between what was done by Mr Smith's employees in June 1983 and the development the subject of the consent, namely the erection of a six-storey residential flat building."

47 The primary judge then referred to the decision of Connolly J of the Supreme Court of Queensland in Ex parte Dackfield Pty Limited [1983] 1 Qd R 10 as providing "an apt illustration" of how the decided cases on the statutory concept of "substantial commencement of development" can usefully be employed in the statutory context of s 95.

48 One of the principles extracted by Connolly J (at 13) from the decided cases in which commencement was required to be "substantial" was the following:

"where a provision calls for substantial commencement of the work within a specified time, the work concerned is that to which the approval itself refers and work is not commenced when nothing more has been done than acts preparatory to the work which is the subject of the approval."

49 The work relied on in Dackfield concerned excavation work within the limits of the external foundation walls of the approved building with a view to bringing the level of the land down to that at which piling machines could commence their work of constructing piles. After referring to the passage from the judgment of Gibbs J in Lebnan at 360 to which I have referred in [36] above, Connolly J observed (at 14) that it would be possible to distinguish the finding of Gibbs J in Lebnan that the excavation work performed in that case was a substantial part of the work referred to in the consent by treating the subject excavation as no commencement because it was work preparatory to the siting of the piling machines and was not excavation of the footings or of any other part of the approved building. However, his Honour was constrained by the definition of "building work" in the relevant legislation to find that, preparatory or not, the excavation work fell within the definition and, therefore, qualified as building work which had been commenced.

50 The suggestion by Connolly J in Dackfield that Lebnan could be distinguished for the reason he gave involved a finding not dissimilar to that of Cripps J in Smith where the latter found that the excavation work in question was only carried out as an end in itself for the purpose of enabling the site to be investigated in order to determine the materials likely to be encountered in the area to be occupied by the basement of the proposed building. For reasons which will become apparent, I do not consider that the distinction sought to be made in Dackfield on the one hand and Smith on the other is one which should dictate the general proposition which the primary judge seems to have adopted, namely, that work performed upon the land to which the consent applies but which is preparatory to the physical commencement of the actual erection of the approved building or actual construction of the approved subdivision works is ipso facto disqualified from constituting "engineering or construction work relating to" that building or subdivision.

51 In this regard, the primary judge's conclusions were as follows:

building, engineering or construction work relating to … the building, subdivision or work is physically commenced on the land …

not

merely preparatory

93. Accordingly, where the only relevant works are preparatory works they do not qualify to avoid the statutory lapsing of the development consent.

94. In my judgment, all of the survey and geotechnical works relied upon by the Applicant are properly characterised as preparatory works. Both the survey and geotechnical works were undertaken for the purpose of enabling design engineering and survey plans to be prepared for the approved subdivision and to be submitted to the Council.

engineering or construction works

52 As I understand these passages, the primary judge held that although the work relied on to prevent the consent lapsing may have been, as was the geotechnical investigation work, "engineering work" and although that work had been physically commenced on the land to which the consent applied, nonetheless because they were "merely preparatory works" (in that they were undertaken for the purpose of enabling design and/or engineering plans to be prepared), they were not works "relating to" the approved subdivision. In my view, his Honour was in error in so holding.

The findings of fact relevant to the Tovedale consent

53 The work, which Tovedale argued had physically commenced the subdivision the subject of its consent was, relevantly, survey work. It comprised clearing, pegging of roads and lot boundaries and placement of permanent survey marks.

54 The consent was subject to a number of conditions of which Condition 7 is presently relevant. It was in the following terms:

"Provision of sewerage service to all proposed lots in the subdivision, at the subdivider's expense, all to Council's requirements. A site for a sewerage pumping station with the provision for access and electricity supply to the pump station and rising mains will also be required. The actual location will be determined upon the submission of engineering plans indicating the sewerage reticulation layout."

55 Prior to the lapsing date (28 September 1991), the following survey work was, it was agreed, carried out upon the relevant land:

(a) On 6 November 1989 the land was traversed for the purpose of fixing its boundaries which involved the clearing of a line of sight so that observations between marks placed on the ground could be made and then the placing of marks in the ground at intervals of approximately 100 metres.

(b) On 17 November 1989 work was performed upon the land involving the physical placement of pegs in the ground, the clearing of underscrub and trees on or near the proposed centreline of the designed position of the road infrastructure of the subdivision, the observing of measurements both horizontal and vertical and the locating of marks placed and recorded.

(c) Between 21 and 23 November 1989 work was undertaken involving the levelling and observation of cross-sections of the centreline of two roads the subject of the approved subdivision and which involved observing vertical and horizontal dimensions, clearing the lines of sight between the points denoting the centre line of those roads and clearing where the recovery pegs, required for the construction of the roads, were to be placed.

