Janadele Ryman v Shoalhaven City Council

[1999] NSWLEC 89

Land and Environment Court

of New South Wales

CITATION:

Janadele Ryman v Shoalhaven City Council [1999] NSWLEC 89

PARTIES

APPLICANT
Janadele Ryman

RESPONDENT
Shoalhaven City Council

NUMBER:

40010 of 1998

CORAM:

Cowdroy A J

KEY ISSUES:

:- Development consent - lapse of consent - subdivision -substantial commencement - discretionary considerations

LEGISLATION CITED:

Development consent - lapse of consent - subdivision -substantial commencement - discretionary considerations

DATES OF HEARING:

02/01/1999; 02/02/1999; 02/03/1999; 03/08/1999; 03/09/1999; 03/23/1999; 03/24/1999

DATE OF JUDGMENT DELIVERY:

04/16/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr D P Wilson (Barrister)

SOLICITORS
EnviroLawyers

RESPONDENT
Mr J J Webster (Barrister)

SOLICITORS
Morton & Harris

JUDGMENT:


Facts

1. In these proceedings Janadele Ryman (“the applicant”) seeks a declaration that the subdivision for which Development Approval No. 3758 was granted by Shoalhaven City Council (“the respondent”) on or about 27 June 1974 in respect of Lot 73, 74, 78 and 79 in Deposited Plan 4468 (“the land”) has substantially commenced. The applicant also seeks a declaration that the subdivision approval is valid and she is entitled to proceed with the subdivision of the land.

2. The land is located on the fringe of the township of Berry. Part of the land which was known as the “Dugald Park Estate” was zoned within the township and the remainder was zoned Non-urban (A) and Non-urban (B) pursuant to the provisions of the Shoalhaven Interim Development Order No. 1 (“the IDO”). The IDO was made pursuant to the provisions of s345u contained in PtXIIA of the Local Government Act 1919 (“the Act”).

3. On 17 October 1973 the Council issued subdivision application Certificate No. 3758 to the surveyors, Hagan Associates Pty Limited (“Hagan”), recording payment of interim development fees for a proposed subdivision of 459 lots in respect of lots 73 and 74 in Deposited Plan No. 4468. No mention was made of lots 78 and 79 but it is obvious that they were to be incorporated. Such proposal was not approved. Hagan again wrote to the council on 21 May 1974 seeking approval for a proposal to subdivide the land into 285 residential lots, a medium-density development consisting of 189 dwellings together with 30 strata title dwellings, and concluded:-

We would be pleased if Council would:

1. Approve the proposal for all that part of the plan which conforms with current zoning.
2. Put in hand such zoning amendments as would allow the remainder of the proposal to proceed.

On 27 June 1974 the council wrote to the developer. The introductory paragraphs state:


At a meeting of Council held on the 24th June, 1974 consideration was given to the Subdivision Application submitted by your office seeking Council’s permission to subdivide the above parcel of land.

After carefully considering your application, Council resolved to approve the subdivision subject to the following conditions...
This letter is critical to the applicant’s claim, as it is relied upon as constituting subdivision approval pursuant to PartXII of the Act and interim development consent under Part XIIA thereof. Such letter (“the consent”) contained numerous conditions including those requiring preparation of road and drainage plans for submission and approval, compliance with the requirements of the Department of Main Roads, provision of easements, alterations to proposed subdivision plan, numerous variations to the design, dedication of public reserves and conditions relating to detailed matters. Two conditions required consent of third parties, namely conditions (o) and (q) which provided:-


o. Satisfactory negotiation to extending the road (north west corner) to join the adjoining subdivision. It is anticipated that Lot 85 of S/F 3673 will need to be purchased from the owners (Lucas & Tait) and the road constructed to the loop road of that subdivision.

q. That Council agree to support an application for a re-alignment of the Town boundary, upon receipt of written acceptance of Council’s conditions.

The letter concluded:-

It is also suggested that the representatives of the subdividing company discuss with the Town Planner the provision of freehold land for the establishment of a community centre. Upon receipt of your written agreement to the above conditions, Council will agree to support an application for the re-alignment of the Town Boundary to encompass the subdivision.

4. It was subsequently discovered that the plan presented to council for approval failed to show a major transmission line. Accordingly, on 30 August 1974 Allen, Price & Tucker, (“the surveyors”) who were the successors to Hagan, wrote to the shire clerk stating inter alia as follows:-


Herewith please find a preliminary layout design for land at Berry which has been prepared as a result of certain constraints not being taken into account in the previous designs.

