Sharp v Hunters Hill Council

[2002] NSWLEC 27

Reported Decision: 120 LGERA 155

Land and Environment Court

of New South Wales

CITATION:	Sharp v Hunters Hill Council [2002] NSWLEC 27
PARTIES:	APPLICANT: Sharp RESPONDENT: Hunters Hill Council
FILE NUMBER(S):	40078 of 2001
CORAM:	Bignold J
KEY ISSUES:	Development Consent :- whether statutory lapsing has been avoided by carrying out of demolition works and other building or engineering works.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 81A, s 95(1) and s 95(4)
CASES CITED:	Byron Shire Council v Detala Pty Ltd (2001) NSWLEC 234; Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; Green v Kogarah Municipal Council (2001) 115 LGERA 231; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Jones v Sutherland Shire Council (1979) 40 LGRA 323; London County Council v Marks and Spencer Ltd (1953) AC 535; Mulcahy v Blue Mountains Council (No 2) (1995) 87 LGERA 422; Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158; Young v Warringah Shire Council (2001) NSWLEC 208
DATES OF HEARING:	15 October 2001
DATE OF JUDGMENT:	03/08/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr B Preston, SC with Mr A Gallasso, Barrister SOLICITORS Coleman & Greig RESPONDENT: Mr C McEwen, Barrister SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND

Matter No. 40078 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

8 March 2002

D AND L SHARP

Applicants

v

HUNTERS HILL COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Applicants seek declaratory relief in respect of a development consent granted by the Respondent on 22 or 23 January 1996, namely a declaration that that consent has not lapsed pursuant to the Environmental Planning and Assessment Act 1979, s 95(1) (EP&A Act) because “building, engineering or construction work relating to the building” within the meaning of s 95(4) of the Act was physically commenced within the statutory lapsing period of five years (which relevantly expired on 22 or 23 January 2001).

2. The development consent was granted in respect of premises known as No 19 Wybalena Road, Hunters Hill (the development site) owned by the Applicants.

3. The development consent authorised the demolition of the existing dwelling and the construction of a new dwelling, subject to a number of conditions (the development consent). It is apparent from the approved drawings that the new dwelling was to be located on the development site generally in the same position as the location of the existing dwelling. Since the new dwelling was to be a totally new development, it is obvious that before that building could be physically erected, the existing dwelling must be removed. Accordingly, the demolition of the existing dwelling was a necessary physical prelude to the erection of the new dwelling.

4. At the time the development consent was granted, demolition of a building situate within a “Conservation Area” designated by the Hunters Hill Local Environmental Plan No 1 (the LEP) required the grant of consent by the Council: vide cl 19A. It is common ground that cl 19A applied to the development site, subclause (1) relevantly providing:

A person shall not, in respect of a conservation area—

(a) demolish or alter a building or work within the area;

(b) erect a building on or subdivide land within the area

except with the consent of council.

5. The nature of the works relied upon by the Applicants to avoid the statutory lapsing of the development consent is as follows:—

(i.) excavation work;

(ii.) underground drainage work;

(iii.) landscaping work; and

(iv.) partial demolition of the existing dwelling-house.

6. These works (details of which will be mentioned later in these reasons) are relied upon jointly and severally to avoid the statutory lapsing.

7. There is no dispute on the evidence that each of these works was carried out within the five year statutory lapsing period prescribed by s 95(1). It is common ground that the works itemised as (i) (ii) and (iii) were carried out prior to the commencement on 1 July 1998, of the Environmental Planning and Assessment (Amendment) Act 1997 (the 1997 Amending Act) and that the partial demolition work was carried out in January 2001 just a few days before the expiry of the five year lapsing period prescribed by the EP&A Act, s 95(1). The significance of the commencement of the 1997 Amending Act is that it repealed and re-enacted with significant changes Part 4 of the EP&A Act which re-enactment included a new Part 4A which contained detailed provisions relating to the “certification of development’ as a consequence of the significant amendment made to the Local Government Act 1993 by eliminating the necessity for separate building approval to be obtained under that Act, in addition to any development consent required under the EP&A Act.

8. Although the 1997 Amending Act made many changes to the EP&A Act, the only changes that bear upon the issues to be adjudicated in these proceedings are the following:—
(i) s 81A being an entirely new provision; and
(ii) s 95 being a substantial re-enactment of s 99.

9. One significant change which does not apply is the extension to the definition of “development” contained in s 4(1) to include the following new matters—
(i) the demolition of a building or work; and
(ii) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument.

