Todbern Pty Limited v Hurstville City Council

[2003] NSWLEC 11

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Reported Decision: 124 LGERA 262

Land and Environment Court

of New South Wales

CITATION:

Todbern Pty Limited v Hurstville City Council and Anor. [2003] NSWLEC 11

PARTIES:

APPLICANT:
Todbern Pty Limited

RESPONDENTS
Hurstville City Council and Anor.

FILE NUMBER(S):

(4)0258 of 2002

CORAM:

Bignold J

KEY ISSUES:

Building Approval :- Declarations-extension of building approval

LEGISLATION CITED:

Local Government Act 1993, ss 103 and 107
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, cl 38

CASES CITED:

DATES OF HEARING:

26/09/02, 27/09/02

EX TEMPORE
JUDGMENT DATE :

09/27/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Ayling SC

SOLICITORS:
Carneys

FIRST REPONDENT:
Mr P Rigg, Solicitor
SECOND RESPONDENT:
Mr A Pickles, Barrister

SOLICITORS:
FIRST RESPONDENT:
Deacons
SECOND RESPONDENT:
Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT OF
NEW SOUTH WALES

Matter No . (4) 0258 of 2002

Coram : Bignold J.

27 September 2002

TODBERN PTY LIMITED

Applicant

v

HURSTVILLE CITY COUNCIL

First Respondent

KOGARAH COUNCIL

Second Respondent

JUDGMENT

1. These class 4 proceedings were commenced on 14 June 2002 whereby the Applicant, being the lessee of a large commercial structure erected over Hurstville railway station upon which has been established for many decades a shopping centre, claims a declaration that the Applicant has substantially, physically, commenced work pursuant to building approval BA 2015/99 on or about 22 February 2002.

2. Both Hurstville and Kogarah Councils whose respective areas come together at the very point where this development is located over the Hurstville railway station oppose the declaration. It is clear that the relief claimed was propounded upon the legal assumption, that the statutory lapsing provisions in relation to the relevant building approval operated in the circumstances of this case, so as to require consideration of the question of whether the approval had lapsed as at 26 February 2002.

3. As the case unfolded it soon became apparent that the commonly adopted assumption of the parties was subject to serious doubt. There is no need for me to recite the doubt because today (as had been anticipated yesterday) the Applicant has obtained leave without objection from the Respondents to amend the class 4 application to claim three separate declarations all in lieu of the declaration claimed in the originating process as I have recited it, and it is fair to say that the declarations now claimed, not only transcend the declaration originally claimed but leave it far in the wake of the present claims. This is because the essence of the declaration now claimed is that the statutory period for lapsing of the building approval to which I have referred will be five years after the purported grant of an extension of six months made by the Councils on 28 August 2001.

4. The declarations now claimed are as follows, firstly a declaration that by virtue of s 107(2) of the Local Government Act 1993, the first Respondent’s decision to grant to the Applicant a renewal or extension of its building approval BA 2015/99 dated 26 August 1999 after its expiry on 26 August 2001 as set forth in the first Respondent’s letter to the Applicant of 28 August 2001, operated as if it were an approval granted on 28 August 2001. A copy of the Council’s letter is annexed hereto and marked “A”.

5. Secondly, a declaration is claimed that insofar as the said decision purported to limit the duration of the extension or renewal so granted for six months from 26 August 2001, it was in breach of s 103(3)(a) of the Local Government Act 1993 and was ineffective.

6. The third declaration is the extension or renewal so granted operates as an approval which will lapse five years after the date from which it operates, that is to say, 28 August 2006 pursuant to s 103(1)(a) of the Local Government Act 1993.

7. In support of these declarations claimed, it is only necessary for me to refer very briefly to a few facts. Firstly that the building approval referred to in the claimed declaration was granted by the Councils on 26 August 1999. The approval was for a major refurbishment and extension of the outdoors roof-top carparking associated with the commercial development over the Hurstville railway station.

8. The approval as granted stated that the approval would lapse or otherwise be void if building engineering or construction work relating to the building “is not substantially physically commenced within two years of the date of this notice”.

9. It is to be noted at this point that the approval was granted pursuant to the transitional and savings provisions contained in Division 1 of Part 4 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998. Those provisions enabled an application for an approval for a prescribed activity (of which this development is one) namely, the building of a building or its refurbishment, to be made after the date upon which the Regulation came into force, that is, 1 July 1998 (when the significant amendments to the Local Government Act, made by the Environmental Planning and Assessment (Amendment) Act 1997, Act No 152, came into effect).

