Zouki v Liverpool City Council
[2002] NSWLEC 39
•03/27/2002
Reported Decision: (2002) 119 LGERA 424
Land and Environment Court
of New South Wales
CITATION: Zouki v Liverpool City Council [2002] NSWLEC 39 PARTIES: APPLICANT
RESPONDENT
J. Zouki
Liverpool City CouncilFILE NUMBER(S): 10200 of 1994 CORAM: Cowdroy J KEY ISSUES: Development Consent :- whether consent has lapsed - work undertaken constituting physical commencement LEGISLATION CITED: Environmental Planning & Assessment Act 1979, s 95(4) CASES CITED: Byron Shire Council v Detala Pty Limited [2001] NSWLEC 234 ;
Day v Pinglen Pty Ltd (1981) 148 CLR 289;
Green v Kogarah Municipal Council (2001) 115 LGERA 231;
Iron Gates Developments v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132DATES OF HEARING: 14/02/03 DATE OF JUDGMENT:
03/27/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr G Newport (Barrister)SOLICITORS
M.E. McMahon & AssociatesRESPONDENT
SOLICITORS
Mr I Hemmings (Barrister)
Marsdens Law Group
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10200 of 1994
CORAM: Cowdroy J
DECISION DATE: 27/03/2002
Facts
1. On 24 November 1994 orders were made in this Court granting development consent (“the consent”) to the applicant for the erection of a 19 unit townhouse and villa house development at 3 Hume Highway, Warwick Farm (“the site”) subject to conditions. Condition 1 of the consent incorporated plans for the development identified as drawings 01DA to 06DA (“the plans”).
2. Preliminary questions of law are raised for determination concerning the commencement of the development. The questions for determination are as follows:
Issue 2: Whether the development consent the subject of the application has lapsed.Issue 1: Whether building, engineering or construction work relating to the development consent the subject of the application herein was physically commenced on the land to which the consent applies before 2 December 1999.
3. The parties acknowledge that to avoid the consent lapsing by virtue of s 95(4) of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”), it is essential that the site work satisfying the statutory requirements be effected prior to 2 December 1999. Section 95(4) of the EP&A Act provides:-
95(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.
4. Pursuant to s 81A(2)(c) of the EP&A Act the erection of a building in accordance with a development consent must not be commenced until the person having the benefit of such consent has given at least two days’ notice to the council of its intention to commence erection of the building. The council raises no issue concerning the absence of notice. The only issue for determination is whether the work that was undertaken by the applicant was “commenced” within the meaning of s 95(4) of the EP&A Act. That is, whether the work carried out was “building, engineering or construction work relating to the building”?
Site Works
5. On 26 November 1999 a construction certificate was issued in respect of the development. Between 27 November 1999 and 1 December 1999 part of the foundations for townhouse No. 1 (“the townhouse”) were formed and reinforcing steel was installed. On 1 December 1999 16 m3 of concrete was poured over the reinforcing steel. On 2 December 1999 brickwork was constructed on the footings of the townhouse.
6. The plans of the townhouse show the construction of a driveway at RL4.20 and garage and entrance at RL4.40. This comprises the eastern most part of the townhouse. A living room is located on the western part of the townhouse and at a higher level than the entrance and garage. The plans show that the living room slab was to be located in excess of RL7.5.
7. The surveys establish that the footings for the townhouse have been constructed in the correct location in relation to the boundaries of the site. However in respect of the eastern portion of the townhouse the foundations are shown on the plans as being formed following excavation to a depth of 1.9 metres. No excavation has occurred with the consequence that the foundations of the garage and entry level of the townhouse have been constructed at a level almost 2 metres above the position shown on the plans.
8. The plans to the living room show construction of footings at RL7.629 and were required to provide support for a concrete slab. In fact they were constructed at level RL6.24. The footings have been formed to a level approximately 400mm below that shown in the plans.
Submissions
9. The council submits that the works have either been carried out other than in accordance with development consent or carried out without development consent. In either case council submits the works are unlawful and do not relate to the development consent and accordingly cannot be relied upon by the applicant for the purpose of s 95(4) of the EP&A Act: see Green v Kogarah Municipal Council (2001) 115 LGERA 231.
10. The applicant relies upon the following relevant conditions pertaining to the development:
- …
Condition 1 of the construction certificate relevantly states:
- 1. This approval is only for the construction up to the habitable floor level of 7.5m AHD of Units 1, 2 & 3. Individual Construction Certificates will be required to be lodged for the remaining portions of the development.
