PAG Services Pty Ltd v Byron Shire Council

[2023] NSWLEC 40

Land and Environment Court

New South Wales

Medium Neutral Citation:

PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40

Hearing dates:

17 March 2023;
22, 24 March and 7 April 2023 (written submissions filed)

Date of orders:

14 April 2023

Decision date:

14 April 2023

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1) The Court declares that development consent DA 10.2001.121.1 issued by the Land and Environment Court of NSW in proceedings 10744 of 2002 dated 24 March 2004 for the carrying out of development being the demolition of existing buildings and the erection of 10 town houses at 112-116 Lighthouse Road, Byron Bay has not lapsed.

(2) Each of the parties to pay their own costs of the proceedings.

Catchwords:

JUDICIAL REVIEW – declaration – development consent has not lapsed – whether tree removal was construction work relating to the development consent – submitting appearance by Council – declaration where there is no proper contradictor

COSTS – whether submitting appearance prevents costs order – whether costs should follow the event

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Environmental Planning and Assessment Act 1979 (NSW) ss 4.53, 4.55. 4.56

Environmental Planning and Assessment Regulation 2000 (NSW) cl 124AA

Uniform Civil Procedure Rules 2005 (NSW) rr 6.11, 42.1

Cases Cited:

Besmaw Pty Ltd v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413

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

Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83

Cutcliffe v Lithgow City Council [2006] NSWLEC 463; (2006) 147 LGERA 330

Develtor Property Group P/L v Newcastle City Council [2001] NSWLEC 47

Donvito v Hawkesbury City Council [2022] NSWLEC 26

Echt v Ryde CC [1998] NSWLEC 194

Environmental Planning Pty Ltd v Reulie Land Co Pty Ltd [2020] NSWCA 254

Fagin v Australian Leisure and Hospitality Group Pty Limited [2018] NSWCA 273

Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61

Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180

Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169

Inner West Council v Sheree Waks [2018] NSWLEC 41

Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132

Kindimindi Investments P/L v Lane Cove Council (2006) 143 LGERA 268

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319

Norlex Holdings Pty Ltd v Wingecarribee Shire Council [2010] NSWLEC 149; (2010) 177 LGERA 261

O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; [1990] HCA 16

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

PAG Services Pty Ltd v Byron Shire Council [2004] NSWLEC 267

Penrith City Council v Dincel Construction System Pty Limited and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198

Platford v van Veenendaal(No 2) [2018] NSWLEC 86

Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252

Rossi v Living Choice Australia Ltd [2015] NSWCA 244

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86

Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council [2009] NSWLEC 142

Marshall Rural Pty Ltd v Basscave (No 3) [2018] NSWLEC 62

Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6

Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24

Texts Cited:

P Herzfeld and T Prince, Interpretation (2nd ed, 2020)

JD Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, 2014)

D Pearce, Statutory Interpretation in Australia (9th ed, 2019)

Category:

Principal judgment

Parties:

PAG Services Pty Ltd (First Applicant)
Murray Curtis (Second Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (First and Second Applicants)
Submitting appearance (Respondent)
Solicitors:
McCartney Young Lawyers (First and Second Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2022/321273

Publication restriction:

Nil

JUDGMENT

Background and outcome

1. In these Class 4 proceedings, the applicants seek a declaration that development consent 10.2001.121.1 issued by the Court in proceedings 10744 of 2002 dated 24 March 2004 for the carrying out of development, being the demolition of existing buildings and the erection of 10 town houses at 112-116 Lighthouse Road, Byron Bay (the development consent), has not lapsed.

2. On 30 November 2000, the first applicant lodged development application DA 00/0668 (the development application) with Byron Shire Council (Council). The statement of environmental effects and development report attached to the development application described the proposed development as a “multi unit project comprising twenty compact two-bedroom units…two storeys above the ground with basement parking.” The proposed development was depicted in plans prepared by architects Fulton Trotter & Partners.

3. On 6 November 2001, Council refused consent to the development application.

4. On 24 March 2004, in a Class 1 appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), as it then was, from the refusal of Council to grant consent, the Court (Commissioner Murrell) granted consent for the demolition of buildings and the erection of a multi-unit residential building with basement carparking on land at 112-116 Lighthouse Road Byron Bay, being lots 10 and 11 in DP 112553, and lot 12 in DP 111328 (the property). ^[1]

   1. PAG Services Pty Ltd v Byron Shire Council [2004] NSWLEC 267.

5. The first applicant, PAG Services Pty Ltd, is the registered proprietor of lot 10 in DP 112553. The second applicant, Mr Murray Curtis, is a director and company secretary of the first applicant, and the registered proprietor of lot 11 in DP 112553, and lot 12 in DP 111328.

6. On 7 November 2023, Council filed a submitting appearance, submitting “to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs.”

7. The question which arises in these Class 4 proceedings is whether the development consent dated 24 March 2004 has lapsed, or whether the applicants physically commenced work on the property prior to any lapsing of the consent on 24 March 2009.

8. I have determined to make a declaration in the terms sought by the applicants.

The evidence relied on by the applicants in the Class 4 proceedings

9. The applicants read the following affidavits at the hearing:

1. affidavit of Mr Joe Kirsteins, arborist, affirmed 23 February 2023; and

2. affidavit of Mr Murray Curtis, second applicant and director of the first applicant, sworn 13 March 2023.

10. The applicants also tendered a statement of facts and an exhibit to the affidavit of Mr Curtis.

11. In relation to the question of costs, the applicants subsequently filed an affidavit of Mr Michael Young of McCartney Young Lawyers, solicitor for the applicants, sworn 21 March 2023. Annexed to that affidavit was a series of correspondence between Council and representatives of the applicants in relation to the development consent.

12. Council, having entered a submitting appearance, filed no evidence, either in the substantive Class 4 proceedings or in relation to the questions of costs.

The Class 1 proceedings and development consent granted by Commissioner Murrell on 24 March 2004

13. On 9 October 2002, the first applicant commenced Class 1 proceedings appealing Council’s refusal of the development consent.

14. While the proceedings were on foot, the first applicant filed an application under s 84 (as it then was) of the EPA Act for Council to review its decision to refuse consent on the basis that the applicant only sought to develop 10, rather than 20, units. On 2 March 2004, Council resolved to grant consent subject to various conditions, one of which was that (emphasis in original):

The building design is to be altered to avoid removal of and provide protection for significant vegetation

All of the established coastal cypress trees (x10) in the south eastern corner of the subject land and the established vegetation (including lilly pilly) along the southern boundary of the existing dwelling of number 112 Lighthouse Road must be retained and adequately protected during pre-construction, construction and operational phases of the development. To ensure the above the following changes are to be made to the design and location of the proposed buildings and basement:

• the proposed buildings and associated basement is to be set back a minimum of 5 m from the southern boundary…

15. The first applicant did not agree with the conditions the subject of Council’s resolution, and continued the Class 1 appeal.

