Noble House Corporation Pty Ltd v Sydney City Council

[1999] NSWLEC 190

Land and Environment Court

of New South Wales

CITATION:

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

PARTIES

APPLICANT:
Noble House Corporation Pty Ltd

RESPONDENT:
Sydney City Council

NUMBER:

10153 of 1993

CORAM:

Talbot J

KEY ISSUES:

Development Consent; Question of Law :-

Development Consent: - whether lapsed pursuant to s 99 EP&A Act

Question of Law:- preliminary question of fact only

LEGISLATION CITED:

EP&A Act s 99(1)(4)

DATES OF HEARING:

08/11/1999

DATE OF JUDGMENT DELIVERY:

08/19/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr W R Davison SC

SOLICITORS:
Minter Ellison

RESPONDENT:
Mr A E Galasso (Barrister)

SOLICITORS:
Dunhill Madden Butler

JUDGMENT:

IN THE LAND AND Matter No. 10153 of 1993
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 19 August, 1999

Noble House Corporation Pty Ltd
Applicant

v
Sydney City Council

Respondent

REASONS FOR JUDGMENT


1. On 24 June 1993 this Court granted development consent for a mixed residential and retail development at 2 - 8 Dixon Street, Sydney. The development consent was modified on 18 November 1997.

2. A building application was approved by council on 13 May 1998.

3. A second building application was approved on 10 June 1998.

4. It is agreed that the proper date for lapse of the development consent pursuant to s 99 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) was 24 June 1998.

5. The evidence is that in the days immediately preceding 24 June 1998, the applicant caused footings for four proposed columns to be cored.

6. In respect of the column identified as C12, the column was fully cored, reinforcing steel installed, concrete poured and a steel column sufficient to support the weight of the building, comprising 18 storeys above it, was constructed.

7. Further coring took place preparatory to the installation of a steel column at location C11 and concrete columns at location C2 and C3.

8. The approved building plans made no reference to steel columns at any of the locations.

9. The evidence is that the work was carried out otherwise than in accordance with the normal and accepted procedure. In normal circumstances, bulk excavation to accommodate the whole of the building would have taken place first. Accordingly it was necessary to core from the existing surface down to the base of the footings. Bulk excavation took place subsequently.

10. The respondent raises the following preliminary point. It persuaded the Registrar and maintained in opening submissions that it is a point of law:-


1. Whether the consent to the development proposal granted by this Honourable Court has lapsed.

2. Whether the activity on the land constitutes physical commencement of the consent granted by this Honourable Court.


11. When the case opened I expressed strong doubt about whether any question of law was raised in either preliminary point. Notwithstanding my misgivings, I elected to determine the preliminary point as a matter of expediency.

12. Mr Galasso, who appears for the council, appeared to concede in closing submissions that the matter to be determined is a question of fact.

13. The council’s case is essentially twofold.

14. Firstly, that the works relied upon are not truly related to that development for which development consent was obtained.

15. Secondly, it is asserted that because the work bore no similarity to the columns depicted in the approved building plans, that they were carried out in an illogical and unusual fashion and ultimately were largely demolished or not utilised, the commencement was a sham.

16. Even the applicant’s primary witness concedes that the work of boring through approximately nine metres from the existing surface in June 1998 was unusual in circumstances where, ultimately, there would be bulk excavation. Nonetheless, he was adamant the footing for column C12 was bored and poured for the purpose of supporting a steel column capable of carrying the load required.

17. The council has made the issue of whether the work carried out is a sham the cornerstone of its argument.

18. The terms of s 99 itself need to be considered.

19. Pursuant to subs (4), development consent for the erection of a building does not lapse if building, engineering or construction work relating to the building is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section.

20. There is no question of degree or extent of the work. If it can be said that it is physically commenced and is properly to be regarded as relating to the building, that is an end to the matter.

21. It is not to the point that the work is carried out within close proximity to the date of lapse.

22. The following established facts are relevant in the present circumstances:-


a) The building application contemplated columns at the approximate position where the footings for C12 were poured.

b) An appropriate geotechnical consultant’s report and a certificate from the engineer was furnished in respect of the four proposed columns.

c) The engineer certified that column C12 as proposed would accomplish the design purpose for the column as depicted in the approved building plans.

d) Although the actual column differed in shape and content from the column shown in the approved building plans, the differences can be properly regarded as matters of detail.

e) The steel column ultimately can be encased in concrete to meet fire safety standards.

f) Although the actual steel column has since been removed, nevertheless the footing for column C12 remains in place.

g) The works which have subsequently progressed accommodate the prospect that the work which remains in respect of column C12 will be utilised in the final building.


23. The excavation of the footings in the circumstances are properly to be regarded as preparatory work prior to construction. I am not prepared to rely upon the coring carried out prior to the relevant date and in respect of which concrete was poured after the relevant date as being relevantly a physical commencement of the building.

24. Nonetheless, I do not exclude the possibility that excavation in other circumstances might relevantly amount to physical commencement of the building. In this case it does not.

25. The abovementioned findings of fact lead to the inevitable conclusion that construction relating to the building was physically commenced on the land before the date on which the consent would otherwise lapse. In the Court’s opinion the construction of column C12 was not a sham even if the primary purpose at that time was to avoid the consequences of s 99(1). The work was not an end in itself. The column will ultimately form an integral part of the building.

26. No question of law has arisen.

27. Accordingly, the preliminary points are determined on the facts established as follows:-


1. The development consent has not lapsed pursuant to s 99(1) of the EP&A Act.

2. The activity on the land prior to 24 June 1998 constitutes physical commencement of the erection of the building for the purpose of s 99(4)(a) of the EP&A Act.

3. The exhibits may be returned.