(d) On 23 November 1989 vertical and horizontal observations were undertaken at the intersection of two existing public roads of which one, Browns Road, was unmade so that a detailed design could be prepared for the proposed intersection and which involved the clearing of vegetation along the line of sight from the theodolite to the optical prism and staff and placing of marks in the ground for reference purposes.

(e) On 24 November 1989 a site was surveyed for the proposed sewerage pumping station which involved clearing of land so that levels of the location of the sewer main could be observed for design purposes.

(f) On 27 November 1989 work was performed involving the observation of levels along the rear boundary in the western traverse stations to determine ground heights for landfill design contour purposes and which further involved the clearing of vegetation to determine those ground heights.

(g) On 29 November 1989 work connected with the preparation of a plan of survey over the land was carried out involving the physical marking by placing pegs in the ground of the lot to be excised from the land for the purpose of the sewerage pumping station site.

(h) On 23 January 1990 the centreline marks placed along Browns Road to determine ground heights for road design and drainage purposes were levelled (which involved clearing of vegetation).

(i) On 14 and 15 February 1990 engineers involved in road design works cleared vegetation along the centreline of two of the proposed roads in the approved subdivision and levelled (in the survey sense) centreline marks which had been placed to locate those roads.

56 On 6 March 1990 road, drainage and sewer design plans for the approved subdivision were lodged with Shoalhaven and approved on 12 April 1990. Amended sewer design plans were lodged on 4 May 1990. In the same month an area of the land was cleared and temporary marks were placed in the ground to locate the boundaries of 17 of the 54 lots.

57 On 30 August 1990 Shoalhaven advised that it would require the land for the sewer pumping station to be transferred to it in fee simple as a condition of the release of any sewer plans. In November 1990 a plan of subdivision of the land to create Lots 55 and 56 was finalised, it being intended that Lot 55 would be the site of the proposed sewerage pumping station. This two-lot plan of subdivision was registered on 3 April 1991 as DP808935.

58 On 30 April 1991 pegs were placed in the ground denoting the centreline location of the proposed sewer main in Browns Road which involved the clearing of land so that levels could be observed.

59 On 17 May 1991 further amended sewer design plans were lodged with Shoalhaven which were approved on 19 July 1991.

60 The sewerage pumping station was never constructed on Lot 55: nor was that lot transferred to Shoalhaven. It appears that the latter never allocated any funds for that work to commence although it accepted responsibility for constructing the facility. The primary judge found (at [33]) that the subdivision created by the registration of DP808935 on 3 April 1991 was "an emanation from condition 7 of the development consent" but that it did not even partially fulfil the requirements of that condition. However he never did explain what he intended by that observation.

The primary judge's reasoning with respect to the lapsing of the Tovedale consent

61 The primary judge found (at [33]) that

"the whole of the work undertaken on the subject land in respect of the emanation was survey work and was preparatory or ancillary survey work for the preparation of the plans showing the subdivision sewerage works, which works required, and obtained the grant of approval under the LG Act, Pt XII."

62 His Honour then addressed himself to the question as to whether the Tovedale consent had lapsed on 28 September 1991. In responding to that question an issue arose as to whether the survey work undertaken on the land could relevantly qualify as "building, engineering or construction work relating to" the approved subdivision. The primary judge held (at [39]) that it did not for the following reasons:

(a) Survey work was not comprehended by the statutory expression "building, engineering or construction work"; and

(b) Even if survey work was so comprehended, it was merely preparatory work which did not involve the physical commencement of relevant work on the subject land.

63 However, the primary judge noted that, since he had reserved judgment in Hunter, Cowdroy J had decided Biwazu Pty Limited v Cessnock City Council [2004] NSWLEC 411. In that case Cowdroy J, distinguishing the decision of Talbot J in Richard, held that he was not satisfied that the survey work allegedly performed upon the subject land prior to the relevant lapsing date had occurred. The work in question was confined to the placement of pegs and stakes in the soil to mark out the centreline of some of the approved subdivision roads. However, it was found (at [38]) that that work did not require the consent of the council; nor was there evidence that such work was essential for the preparation of engineering plans.

64 Upon the assumption that that work had been performed, Cowdroy J held that the placement of survey pegs or stakes per se was not "engineering work" for the purposes of s 95(4) of the EPA Act.