We therefore request that you accept this plan in lieu of the former plan approved by Council on the 24 June last.


The plan submitted with such letter substantially altered the layout of the previous subdivision plan and incorporated the easement for a transmission line 45.72 metres wide traversing the subdivision. The letter was written in relation to the same subdivision file namely, S/F3758.

5. A letter dated 18 September 1974, the surveyors forwarded another plan, described as “ the second preliminary layout design ” for the proposed subdivision and requested the council discuss the proposal contained therein. This proposal (“the amended plan”) involved a subdivision of the land into 241 residential allotments, four 1 acre allotments, and development for flat and medium density sites for 200 units.

6. On 30 September 1974, the surveyors wrote to the shire clerk and referring to the same subdivision file number (S/F 3758) enclosed the layout design for the subdivision. The letter stated:-


Herewith please find one copy of Plan 3 of the above subdivision which we submit to be the final amended layout design for the subdivision.

This layout is the result of considerations and discussions with your Mr. Thevenin, Evans and Southwell.

We would ask that this proposal be regarded as an amended design conforming with the approval given by Council on 24th June last with only Conditions (h), (i), and (l) not applying to our layout.

We would also request that Council be advised that the section of the subdivision North of the creek and East of the transmission line be Stage I of the development. Further stages to be decided and advised at a later date. As our clients are most anxious to proceed with this development, we ask that special consideration be given to this stage, in order that we may proceed with the required survey work.
7. Before any decision was made by council, the surveyors again wrote to the shire clerk on 11 October 1974 enclosing the amended plan and stating, relevantly:-


We would like this subdivision presented to the Council Meeting to be held on the 28th October as our clients are anxious to proceed with this subdivision.

This plan has been prepared after detailed discussion with yourself and Mr. Evans in the field and further discussion with yourself specially in regard to lot sizes and areas.

...We ask that Council consider this subdivision favourably and consider the extension of the town boundary in the same light.

8. By letter dated 29 October 1974 the council advised “ subject to the prior amendment of the town boundary the subdivision will be approved subject to... ”. Thereafter twenty two conditions relating to design, engineering and other matters were specified. At the conclusion, the following paragraph appears:-

The above conditional approval is subject to the satisfactory clarification of those matters involving approval of other bodies and upon such satisfactory clarification, Council will make application for an amendment to the town boundary to include the reasonable and commercial development.

The letter concluded:-

It would be appreciated if you could follow up the matters requiring approval of other bodies and forward copies to Council as soon as possible, in order that action may be taken to seek amendment to the town boundary providing such replies are considered to be satisfactory.

The zoning of the land remained unchanged until the Shire of Shoalhaven Local Environmental Plan was gazetted in May 1985.

9. By letter dated 19 November 1974 the surveyors again wrote to the shire clerk discussing certain proposals in regard to “ the interpretation of some of the conditions of approval to the above subdivision ”. The letter proposed, inter alia, a subdivision of Lot 74 in DP 4468 into three lots as the “ first step in the development ”. Such lot was situated entirely within the town boundary. The letter also proposed the staged development of the land. Stage I was separately described as comprising 28 lots, as follows:-

Stage I (28 Lots). In the first stage we shall dedicate all the active Public Reserve being approximately 3.59 hectares. This Stage will not include the dedication of a passive reserve nor the construction of a future access to the highway. This will be held pending the approval of the D.M.R. and the effecting of the construction of Stage II.

The letter continued with certain proposals for Stage II and Stage III. This was the first occasion for requesting a three staged development. The letter also sought clarification of the council’s current policy to the staging of subdivisions. By letter dated 27 November 1974 the council responded noting the contents of the above letter. The council’s letter states, inter alia:-


The matters raised in items 1 to 6 in your letter dated 19th November are noted, however, before formal consideration can be given to any staged development proposals a plan indicating the precise delineation of the various stages will be necessary.

Council specified three matters to be satisfied to enable it to proceed with the necessary zoning changes.

10. By letter dated 8 January 1975 the surveyors submitted a plan of survey showing the excision of lot 1 from Stage I. A copy of the overall site delineating the proposed areas affected by the various stages was enclosed with the stages outlined in colour. It proposed that Stage II would involve the construction of roadways, including an access road from the Princes Highway. The letter stated:

The latter construction is obviously subject to a Department of Main Roads approval and we have already applied for this.