16. In the Class 1 proceedings, the first applicant and Council filed expert evidence in relation to the ecology of the property and the retention of certain trees.

17. On 23 March 2004, a number of experts participated in an expert witness conference and prepared an agreed joint report. In the joint report, the experts said at [5]: “The applicant believes that the Cypress Pine that overhangs the driveway will need to be removed”. The experts stated: “All parties agree”.

18. On 24 March 2004, the Class 1 appeal was determined by Commissioner Murrell. The Court granted consent to the development application for 10 town houses with basement carparking at the property, subject to conditions. Condition 2 of the development consent granted by the Court provided as follows in relation to the retention of five coastal cypress trees along the southern boundary of the property, except for a single coastal cypress overhanging the proposed driveway:

2. The building design is to be altered to avoid removal of and provide protection for significant vegetation

The five established coastal cypress trees along the eastern boundary of the land and the established vegetation along the southern boundary of number 112 Lighthouse Road (excepting a single coastal cypress which overhangs the proposed driveway) is to be retained and adequately protected during pre-construction, construction and operational phases of the development. To ensure the above the following changes are to be made to the design and location of the proposed buildings and basement:

• the proposed basement is to be set back a minimum of 5 metres from the southern boundary…

(emphasis added)

19. Condition 3 provided as follows in relation to the submission of amended plans to verify compliance with condition 2:

3. Amended plans to be submitted to Council to verify compliance with Conditions No 2.

Amended plans incorporating the design changes outlined in Condition Nos [sic] 2 and the vegetation management plan referred to in condition 8, are to be submitted to and approved by the Director of Local Approvals and Compliance Services prior to making an application for a construction certificate.

20. Condition 47 provided as follows in relation to tree maintenance:

47. Tree Maintenance

A qualified arborist experienced in tree management must be present on a full or part-time basis to advise on the maintenance of the trees for their protection for the duration of the project.

21. Mr Curtis deposed that the single coastal cypress tree overhanging the proposed driveway was identified for removal because it needed to be removed in order to enable the excavation for and construction of the basement carpark.

22. Exhibited to the affidavit of Mr Curtis were plans approved pursuant to the Court granted development consent. The coastal cypress that was permitted to be removed was shown in the southwest corner of Plan DA 01-201 Issue E, near the boundary and adjacent to the driveway. In a separate site plan exhibited to his affidavit, Mr Curtis circled and initialled that coastal cypress in the same location, indicating that it was the tree referred to in condition 2 of the development consent.

23. The development consent provided no lapsing date. Accordingly, it would lapse in accordance with s 95(1)(a) of the EPA Act, as it was at the time, within five years of the date the consent was granted, that is, on 24 March 2009 (the lapsing date).

The removal of the coastal cypress, the banksia and “various pruning”

24. Mr Curtis said that in 2008, he was living on the property. He knew and had previously engaged arborist Mr Kirsteins of Summerland Trees to maintain and care for the gardens on the property, including pruning, lopping and removing vegetation.

25. Mr Curtis sought to remove the coastal cypress identified in condition 2 of the development consent, as well as a large banksia in the middle of the property. Mr Curtis deposed to wanting to “commence the development by removing the [c]ypress overhanging the driveway.”

26. Mr Curtis deposed to instructing arborist Mr Kirsteins to remove the cypress and the banksia on the property, and to clean up some shrubs. He recalled being on the property on the day that the work was done. He recalled Mr Kirsteins issuing an invoice, which was paid. That invoice, exhibited to his affidavit, was dated 4 December 2008, and the works described were the removal of two trees (a “large banksia” and “cypress tree”) and “various pruning”.

27. Mr Kirsteins deposed that it was his practice to obtain from his clients a copy of any consent or approval that permitted the vegetation they wanted to be pruned or removed. Mr Kirsteins said that although he threw away older records of his business after the business ceased and he moved house, he recalled attending the property about six times to do other tree maintenance work prior to the tree removal. In December 2008, he also recalled attending the property two weeks prior to the tree removal, at which time he made a plan in his diary marking on the plan the trees to be removed.

28. Mr Kirsteins attended the property in December 2008 with two men from his business, on which occasion they removed three trees: one tree that he believed to be a cypress about 8-10m in height; another tree that was a banksia about 6-7m in height; and a third tree, the species of which he could not recall. Exhibited to Mr Kirstein’s affidavit was a copy of a plan, including a handwritten note, identifying the location of the cypress and the banksia. The invoice referred to above at [26] was also annexed to Mr Kirstein’s affidavit.

29. Subsequent to the work undertaken by Mr Kirsteins in December 2008, no further work in purported reliance on the development consent took place on the property. By way of explanation, Mr Curtis deposed to significant family issues and changed economic conditions following the global financial crisis which caused him to defer further work on the property.

Correspondence with Council about whether the 24 March 2004 development consent had lapsed

30. On or about 30 July 2021, Mr Curtis engaged the services of Mr Wayne Bertram of Certifiers2U Building Certifiers and Consultants to assist the property owners, being the applicants, with construction on the property pursuant to the development consent. Mr Curtis instructed Mr Bertram to submit amended plans prepared by Fultron Trotter Moss to Council in order to proceed with the development.

31. On 9 August 2021, Mr Bertram wrote to Mr Chris Larkin, Manager Sustainable Development at Council, advising that he had been engaged by the applicants and seeking that Council provide a copy of the development consent granted by the Court. Mr Bertram referred to the applicants’ belief that “the development survey works undertaken on the 07.02.2006 and the tree removal necessary for the development to occur as per the Land and Environment Court consent, has commenced the development consent”. In his letter to Mr Larkin, Mr Bertram said:

I understand that Byron Shire Council has previously reviewed the development consent and was not able to confirm that Council…believed that the development had commenced. However the legal opinion obtained by the property owner (previously provided to Council) has been accept[ed] by the PC appointed to this development (Techton) and as such we are now wanting to continue to comply with the terms of the Court ordered consent.

As discussed on the telephone, can you please advise if this additional information has changed Council’s option on the commencement of this development application and / or that Council will allow for the assessment of the subsequent Section 68 application(s) and Roads Act Application required by this development or if Council would like the NSW Land and Environment Court to determine the commencement of this development consent?

32. On or about 25 August 2021, Mr Curtis engaged the services of Fulton Trotter Moss to “amend the plans to comply with [c]ondition 2 of the development consent.”