10. These changes to the key concept of “development” may have some bearing upon the proper interpretation of s 95(4) and (5) which is in dispute between the parties. However, they do not directly apply to in the present case. In particular, they do not apply to the scope and meaning of the development consent (which is to be interpreted in the light of the relevant provisions of the EP&A Act unaffected by the 1997 Amending Act) or to the carrying out of the demolition work undertaken on behalf of the Applicants in January 2001 because of the savings and transitional provisions contained in the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 and in particular cl 20(1) thereof which deems a development consent granted and in force under the EP&A Act unamended by the 1997 Amending Act to be a development consent granted and in force under the Act as so amended.
B. THE ISSUES TO BE ADJUDICATED UPON AND THE PARTIES’ RIVAL CONTENTIONS

11. Although there is no dispute in the evidence as to the primary facts the Council submits that the aforesaid excavation, drainage and landscaping works are works that related to other development consents or building approvals granted later in 1996 (after the grant of the development consent, the subject of these proceedings) in respect of other building works (namely (i) the construction of a new swimming pool; (ii) the erection of a new boatshed and boundary wall; and (iii) the reconstruction of a sea wall) also to be carried out on the development site (to which the development consent applies).

12. Accordingly, the Council submits that those works do not qualify as works that avoid statutory lapsing pursuant to the EP&A Act, s 95(4) because they do not “relate to” the building, the erection of which was authorised by the development consent (ie the new dwelling).

13. The Applicants’ response is that the works so undertaken relate (distributively) to the development consent and to the other consents or approvals. The resolution of the dispute between the parties on these matters will require some examination of the undisputed facts (i) concerning the various development consents and building approvals granted in respect of the same development site; and (ii) the precise nature of the works undertaken in order to ultimately determine the question whether the undisputed works (or any part of them) relevantly “relate to the building” for which the development consent was granted (as contended by the Applicants) or to the building and works, the subject of the grant of the later development consents and/or building approvals (as contended by the Council).

14. A discrete dispute has arisen concerning the Applicants’ reliance (to avoid statutory lapsing) upon the demolition work undertaken by the Applicants involving the partial demolition of the existing dwelling-house erected on the development site. Here the Council submits that the demolition works do not qualify as “building, engineering or construction works” within the meaning of the EP&A Act, s 95(4) because the demolition work was undertaken without there being in existence a relevant construction certificate as required by the EP&A Act, s 81A(2) requiring the issue of a construction certificate before “the erection of a building in accordance with a development consent is commenced”. Section 81A was inserted into the EP&A Act by the 1997 Amending Act. Although there was no counterpart to s 81A in force when the development consent was granted, it is not disputed by the Applicants that s 81A applies to the erection of the new dwelling approved by the development consent. Had building approval been obtained for the erection of the new dwelling under the Local Government Act 1993 that approval would have been deemed to be a “construction certificate” under the EP&A Act: vide the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, cl 46. However, it appears that no approval under the LG Act 1993 was granted before the commencement on 1 July 1998 of the 1997 Amending Act and it is properly conceded by the Applicants that thereafter, the erection of the new dwelling in accordance with the development consent would have to comply with s 81A.

15. In respect of this dispute, it is common ground that no relevant construction certificate had been issued at the time the demolition works were carried out. However, the Applicants deny that there was any requirement for a construction certificate to be issued prior to the demolition of the existing dwelling (in contradistinction to the erection of the new dwelling).

16. The Council next submits, as an alternative to its submission based upon s 81A(2), that there is nothing in s 95 which avoids the statutory lapsing of the development consent at the expiry of the five year period because “the demolition of a building” is not expressly encompassed by either s 95(4) or s 95(5).

17. The Applicants’ competing argument is that in the present case, the partial demolition of the existing dwelling on the development site relevantly constitutes “building engineering or construction work relating to the building” (being the new dwelling approved by the development consent) An alternative argument is that if the demolition of the existing dwelling is not a work falling within the ambit of s 95(4), it falls within the ambit, and satisfies the requirements, of s 95(5) and statutory lapsing of the development consent is thereby avoided on this alternative ground.