As to Stage III, the letter stated:-

Stage III. At this stage, being some two years hence probably, the area to be excised will be defined, but we reiterate our letter of the 19th November, 1974, which states that we shall provide for the final development of the Public Reserve area to the standard anticipated when approval was given to the subdivision no matter what size the third stage may be.

The letter continued:-

In particular reference to your letter of the 27th November, we are concerned that you now consider formal consideration of staging is necessary while Condition (t) of Council’s approval, approved staged development of the site. It can be readily seen that the first two stages are an entity in themselves.

11. By letter dated 4 March 1975 the Council wrote to the surveyors stating as follows:-


With reference to the above subdivision and to your letter dated 8th January, 1975, the excision of Lot 1 (to be linen plan S/F 3758) is agreed to subject to the subdividor agreeing to carry out all works in relation to this lot with the proposed Stage I (to be linen plan S/F 3758A).

In order to release the proposed Stage I the following is required.


Thereafter numerous conditions followed including; the requirement of dedication of various accesses, agreement with public authorities, dedication of a public reserve and other matters concerning the provision of agreements relating to the use of a proposed motel site until various access requirements were satisfied. Written acceptance of all the conditions as stated in the letter of 28 October 1974 was required.

12. By letter dated 2 April 1975 the developer wrote to the council accepting certain of the council’s conditions of subdivision dated 29 October 1974. Thereafter the developer proposed certain alternative conditions relating to the dedication of public reserves and of matters proposed to be constructed in the various stages. The letter concluded:-

We trust that this then satisfies Council in respect of the subdivision approval and request that the Linen Plan for the house lot be endorsed and released immediately.


13. On 28 April 1975 the council endorsed its certificate S/F3758 to the linen plan being its final approval under s327 of the Act. On 24 June 1975 such plan was registered at the Land Titles Office as Deposited Plan 577618. Such plan was confined to lot 74 and comprise a subdivision of that lot into three allotments known as the house lot, a parcel of land (lot 3) for access from lot 1 to Ford Street, and the residue lot (lot 2). The linen plan registered as Deposited Plan 577618 is the only linen plan ever submitted to council in respect of subdivisional file S/F3758. It represents a subdivision which was not contemplated in the consent relied upon by the applicant. No linen plan for council’s endorsement has ever been submitted for lots 73, 78 and 79 in DP 4468.

14. It was the practice of council in 1975 to issue separate consents for interim development pursuant to Part XIIA and for engineering and design plans pursuant to Part XII of the Local Government Act. In May 1975 the Department of Main Roads wrote to the council suggesting that land in the proposed subdivision required for future roads be “ dedicated as road, as a condition of subdivision approval ”. Engineering plans relating to lots 2 to 28 (Stage 1) were approved on 1 September 1975 after the developer paid the requisite fee ($316.40) for processing. Section 335 of the Act provided that approval to such engineering plans lapsed at the expiration of two years from the date of approval unless an extension was granted by council.

15. By letter dated 1 September 1975 the council, referring to previous letters from the surveyors wrote to them stating:-

...the following amendments to Council approval to the subdivision are suggested and subject to your agreement they will be submitted to Council for their concurrence.


Numerous matters were dealt with concerning the proposed subdivision, principally of an engineering nature, as well as the dedication of a public reserve.

16. Council considered the matter on 1 September 1975. Mention was made of the considerable delay in finalising the subdivision of the land and the shire engineer was directed to consult with the surveyors as a matter of urgency to reach approval “ in order that the subdivision may proceed at an early date ”. A report prepared by the shire engineer to the Works Committee meeting of council reformulated certain conditions of the proposed approval.

17. By letter dated 8 September 1975 the surveyors responded. They enclosed an amended sketch plan and requested that certain matters be “ placed before Council for their consent at the earliest ”.

18. By letter dated 26 September 1975 the shire clerk advised the surveyors that the council had granted interim development consent for Lot 2, DP 577618 which lay within the town boundary to create 27 lots namely lots 2 to 28 with the residue of the land shown as one lot subject to the various conditions which had been prepared by the shire engineer. Council simultaneously released the road plan which had been approved on 1 September 1975. Clause 8 of the Model Provisions which then applied provided that a consent under the IDO would be void if the development was not substantially commenced within twelve months from the date of approval unless an extension was granted.

19. On 28 October 1975 the surveyors forwarded a water reticulation design for Stage I of the subdivision in apparent satisfaction and of the conditions contained in council’s letter of 26 September. The letter stated that construction plans for the water supply and sewerage plans would be forwarded “ in the near future ”.