33. On 20 October 2021, Mr Bertram sent a further email to Mr Larkin following up on whether Council had obtained advice on the commencement of the development consent. Mr Bertram also advised that an architect had since commenced working on the plans for the development, and that the applicants proposed to lodge amended plans as a modification application under s 4.55(1)(a) of the EPA Act. On the same day, Mr Larkin responded as follows:

I believe our previous advice that [the development consent] hadn’t commenced still stood.

Will come back to you with an update though once I talk further with councils legal officers.

Until this matter is resolved I see little utility in looking at amended plans that can’t be approved if the consent is lapsed.

34. On 17 November 2021, Mr Ralph James, Council’s legal counsel, wrote to Mr Bertram, advising as follows:

My advice is that Council could not accept any modification application, because the consent has lapsed.

I[t] seems to me that the applicant would only have an option to commence class 4 proceedings to seek a declaration that the consent has NOT lapsed. If the applicant was successful, they would then be able to lodge their modification application. If the Court found the consent had lapsed, that would be the end of the matter.

35. On an unknown date, Mr Bertram, on behalf of the applicants, submitted to Council a modification application pursuant to s 4.56 of the EPA Act. Exhibited to the affidavit relied on by the applicants in relation to the question of costs of these Class 4 proceedings was part of an email from NSW Planning to Mr Bertram dated 22 March 2022, stating that Council rejected the modification application. The reasons for the rejection were as follows:

Previous advice on this matter to the applicant is that the consent has lapsed, therefore it is unclear what the purpose of the modification is as there is no consent to amend.

36. Mr Young deposed that on or about 10 August 2022, he wrote to Council in relation to the lapsing of the development consent. That letter was not in evidence.

37. On 10 October 2022, Mr James wrote to Mr Young, stating:

My instructions are that Council cannot confirm to an Applicant whether or not it is of the opinion that a development consent has lapsed.

Council takes the view that it has no legal power or duty to determine or certify whether or not a development consent has or has not lapsed.

Council’s view is that the determination of the question is one that only a court can make.

38. On 27 October 2022, the first applicant commenced these Class 4 proceedings by way of summons. An amended summons was filed in court on 17 March 2023, joining Mr Curtis as second applicant.

Legislation in relation to the lapsing of consent

39. The relevant legislative provision, both at the time of the granting of development consent on 24 March 2004, and at the time of the removal of the coastal cypress, the banksia and “various pruning” in December 2008, was s 95 of the EPA Act. That provision has since been repealed, and now takes the form of s 4.53 of the current EPA Act. At all relevant times, the language of subsection 95(4) has remained unchanged. It provided as follows:

95   Lapsing of consent

(4)  Development consent for:

(a)  the erection of a building, or

(b)  the subdivision of land, or

(c)  the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

40. Clause 124AA of the Environmental Planning Assessment Regulation 2000 (NSW) (EPA Regulation) now provides that certain work is not to be taken into account for the purposes of s 4.53(7) of the Act:

124AA When work is physically commenced

(1) For the purposes of section 4.53(7) of the Act, work is not taken to have been physically commenced merely by the doing of any one or more of the following—

(a) creating a bore hole for soil testing,

(b) removing water or soil for testing,

(c) carrying out survey work, including the placing of pegs or other survey equipment,

(d) acoustic testing,

(e) removing vegetation as an ancillary activity,

(f) marking the ground to indicate how land is to be developed.

(2) This clause does not apply to a development consent granted before the commencement of this clause.

41. However, cl 124AA was not inserted into the EPA Regulation until 14 May 2020. Accordingly, the applicants submitted, and I accept, that paragraph (e) “removing vegetation as an ancillary activity” is not applicable to the subject development consent, and does not hinder the applicants’ case that the development consent granted by the Court on 24 March 2004 has not lapsed.

Issues for determination in relation to whether the development consent granted by the Court on 24 March 2004 has lapsed

42. The applicants identified the issues for determination by the Court as:

1. Was the work relied on building, engineering or construction work?

2. If so, did it relate to the approved development?

3. If so, was it physically commenced on the land to which the consent applied prior to the lapsing date?

The applicants’ submissions in relation to whether the development consent has lapsed

43. In identifying the issues for determination by the Court, the applicants relied on Biscoe J’s consideration of the lapsing provision, at the relevant time in s 99 of the EPA Act, in Reysson Pty Ltd v Roads and Maritime Services (Reysson). ^[2] There, his Honour identified the questions under s 99(4) as follows at [34] (footnote added):

34. The only questions under s 99(4) are: (a) was the work relied on building, engineering or construction work? (b) if so, did it relate to the approved development? (c) if so, was it physically commenced on the land to which the consent applied prior to the lapsing date?: Hunter ^[3] at [111]; followed in JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535 at [18] per Lloyd J.

2. [2012] NSWLEC 17; (2012) 188 LGERA 252.

3. Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169.

44. The applicants submitted, and I accept, that the approach of Biscoe J in Reysson should be applied to the determination of the issues for determination in these proceedings.

Was the work relied on building, engineering or construction work?

45. In relation to the first question identified by Biscoe J in Reysson, the applicants submitted that the removal of the coastal cypress constituted “construction work” permitted and contemplated by the development consent. They submitted that the removal of the coastal cypress in or before December 2008 was necessary for the approved basement driveway to be constructed, was work physically commenced on the land to which the consent relates, and was undertaken prior to the lapsing date, namely, 24 March 2009.

46. The applicants relied on the decision in Cando Management and Maintenance Pty Ltd v Cumberland Council (Cando),^[4] in which the Court of Appeal upheld in part an appeal from this Court holding that the relevant development consent had not lapsed. In Cando, consent for the development of nine townhouses contained a number of conditions, some under the headings “Prior to Work Commencing” and “During Work”. Condition 44 under the heading “During Work” provided that “all pruning works and tree removals shall be carried out by a suitable qualified tree surgeon/arborist”. It was agreed between the parties that demolition work was undertaken within five years of the grant of consent. The quotation for demolition work included “trees and shrubs”. Subsequent building work then commenced absent the appointment of a principal certifying authority and a construction certificate. It was also agreed that “construction work” had been physically carried out within five years of the grant of consent, and that for such work to “relat[e] to the building, subdivision or work…to which the consent applies” (within the meaning of s 95(4) of the EPA Act), it had to be in accordance with or not prohibited by the consent. ^[5] However, at issue was not whether the removal of trees and shrubs constituted “construction work”; Council did not contend to the contrary (at [117]). Rather, one of the grounds of appeal was whether the “construction work” carried out, including the removal of trees and shrubs, was compliant with, and therefore “related to”, the development consent (at [61], [80]).

    4. [2019] NSWCA 26 (Beazley P, Meagher JA and White JA) (Cando).