65 After referring to the Macquarie Dictionary definition of "survey" and of "physical" and the definition of "survey" in s 3 of the Surveying Act 2002, Cowdroy J noted (at [39]) that the only possible effect upon land resulting from the defined activities was the installation of survey marks. As s 95(4) required the relevant work to be "physically commenced on the land", what was required was work which resulted in a material alteration to the land upon which it was performed. Thus, Cowdroy J concluded in these terms:

building, engineering or construction work

engineering

building

construction

44. Applying the above principles of statutory interpretation, the placing of pegs into the land as part of a survey did not result in a material change to the land. No physical impact upon the land in the nature of construction or engineering works for roads and drains was carried out, as envisaged by the consent. In such circumstances the survey work, by itself, cannot constitute engineering work for the purpose of s 95(4) of the EP&A Act. It follows that the engineering work had not been commenced by the expiration of the five year period contained in 95(1)(a) of the EP&A Act.

Hunter Development Brokerage Pty Limited v Cessnock City Council

66 After repeating [74]-[93] (inclusive) of the Hunter judgment, the primary judge referred to the unreported decision of this Court in Cariste Pty Limited v Blue Mountains City Council, 18 November 1996 (unreported). Simos A-JA, with whom Clarke and Beazley JJA agreed, held with respect to a development consent to establish a flora and fauna park, that the excavation for a dam intended to constitute a macrophytic pond, which his Honour held was authorised by the consent, did constitute the physical commencement of engineering and/or construction work. Simos A-JA held that that work was

"on the evidence, more than merely preparatory, and was not simply a sham, notwithstanding that it may have been done only days before the lapse of the development consent, and notwithstanding that no tenders had been called, no building contract let and no survey work done in relation to the pond."

67 The primary judge considered that the reference by Simos A-JA to the relevant works being "more than merely preparatory" and "not simply a sham" had been expressly derived from the judgment of Cripps J in Smith which had been cited at first instance as propounding the "true test" in determining the meaning and operation of s 99(2).

68 His Honour then concluded in the following terms:

Cariste

Hunter Development Brokerage

not

LG Act

69 Finally, the primary judge noted that it was a matter of significance that before the subject land could be lawfully subdivided it was not only necessary that the proposed subdivision be granted development consent under the EPA Act but also that it required approval under Part XII of the LG Act. As the relevant survey work had been undertaken after the grant of development consent but before the grant of subdivision approval under Part XII, his Honour considered (at [54]) that it was

LG Act

preparatory work

building

engineering or construction work

LG Act

The issues on the appeal

70 Essentially, two issues of law or mixed fact and law arise out the primary judge's decisions. The first is whether survey work is capable of falling within the description "building, engineering or construction work". A subset of this issue is whether the survey work carried out in each of the cases was in fact "engineering or construction work" and whether that work had been "physically commenced" on the relevant land. The second issue is whether there is any room in ss 99(2) or 95(4) for the concept of "preparatory work" which, according to the primary judge, disqualifies that work, even if engineering or construction work, from constituting "engineering or construction work relating to" the approved subdivision. To those issues I now turn.

Is survey work capable of constituting "

engineering or construction work

" within the meaning of the relevant statutory provisions?

71 Hunter adopted Tovedale's submissions on this issue. In this respect it was not suggested that, with the exception of the survey work relating to the creation of DP808935, the survey work in one case was relevantly different from that in the other case.

72 Tovedale therefore submitted that survey work comprising land clearing, pegging and the erection of permanent survey marks and which, therefore, involved physical activities upon its land, was capable of constituting "engineering or construction work relating to" the approved subdivision which had been "physically commenced" upon the subject land. It was further submitted that once one accepts that ss 99(2) and 95(4) concentrate upon the physical activity which is required to be commenced (but not completed) so that the statutory provisions are concerned only with identifying the point at which physical site works (as distinct from office design and planning) commence, then it follows that:

(a) the reference to "building, engineering or construction work" is to a process and not to an outcome;

(b) that process is "physically" commenced by the application of physical labour on the land to which the consent applies;

(c) so long as the labour is for the purpose of building, engineering or construction work (and relevantly relates to the development the subject of the consent), it satisfies the statutory requirements;

(d) as the work is the process rather than an outcome of the process, it is irrelevant that it occasions no material change to the land, is impermanent or is of limited or modest extent.