Construction plans for reticulating water supply to Stage I of the subdivision will be forwarded together with the sewerage plans in the near future.


A letter dated 8 December 1975 the council responded advising that the “ design report as submitted is satisfactory for the design of reticulation for Stage I of the subdivision ”.

20. By letter dated 13 December 1976 the surveyors informed the shire clerk that their client sought an extension of time to proceed with the subdivision. The letter states:-


We are concerned however to establish what Council’s position is in regard to the date of approval to Stage I of the subdivision.

We would ask that Council confirm that the approval to the subdivision of this Stage does not lapse until the 26th September, 1977 at the earliest and at the latest two years from the date of the approval to the engineering plans.

21. In response the shire clerk by letter dated 22 December 1976 observed that council at its meeting on 24 June 1974 approved the subdivision subject to conditions. The letter states:-

That approval lapsed two years after the date of the letter advising of Council’s decision.

The letter advised that if the surveyors client has been unable to complete the works this may have been due to the omission on the plans to show an electrical transmission line which resulted in an amended application being lodged. Council’s letter continued:-


Indication was given to you that subject to the town boundary being successfully amended to allow for the subdivision, Council would agree to conditionally approving the amended plan as conveyed to you by letter dated 29th October, 1974.

No approval to the amended plan showing the transmission line has been or can be given prior to the necessary town boundary being amended, however agreement to a partial (Stage I) conditional release which did not entail any town boundary alterations was conveyed to you by letter dated 4th March 1975. No suggestion that the conditions of this letter could not be met within two years was tendered and accordingly the approval to stage to “Stage” I will lapse on 4th March, 1977 in accordance with past and present practise (sic). Conditional approval to the rest of the subdivision has already lapsed.


In fact the approval lapsed twelve months after the consent, namely on 4 March 1976 under the IDO.

22. The surveyors, by letter dated 7 January 1977 expressed indignation at the contents of the council’s letter and challenged its assertions. By letter dated 7 March 1977 the surveyors stated that their client had instructed them to proceed to obtain an extension of the approval as it would not be in a position to “ complete the matter ” before September 1977. An extension of time was requested in respect of lots 2 to 28 comprising Stage I to construct the internal roads, upgrade Ford Street and to do various other matters required pursuant to the council’s consent.

23. By letter dated 20 May 1977 the council wrote to the surveyors stating, inter alia:-

I refer to your subdivision application for reapproval to the proposed Lots 2 to 28 in this subdivision and advise that such reapproval is granted subject to the conditions as set out in Council’s previous letter dated 26th September, 1975 and any current requirements of the Electricity Commission and Department of Main Roads.

24. There is no record after 20 May 1977 that any subdivisional work was carried out or that council’s requirements were satisfied. A council minute dated 4 July 1977 records that “ the developer does not intend to proceed with the subdivision ” at that stage. It was council’s practice to record site inspections of road works undertaken in its road file. The road file for the subdivision does not record any inspections, and confirms that no work in accordance with the plans was undertaken. Although one geotechnical report had been received, no further geotechnical report as requested by council in its letter dated 1 September 1975 was ever received. The town boundary was not altered as foreshadowed, and there is no record of the satisfaction of council’s conditions.

25. In August 1977 the surveyors prepared a plan of proposed subdivision of part of Lot 2 in DP 577618 upon the proposed motel and flat site. Council granted approval on 1 August 1978 in respect of such proposal, which was a different subdivision (S/F 4366) to that relied upon by the applicant. That consent has lapsed.

The Applicant’s Claim

26. It is against this factual background that the applicant’s claim is to be considered. She asserts that approval had been given for the subdivision on one occasion only namely, as contained in the letter of the council dated 27 June 1974. The applicant says that such development was substantially commenced within two years from the date of consent in accordance with s335 of the Act and that she is entitled accordingly to proceed with the subdivision in accordance with the consent.