    5. Cando at [50]-[51], citing authorities including Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 at 135.

47. At first instance, the applicant council contended that the demolition work was unlawfully carried out. ^[6] The applicant contended that the removal of trees and shrubs, water disconnection and site fencing was not “demolition work”, and as such was a separate or “further” type of work carried out in accordance with the consent. The primary judge, Pain J, considered each of these three types of work, and concluded that each was carried out in breach of conditions of the consent. Her Honour held at [89] that the applicant did not discharge its burden of proof in satisfying the Court that it had complied with condition 44 requiring tree clearing to be undertaken by a qualified arborist, as there was no evidence to that effect. Her Honour concluded that the work did not “relate to” the physical commencement of the development the subject of the consent. However, her Honour said at [87] (footnote added):

87. I will now consider the further work. The clearing of trees and shrubs as identified in the evidence…has the potential to satisfy physical commencement based on Tobias JA (Santow JA and Stein AJA agreeing) in Hunter Development Brokerage ^[7] at [96]-[107] and Besmaw ^[8] at [101]-[112]…As identified in Besmaw at [101] ‘construction work’ is not defined in the EPA Act and has a wide meaning. Provided such work represents a genuine attempt to physically commence a consent and is an initiatory step…it can satisfy the requirement of commencement within five years.

6. Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83 at [4].

7. Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169.

8. Besmaw Pty Ltd v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413.

48. One of the appellant’s (the applicant before Pain J) grounds of appeal challenged the finding of Pain J that the development consent had lapsed. In relation to her Honour’s findings at [89] and [92] as to the removal of trees and shrubs, the appellant contended that the removal of shrubs was a sufficient commencement of work to prevent the consent from lapsing, and that there was no condition of the development consent requiring shrubs to be removed by a suitably qualified tree surgeon/arborist. White JA (Beazley P and Meagher JA agreeing) accepted this submission at [112], and concluded as follows (at [117] to [119]):

117. The Council did not submit that the carrying out of the work of clearing trees or shrubs was not “construction work”. The primary judge noted (Judgment [87]) that the clearing of trees and shrubs had the potential to satisfy physical commencement and that “construction work”, which is not defined in the EPA Act, has a wide meaning. It is clear that the primary judge accepted that the work of clearing trees and shrubs would be sufficient to satisfy the definition of “construction work”. The Council did not contend to the contrary. If the work of clearing trees and shrubs can be construction work, then so can the work of clearing shrubs.

118. On this very narrow basis I conclude that the primary judge erred in finding that the development consent had lapsed. It follows that the declaration made by the primary judge should be set aside. In lieu thereof the alternative declaration sought by the Council in its further amended summons should be made that Cando carried out its development in breach of s 76A(1)(b) of the EPA Act.

119. The consequences of this may be significant. Cando will be entitled to apply for a modification of the development consent under the former s 96AA of the EPA Act and for a construction certificate to enable the carrying out of the works the subject of Annexure A to the Agreed Statement of Facts.

49. Here, on the basis of Cando, the applicants submitted that the clearing of vegetation, namely, the removal of the cypress tree, constituted “construction work” for the purposes of s 95 of the EPA Act, such as to prevent the consent from lapsing.

50. In Cando, White JA observed at [117] that Council did not submit that the carrying out of the work of clearing trees or shrubs was not “construction work”, and that the primary judge had noted at [87] that the clearing of trees and shrubs had the potential to satisfy physical commencement, and that “construction work”, which is not defined in the EPA Act, has a wide meaning. On this very narrow basis, White JA concluded at [118] that the development consent had not lapsed.

51. The applicants also relied on Hunter Development Brokerage Pty Ltd v Cessnock City Council (Hunter),^[9] and Norlex Holdings Pty Ltd v Wingecarribee Shire Council (Norlex),^[10] where the issue to be determined was whether the work in each case was capable of being “engineering work” within the meaning of the lapsing provision in s 95 of the EPA Act (as it then was).

    9. (2005) 63 NSWLR 124; [2005] NSWCA 169 (Tobias JA, Santow JA and Stein AJA agreeing).

    10. [2010] NSWLEC 149; (2010) 177 LGERA 261 (Pepper J).

52. In Hunter, Tobias JA considered that “engineering work…should be given a broad meaning to include all those activities associated with, and forming a necessary part of the discipline of engineering applicable to the subdivision of land” (at [83]). His Honour found that the survey and geotechnical investigation work carried out in that case was capable of being “engineering work” within the meaning of the lapsing provision (at [85]). Similarly, in Norlex, Pepper J held that collection, testing and analysis of spring water from a pump was “engineering work” within the meaning of the lapsing provision (at [95]).

53. Both Hunter and Norlex refer to the decision of Talbot J in Besmaw Pty Ltd v Sutherland Shire Council (Besmaw). ^[11] At [101], his Honour said the following in relation to the meaning of “construction work” in the context of the lapsing provision (at the time, s 99 of the EPA Act):

101. ‘‘Construction work’’ is not defined in the EP&A Act. Accordingly, the words must be taken to have their natural and ordinary meaning in the English language. Taking the Shorter Oxford Dictionary definition of ‘‘construction’’ as the action of framing, devising or forming by the putting together of parts, combined with the use of the word ‘‘work’’ in the dictionary sense as toil or labour, and the words ‘‘physically commenced on the land to which the consent applies’’, it follows that any work which marks the commencement of roadworks in accordance with the approved plans can be regarded as construction work. In the words of McTiernan J in Owendale it is sufficient if ‘‘the work was an initiatory step’’ in the making of the road. Even the first respondent’s expert witness, Mr Mostyn, agreed that the clearing of vegetation that he understood took place on 19 September 1997 ‘‘was very much an initial commencement of the road works’’. Mr Griffiths considered that what happened on 19 September 1997 was earthworks. He relied on the council’s definition of earthworks in its specification. Based upon what was said in the affidavits of Mr Floyd, Mr Holt and Mr Horgan, Mr Griffiths formed the view that construction work on the access road had commenced.

11. [2003] NSWLEC 181; (2003) 127 LGERA 413 (Besmaw).

54. His Honour went on to find at [111] that the work completed in that case, being the clearing of vegetation from an access road, an archaeologist inspecting the surface of the access road, and levelling and forming of the access road, was “not notional or equivocal”. The work “truly was work relating to the approved roadworks that could not be mistaken for something else and amounted, in my view, to a genuine attempt to save the consent from lapsing by commencing the work.” Accordingly, his Honour found that the applicant had physically commenced construction work relating to the access road on land to which the development consent applied. ^[12]

    12. Besmaw at [112].

55. In considering the meaning of “construction work”, in relation to which the EPA Act is silent, I have also had regard to definitions in other legislation. ^[13] While those definitions are not directly relevant to the issue for determination here, I have considered them in having regard to the natural and ordinary meaning of “construction work”.