18. In adjudicating upon these competing submissions I propose to consider first the Applicants’ reliance upon the partial demolition works to avoid the statutory lapsing because the disputed issues only concern questions of law which can be determined without the necessity to consider the facts concerning the various consents and approvals that were granted in respect of the development site and the precise details of the various works relied upon by the Applicants to avoid statutory lapsing. Thereafter, and for completeness, I shall consider their reliance upon the other nominated works to avoid the statutory lapsing of the development consent.
C. THE RELEVANT STATUTORY PROVISIONS

19. The EP&A Act, s 81A(2) provides as follows:
(2) The erection of a building in accordance with a development consent must not be commenced until:
(a) a construction certificate for the building work has been issued by:
i. the consent authority, or
ii. an accredited certifier, and
(b) the person having the benefit of the development consent:
i. has appointed a principal certifying authority, and
ii. has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and
(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.

20. The EP&A Act, s 95(1), s 95(4) and s 95(5) provide as follows:
(1) A development consent lapses:
(d) 5 years after the date from which it operates, except as provided by paragraph (b), or
(e) in the case of a development consent that is subject to a condition under section 80 95), 5 years after the date from which the initial development consent operates, or 2 years after the date from which a later or the latest development consent granted in accordance with the condition operates, whichever is the longer.

(4) Development consent for:

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.

(5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.
D. WAS STATUTORY LAPSING AVOIDED BY THE CARRYING OUT OF DEMOLITION WORKS WITHOUT THE EXISTENCE OF A CONSTRUCTION CERTIFICATE?

21. It is not in dispute that the demolition work comprising the demolition of one room in the existing dwelling was carried out before the expiration of the 5 year statutory lapsing period and that that work relevantly “related to the building” (being the new dwelling the erection of which was authorised by the development consent). But for the Council instructing the Applicants to stop work, more of the existing dwelling probably would have been demolished. However, the demolition work undertaken, though partial, was real and substantial work.

22. The ultimate answer to this question, expanded in the light of the rival contentions, depends upon the answers to the following four intermediate questions—

(1) Does the demolition work (or partial demolition work) qualify as “ building, engineering or construction work relating to the building ” for which development consent was granted, within the meaning of the EP&A Act , s 95(4) ?

(2) If the answer to question (1) is “No” does the demolition work (or partial demolition work) qualify as “the use of any land, building or work” within the meaning of the EP&A Act, s 95(5)?

(3) If the answer to question (1) or (2) is “Yes” was a construction certificate in respect of that demolition work (or partial demolition work) necessary under the EP&A Act, s 81A(2)?

(4) If the answer to question (3) is “yes”, does the fact that the demolition work (or partial demolition work) was carried out when no construction certificate had been issued, disqualify that demolition work from otherwise qualifying as “building, engineering or construction work” within the meaning of the EP&A Act, s 95(4)?

Question (1)

23. Question (1) is based upon the assumption that the development consent is relevantly a “development consent for the erection of a building” within the meaning of s 95(4).

24. I did not understand the Council to challenge the correctness of this assumption and in my opinion the assumption is sound. The development consent was granted in terms for “the demolition of the existing dwelling and the erection of a new dwelling”. In my judgment, that development consent falls within the scope of s 95(4), it relevantly being a development consent “for the erection of a building”.

25. Although it is not necessary to go further than that, I am of the opinion that to the extent that the development consent also granted authority for the demolition of the existing dwelling (for which consent was required by cl 19A of the LEP) that was a separate authorisation, but not for the carrying out of development because at the time that the development consent was granted, the defined term “development” did not include demolition: see Mulcahy v Blue Mountains Council (No 2) (1995) 87 LGERA 422.

26. However, the inclusion of cl 19A in the LEP was supported by the express terms of s 26(1)(d) of the EP&A Act, and in respect of the operation that clause the EP&A Act, s 75(1) was a definitional or referential provision that extended the reference in Part 4 of the Act to “development” to include the demolition that was controlled by the LEP. Section 75(1) (which was repealed by the 1997 Amending Act) relevantly provided:

(1) In this Part, a reference to a development includes a reference to any other act, matter or thing referred to in section 26 which is controlled by an environmental planning instrument.

27. The effect of s 75(1) was not to deem to be development the relevant control on the demolition of a building. Rather it applied to the control on demolition of a building wrought by cl 19A of the LEP, the provisions and procedures of Part 4 as they related to “development”. Thus, the only “development” authorised by the development consent was the erection of the new dwelling.

