Land and Environment Court New South Wales Medium Neutral Citation: Whites Beach Investments Pty Ltd v Byron Shire Council [2024] NSWLEC 75 Hearing dates: 20 May, 19 June 2024 Date of orders: 25 July 2024 Decision date: 25 July 2024 Jurisdiction: Class 4 Before: Pain J Decision: The Court declares: (1) Development consent to Development Application dated 16 October 1978 for the erection of a country dwelling at Lot 334 Riverside Crescent, Brunswick Heads (being Lot 334 in Deposited Plan 755692) issued by the Respondent on 6 November 1978 was physically commenced before 1 September 1982 in accordance with s 99(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (NSW) (as then in force). The Court orders: (1) Prayer 3 of the summons dated 2 February 2024 is stood over to 1 August 2024 or until further order of the Court. (2) Costs reserved. Catchwords: JUDICIAL REVIEW – whether development consent has lapsed – whether evidence establishes physical commencement – whether declaration appropriate where no contradictor Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 99 (repealed) Evidence Act 1995 (NSW), s 144 Local Government Act 1919 (NSW) (repealed) Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW), s 2, Sch 3 cll 1, 7 (repealed) Interim Development Order No 1 – Shire of Byron 1968 (NSW) Cases Cited: Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105; [2002] NSWCA 269 Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394; [2004] HCA 6 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149 PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 Smith v Wyong Shire Council [2008] NSWLEC 115 Stephen Bowers Architects Pty Limited v Waverley Council (2003) 125 LGERA 292; [2003] NSWLEC 16 Williams v Coffs Harbour City Council (2007) 155 LGERA 344; [2007] NSWLEC 440 Zaymill Pty Ltd v Ryde City Council [2009] NSWLEC 86 Texts Cited: Macquarie Dictionary, online ed, accessed July 2024 Oxford English Dictionary, online ed, accessed July 2024 Category: Principal judgment Parties: Whites Beach Investments Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: F Berglund (Applicant) N/A (Respondent) Solicitors: McCartney Young Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2024/00041788 JUDGMENT 1. The Applicant Whites Beach Investments Pty Ltd is the owner of Lot 334 in DP 755692 at Riverside Crescent, Brunswick Heads (Property). A development consent was granted to a former owner of Lot 334 on 6 November 1978 by the Respondent Byron Shire Council (the Council) for a 'country dwelling' (1978 Consent). At issue is whether the 1978 Consent has lapsed. 2. The Applicant filed a summons on 2 February 2024 seeking the following relief: 1. A declaration that development consent to Development Application dated 16 October 1978 for the erection of a country dwelling at Lot 334 Riverside Crescent, Brunswick Heads (being Lot 334 Deposited Plan 755692 – Property) (Consent) issued by the Respondent on 6 November 1978 was physically commenced before 1 September 1982 in accordance with section 99(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (as it was at that time). 2. A declaration that the Consent has not lapsed. 3. A declaration that the "country dwelling" the subject of the Consent is a residential building: a. designed to provide accommodation for one family or household; b. which is the only building on the Property other than: i. buildings incidental to the residential use, including but not limited to a garage, pool and/or shed; and ii. buildings incidental to a lawful agricultural use, and is otherwise unconstrained by development controls. 4. An Order that the Respondent pays the Applicant's costs of the proceedings. 1. The Council has filed a submitting appearance save as to costs with the result that the proceeding is being conducted in the absence of a proper contradictor. The Applicant bears the onus of establishing that the relief it seeks ought be made, including in the absence of a contradictor. 2. The Applicant accepted that if it establishes its case either the first or second declaration would be made as there is no utility in making both declarations. The Applicant accepted that it bears the civil onus of establishing the factual basis for making the declarations it seeks. As will become clear that requires asking the Court to draw inferences that events occurred at certain times on the balance of probabilities. Order 3 concerning country dwelling can be stood over if order 1 or 2 is made to enable the Council to make submissions if it so chooses. 3. Three issues arise in relation to whether the 1978 Consent has lapsed: 1. On what date would the 1978 Consent have lapsed if it was not commenced prior – 1 September 1982 or 6 November 1979? 2. Depending on the answer to (1), which was the applicable test for commencement at the date the 1978 Consent would have lapsed if it was not commenced – physical commencement (if 1 September 1982) or substantial commencement (if 6 November 1979)? 3. In either scenario, does the evidence show that on the balance of probabilities the 1978 Consent commenced before the date on which it would otherwise have lapsed? 1. Issues 1 and 2 are linked in that the determination of Issue 1 determines the relevant commencement provision applicable and posed in Issue 2. Amended chronology 1. The Applicant provided the following amended chronology on 21 June 2024 based on the affidavit of Ms Morison director of the Applicant to which I refer below in more detail. The chronology is helpful in identifying legislation in force at the time of particular events which the Applicant seeks to prove occurred as will be considered further in the context of Issue 3. Date Event Legislation 16 October 1978 Development application for a 'country dwelling' lodged with Byron Shire Council by then owner, Mr Crompton, in respect of Lot 334 in DP 755692 at Riverside Crescent, Brunswick Heads (Property). Interim Development Order No 1 – Shire of Byron 1968 (NSW) (IDO-1) in force included cl 20 under which consent lapsed within one year if not substantially commenced. 