    13. See, e.g., Building and Construction Industry Security of Payment Act 1999 (NSW) (s 5 definition of “construction work”), Building and Construction Industry Long Service Payments Act 1986 (NSW) (s 3 definition of “building and construction work”) and Design and Building Practitioners Act 2020 (NSW) (s 36 definition of “construction work”).

56. In this matter, Council has not provided any assistance in relation to whether I should conclude that the removal of the coastal cypress overhanging the proposed driveway (referred to in condition 2 of the development consent), the removal of the “large banksia” (not referred to in the consent), and “various pruning” (likewise not referred to in the consent), all undertaken in December 2008, are capable of constituting “construction work” within the meaning of s 95 of the EPA Act. I accept, as her Honour Pain J found in Cando at [87] at first instance, that the clearing of trees and shrubs has the potential to satisfy the statutory definition of “construction work”. I likewise accept that the definition of “construction work” has a wide meaning.

57. The Court has not been assisted by any contradictor as to whether, in the circumstances of this case, it should find that the removal of the coastal cypress, the removal of the large banksia and “various pruning”, in December 2008, constituted “construction work” within the meaning of s 95. It is plain, from the communications referred to above at [33]–[37], that Council has taken a position in relation to whether or not the development consent has lapsed. However, by its submitting appearance, Council declined to provide assistance to the Court.

58. Mr Curtis deposed that:

I wanted to remove the Cypress tree as it was allowed and required by the Consent. The litigation to obtain development consent had been contested by council. I had engaged Senior Counsel to represent PAG in the litigation. The case had cost a lot of money. I wanted to commence the development by removing the Cypress overhanging the driveway.

59. I put to Mr Tomasetti, senior counsel for the applicants, that Mr Curtis’ subjective understanding of what he was doing by way of commencement was not the question for the Court. Rather, the question of commencement of the development consent was to be determined objectively. Mr Tomasetti accepted that it is an objective assessment, but did not concede that Mr Curtis’ intention was irrelevant, and submitted that it assisted in forming an objective position.

60. Doing the best I can, unassisted by any contradictor, I accept the submissions of the applicants and find that the work undertaken by the arborist Mr Kirsteins at the property in December 2008 constitutes “construction work” within the meaning of s 95 of the EPA Act. This is a finding of fact based on the material before the Court.

Did the construction work relate to the approved development?

61. The second question identified by Biscoe J in Reysson in relation to the lapsing provision in s 99(4) of the EPA Act, as it stood in 1993, is whether the work relied on (here, construction work) related to the approved development.

62. The applicants put this question as follows: did the removal of the vegetation, including the coastal cypress on the southern boundary, relate to the approved development? They submitted that a consideration of the 24 March 2004 development consent resulted in that question being answered in the affirmative, relying upon the following matters:

1. The evidence before the Court in granting development consent in 2004 included a consideration as to whether the coastal cypress trees on the property were to be “preserved and protected in [their] entirety”, as suggested by Council’s expert Mr Paul Montgomery in the 2004 Class 1 proceedings.

2. Council’s position on the preservation of the coastal cypress trees was confirmed in Council’s preferred condition 2, being that “[a]ll of the established coastal cypress trees (x10) in the south-eastern corner of the subject land…must be retained”.

3. The joint report of the experts in the 2004 Class 1 proceedings concluded that the coastal cypress overhanging the driveway would need to be removed.

4. The conditions of consent ultimately imposed by the Court were consistent with that conclusion in the joint report that “[t]he five established coastal cypress trees along the eastern boundary of the land and the established vegetation along the southern boundary of number 112 Lighthouse Road (excepting a single coastal cypress which overhangs the proposed driveway) is to be retained”.

5. The development consent granted by the Court on 24 March 2004 expressly permitted the removal of the coastal cypress which would have otherwise interfered with the driveway on the southern boundary of the property.

6. No construction certificate, or any other prior approval, was required by the development consent prior to the removal of that tree.

7. The 2004 consent did not contain any other provision which limited the five year lapsing period in s 95(1)(a) (as it then was) of the EPA Act.

8. The coastal cypress was removed before 24 March 2009, being the date on which the consent would otherwise have lapsed.

9. The evidence of Mr Curtis, together with the evidence of Mr Kirsteins, established that the coastal cypress on the southern boundary was removed in December 2008.

63. The applicants submitted that having regard to these facts and circumstances, the removal of the coastal cypress in December 2008 was contemplated by the consent, was permitted by the consent, and its removal was construction work that physically implemented the consent. In order for the tree removal work to “relate to” the development consent, it must be undertaken by authority of, and in accordance with the consent, including the conditions to which it is subject. ^[14]

    14. Fagin v Australian Leisure and Hospitality Group Pty Limited [2018] NSWCA 273 at [18] (McColl JA, Meagher JA, Sackville AJA).

64. Having regard to these matters, and having found that the removal of the coastal cypress on the southern boundary constituted construction work, I am satisfied that the removal of the coastal cypress, expressly provided for in condition 2 of the development consent, related to the approved development, within the meaning of s 95(4) of the EPA Act. Where the statutory expression “relating to” is used, a broad but not necessarily causal connection is generally sufficient. ^[15] I find that, here, in context, the removal of the coastal cypress was construction work relating to the approved development, within the meaning of s 95(4).

Was the construction work physically commenced on the land to which the consent applied prior to the lapsing date?

15. P Herzfeld and T Prince, Interpretation (2nd ed, 2020) at [4.350]); also O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; [1990] HCA 16 at 367 (Dawson J), 374 (Toohey and Gaudron JJ), 376 (McHugh J); D Pearce, Statutory Interpretation in Australia (9th ed, 2019) at [12.7], [12.9].

65. In relation to the third question identified by Biscoe J in Reysson, the applicants submitted that the development consent granted by order of the Court on 24 March 2004 had the benefit of the full five years permitted by s 95(1)(a) (as it then was) of the EPA Act. In the absence of the development consent having been commenced, it would have lapsed on 25 March 2009. Order 1 of the orders of the Court in the Class 1 proceedings identified the property to which the appeal related as “the property known as 112–116 Lighthouse Road Byron Bay”. Accordingly, the applicants submitted that the removal of the coastal cypress having occurred in or about December 2008, being a date prior to the date on which the consent would otherwise have lapsed, satisfied the third question identified in Reysson.

66. I accept that submission, and find that the construction work physically commenced on the property prior to the lapsing date.

67. It follows that, having answered the three questions posed by Biscoe J in Reysson in the affirmative, I have determined that the development consent issued by the Court on 24 March 2004 has not lapsed.