28. I readily acknowledge that the foregoing analysis of the development consent stands in stark contrast to my analysis of the relevant development consent in Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158 where at 164/165 I noted the following salient features of that consent:

(i) the approved development is complex inasmuch as it involves the demolition of parts of an existing building, together with the retention of other parts of the existing building with alterations, additions and restorations;

(ii.) the development consent is an indivisible whole, albeit sufficient to sanction a number of aspects of the overall approved development;

(iii.) in terms, the development consent does not adopt the term demolition but instead adopts the compound phrase "alterations and additions and restoration of existing building"; and

(iv.) the degree of overlap between demolition of part of an existing building and alterations or additions to that building in a statutory context where building (as defined by the EP&A Act, s 4(1)) includes part of a building and any structure or part of a structure: cf Shimizu (UK) Ltd v Westminster City Council (1997) 1AllER 481

29. However, a moment’s reflection on each of those salient features, is sufficient to reveal how entirely factually different is the development consent in the present case and the development which it authorises. It is also to be noted that in that case (where the development consent was granted post the 1997 Amending Act), development consent was required for the demolition of a building—see at pp 166/167. This is a significantly different legal matrix from that which applied at the time that the development consent was granted in the present case.

30. These significant differences—both factual and legal—between the development consent in the present case and that considered in Over Our Dead Body Society clearly distinguishes the present case from that case.

31. In answering Question (1), it is to be noted that the EP&A Act does not provide a definition of the compound expression “building, engineering or construction work” but it provides the following definition in s 4(1):

building work means any physical activity involved in the erection of a building.

32. That definition was discussed by Giles JA in giving the judgment of the Court of Appeal in Green v Kogarah Municipal Council (2001) 115 LGERA 231 where the relevant works were described at 249 as “pegging out the development site, clearing, excavation for footings, digging drainage trenches, making provision for silt control”.

33. In answer to the appellant’s submission that such works were “engineering or construction work” within the meaning of s 95(4), but were not (i) “building work”, or (ii) “the carrying out of development Giles JA said at 249/250:

Perhaps the appellant’s response should have addressed erection of a building, not building work, as it may be that there is a difference between building work within s 95(4) of the Act (1999), relevant when considering lapse of a development consent, and the erection of a building part of the definition of development and the carrying out of development in the Act (1995) or the Act (1999), relevant when considering the need for development consent. Any distinction is blurred by the definition of building work in the Act (1999). Excavation for the footings of a building can constitute building, engineering or construction work for the purposes of lapse of a development consent (see for example North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41 at 45; Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 361; 30 LGRA 237 at 245; and as an illustration of ordinary usage, the engineer’s letter to the respondent referring to the second dwelling as “ under construction ”). Can it, and the other of the activities, constitute erection of a building when considering the need for development consent?

The concept is carrying out development, relevantly erection of building, the act or process as distinct from the product of the act or process. In my opinion it would be unrealistic to sever work of the nature of the activities from later steps in the erection of the second dwelling on the appellant’s land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work. The erection of the second dwelling would begin with clearing of the site, pegging out, and digging trenches for footings; then or at later times there would be silt control measures and the digging of trenches for drainage pipes. Clearing to make a garden or digging for a fish pond may not be erection of a building, but the totality of the activities and their purpose informs the nature of the activities: so in North Sydney Municipal Council v Middle Harbour Investments Pty Ltd Hardie J said (at 45) that The laying of the foundation was the most important and substantial part of the work; it was fundamental to and the first essential step in the building process….

34. After concluding, as a matter of fact, that the identified activities “were part of the erection of a building and were for that reason carrying out a development” (p 250) Giles JA proceeded at 250/251 to express the alternative view, that the activities “constituted carrying out of a work” that required the grant of development consent.

35. In my judgment, the demolition (or partial demolition) of the existing dwelling on the development site is relevantly “building work” (as that term is defined by the EP&A Act, s 4(1): “any physical activity involved in the erection of a building”), there being nothing in the subject matter or context of s 95(4) that would exclude the application of that definition.

36. That definition is similar to the statutory expression “any works for the erection or alteration of a building” contained in earlier English town planning legislation considered by the House of Lords in London County Council v Marks and Spencer Ltd (1953) AC 535 where the House adopted the argument advanced for the company:

…..that the phrase works for the erection…..a building, means in relation to the present case, the totality of the physical works upon the site necessary to carry out this building project, as authorised in 1938, beginning with the work of demolition and ending with the completion of the building.

37. Similarly, in the leading judgment of Gibbs J (as he then was) in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350, his Honour, at 360 appears to have clearly accepted the proposition that the demolition of existing buildings in order to clear the site for new development could have constituted the commencement of the approved development (if that approval had extended to demolition).