27. The applicant relies upon certain physical work undertaken upon the lands in approximately June 1975 as constituting substantial commencement, and it is essential to have regard to such work. The evidence establishes that a dam, approximately 10 to 15 metres at its widest point and having an earth wall approximately 2 metres in height was breached. There is also evidence, taken from aerial photographs, of a narrow line of clearing of variable width but generally varying between 2 metres and 3.7 metres in width in the apparent position of two of the roadways which would have been incorporated in Stage I. The aerial photographs are indistinct, but such clearing was obviously not as wide as the width of the proposed roadways. There was conflicting evidence concerning the interpretation of the aerial photographs, and the extent of the work which was undertaken in the road formation. Such work appears to be at most of a preliminary or preparatory nature, having been made by the blade of earth moving equipment. Other than removal of vegetation, namely grass pasture, there is no evidence of any road work having been constructed in the manner of cut and fill or batter. Indeed, the removal of vegetation seems, as appears from the aerial photograph taken in late 1975, to have been either incomplete or not thoroughly effected as dark patches suggestive of re-growth is shown within the boundaries of the earthworks relied upon by the applicant. The applicant also relies upon the clearing of a small space at the end of Ford Street. Such clearing is again indistinct and it is impossible to state with certainty whether any substantial works had been performed. The only evidence of the cost of all such works is a quotation from a contractor to clear a track and breach the dam wall for the sum of $598.00. No roadworks now exist, and the overwhelming evidence is that no roadworks in accordance with council’s specifications were ever constructed.

28. There is some evidence that on or about 18 March 1975 the centre lines for the roadways were pegged. Upon the unchallenged evidence, such pegging was required for the preparation of design plans for road and drainage works. Such work was essential for the preparation of plans which were approved on 1 September 1975.

29. The applicant also relies upon payment of the sum of $5,600.00 being a cheque drawn by Simsmetal. Such cheque appears to have been a contribution to a pumping station located on the opposite side of the Princes Highway to the land which was constructed in 1975. It does not apparently relate to the subject land.

Council’s Cross Claim

30. The council submits that the consent relied upon was a nullity, since by virtue of the planning legislation which prevailed council had no power to issue a consent which was predicated upon the occurrence of future events namely the alteration to the town boundary and changes in layout to the subdivisional plan. Secondly, council submits that the consent relied upon was made without power since the IDO enabled council to grant Interim Development Consent to residential subdivision over land zoned “Village or Township” but not in respect of land zoned Non-urban(A) or Non-urban(B). Council accordingly submits that the consent in respect of the subdivision does not constitute Interim Development Consent in respect of lots 73, 74, 78 and 79 DP 4468. Thirdly, council submits that there was no substantial commencement sufficient to satisfy the doctrine and lastly that upon discretionary grounds the claim should be rejected.

Validity of the Consent

31. The interim development consent contained in the letter of 27 June 1974 was purportedly given by council subject to numerous conditions, including a condition which related to the re-alignment of the town boundary, and to this extent was predicated upon future events over which neither the developer nor the council exercised control. The town boundary alteration was dependent upon a decision of the Minister for Local Government.

32. Section 327 of the Act provides that neither a public road shall be opened nor a land subdivided until an approval has been given under the Act (s327(1)(a)), and specifies numerous matters to be satisfied as a pre-requisite to subdivision approval. The section renders the requirements mandatory. Unlike the provisions of s91(1) of the Environmental Planning & Assessment Act 1979, (“the EPA Act”) which permits a consent authority to issue a consent subject to conditions, the Act does not provide for conditional consents.

33. Consents issued pursuant to the provisions of the Act were required to be final. In FCA Finance Pty Limited v Gosford Shire Council and Anor (unreported: NSW CA 113 of 1975). Moffitt P said of the conditions attached to a purported consent:-


The conditions included our express requirement of a further approval namely of the engineering plans in respect of roadworks. There could not be an approval of the sub-division until this approval had been given. On any view approval of the sub-division could not be earlier than the date of approval of those engineering plans.

The final application which led to the ultimate approval in December 1972 is consistent with the earlier applications and approvals being merely preliminary to such ultimate approval.

34. In addition to the re-adjustment of the town boundary the conditions embodied in the consent clearly contemplated future approval of road and drainage designs, satisfaction of requirements of the Department of Main Roads and other statutory authorities. The consent relied upon would become final only when all requirements, including final layout of the subdivision incorporating an easement for the transmission line and alteration to the town boundary had been satisfied. In Loretta Constructions & Investments Pty Limited v Gosford Shire Council (1971-72) 25 LGRA 294, Else-Mitchell J at p297 referred to the requirements of a valid and effective consent under the provisions of a prescribed planning scheme and to several authorities which have considered this question, namely Rocca v Ryde Municipal Council 79 WN (NSW) 299; 7 LGRA 1; Attorney-General v Bristva Pty Ltd (1964) 10 LGRA 348; Gange v Sullivan (1966) 116 CLR 418; Edgar v Lane Cove Municipal Council (1961) 7 LGRA 45, and Holmes v Ryde Municipal Council (1969) 90 WN Pt1 (NSW) 290; 17 LGRA 366. His Honour referred to the factors which might prevent a document having the qualities of a consent, namely the futurity of the language used therein, lack of specificity, and non-compliance with council’s code, and said:-