Power of the Court to make the declaration sought by the applicants

The Court’s correspondence with Council

68. Shortly prior to the commencement of the hearing on 17 March 2023, I sought clarification from the solicitor for Council in relation to Council’s submitting appearance, and as to the existence of a controversy between the parties in relation to the question of whether the development consent had lapsed. Mr David Baird of Marsdens Law Group, solicitor for Council, responded as follows:

Byron Shire Council has filed a notice of submitting appearance and as a consequence does not appear as a contradictor to oppose the declaratory relief sought and seeks to take no part in the hearing.

In response to her Honours request I am instructed that it is a matter of controversy between Council and the Applicant as to whether DA 10.2001.121.1 granted by the Court in proceedings no. 10744 of 2002 on 26 March 2004 has lapsed.

(emphasis added)

69. In response to Mr Baird, through my associate, I raised that Council had not sought to provide any assistance to the Court in a fact-intensive matter involving a large development, and that it appeared that the Court was being asked to grant declaratory relief in circumstances in which there was no proper contradictor. I proposed that, the solicitor for the applicants having travelled to Sydney for the hearing, the matter be stood over at the conclusion of the applicants’ submissions in order for Council to explain its position as the local government authority, the development consent of which was in controversy.

70. Mr Baird responded as follows:

There is no controversy in the sense that the Respondent takes no position on whether or not the development consent has lapsed. This is because it takes the view it has no duty, obligation or function to perform in providing or confirming advice to any person as to whether a development consent has lapsed. In this regard the Respondent relies upon the decision of Biscoe J in the case of Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council [2009] NSWLEC 142. The position of the Respondent in this regard, without referring to the case law, was conveyed to the Applicant in an email from the Respondents Legal Counsel, Ralph James to the solicitor for the Applicant on 10 October 2022…

71. Following Mr Baird’s response, and having heard the applicants’ submissions, I directed that the matter be adjourned, and that the parties file written submissions on the question of costs to be determined on the papers (see [84]-[112] below).

Declaratory relief where there is no proper contradictor

72. The principles in relation to the obtaining of declaratory relief are well-established in this jurisdiction. ^[16] The principles were enunciated by Gibbs J (as his Honour then was) in Forster v Jododex (Forster)^[17] at 437 as requiring:

1. a real and not a theoretical question;

2. the person raising the question to have a real interest to raise it; and

3. the person to be able to secure a proper contradictor, being someone presently existing who has a true interest to oppose the declaration sought.

   16. Marshall Rural Pty Ltd v Basscave (No 3) [2018] NSWLEC 62 at [25]–[30] (Molesworth AJ); Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 at [19]–[26] (Preston CJ of LEC); Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [12]–[23] (Pepper J); Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 at [34]–[44] (Robson J).

   17. (1972) 127 CLR 421; [1972] HCA 61 (Forster).

73. The Court’s correspondence with the parties (see above at [68]–[71]) arose from a concern that there was no proper contradictor in circumstances where Council indicated that it “takes no position on whether or not the development consent has lapsed”.

74. In Penrith City Council v Dincel Construction System Pty Limited and Gaonor Pty Limited (OSSM case),^[18] Robson J observed as follows:

14. It has been held that a condition precedent to granting declaratory relief is that, inter alia, the plaintiff must be able to secure a proper contradictor, that is, someone presently existing who has a true interest to oppose the declaration sought: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 438.

15. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 (‘MSY’), the question that arose was whether, having regard to the consent of the parties to the granting of the declaratory relief proposed, the primary judge was prevented from granting that relief. Put another way, the question was whether consent to the relief sought precluded the respondent from being a “proper contradictor”. The Full Federal Court (Greenwood, Logan and Yates JJ) held, at [30], that the correct position could be found in the judgments of Dawson J in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 at 648 and French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231 at [47]. The Court stated that if a party had a true interest in the plaintiff’s claim, even if they saw that interest served by not opposing the relief claimed, that would be sufficient to render them a “proper contradictor”: MSY at [16]. Similar sentiments were expressed in Zetting v Müller [2017] NSWSC 659 and In the matter of Beechworth Land Estates Pty Ltd (administrators appointed) [2017] NSWSC 1447.

18. [2019] NSWLEC 198 at [14]-[15].

75. In this case, there was no proper contradictor, active or inactive. It is true that the Court has granted declaratory relief in circumstances where there was no contradictor: see Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council (Zaymill),^[19] a case relied on by Council, and Donvito v Hawkesbury City Council (Donvito). ^[20] It is also clear that the Court’s jurisdiction to make a declaration is a “very wide one”, limited only by the Court’s discretion. Whilst the jurisdiction may be ousted by statute, the right of a subject to apply to the court for a determination of their rights will not be held to be excluded except by clear words. ^[21]

    19. [2009] NSWLEC 86 at [14]–[15] (Biscoe J).

    20. [2022] NSWLEC 26 at [8], [63] (Moore J).

    21. Forster at 435–6.

76. Zaymill was an ex tempore judgment. The respondent council, as here, had entered a submitting appearance. Accordingly, there was no contradictor. Nor were any submissions made as to whether declaratory relief should be granted in the absence of a contradictor. The issue, as here, was whether work had physically commenced before the date of lapsing. Biscoe J was satisfied that the declaration sought by the applicants should be made.

77. Donvito was likewise an ex tempore judgment. The applicants sought a declaration that their development consent had not lapsed, submitting that construction work within the meaning of s 4.53(1)(a) of the EPA Act had been undertaken prior to the expiry of the lapsing period. Again, the respondent council had entered a submitting appearance. Moore J made a declaration that the development consent had not lapsed.

78. Each of Zaymill and Donvito turned on the particular facts. There is an issue as to whether the Court has jurisdiction to make a declaration absent a proper contradictor. In Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd,^[22] Lord Dunedin stated that before a declaration is made, among other things, the plaintiff “must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought”. ^[23]

    22. [1921] 2 AC 438 at 448.

    23. See Zetting v Müller [2017] NSWSC 659 at [12].

79. As Parker J observed in Zetting v Müller [2017] NSWSC 659 at [13], there is room for debate about whether a proper contradictor is an essential requirement before a declaration can be made, or is merely a matter of discretion. ^[24]

    24. JD Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, 2014) at [19-115] to [19-125].

80. In this case, I do not decide whether a proper contradictor is an essential requirement before a declaration can be made, or is merely a matter of discretion. Both Zaymill and Donvito were decided in this Court with the respondent councils entering submitting appearances. In another case, the question may arise to be fully ventilated.

81. I note, however, that I have not been provided with any assistance by Council. Whilst model litigant obligations may not strictly apply to councils, as a public authority, Council has responsibilities which go beyond those of private litigants. ^[25] Councils are tasked with the important role of ensuring compliance with environmental and planning laws.