38. The passage that I have already cited from the judgment of Giles JA in Green is entirely consistent with the same approach that was adopted in Marks and Spencer and in Lebnan.

39. In Over Our Dead Body Society, I held at 169 (par 49) in the context of the EP&A Act, s 81A(2) that the defined term “building work” was sufficiently wide to comprehend “demolition work or activity”.

40. For all the foregoing reasons, I would hold that the partial demolition work undertaken in the present case was relevantly “building work” within the meaning of the EP&A Act, s 95(4). Since it is common ground that that partial demolition was physically commenced on the development site (being relevantly “on the land to which the consent applies” within the meaning of s 95(4)) and that “it related to the building” (the new dwelling) the erection of which was authorised by the development consent, in the obvious sense that the demolition of the existing dwelling was a necessary prelude or preliminary activity (clearing the development site) to enable the erection of the new dwelling to be carried out, I conclude that, Question (1) is to be answered in the affirmative.

Question (2)

41. Since this question only arises in the event of Question 1 being answered in the negative, it is not strictly necessary to answer this question. However, I would, for completeness, make a few observations. Firstly, it is to be noted that s 95(5) in terms only applies to “a development consent for development other than that referred to in subsection (4)”. Since it was common ground, and I have so held, that the development consent relevantly falls within the ambit of subsection (4), there is simply no basis for the application in the present case of s 95(5), the subsections being mutually exclusive.

42. Secondly, although the Applicant’s alternative submission that the demolition of a building necessarily involves “the use of the land” upon which the demolition is undertaken is plausible, in my judgment the more obvious and natural operation of s 95(5) is in respect of a development consent for the carrying out of development being the “use of land”: vide par (a) of the definition of “development” contained in the EP&A Act, s 4(1). However, there may be implications for s 95(5) flowing from the extended definition of development, but consideration of this question should await an appropriate case. The question does not arise in the present case where for reasons already given, the extended definition does not affect the development consent under consideration.

Question (3)

43. The Applicants submit that s 81A(2) of the EP&A Act does not require a construction certificate to be issued for the carrying out of demolition works. This submission has the support of the statutory text which does not employ the term “demolition”.

44. However, the matter is not so simple as it may appear to be because the relevant statutory prohibition contained in subsection (2) is in respect of “the commencement of the erection of a building”. I have earlier recited the terms of s 81A(2): see par 19.

45. In Over Our Dead Body Society (which both parties rely upon in advancing their competing submissions) after examining the purpose of the requirement to obtain a construction certificate in respect of an approved development (see at pp 166 to 168), I expressed the following reasons for concluding that the demolition work undertaken in that case relevantly constituted the “commencement of the erection of a building in accordance with the development consent”:

42. Although, as was properly conceded by Senior Counsel for the Applicant in the course of argument, s 81A imposes no obligation for the obtaining of a construction certificate for building work in a case where the relevantly approved development is the demolition of a building per se , the position is otherwise in a case, such as the present, where the approved development comprises a complex of physical activities involving the demolition of parts of an existing building and the retention of other parts of that building with alterations and additions thereto and with restoration thereof.

43. In the latter type of situation (ie as with the present case), it is neither logical nor feasible nor necessary to separate out any of the various physical activities which collectively comprise the approved development. Indeed, to separate out, as the Respondent’s argument would have it, that aspect comprising the demolition of parts of the approved development, would be to introduce artificial and unworkable distinctions.

44. The correct interpretive result, in my judgment, must be acutely cognisant of (i) the very practical and important purpose sought to be achieved by the provisions of the EP&A Act dealing with certification of development; and (ii) the very practical subject dealt with in those relevant provisions. A construction of s 81A that produces uncertainty or undue complexity or undue artificiality in the operation of the relevant provisions is clearly not a result that promotes the clear purpose of the provisions of the EP&A Act dealing with the requirements for certification of developments. With respect, the Respondent’s attempt to maintain in the construction of s 81A an immutable differentiation between those aspects of development that comprise the erection of a building on the one hand and the demolition of a building on the other, in the present case involving a complex approved development would, in my opinion, produce considerable uncertainty and difficulty in the operation of the provisions of the EP&A Act in respect of the certification of development.

45. Moreover, the Respondent’s argument does not satisfactorily come to terms with the obvious overlap between the two concepts relevant to the present case, of demolition of parts of an existing building and alterations and additions to and restoration of, other parts of the existing building cf Shimizu; and North Sydney Municipal Council v Pielor Pty Ltd (1981) 43LGRA 184.

