Young v Warringah Shire Council - [2001] NSWLEC 208

Reported Decision: (2001) 117 LGERA 62

Land and Environment Court

of New South Wales

CITATION: Young & Anor v Warringah Shire Council [2001] NSWLEC 208

PARTIES:
APPLICANT
Young & Anor
RESPONDENT
Warringah Shire Council

FILE NUMBER(S): 40069 of 2001

CORAM: Cowdroy J

KEY ISSUES: Development Consent :- work purported to be carried out in commencement of development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 81A, s 95(4)

CASES CITED: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Ors (1999) 106 LGERA 243;
Green v Kogarah Municipal Council (2001) NSWCA 123 ;
Iron Gates Developments Pool Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 ;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ;
Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170

DATES OF HEARING: 4/9/01

DATE OF JUDGMENT:
09/07/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen SC
SOLICITORS
White Parsons
RESPONDENT
Mr G Newport (Barrister)
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40069 of 2001
CORAM: Cowdroy J
DECISION DATE: 7/9/01

Gabriella Young and Rosetta Vescio

Warringah Shire Council

JUDGMENT

1. By application class four the applicants seek a declaration that development consent 95/248 (“the consent”) has not lapsed because there has been physical commencement of ‘work’ within the meaning of that term in s 95(4) of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”).

2. On 12 May 1995 the Warringah Shire council (“the council”) granted consent pursuant to s 92 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) (as it then existed) to the applicants for consent to carry out development (“the development”) at lot 2045, DP 752038 being premises known as 54 Kentwell Road, Allambie Heights (“the lot”). Such consent was granted in respect to the following development:-

The erection of a single storey, two bedroom residence to create a detached dual occupancy and sub-division of the land into two allotments.

3. Numerous conditions were attached to the consent. Condition 9 provided:-

(9) All works on the site shall be undertaken to prevent erosion and transport of soil and sediment off the site and onto adjoining properties. Measures shall be taken in accordance with the requirements of Council’s Specification for Erosion and Sediment Control. An erosion and sediment control plan shall be submitted for Council’s approval prior to Building Approval or any works.

4. Section 95(1) of the EP&A Act prescribes that a development consent lapses at the expiration of five years (subject to an exception as set out in s 95(1)(b) which is not relevant to these proceedings) unless work has physically commenced on the lot.

5. No steps were taken by the applicant to develop the land in accordance with the consent until 29 April 1999. On that day David Parsons, a surveyor, prepared a plan for the proposed sub-division and installed survey pegs in accordance with such plan.

6. During August 1999…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 208
Decision Date: 09/07/2001

CaseChat Overview and Summary

Gabriella Young and Rosetta Vescio sought a declaration from the Land and Environment Court of New South Wales that development consent 95/248 had not lapsed because they had physically commenced 'work' within the meaning of s 95(4) of the Environmental Planning and Assessment Act 1979. Warringah Shire Council opposed the claim. The council granted the applicants development consent on 12 May 1995 for a development that included the erection of a single-storey, two-bedroom residence on premises at 54 Kentwell Road, Allambie Heights. The consent was subject to numerous conditions, including the submission of an erosion and sediment control plan prior to any works. The applicants did not develop the land in accordance with the consent until 29 April 1999, when a surveyor prepared a plan for the proposed subdivision and installed survey pegs. On or about 17 August 1999, a plumber engaged by the applicants made a connection for water on the lot, which involved excavating approximately 1 metre square around the water main in the adjoining road surface and boring beneath the bitumen road service and concrete gutter to the footpath reserve. On 12 May 2000, the applicants lodged a 'Notice of Commencement of Building or Subdivision Works and Appointment of Principal Certifying Authority' with the council. The council endorsed the construction certificate on the same day, and the surveyor placed survey marks on the concrete curb on Kentwell Road to identify the place of the vehicular access to the lot.

The legal issues before the Court were whether the work carried out by the applicants was physical work within the meaning of s 95(4) of the EP&A Act, and whether the work was authorised by the consent. The Court found that the work carried out by the applicants was not preparatory but comprised part of the work envisaged by the development consent. The Court also found that the plumbing work undertaken was engineering work within the meaning of s 95(4) of the EP&A Act. However, the Court found that the work was not authorised by the consent because the applicants did not comply with the requirements of s 81A(4) of the EP&A Act, which prohibit the commencement of any subdivision work until a construction certificate has been issued. The Court held that the applicants' failure to satisfy the condition precedent to the development commencing rendered the work relied upon by the applicants unlawful and could not be relied upon as commencement of work for the purpose of the development consent. Accordingly, the Court dismissed the applicants' claim for relief.

The Court's reasoning was based on the principles established in Iron Gates Developments Pool Pty Limited v Richmond-Evans Environmental Society Inc and Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Ors, which held that any work undertaken without fulfilment of a condition precedent could not be relied upon as work pursuant to the development consent. The Court also relied on the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority, which explained the principles of statutory interpretation and the importance of giving effect to the intention of Parliament. The Court found that the mandatory certificate required by s 81A(4) of the EP&A Act was a condition precedent to the development commencing, and that the applicants' failure to comply with this requirement rendered their work unauthorised and contrary to the EP&A Act. The Court's outcome was that the applicants' claim for relief must be refused, and the application was dismissed.

Orders