    25. Inner West Council v Sheree Waks [2018] NSWLEC 41 per Robson J at [80] (concerning different facts).

82. Whilst it would be inappropriate to make a bare declaration where such a declaration produces no foreseeable consequences for the parties,^[26] and although historically the courts have preferred not to make “bare declarations”, it has now been accepted that such declarations can be made. ^[27] A bare declaration made in relation to a council provides a clear statement to the council, as a public authority, of legal rights, and can provide a basis from which council can be expected to act. ^[28]

    26. Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 (per Mason J, Barwick CJ, Jacobs, Murphy, Aickin JJ agreeing); Barrak v City of Parramatta Council [2019] NSWLEC 59 at [253]–[255] (Moore J).

    27. Attorney General v Australian Softwood Pty Ltd (1981) 36 ALR 257 at 258 (Gibbs J).

    28. Echt v Ryde City Council [1998] NSWLEC 194 at [17] (Cowdroy AJ).

83. I am satisfied on the particular facts of this matter that it is appropriate to make a declaration in the terms sought by the applicants. Such a declaration would have consequences for them. However, it should be clear that this finding does not extend beyond the particular facts of this matter.

Costs of the Class 4 proceedings

84. At the hearing of the Class 4 proceedings, the applicants sought that the question of costs be reserved until further submissions could be made.

85. It was subsequently agreed between the parties that the question of costs be dealt with on the papers. The parties filed submissions on costs, and the applicants filed the affidavit of Mr Young referred to above at [11].

86. The applicants sought an order that Council pay the costs of the proceedings. Council submitted that the Court should apply the “ordinary rule”, and not award costs against the submitting respondent. Council submitted that the Court should instead order the applicants to pay Council’s costs of the applicants’ costs application.

87. In Class 4 proceedings, costs are governed by s 98 of the Civil Procedure Act 2005 (NSW) (CPA) and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The presumption is that costs follow the event:

42.1   General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

88. The rationale for the principle that costs follow the event is that the successful party to proceedings should be compensated. ^[29]

    29. Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59 (Mason CJ).

89. The applicants submitted that whilst r 6.11 of the UCPR permits the filing of a submitting appearance “save as to costs”, there is no other rule of court or other provision dealing with the costs consequences of the filing of a submitting appearance, whether or not expressed to be “save as to costs”. They submitted, and I accept, that there is no prima facie rule that a submitting party will never be ordered to pay costs. ^[30]

    30. Lee Environmental Planning Pty Ltd v Reulie Land Co Pty Ltd [2020] NSWCA 254 at [36] (Lee) (Payne JA, Leeming JA and Simpson AJA agreeing).

90. Council submitted that although there is no prima facie rule that a submitting party will never be ordered to pay costs, the “ordinary rule” is that no order for costs should be made against a submitting party. ^[31] The mere fact that the decision-maker is ultimately found to have erred in its approach is not, of itself, a sufficient reason to order costs against it, being costs incurred after the entry of a submitting appearance. ^[32] Whether the “ordinary rule” applies will depend on the particular circumstances of the case. ^[33]

    31. Platford v van Veenendaal (No 2) [2018] NSWLEC 86 at [21] (Preston CJ) (Platford).

    32. Rossi v Living Choice Australia Ltd [2015] NSWCA 244 at [73] (Basten JA).

    33. Platford at [21].

91. In Lou v IAG Limited t/as NRMA Insurance,^[34] Payne JA (Gleeson JA agreeing, Brereton JA dissenting), considered the principles relating to the award of costs in a case where the respondent had entered a submitting appearance. Payne JA held at [42] that what is called for in all cases where costs are sought against a party who has entered a submitting appearance is the principled exercise of the costs discretion in s 98 of the CPA. His Honour observed that the discretion that s 98 confers is subject to the qualification that it must be exercised judicially “in accordance with established principle and factors directly connected with the litigation”. ^[35]

    34. (2019) 101 NSWLR 606; [2019] NSWCA 319

    35. Citing Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [65] (McHugh J); see also Lee at [39]–[40].

92. In Develtor Property Group P/L v Newcastle City Council (Develtor),^[36] Bignold J (at [31]) said that a submitting party is generally regarded as immune from any liability for costs.

    36. [2001] NSWLEC 47.

93. In Cutcliffe v Lithgow City Council (Cutcliffe),^[37] Biscoe J said at [31] in relation to Develtor:

31. With respect, in my opinion a successful applicant in declaratory proceedings should have all its costs reasonably incurred in obtaining declaratory relief, which include the costs of a hearing. That is because the applicant is not entitled to such relief merely because the respondents have submitted but must satisfy the court, by evidence and argument, that a declaration should be made…

37. [2006] NSWLEC 463; (2006) 147 LGERA 330 (Cutcliffe).

94. In Platford v van Veenendaal (No 2) (Platford),^[38] all respondents had entered submitting appearances. Preston CJ held that both the council which had made the error and the developer which had sought that the development consent be set aside should be ordered to pay costs notwithstanding the fact that each had entered a submitting appearance. Preston CJ held at [24] that the applicant for development consent had played a role in causing or contributing to council’s failure to consider the relevant matters, being the error that led to the invalidity of the consent. The chief judge concluded at [28]:

28. Whilst it is true that the duty to take into consideration the relevant matters in determining a development application is imposed on the consent authority, the applicant who seeks consent bears some responsibility to provide adequate information on the relevant matters in or accompanying the development application to enable the consent authority to take the relevant matters into consideration.

38. [2018] NSWLEC 86.

95. The chief judge (at [30]) rejected an attempt to elevate the general guideline in Cutcliffe into a “rule” governing the exercise of the costs discretion. In Lee Environmental Planning Pty Ltd v Reulie Land Co Pty Ltd, ^[39] Payne JA at [40] agreed with the chief judge in Platford.

    39. [2020] NSWCA 254.

96. Having regard to the authorities above, I am satisfied that Council’s submitting appearance does not make it immune from a costs order.

Whether costs should follow the event

97. It therefore arises to consider whether Council ought be ordered to pay the costs of the applicants, in whole or in part.

98. The applicants submitted that Council caused the proceedings to be brought. They submitted that Council should have accepted that the development consent had become operative by the commencement of construction work, unless it had evidence to the contrary, but that it had no basis to dispute the applicants’ evidence. Council was not “saved” from the making of a costs order against it by the filing of a submitting appearance. I am not unsympathetic to the applicants’ submissions.

99. Council said it had no “legal power or duty to determine or certify whether or not a development consent has or has not lapsed”. The applicants submitted that this statement was in part wrong. They said that Council could have accepted for itself that the consent had not lapsed, but it instead took the positive contrary position that the consent had lapsed. So much was confirmed in Council’s correspondence to Mr Bertram, and its refusal to accept modified plans in accordance with condition 3 of the development consent (see above at [34]).