46. Accordingly, the Respondent’s attempt to maintain a clear and fixed differentiation between those two aspects of the defined term development is not, in my respectful opinion, sustainable in a case like the present where it can be said alternatively with equal clarity and cogency that the approved development involves (i) the demolition of parts of the existing building; and (ii) the alteration of the existing building.

47. Indeed, in these circumstances, I am satisfied that the very physical activity of demolition of parts of the existing building (that the Respondent exclusively relies upon) is at the very same time, the same act of altering that building (the latter description falling squarely within the extended concept of the erection of a building provided in the EP&A Act, s 4(2)).

48. In so concluding, I do not for a moment discount the fact, much emphasised by the Respondent’s argument, that s 81A(2) in terms refers to the commencement of the erection of a building and s 81A(5) authorises regulations concerning the issue of certificates for the erection of buildings and the subdivision of land. Thus, in terms, the section is silent on the matter of demolition of a building.

49. However, I think the key to the proper construction of s 81A(2) lies in the concept of commencement of the erection of a building. It is that activity (ie commencement) that is proscribed without the prior issue of the requisite construction certificate for the building work (a term that in my opinion is sufficiently wide to comprehend demolition work or activity).

50. In my judgment, in a case such as the present, where the approved development involves an overall complex of physical activities (including the demolition of parts of an existing building, also aptly described as the alteration of that building) it is reasonable to conclude, as I do in the present case, that the carrying out of the demolition work relevantly commenced the erection of the approved building.

51. In so concluding, I think that the decided cases that I have earlier cited dealing with statutory provisions for the lapsing of development consents, can be helpfully invoked and applied in the task of construing the meaning and effect of s 81A(2)

46. Is this same or similar reasoning relevant and applicable to the present case? The Council submits that the Court should extend that line of reasoning to the facts of the present case by holding that the demolition of the existing dwelling is indivisible from the erection of the new dwelling. In my judgment, and for the reasons earlier given, the present case is obviously distinguishable on the facts from Over Our Dead Body Society. In the present case, the simple relationship between the authorised demolition of the existing dwelling and the authorised erection for the new dwelling is that the demolition is a necessary prelude to the erection of the new dwelling, by clearing the development site to enable that development to be carried out, but that once the demolition is completed, the relationship entirely ceases to exist. The erection of the new dwelling depends upon the prior removal of the existing dwelling but once that occurs, the erection of the new dwelling is entirely independent of that prior action. The Council’s submission must be rejected.

47. However, in contending that the partial demolition works relevantly qualify as the commencement of building work relating to the building authorised to be erected by the development consent for the purposes of s 95(4) but that the carrying out of such partial demolition works does not constitute “the commencement of the erection of the building” in accordance with the development consent for the purposes of s 81A(2), are the Applicants seeking “to walk a fine line”, to adopt the words of Giles JA (describing the appellant’s submission) in the preface to the passage I have earlier recited from Green?

48. It is interesting to note that in that passage, Giles JA expressly recognised the possibility of there being a difference between (i) “building work” relevant for the purposes of s 95(4); and (ii) “the erection of a building” for the purpose of determining whether development consent was necessary in terms of s 76A.

49. The same possibility of there being a relevant difference exists, in my judgment, in the present context where the question is whether “the physical commencement of building work” (namely partial demolition of the existing building), relating to a building authorised to be erected by the development consent (the new dwelling) (the s 95(4) question) is the same or a different question from the question whether there has been a commencement of the “erection of a building” (the s 81A(2) question).

50. Indeed, the present case raises that possibility more clearly and emphatically than in Green because it involves the logically anterior question of whether a construction certificate is required to be issued for the demolition work.

51. In my judgment, there is a relevant and meaningful difference between the two questions I have posed. That difference derives from both textual and contextual differences between s 95(4) and s 81A(2).

52. Firstly, the textual differences are obvious and do not require elaboration. Section 95(4) relevantly provides for, and focuses attention upon, ‘the physical commencement of building work relating to the building” (the erection of which is authorised by a relevant development consent), whereas s 81A(2) relevantly provides for, and focuses attention upon, “the commencement of the erection of a building” (in accordance with a relevant development consent).

53. Secondly, the contextual differences are significant. The purpose of s 95(4) is to prescribe the circumstances or conditions for the avoidance of the statutory lapsing of a development consent. It does so by reference to the notion or concept of “the physical commencement on the land to be developed of building, engineering or construction work, relating to the building” (the erection of which is authorised by the relevant development consent).

