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Hunter Development Brokerage Pty Ltd v Cessnock City Council

Hunter Development Brokerage Pty Ltd v Cessnock City Council

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Case Copied 23 May 2005 43 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 169
Decision Date: 23 May 2005

CaseChat Overview and Summary

The dispute in this matter concerned whether development consents for the subdivision of land had lapsed. The appellants, Hunter Development Brokerage Pty Ltd and Tovedale Pty Limited, appealed decisions of the Land and Environment Court which had found their respective consents had lapsed. The appeals were heard by Santow and Tobias JJA and Stein AJA in the Court of Appeal.

The central legal issue before the Court of Appeal was the interpretation of section 95(2) of the *Environmental Planning and Assessment Act 1979* (NSW), which stipulated that a development consent lapses unless "building, engineering or construction work relating to" the development was "physically commenced" upon the land. Specifically, the Court had to determine whether survey work and/or geotechnical investigation work could constitute "building, engineering or construction work" and, if so, whether such work carried out by the appellants qualified as physically commenced and "related to" the approved development, considering whether the work was merely preparatory.

The Court of Appeal reasoned that the phrase "building, engineering or construction work" was broad enough to encompass survey and geotechnical investigation work, provided such work was not merely preparatory and was genuinely "physically commenced" in relation to the approved development. The Court applied principles of statutory construction, interpreting "relating to" in its ordinary sense to mean having a connection or reference to the development. The Court found that the work undertaken by the appellants in each case was not merely preparatory and did indeed constitute the physical commencement of engineering work related to the approved development.

Consequently, the Court of Appeal allowed both appeals. The orders of the Land and Environment Court were set aside, and the proceedings were remitted for determination in accordance with the Court of Appeal's decision. The respondent councils were ordered to pay the appellants' costs of the appeals.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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…