10. One of the significant amendments made by that amending Act was to repeal a number of provisions of Chapter 7 of the Local Government Act 1993 which required the obtaining of building approval for the erection of a building.

11. Those provisions were repealed and were, as it were, grafted onto the planning system operating under the Environmental Planning and Assessment Act. However, cl 36 of the Savings and Transitional Regulation that I have referred to, enabled an application to be made before 1 July 1999, which was the sunset provision, under Part 1 of Chapter 7 of the Local Government Act 1993 as in force immediately before the radical amendments that came into force on 1 July 1998, as if the Environmental Planning and Assessment (Amendment Act) 1997 had not been made.

12. It was pursuant to this transitional and savings faculty that the relevant building approval was granted in August 1999. A consequence of the grant of the approval pursuant to those provisions was that the other provisions of Division 1 Part 4 of the Savings and Transitional Regulation had effect. Materially for the present case, clause 38 provided for Sections 99, 100, 101, 102, 103, 104, and 105 of the unamended Local Government Act 1993 continue to apply to and in respect of—

(b) any approval for a prescribed activity granted under that Act (including an approval arising under this Division) as if the Environmental Planning and Assessment (Amendment) Act had not been enacted.

13. The references to s 103 and s 104 of the Local Government Act as in force immediately before the repeal that I have referred to which took effect on 1 July 1998 are most material for the present case.

14. Section 103 of the unamended Local Government Act deals with the question of when an approval lapses, subsection (1) providing that the approval lapses five years after the date from which it operates, except as is provided by paragraph (b) which is not here relevant and need not be noted.

15. Subsection (2) in terms gave the council the power to vary the period referred to in subsection (1).

16. Subsection (3) limited the power of variation so that an approval to erect a building could not lapse sooner than twelve months.

17. Subsection (4), which is critical to the solution of the present case, provides as follows:

This section does not prevent the extension or renewal of an approval under section 107.

18. Section 104 is the principal provision dealing with the lapsing of building approvals, it being one of the provisions expressly referred to in cl 38 of the Regulation. It provides as follows:

An approval for the erection of a building does not lapse if building engineering or construction work relating to the building is substantially physically commenced on the land to which the approval relates before the date on which the approval would otherwise lapse under section 103.

19. Section 107 which is expressly invoked by s 103 subsection (4), deals with the question of whether an approval may be extended or renewed. Subsection (1) empowers a council to extend or renew an approval if it is satisfied that there is good cause for so doing.

20. Subsection (2) which is a lynch-pin of the Applicant’s case for the declarations claimed provides as follows:

The renewal of an approval operates as if it were an approval granted on the date of renewal.

21. I shall need to return to that subsection presently, but I continue with the citation. Subsection (3) provides as follows:

The extension or renewal may be granted before the approval lapses or at any time within three months after the approval lapses.

22. Subsections (4) and (5) need not be noted because they are not here relevant.

23. On 22 June 2001, that is, a couple of months before the expiry of the two years stipulated in the building approval for the commencement of work (otherwise the approval would lapse) the Applicant wrote to the Councils and applied for an extension approval date for an additional period of two years under s 107 of the Local Government Act requiring the commencement of works no later than 26 August 2003 if the extension claim were granted.

24. The reasons for requesting the extension were given which need not be noted other than to say they are, on their face, good and cogent reasons.

25. The Councils conferred on the application for extension and on 28 August 2001 an extension was granted: see Annexure “A” hereto. The extension was granted for a period of six months and as the letter says, it was granted “after very careful consideration of all of the issues including the reasons for your request”. The letter concludes with some advice from the Council, namely that as a result of the extension granted, “physical commencement of the work should now be commenced no later than 26 February 2002”.

26. It is on the basis of those facts that the originating process was originally propounded. However, the relief now claimed includes a declaration that the purported extension for six months communicated in the Council’s letter to the Applicant on 28 August 2001 was ineffective because it was in breach of s 103 (1)(a) of the Local Government Act, and a related declaration that in fact the extension granted operates as a renewal of the approval, or as if it were in fact an approval granted on the date of the renewal. That is, it operated in law for five years and not for the six months that the Council’s letter had purported to grant.