6 November 1978 Development consent granted for a 'country dwelling' (1978 Consent). 11 December 1978 Correspondence from Mr Crompton to Council regarding whether a survey is required. 10 January 1979 Building application and application to install septic tank lodged by Mr Crompton. Building application was marked cancelled on an unknown date. 8 February 1979 Correspondence from Council regarding flood levels and required fill levels on Property. 23 February 1979 IDO-1 amended to delete cl 20. 1979 Electricity and water connected by 1979. 6 November 1979 Date 1978 Consent would have lapsed if one year period remained in force. 1 December 1979 One electricity pole connected according to Essential Energy records. 1 September 1980 Environmental Planning and Assessment Act 1979 (NSW) commences. 'Appointed Day' on which consents with no lapsing date taken to commence. 1 September 1980 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW) – Schedule 3 commenced. 1 September 1982 Date 1978 Consent would have lapsed under s 99 if taken to have commenced 1 September 1982. 6 June 1984 1984 development application lodged by then owner, Mr Tait (1984 DA). 5 July 1984 Council's engineer report recorded existing conditions on site included fill and connections to electricity and water. Council's 1984 DA report also showed water and electricity connected. 31 August 1984 1984 development consent granted. 10 December 2021 Property purchased by Whites Beach Investments Pty Ltd (the Applicant). Appropriate to make declaration in absence of contradictor if basis established 1. The Applicant submits that in the absence of a proper contradictor declaratory relief is nevertheless appropriate in circumstances in which the Applicant, as current owner of the Property and thus the beneficiary of the 1978 Consent if it remains in force, has a real interest in the proceedings, see PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 (PAG Services) at [72]-[83]. 2. There is no entitlement to a declaration and an applicant must demonstrate that such relief is appropriate, see Williams v Coffs Harbour City Council (2007) 155 LGERA 344; [2007] NSWLEC 440 at [13]-[17]. As to whether it is appropriate for the Court to make a declaration if warranted in these circumstances Pritchard J provides a helpful overview of relevant considerations in the absence of a contradictor in PAG Services at [72]-[83] and I adopt Her Honour's observations. While focussed on the particular circumstances before Her Honour, the same observations apply here to support the making of the declaration sought by the Applicant if it is able to establish its case. Issue 1: on what date would the 1978 Consent have lapsed if not commenced? Issue 2: does substantial commencement or physical commencement arise? 1. The Applicant's primary position is that the lapsing date was 1 September 1982 for the reasons set out below. 2. The 1978 Consent was granted pursuant to Interim Development Order No 1 – Shire of Byron 1968 (NSW) (IDO-1), which at the date the 1978 Consent was granted included the following clause: 20. Any consent of the Council given under this order shall be void if the development to which it refers is not substantially commenced within twelve months after the date of the consent. Provided that the Council may, if good cause be shown grant annual extensions or renewals of such consent beyond such period up to a further period of three years. 1. There was at the time no general provision in the Local Government Act 1919 (NSW) (LG Act) (or any other legislation in force at the time) regarding the time within which a development consent would lapse. There was no equivalent to s 99 (and subsequent similar provisions) which would commence with the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The only provision under which the 1978 Consent could lapse was cl 20 of IDO-1. 2. On 23 February 1979, at which time the 1978 Consent was still within the 12 month period and therefore had not lapsed, IDO-1 was amended and cl 20 deleted. There was no transitional provision in the amended IDO-1 by which cl 20 would have continued to apply and, as noted above, no general provision in the legislation under which a development consent would otherwise lapse. Once amended, IDO-1 did not include any clause under which the consent could lapse. Thus the 1978 Consent remained in force with no defined lapsing period. 3. The Applicant submitted that absent a provision either in the legislation or the planning instrument under which a development could lapse, there was no legal mechanism by which the 1978 Consent could lapse and it remained in force. This situation differs from a regime in which there are transitional provisions under which development consents are explicitly governed by the legislation and controls in force at the date the consent is granted such as JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535 (JMS Capital) which relates to development consents granted pursuant to the EPA Act. 4. The EPA Act commenced on 1 September 1980. Transitional provisions in cl 7 of Sch 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW) (Planning Repeal Act) provided: (1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to: (a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission; and (b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted. (2) Where no provision or term or condition of the type referred to in subclause (1) (a) operates in respect of a consent, approval or permission therein mentioned, the provisions of section 99 of the Environmental Planning and Assessment Act 1979 shall apply to that consent, approval or permission as if it were a consent referred to in that section which had taken effect on the appointed day. 1. The 'appointed day' was 1 September 1980, the date on which the EPA Act commenced, pursuant to s 2 and cl 1 of Sch 3 of the Planning Repeal Act. IDO‑1 was a planning instrument in force at that date. Accordingly, the 1978 Consent acquired the same status as a consent referred to in s 99 which had taken effect on 1 September 1980. 