54. The purpose of s 81A(2) is to forbid the commencement of the erection of a building in accordance with a development consent until a “construction certificate for the building work has been issued”. A “construction certificate” is a certificate referred to in the EP&A Act, s 109C(1)(b), which defines a “construction certificate” as “a certificate to the effect that work completed in accordance with specified terms and specifications will comply with the requirements of the regulation referred to in s 81A(5)”.

55. Section 81A(5) provides:

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

56. Part 8 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) contains comprehensive provisions relating to “the certification of development” including the form and content of an application for a construction certificate (cl 139); the procedure for determining an application for a construction certificate (cl 142); and the form of a construction certificate (cl 147).

57. Clause 139(1)(a) requires an application for a construction certificate to contain the information and to be accompanied by the documents specified in Part 3 of Schedule 1, cl 6 of which specifies in detail the required information and appropriate building work plans.

58. In my judgment, it is a matter of fundamental and decisive significance that the provisions of the Regulation in respect of construction certificates make no reference to “demolition of a building” either expressly or impliedly. The immediate consequence of this fact is that the Regulation contains no requirements for the demolition of a building and accordingly the demolition of a building is not a matter that falls within the ambit of a construction certificate in terms of s 109C(1)(b) and s 81A(5).

59. The ultimate consequence is that since the Regulation makes no provision for, or contains no requirement for, the demolition of a building to be the subject of a construction certificate, the express prohibition contained in s 81A(2) on the “commencement of the erection of a building in accordance with a development consent” until a construction certificate for the building work has been issued, simply does not apply to, and is not infringed by, the carrying out of demolition work.

60. This conclusion is entirely consistent with the statutory purpose underlying the requirement for the issue of a construction certificate before the erection of a building in accordance with the development consent, is commenced. In Over Our Dead Body Society, I discussed that statutory purpose in the extended passage at p 166/168 which concluded with the following words:

The purpose of a construction certificate is to certify that work that is completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in s 81A(5): see s 109C(1)(b). This is to ensure that there comes into existence before approved development is commenced, the requisite detailed plans and specifications of the approved building or subdivision (which plans would normally be expected to be far more comprehensive than the development application plans) so that they are checked in relation to the requirements of the Regulation and are certified as complying with those requirements.

61. My conclusion that the demolition work undertaken in the present case does not fall within the ambit of a “construction certificate” will not hinder the attainment of that statutory purpose, which will be secured when a construction certificate is applied for and granted in respect of “the erection of” the approved dwelling. Part 8 of the Regulation clearly does apply to that work (ie the erection of the new dwelling) and detailed plans and specifications of that new dwelling will be required to accompany the application for that construction certificate.

62. Moreover, the conclusion that a construction certificate is not required for demolition work, in a situation such as the present case where the demolition of the existing dwelling is only a necessary prelude or preliminary activity undertaken on the development site ,in order to facilitate the erection of the new dwelling, will not create any uncertainty or complexity or undue artificiality in the operation of the provisions of the EP&A Act, dealing with what is self-evidently a practical and important subject of certification of development, such as would have been created if it had been held in Over Our Dead Body Society that the demolition work undertaken in that case did not require to be covered by a construction certificate.

63. For all the foregoing reasons, I would answer Question 3 in the negative.

Question (4)

64. In view of my negative answer to Question 3, this question need not be answered. However, for completeness, I repeat what I noted in the course of argument that since the decision of the Court of Appeal in Green (where the Court adopted a more extended principle than that enunciated in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132) this Court has held that work undertaken in contravention of the EP&A Act s 81A(4) could not be relied upon for the purpose of avoiding the statutory lapsing of a development consent: see Young v Warringah Shire Council (2001) NSWLEC 208, and Byron Shire Council v Detala Pty Ltd (2001) NSWLEC 234.

65. Section 81A(4) prohibits the commencement of “subdivision work” in accordance with a development consent until a construction certificate for the subdivision work has been issued. It is a counterpart provision to s 81A(2) and accordingly, the principle applied in Young and Detala would likewise apply, so as to disqualify from the capacity to avoid the statutory lapsing of a development consent any “building work”, if carried out in contravention of s 81A(2).

66. It follows from my answers to the foregoing intermediate questions that the carrying out of the partial demolition work relating to the building (the new dwelling, the erection of which, was approved by the development consent) in the present case before the expiry of the statutory lapsing period, avoided that lapsing, pursuant to the EP&A Act, s 95(4).