These matters appear to me sufficient to deprive the letter of those unconditional and immediate qualities which are essential to a valid consent under cl. 19 of the Shire of Gosford Planning Scheme Ordinance. The letter may, accordingly, be regarded as a step towards the granting of a final consent; it certainly was not a final expression of the council’s power to grant or refuse development consent for it envisaged further action being taken by the applicant to obtain approval, whether that step was the submission of fresh plans or the specification of amendments which would make the development acceptable.


Consistent with the above authorities the consent relied upon by the applicant was not a final consent (see also Lend Lease Management Pty Limited v Sydney City Council (1986) 68 LGRA 61 at 83; King v Great LakesShire Council & Anor (1986) 58 LGRA 366).

35. There is a further ground for the above conclusion. The consent pertained to a preliminary layout which was altered on 30 September 1974. Accordingly, pursuant to s327(1) and s327(2) of the Act a fresh development consent was required if the consent was to substitute final consent: Parkes Developments Pty Limited v Cambridge Credit Corporation Limited [1974] 2 NSWLR 590 ; 33 LGRA 196; Multi Development Corporation Pty Limited v Coffs Harbour Shire Council (1974-76) 33 LGRA 419). At no stage did the developer ever request that the whole subdivision proceed in accordance with the layout proposed in the June or September proposals and to which the purported consent related. Nor is there any evidence that condition (q) which required adjustment of the town boundary was satisfied. The subsequent alterations to the subdivision as evidenced by the later excision of lot 74 confirms that the developer did not have a final proposal at the date of the alleged consent. Even the EPA Act requires that the consent be final even though it may be subject to conditions. It must be final “in the disposition of the application and with reasonable particularity circumscribe the use to which the land may be put pursuant to that consent”, per Hemmings J in Jungar Holdings Pty Limited v Eurobodalla Shire Council and Dublee Holdings Pty Limited (1990) 70 LGRA 79 at 89. See also Mison & Ors v Randwick Municipal Council (1991) 23 NSWLR 734 CA; 73 LGRA 349.

36. The developer sought and obtained a valid interim development for consent for the subdivision of Lot 74 into three lots as evidenced by the creation of DP 577618. The developer also sought and obtained consent for the subdivision of lots 2 to 28 but no linen plan evidencing compliance with council’s conditions as required by s327 of the Act was ever released for such development. These facts independently suggest that there was no final interim development consent issued in June 1974. Accordingly, no approval exists within the meaning of s327 of the Act in respect of a subdivision of the land.

Separate Basis of Invalidity

37. As a separate ground of invalidity the council relied upon the fact that the approval purported to include land outside the town boundary, in respect of which council did not possess power under the IDO. This was expressly recognised by the imposition of condition (q). In view of the finding that no final consent exists as alleged, it is not necessary to deal with this issue. However it is clear that at the date of the consent council possessed no power to give effect to any subdivision to land beyond the boundaries prescribed by the IDO. A consent under the Act is indivisible. The consent was clearly predicated upon an alteration being made to the town boundary and until this was achieved council lacked the necessary power.

Applicants submission as to invalidity of consent

38. The consent relied upon being of a preliminary nature, no question arises concerning the consequences of an invalid final consent. Whilst it is therefore unnecessary to deal with such issue I should state my conclusions upon the hypothesis that it was an invalid final consent. An invalid determination is not a determination at law ( Anismitic Pty Limited v Foreign Compensation Commission and Anor (1969) 2AC 147 per Lord Reid at 171 and Lord Pearce at 195 ). Such principle has been applied in this court (see Pearlman J in Holiday Villages (Byron Bay) Pty Limited v Byron Council & Anor , unreported no. 40177 of 1994), but it must be applied with caution as it arises in circumstances in which a decision has been made in the absence of jurisdiction or power. No such consideration arises in the present case. Nevertheless, the applicant relies upon such doctrine to argue that since there has been no proper determination at law, council has yet to deal with the application before it.

39. The applicant submits that in the events which have happened, the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 applies, and by virtue of Schedule 3 the applicant is entitled to the benefit of the savings provisions contained therein.