27. As I have said, the claims to all the declarations, are founded upon the combined operation of s 107 subsection (2), and s 103 of the Local Government Act as in force immediately prior to the repeals and amendments that came into force on 1 July 1998 as result of the enactment of the Environmental Planning Assessment (Amendment) Act 1997, Act No 152 by virtue of cl 38 of the Regulation.

28. The Applicant’s argument can be reduced to the following basic propositions:

1. Section 103(4) providing for the lapse of an approval expressly recognises and preserves the power for an extension or renewal of an approval under s 107.

2. Section 107 empowers the council to grant an extension or renewal of an approval. That power is available to be exercised prior to the lapse of the approval or at any time within three months after the approval has lapsed.

3. Section 107(2) provides that the renewal of an approval operates “as if it were an approval granted on the date of renewal”. The effect of that provision is that reference must be made to s 103 so that it lapses conformably to subsection 1(a) within five years. The power to stipulate a lesser period is in terms confined to a power to stipulate a period of “not less than twelve months”. This having not occurred in the present case, where we have noted that the Council purported to grant an extension for six months, it follows that the general provision made by subsection (1) of s 103 applies and that the grant of the extension relevantly operates as if it were an approval granted on the date that the extension was granted and hence that approval would lapse conformably to s103(1)(a) five years after it operated.

29. In advancing the argument, Senior Counsel for the Applicant submits that there is no material distinction to be drawn as a matter of text and context in the words, “renew” or “extend”, as employed in s 107 and that the two can have a synonymous operation in the sense of giving extended life to an extant consent. Particular reliance is placed upon the fact that the power is available for exercise up to three months after the approval has lapsed.

30. The Councils have argued that a distinction is to be drawn between the employment of the words, “extend” or “renew”, in s 107 and that which purports to be an “extension” cannot in law or in fact, be a “renewal”, and in support of this argument their argument fastens upon the fact that subsection (2) of s 107 only uses the word “renewal”, of an approval and not an “extension or renewal” of an approval.

31. As was pointed out in the course of argument, the Councils’ argument admits of either a lacuna in the legislation or, alternatively involves the conferral of an unencumbered indeterminate power to grant an extension for any period of time. In my view, this is the Achilles heel of the Council’s argument which must be rejected.

32. As a matter of ordinary language, when one is talking about the duration of the ongoing force of an instrument, or an approval (as in this case) where there is a statutory period so prescribed as in the case of s 103, the concept of increasing that statutory period is accommodated by either expression to “extend” or to “renew”. Both as a matter of ordinary language and more particularly in the light of contextual considerations and in particular the fact that subsection (3) of s 107 allows the power to be exercised three months after an approval has lapsed and because of the inconvenient, if not absurd consequences, of an acceptance of the Council’s argument that an extension could be granted forever-and-a-day without limitation, there is, in my judgment, no significant distinction to be drawn between the words “extend” and “renew” in the context of s 107.

33. Accordingly, save for my consideration of the argument advanced by the Councils as to why s 107 is not available in the present case, I am satisfied that the Applicant has laid the foundation for the grant of declaratory relief claimed.

34. However, this brings me to the nub of the Councils’ ultimate argument and it turns on a very simple proposition. It is simply this, the Councils unite in their submission that s 107 is not available in the present case because it was not available when the Council purported to exercise the power. In fact, they contend that it was not available after the repeal of the relevant provisions of the Local Government Act by the Environmental Planning Assessment (Amendment) Act 1997 taking effect on 1 July 1998. This submission postulates that the Council’s purported extension of the approval for 6 months as notified in the letter of 28 August 2001 was itself a nullity.

35. The Councils’ argument fastens upon the language and the limitations of language contained in cl 38 of the aforesaid Savings and Transitional Regulation. In particular they note that there is no reference whatever to s 107 in the catalogue of sections of the unamended Local Government Act which cl 38 declares “shall continue to apply” in respect of an approval granted under that Act in its unamended form which includes an approval granted under the terms of Division 1.

36. The submission is made that if s 107 were intended to be preserved in relation to such approvals, it would have been a very simple matter for cl 38 to have so expressly stated. The argument is only superficially attractive, with respect, when one looks to the language of s 103 which is one of the stipulated sections which is preserved by clause 38 because it, in terms provides in subsection (4) that the section does not prevent the extension or renewal of an approval under s 107.