67. This conclusion means that the Applicants have substantiated their entitlement to the declaration claimed in respect of the development consent.

68. In view of this conclusion (which is sufficient to dispose of the whole of the case), I propose to deal but briefly with the remaining question as to whether the other works carried out prior to the commencement of the 1997 Amending Act which are relied upon by the Applicants also had the effect of avoiding the statutory lapsing of the development consent.
E. WAS STATUTORY LAPSING AVOIDED BY THE CARRYING OUT OF EACH OF THE EXCAVATION, DRAINAGE AND LANDSCAPING WORKS?

69. As mentioned at the outset of these reasons, it is common ground that the Council issued in 1996 a number of consents or approvals in respect of various developments proposed for the development site. It is this background fact and the related fact that the works relied upon relate at least in part to these different consents or approvals that has created the confusion and division of opinion between the parties on the question of how these works are to be understood for the purposes of the EP&A Act, s 95(4) in relation to the development consent (the subject of these proceedings).

70. Whereas the evidence concerning the granting in 1996 of the various development consents and building approvals in respect of the development site is unambiguously clear, the evidence of the precise nature of the works relied upon by the Applicants for the purposes of s 95(4) and more importantly, their precise relationships to the building (ie the new dwelling) the erection of which is authorised by the development consent, is far from clear and is distinctly problematic. In this respect, it must be recalled that the Applicants claiming the declaration, have the onus of proving their entitlement to the declaration claimed: see Jones v Sutherland Shire Council (1979) 40 LGRA 323 at 327 per Hutley JA:

Where a person seeks a declaration, he has to prove all the facts which are necessary to enable that declaration to be obtained.

71. The development consent (the subject of the present proceedings) was granted subject to a number of conditions which included the following:

1. Submission of landscape drawing for the consideration of Council

4. Stormwater runoff from all roofed and hard paved areas shall be collected in a system of pits and pipelines and shall be discharged into Parramatta River

72. In addition to granting the development consent, the Council subsequently (in 1996) granted development consent or building approval for three separate and additional developments, namely—

(i) the erection of a new boatshed and boundary wall;


(ii) the reconstruction of a sea wall; and

(i) the refurbishment and additions to a swimming pool and landscaping.

73. The evidence establishes details of the following works that were carried out on the development site—
(i) landscaping of various parts of the development site on the waterside of the location of the existing and proposed new dwelling;
(ii) drainage works to carry stormwater from a number of the proposed downpipes from the roof of the approved new dwelling to ultimately discharge into Parramatta River; and
(iii) excavation of a small portion of the development site in the vicinity of the swimming pool and on the waterside of the approved new development.

74. However, the evidence is far less satisfactory in elucidating to which of the various consents and approvals, the aforesaid works related.

75. Ultimately, I have not been persuaded that either the landscaping works or the excavation work relevantly related to the approved new dwelling. Rather, on the unsatisfactory evidence, I would lean to a finding that those works related more obviously to the approval for the refurbishment and additions to the swimming pool and for landscaping.

76. However, I am satisfied that the evidence does establish that the drainage works undertaken on the development site did relate to the approved new dwelling. These installations (underground pipes and pits etc) clearly were directed to the collection of stormwater from the proposed downpipes from the roof of the approved new dwelling and the ultimate disposal of such stormwater into Parramatta River. Such arrangements were stipulated for in Condition 4 of the development consent. These drainage works are relevantly “engineering works” within the meaning of s 95(4) and relevantly relate to the building (the new dwelling) authorised to be erected by the development consent.

77. Accordingly, the carrying out of those drainage works before the expiration of the 5 year statutory lapsing period was sufficient to avoid the statutory lapsing of the development consent.

78. It follows that the Applicants have established their entitlement to the declaratory relief they claim on this basis which is additional to, and separate from, the earlier basis I have held to be established concerning the carrying on of the partial demolition works.
F. CONCLUSIONS AND ORDERS

79. For all the foregoing reasons, the Applicants have established their entitlement to the declaration claimed.

80. Accordingly, I make the following orders:

1. Declare that Development Consent No 1939/95 granted by Hunters Hill Council on 22 January 1996, in respect of premises known as No 19 Wybalena Road, Hunters Hill for the demolition of the existing dwelling and the construction of a new dwelling, has not lapsed pursuant to s 95 of the Environmental Planning and Assessment Act 1979 .

2. Reserve the question of costs.

3. Exhibits may be returned.