Section 5(1) thereof provides:-

5. (1) Where, immediately before the appointed day, an application for consent, approval or permission under a former planning instrument has not been finally determined the application shall, subject to this clause, be determined as if this Act and the Environmental Planning and Assessment Act, 1979, had not been enacted.

Section 5(2) provides:-

(2) For the purposes of subclause (1), an application is not finally determined unless-
(a) consent, approval or permission is granted or refused in respect of that application and no appeal is lodged within a period of 12 months from the date of granting or refusing the application; or
(b) where an appeal is lodged within the period of 12 months referred to in paragraph (a) - that appeal is finally disposed of.

40. Assuming, against my finding, that there was merit in the applicant’s submission, the above Act does not assist the applicant for the following reasons. The application made to the council for subdivision approval was not one which could be “finally determined” until the developer had attended to all of the requirements as specified in the councils letter of 27 June 1974. Such letter (the consent) contained an itemised statement of requirements before the developer’s application could be finally determined and the obligation to satisfy the requirements remained with the developer. In the absence of evidence of satisfaction of the outstanding requirements, there was no application before council awaiting determination immediately before the appointed day. The phrase “ not finally determined ” as used in s5(2) connotes that the relevant authority is required to make a decision upon the application before it. Since there was no application before it awaiting final decision at the relevant date, s5(1) has no application, nor does the doctrine of “ deemed refusal ” within s324v(1B) of the Act have any application.

Substantial Commencement

41. In view of the above findings, no occasion arises for the application of the doctrine of “substantial commencement”, upon which the applicant relied in relation to the original plan of subdivision. Nevertheless, I state my findings upon the hypothesis that the alleged consent was valid considered either as part of the original consent or as a separate consent.

42. There has been an abundance of authorities concerning the requirements necessary to satisfy the doctrine of “substantial commencement”. In Drummoyne Municipal Council v Page (1974) 131 CLR 350; 30 LGRA 237, the High Court of Australia determined that, in respect of a building, it was “substantially commenced” when work was being done constituting a substantial part of the total project.

43. In Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170, Cripps J held that a property owner who had used some of his workmen for a limited time to do some “ isolated work that had no real relation to the erection of the residential flat building ” but which related to inspecting the site to determine the design of the basement was insufficient to constitute “commencement” of the work. His Honour said (at p 178):-

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.

44. In reaching his decision, His Honour referred to Hardie J in North Sydney Municipal Council v Middle Harbour Investments Pty Limited (1963) 81 W.N. (Pt 1) 35 at 38 where the Court considered the elements necessary to establish “substantial commencement”. Hardie J observed that such requirement was satisfied by:-

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 referrable and only referrable to the particular building or structure that has been approved ....


He also observed in that sense, the necessary connotation was that commencement “ must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement .”

45. There have been numerous authorities which have followed the approach referred to by Hardie J; see for example United Dominions Corporation Pty Limited v Woollahra Municipal Council [1973] 1 NSWLR 616; Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 360; Liverpool City Council v Home Units Australia Pty Limited [1973] 2 NSWLR 61; 28 LGRA 28 at 33.

46. There are also numerous decisions which have held that work which was preparatory to a development did not satisfy the requisite test for commencement: see for example Auburn Municipal Council v F.N. Eckold Pty Limited (1974) 34 LGRA 101; Waverley Municipal Council v Ladec Holdings Pty Limited (1978) 36 LGRA 188; Day v Pinglen Pty Limited (1981) 148 CLR 289; 45 LGRA 168. Such authorities also establish that the test is objective and not subjective. The Court is entitled to take into consideration the value of the work undertaken and the magnitude of such work when compared with the size of the works proposed in order to determine whether the work is “substantial”: see United Dominions Corporation Pty Limited v Woollahra Municipal Council (supra) at p 370-371. The authorities have also adopted, as a basis for consideration the principle referred to in Attorney-General v Mayor of Bournemouth [1902] 2 Ch 714 in which the Court of Appeal (U.K.) determined that the concept of “substantial commencement” required work be formed essentially for the development and that such work did not include preparatory work (see Liverpool City Council (supra) at p 434-35).

47. In Auburn Municipal Council v F.N. Eckold Pty Limited (supra) Mahoney J at p 106 endorsed previous authorities which drew the distinction between work which was preparatory to the development work, both off site and preparatory work on the site itself compared to the carrying out “ of the work of development which in terms has been approved ” (see Liverpool City Council v Home Units Australia Pty Limited (supra); Drummoyne Municipal Council v Page (supra.) However, he did observe (at p 106) that the categories were not inflexible and even work carried out off site may, in a particular case be taken into consideration in determining whether development work has been substantially commenced.