37. Because of the internal reference contained in s 103 (one of the stipulated sections to be preserved) to s 107 it simply would have been unnecessary for the draftsman to have included reference to s 107 in the catalogue of preserved sections that cl 38 prescribes.

38. In my view cl 38 in preserving the continuing application of the unamended Local Government Act sections to an approval granted under the unamended Local Government Act (which includes the approval granted in the present case) by its reference to the preservation of s 103 necessarily includes the preservation of s 107 for the purposes recognised and acknowledged in s 103(4).

39. Accordingly, I am of the opinion that s 107 in its unamended form applies to the approval granted in the present case because it was directly or indirectly preserved by dint of s 103(4) in circumstances where s 103 is one of the stipulated sections of the unamended Act to be preserved in terms of cl 38 of the Regulation.

40. Once that point of construction is resolved all of the sundry difficulties that were suggested in argument of the operation of hybrid amalgams of provisions of the preserved Local Government Act sections and the new Environmental Planning Assessment Act sections disappear so far as the issue in this case is concerned.

41. I should say however, that I do not accept the argument which was directed to the operation of cl 45 of the same Transitional and Savings Regulation namely that that clause gave effect to an amalgamated or composite operation of some preserved sections of the Local Government Act and sections of the Environmental Planning Assessment Act.

42. The argument highlighted difficulties which, to my mind, need not be addressed in the present case. I simply say this in relation to clause 45 of the savings Regulation that it, prima facie, operates to deem certain building approvals granted under the Local Government Act in its unamended form to be development consents operating under the Environmental Planning Assessment Act.

43. Division 1 of the same Part (that is Part 4), deals with, as I pointed out, the consequences of the limited preserved operation of the unamended Local Government Act in relation to the applications for approval for certain prescribed activities.

44. In the present case it is really not necessary (because the Applicant has not made any such claim) to assert or to declare that the 1999 approval obviously granted pursuant to the faculty conferred by Division 1 of Part 4 of the Regulation also operates as a development consent, and I expressly do not make any findings or holdings in that behalf because even if it did so operate the Applicant’s case for declaratory relief in this case is founded upon the provisions of Division 1 of Part 4, and there is no suggestion that if the provisions of Division 2 also apply, they so apply so as to exclude the operation of Division 1.

45. Accordingly, I am content to decide this case on the basis of the operation of Division 1 of Part 4 of the Regulation and do not find it necessary or of particular assistance to speculate on the province and operation of Division 2 which, as the argument has demonstrated, contains its own complexities.

46. In all of the circumstances, I am of the opinion for the reasons given that the Applicant has made good its claim to the declaratory relief claimed in its amended application and subject to perhaps minor drafting changes I am of the opinion that the declarations as sought in the amended application should be granted and I so declare.
AYLING: That would resolve the matter except for the question of costs, I make an application for costs. No doubt my friends will want to say something about that, or does your Honour prefer to reserve that issue?

HIS HONOUR: Mr Rigg and Mr Pickles, would you like that question to be reserved or would you like to respond to it now?

RIGG: I would probably want to do a little research on that. This matter has been complicated--

HIS HONOUR: The case has been turned on its head.

RIGG: It has. The application was quite different today than it was yesterday.

HIS HONOUR: Unless Mr Ayling has the strongest imperatives to make his claim for costs I would have thought, I must confess, that in the very extraordinary circumstances of this case there should be no order as to costs. I don’t know Mr Ayling whether you want to have me reserve the question.

AYLING: Would your Honour just allow us a moment. First, could I hear from my friends as to whether that course is acceptable to them. If it is I will then get some instructions as to whether it is acceptable to my side.

PICKLES: That course is suitable to us.

RIGG: I would embrace your Honour’s proposition that there be no order as to costs.

AYLING: We are happy with that outcome in terms of costs, your Honour.
HIS HONOUR: I should order the exhibits be returned. I return exhibit 4 and order all of the other exhibits to remain with the Court papers.

47. By consent I order that there be no order for costs in the proceedings. Therefore I formally make the declarations 1, 2 and 3 as submitted by Senior Counsel to the Applicant and I have just appended to the order making those declarations a note to the effect that the letter referred to in declaration 1 is part of Exhibit 2 which is retained on the Court file (a copy of which is annexed hereto).