11. The applicant submits that at least the work that was carried out in respect of the footings for the living room section of the townhouse complies with the requirements of the development consent and with the plans. The existing foundations are located in the correct position both laterally and vertically, and can be utilised by building up to the underside of the proposed slab for the living room of the townhouse. The applicant says that since neither the specification nor the plans indicate any dimensions the conclusion cannot be drawn that the work carried out does not comprise work for the footings.
12. The applicant acknowledges that the foundations constructed for the garage and entry level of the townhouse do not comply with the plans. However it submits that such footings are severable from the footings for the living room. Further the applicant does not concede that the footings for the garage and entry area do not comprise ‘work’ for the purposes of satisfying s 95(4) of the EP&A Act.
Findings
13. In Green, Giles JA having referred to the judgment of the New South Wales Court of Appeal in Iron Gates Developments v Richmond–Evans Environmental Society Inc (1992) 81 LGERA 132 said at p 247:-
- Section 95(4) of the Act (1999) is in different terms from s 99 of the unamended Act. It does not speak of work “relating to that development”, instead speaking of work “relating to the building, subdivision or work”. It does not speak of commencement of “the development the subject of that consent”, instead speaking of the physical commencement of building, engineering or construction work “on the land to which the consent applies”. These differences do not, in my opinion, detract from the application of the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc . If the building, engineering or construction work in question was prohibited and illegal, it was not work “relating to the building, subdivision or work”, that is, the building, subdivision or work the subject of the development consent; it could not properly be described as commencing the building, subdivision or work the subject of the development consent.
14. In Green the work relied on by the developer did not relate to any of the engineering or construction drawings which had been approved by the relevant consent authority. In Byron Shire Council v Detala Pty Limited [2001] NSWLEC 234 Bignold J declared the inability of a party to rely upon work that was either prohibited or which did not qualify as work relating to the building.
15. In respect of the garage and entrance footings for the townhouse the applicant has omitted the excavation necessary to establish the footings at the correct level. The work carried out therefore departs radically from the plans and would require demolition. Such work was unrelated to the development consent and therefore unauthorised. It cannot be rectified, and in these circumstances the Court is unable to conclude that such work comprises work “relating to the building” as required by the provision of s 95(4) of the EP&A Act.
16. Council further submits that the work in the western portion of the townhouse cannot be severed from the unauthorised work and accordingly cannot be relied upon by the applicant as constituting work for the purpose of s 95(4) of the EP&A Act. In support of its submission council relies upon the Giles JA in Green (at p 250) wherein His Honour said (at par 70):-
- 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 townhouse on the appellant’s land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work.
17. Giles JA was clearly referring in the above extract to the circumstance in which the work is performed subsequent to the unauthorised or prohibited work. His Honour’s findings confirm that subsequent works cannot retrospectively validate the work which was prohibited or illegal.
18. Neither Green nor Iron Gates establishes that non-complying work when carried out with complying work renders all of the work unauthorised. A contrary conclusion would mean that complying work would not qualify for the purpose of s 95(4) of the EP&A Act if a small portion of the work was non-complying. Such a result would not be logical, and does not follow from the application of s 95(4) of the EP&A Act.
19. In Green Giles JA (at p 250) observed that excavation for the footings of a building can constitute building, engineering or construction work. The footings for the living room portion of townhouse may be incomplete in that additional work will be required to raise their level to the meet the underside of the proposed slab. Such works are in the correct position laterally and as far as they have been completed constitute work for the footings as shown on the plans. As was observed by Giles JA in Green at (p 250), “… attention must be focused on the act or process. It is a question of fact and degree...”. It is unnecessary to establish whether the works constitute “substantial commencement” as was required pursuant to the previous legislation (see Day v Pinglen PtyLtd (1981) 148 CLR 289).
Conclusion
20. The Court concludes that the work undertaken by the applicant was “physically commenced” within the meaning of s 95(4) of the EP&A Act, and work to the western portion of the townhouse is building, engineering or construction work relating to the building. Accordingly the requirements of s 95(4) of the EP&A Act are satisfied.
Answers to Questions of Law
21. The Court answers the questions of law stated to it as follows:
- Issue 1: affirmative
Issue 2: negative
Orders
22. The Court orders:
1. That the proceedings be listed before the Registrar for any further directions on the 11th day of April 2002.
2. Costs reserved.
3. The exhibits be returned
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