Besmaw Pty Limited v Sutherland Shire Council

73 It was further submitted that the natural and ordinary meaning of the word "engineering" included surveying. Given that the term "engineering work" is not defined in the EPA Act (unlike the term "building work"), the natural and ordinary meaning of the word "engineering" as defined in the Macquarie Dictionary is

131 STEIN A-JA: I agree with Tobias JA.

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Citations

Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169

Most Recent Citation

Hunter Development and Brokerage Pty Ltd v Cessnock City Council [2005] NSWLEC 727

Cases Citing This Decision

83

Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26

Cases Cited

13

Statutory Material Cited

4

Richard v Shoalhaven City Council [2002] NSWLEC 11

Noble House Corporation Pty Ltd v Sydney City Council [1999] NSWLEC 190

Biwazu Pty Limited v Cessnock City Council [2004] NSWLEC 411

CITATION:	Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169
HEARING DATE(S):	14 April 2005
JUDGMENT DATE:	23 May 2005
JUDGMENT OF:	Santow JA at 1; Tobias JA at 2; Stein AJA at 131
DECISION:	Hunter Development Brokerage Pty Limited v Cessnock City Council CA 40779/04:; (1) Appeal allowed; (2) Order 1 made by Bignold J on 17 August 2004 be set aside; (3) Order that the proceedings be remitted to the Land and Environment Court for determination by that Court in accordance with the decision of this Court; (4) Order that the respondent pay the appellant's costs of the appeal, but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified; Tovedale Pty Limited v Shoalhaven City Council CA 40812/04:; (1) Appeal allowed; (2) Order 1 made by Bignold J on 28 August 2004 be set aside; (3) Declare that the development consent granted by the respondent on 28 September 1989 (Council reference SF6559) for the subdivision of Lot 6 DP714802 and Lot 8 DP740045 at Old Southern Road, South Nowra has not lapsed; (4) Order that the respondent pay the appellant's costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

CATCHWORDS:	LAND AND ENVIRONMENT- Devlopment consents for subdivision of land - Whether consents had lapsed - Under Environmental Planning and Assessment Act, consent lapsed unless "building, engineering or construction work relating to" development was "physically commenced" upon land to which consent applied - Whether expression "building, engineering or construction work" was capable of including survey work and/or geotechnical investigation work - Whether survey work and/or geotechnical investigation work carried out by respective appellants was, in fact, engineering work and whether it was "physically commenced" - Relevance of whether work was "merely preparatory" - Whether work in each case "related to" approved development - STATUTORY CONSTRUCTION - "Relating to" - Ambit in context of reference, in lapsing provisions of Act, to work "relating to" the development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1919 Surveying Act 2002 Land and Environment Court Act 1979
CASES CITED:	Iron Gates Developments Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Green v Kogarah Municipal Council (2001) 115 LGERA 231 Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170 Young v Warringah Shire Council (2001) 117 LGERA 62 Richard v Shoalhaven City Council [2002] NSWLEC 11 Noble House Corporation Pty Limited v Sydney City Council [1999] NSWLEC 190 Day v Pinglen Pty Limited (1981) 148 CLR 289 North Sydney Municipal Council v Middle Harbour Investments Pty Limited (1963) 10 LGRA 41 Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 Liverpool City Council v Home Units Australia Pty Limited [1973] 2 NSWLR 61 Auburn Municipal Council v F N Eckold Pty Limited [1974] 2 NSWLR 148 Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632 Waverley Municipal Council v Ladec Holdings Pty Limited (1978) 36 LGRA 188 Ex parte Dackfield Pty Limited [1983] 1 Qd R 10 Biwazu Pty Limited v Cessnock City Council [2004] NSWLEC 411 Cariste Pty Limited v Blue Mountains City Council (Unreported, Supreme Court of NSW, Court of Appeal, Clarke and Beazley JJA, and Simos A-JA, 18 November 1996) Besmaw Pty Limited v Sutherland Shire Council (2003) 127 LGERA 413 Owendale Pty Limited v Anthony (1967) 117 CLR 539 Marks & Spencer Limited v London County Council [1952] Ch 549 Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 Detala Pty Limited v Byron Shire Council (2002) 133 LGERA 1 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243
PARTIES:	Hunter Development Brokerage Pty Limited Cessnock City Council Tovedale Pty Limited Shoalhaven City Council
FILE NUMBER(S):	CA 40779/04; 40812/04
COUNSEL:	A: T S Hale SC / Jeff Kildea (Hunter Dev) R: J Ayling QC / Jane Jagot (Cessnock Ccl) A: T F Robertson SC / J Gibson (Tovedale P/L) R: J Webster SC / Jane Jagot (Shoalhaven Ccl)
SOLICITORS:	A: Thompson Norrie, Maitland (Hunter Dev.) R: Cleaves Mallik Gibbs (Cessnock Ccl) A: Kearns & Garside, Kiama (Tovedale P/L) R: Morton & Harris, Nowra (Shoalhaven Ccl)

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 11564/03; LEC 40525/04
LOWER COURT JUDICIAL OFFICER:	Bignold J,