48. In the present circumstances, the evidence relied upon by the applicant falls well short of establishing that any work was undertaken of the kind sufficient to attract the doctrine of “substantial commencement”. The work relied upon is evidenced by the quotation dated 7 April 1975. The court is required to assume that the work was performed on or shortly after that date. If so, it pre-dates the issue of the road plans for Stage I and the consent for Stage I. No linen plan was ever released by council and no evidence exists that council’s requirements were ever satisfied in respect of such Stage. As such it cannot be regarded as work pursuant to such plans. In Iron Gates Developments Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 it was held that pursuant to the provisions of the EPA Act, work carried out in such circumstances was unlawful. It is not necessary in this case to determine whether the work relied upon was illegal under the prevailing legislation. It suffices that the work was not referrable to any approved plans to disentitle the applicant from reliance thereon. Similarly road pegging presumably took place prior to the approval of such plans. The cuts into the surface to make the tracks could not be regarded as anything other than preparatory for some future works and could not be regarded as “roadworks”, that is of work for a properly engineered road. The breaching of the dam wall was not a requirement of council conditions. In Day v Pinglen Pty Limited and Ors (supra) at 299 the joint judgment of The High Court of Australia states:-

The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount. The statutory purpose must be borne in mind. A substantial commencement involves a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work has really commenced.


49. The only evidence of cost of the physical works on site comprises a quotation for the sum of $598.00 whereas the cost of road construction for the proposed subdivision was estimated to be in excess of $60,000. The work relied upon was purely preparatory, and of negligible cost when compared to the overall costs of the development. The Court does not find that there is any evidence of substantial commencement of the proposed subdivision.

Discretion

50. Although it is unnecessary to deal with this issue in view of the above findings, I state my finding. The circumstances surrounding the present application are unusual. No evidence has been led by the applicant to explain the reason for the failure to proceed with the subdivision. The consent relied upon is that contained in council’s letter of the 27 June 1974, namely almost 25 years ago. Council submits that in the intervening period both local government requirements for subdivisions and environmental considerations have changed and to permit the applicant to reactivate its consent would result in the development of subdivision inconsistent with its current requirements. A development control plan (DCP no.70) for the land was adopted by council and became effective on 25 June 1998. Such plan is incompatible with all of road proposals in the various plans of subdivision relied upon by the applicant. Council submits that the present application is not dissimilar to that considered in Ex parte Gosford District Land and Investment Co Pty Limited.; Re Gosford Shire Council (1951) 69 WN (NSW) 85; 18 LGR 173 in which the Full Court of the Supreme Court of New South Wales determined that in the absence of an explanation for an inordinate delay, it would exercise its discretion against granting writ of mandamus requiring the council to proceed with the subdivision which had been approved twenty-three years previously. Such relief is entirely discretionary: Ex parte Trans Estates Pty Limited v Hornsby Shire Council (1964) 83 WN (Pt1) (NSW)15; 11 LGRA 53.

51. No circumstances have been advanced to warrant the court exercising its discretion in favour of the applicant. Substantial changes have occurred in environmental and planning legislation which would now impact upon the development. Further, changes have occurred in relation to the zoning of the land in consequence of the gazettal of the Shoalhaven Local Environmental Plan in May 1995. It may now be impossible to comply with the requirements of the statutory authorities whose consent was necessary for the proposed subdivision, assuming that a determination could be made of the final subdivision layout.

Costs

52. The applicant has failed in her application and the usual rule would warrant an order for costs being made in favour of the council. However there have been unusual considerations applying to both the claim and the cross claim. For example the council was required to argue that its purported consent was invalid. The facts and the law surrounding the claim and the cross claim were complex. Accordingly the initial order of the court will be that no order for costs is made unless either party makes an application to vary such order within 14 days of the date of judgment, when the question of costs can be argued.

Orders

53. The Court makes the following orders and declarations:-

1) The application be dismissed.

2) Declare that there has been no final grant of subdivision approval pursuant to the Local Government Act 1919 for the subdivision of the land known as Lots 73, 74, 78 and 79 Deposited Plan No. 4468 other than the subdivision of Lot 74 by Certificate SF 3758 to create Deposited Plan No. 577618.

3) No order as to costs unless either party makes application for a contrary order within 14 days of the date of this judgment.

4) The exhibits be returned.