100. I accept the applicants’ submission that Council is in a special statutory position as consent authority under the EPA Act. It has functions and duties under the EPA Act in relation to this development. One such function was to consider the amended plans, verifying compliance with condition 2, pursuant to condition 3 of the development consent. Unless it held the view that the development consent had lapsed, it had a duty to proceed to consider the modified plans.

101. The applicants submitted that the evidence produced to Council was compelling. They distinguished the facts here from those in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. ^[40] In that case, the Court of Appeal held that work of an engineering nature undertaken by a developer in the absence of approval by council of engineering plans could not be regarded as building, engineering or construction work “relating to that development” for the purpose of s 99(2)(a) of the EPA Act, as that work was prohibited by the consent, and therefore not “the subject of that consent” within the meaning of s 99(1)(a). Here, the applicants submitted that trees had been removed from the property before the lapsing date in accordance with, and pursuant to, the development consent, and accordingly the development consent had not lapsed.

     40. (1992) 81 LGERA 132.

97. The applicants submitted that it was not reasonable for Council to “force” them to take proceedings in this Court and to hide behind a submitting appearance to give them immunity from costs. The decision in Cando was submitted to be on point. They further submitted that it was trite to say that Council could not make a “declaration” that the consent had not lapsed. However, Council was, and is, in a position to decide for itself the status of a development consent. Any decision made by Council with respect to the development consent would not bind third parties. If Council determined that the consent had not lapsed, and the development was implemented, a legal challenge would still be available to a third party if he or she considered that the consent had lapsed. In such proceedings, Council might well file a submitting appearance, and allow the third party and the applicants to conduct the litigation. ^[41]

    41. Cutcliffe at [29] citing Kindimindi Investments P/L v Lane Cove Council (2006) 143 LGERA 268 at 275.

98. The applicants further noted that Council had continued to maintain the existence of a controversy as to whether the development consent had lapsed. In its correspondence to the Court (referred to above at [68]–[71]), Council accepted the existence of a “controversy”.

99. Council submitted that in responding to the Court’s inquiry as to the existence of a controversy between the parties by saying that “it is a matter of controversy between Council and the applicant as to whether [the development consent] has lapsed”, it intended to convey that there was a matter that remained for the Court to determine, the reason being that Council did not, and could not, agree or disagree that the development consent had lapsed.

100. Council further submitted that there was no controversy in the sense that it took no position on whether or not the development consent had lapsed. This was because it took the view it had no duty, obligation or function to perform in providing or confirming advice to any person as to whether a development consent has lapsed, relying on the decision of Biscoe J in Zaymill.

101. I accept the applicants’ submission that it misses the point to say that Council had “no duty, obligation or function to perform in providing or confirming advice to any person as to whether a development consent has lapsed”. The development consent required the applicants to lodge further plans with Council for approval. In those circumstances, Council then had a function to exercise under the EPA Act. The evidence leads me to find that Council declined to exercise that function because it took the view that the consent had lapsed.

102. Whilst Council confirmed (in response to a communication from the Court on the morning of the hearing) the existence of a controversy, it provided no assistance to the Court identifying the nature of the “controversy”, or its reasons, as the consent authority, for concluding that the consent had lapsed. Council submitted that the costs decision in Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council [2009] NSWLEC 1423 (Zaymill (Costs)) was indistinguishable from the present case. In that case, the issue was whether Ryde City Council should be liable for the applicants’ costs of proceedings for declaratory relief relating to the issue of whether a consent had lapsed, in circumstances where council had filed a submitting appearance at an early stage. Council had initially formed the view that the consent in question had lapsed. Subsequently, council wrote to the applicants to the effect that, having considered the matter further, it refused to state one way or the other whether the consent had been physically commenced, and that it was not the duty of council to take a position in relation to the matter. The applicants sought costs for the reasons given at [8] of the judgment, including that the principles in Cutcliffe favoured a costs order in their favour. Biscoe J rejected the application for costs in the following terms:

9. This is not a case, such as in Cutcliffe, where the proceedings were brought to set aside a consent or decision of a consent authority. Cutcliffe is distinguishable, the guidelines at [50] being directed to a different situation.

10. The applicant sought legal advice in relation to the commencement issue, the applicant’s lawyers considered the matter in depth, communicated them, substance of their advice to council, and in effect sought an assurance from council that their advice was correct. In my opinion, the council could not be compelled, nor was it under an obligation, to underwrite that advice by confirming that it was correct. The council was entitled to take no position, as it ultimately did, without being at risk as to costs. Although I do not doubt that the council’s position was a matter which the applicant took into account when deciding to commence the proceedings, I do not think that the conduct of the council prior to commencement of the proceedings should sound in costs. The proceedings having been brought, the council filed a submitting appearance save as to costs. At the end of the day, the applicant was engaged in a process of managing this particular development risk. It appears to have managed the risk prudently, including by bringing these proceedings, but I see no reason why the council should become the financier of that aspect of the applicant’s risk management by being required to pay the applicant’s costs.”

108. Council relied on Zaymill (Costs) as authority for the proposition that it was not obliged, at the risk of an adverse costs order, to take a positive position on a lapsing issue one way or the other, or to underwrite an applicant’s view that a consent had not lapsed, even in circumstances where it had, previously, formed the view that the consent had in fact lapsed.

109. The applicants submitted that Zaymill (Costs) was distinguishable as there the council agreed to process the documents relevant to the consent, but the applicant decided to proceed to court anyway (at [9]).

110. Council submitted, and I accept, that lapsing issues are seldom straightforward. Here, Council submitted, but provided no evidence, that it did not accept that the evidence presented to it was “compelling”.

111. In relation to preparation for and the representation of the applicants at the hearing on 17 March 2023, I conclude that the “ordinary rule” as to costs should apply.

112. In relation to the preparation of written submissions concerning costs, each of the parties should bear their own costs. As will be apparent from [68]–[71] above, it is regrettable that Council, as consent authority, did not seek to assist the Court in a fact-intensive matter, involving a large development. Whilst Council declined to process amended plans lodged by the applicants, and accepted the existence of a controversy, it did not participate in the proceedings. It communicated to the Court that it took “no position on whether or not the development consent ha[d] lapsed”. In circumstances in which the Court raised questions in relation to Council’s submitting appearance, and was not assisted by Council, it would not be appropriate for the applicants to bear Council’s costs of submissions on the question of costs.

Orders

113. The Court makes the following orders:

1. The Court declares that development consent DA 10.2001.121.1 issued by the Land and Environment Court of NSW in proceedings 10744 of 2002 dated 24 March 2004 for the carrying out of development being the demolition of existing buildings and the erection of 10 town houses at 112-116 Lighthouse Road, Byron Bay has not lapsed.

2. Each of the parties to pay their own costs of the proceedings.

**********

Endnotes

Decision last updated: 14 April 2023