2. Since the 1978 Consent was deemed by the commencement of the EPA Act to have commenced on 1 September 1980, s 99 of that Act as at that date applied and continued in this form until at least 1 September 1982. It read: (1) A consent granted under this Division to a development application shall lapse— (a) unless the development the subject of that consent is commenced— (i) except as provided in subparagraph (ii)— within 2 years (or, if the consent authority so approves in accordance with subsection (3), 3 years) of the date upon which that consent becomes effective in accordance with section 93 (in this section referred to as "the prescribed date"); or (ii) where within one year of the prescribed date a provision of an environmental planning instrument is made having the effect of prohibiting the development— within one year of the date upon which that provision comes into force; and (b) where a notice referred to in subsection (5) is in force under subsection (6)— unless the development the subject of that consent is completed within the time specified in that notice. (2) For the purposes of subsection (1) (a)— (a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work) of land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided) —that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies; or (b) where development comprises the use of any land, building or work (not being a use referred to in paragraph (a))—that development is commenced when the use of that land, building or work is actually commenced. 1. For completeness, it is noted that at all relevant times a dwelling was permissible development within the zoning (zone 1(b) under cl 2 of IDO-1) and particularly did not become prohibited within one year of the prescribed date. Therefore s 99(1)(ii) did not apply. 2. Pursuant to s 99(1)(a)(i) as in force at the time, the 1978 Consent would have lapsed had it not been physically commenced two years after the date it was deemed to be a consent under the EPA Act, which was 1 September 1982. Pursuant to s 99(2)(a), the 1978 Consent did not lapse if 'building, engineering or construction work relating to that development [was] physically commenced on the land to which the consent applies' before 1 September 1982. 3. I find that the Applicant has established that the lapsing date of the 1978 Consent was 1 September 1982 in relation to Issue 1. The legislation then in force operated in the manner set out above in the Applicant's submissions. With the deletion of cl 20 of IDO-1 in February 1979 which was in effect when the 1978 Consent was granted, the one year requirement for commencement of the 1978 Consent was removed. As the 1978 Consent remained in force in February 1979 it continued to be so until the EPA Act including s 99 was made, coming into effect on 1 September 1980. The transitional provisions in Sch 3 subcll 7(1) and (2) applied s 99(1)(a) of the EPA Act to the 1978 Consent. Consequently the lapsing date was two years after the commencement of the Act, namely 1 September 1982. 4. No case has been identified which considers a similar scenario in which there ceased to be any provision under which a development consent could lapse by reason of an amendment to an IDO or similar instrument and no other statutory provision existed. After the commencement of the EPA Act, the issue has not arisen because there has always been a general provision in force in the legislation under which development consents lapse in a specified time. This provision was lacking before the EPA Act came into effect. 5. Reference was made to JMS Capital. Its relevance is unclear. As the Applicant submitted, the question of which law applies to a development consent at what point in time depends upon the whole legislative framework in place at the relevant time. The question in JMS Capital according to the Applicant was whether previous s 99 or new s 95 of the EPA Act applied. That is not apparent from the judgment. Lloyd J found that the law which determined whether a consent has commenced is the provision in force at the time the consent was granted with no further analysis, suggesting this was not a matter of argument. With the deletion of cl 20 of IDO-1 there (a) ceased to be any provision, in either the legislation or the instrument, under which a development consent could lapse, and (b) was no savings or transitional provision under which the previous provision continued to apply. 6. The finding in Issue 1 means that the relevant criterion for the 1978 Consent in relation to Issue 2 is whether it had been physically commenced by 1 September 1982. Issue 3: physical commencement by 1 September 1982 established? 1. According to the Applicant physical commencement of a development consent as at 1 September 1982 under s 99(2)(a) of the EPA Act requires consideration of (i) was the work relied on carried out on the land to which the consent applies, (ii) was that work building, engineering or construction work and (iii) did that work relate to the development the subject of the consent? Affidavit of Ms Morison dated 7 May 2024 1. Ms Morison's affidavit dated 7 May 2024 annexed various documents identified on the Council's files produced in relation to Lot 334. The affidavit stated as follows (annexures omitted) with additional extracts included from documents annexed to the affidavit: Development Consent 7 On 16 October 1978 a previous owner of the Property, Mr Kevin Victor Crompton lodged or caused to be lodged a development application (DA) for development described as "Country Dwelling" on the Property. At page 23 of Exh MM1 is a copy of the document that comprised the DA. 8 The DA was determined by approval by Council on 6 November 1978. At page 24 of Exh MM1 is a copy of the development consent (Consent). "Re: Development Application – Lot 334, off Riverside Crescent, Parish of Brunswick – Erection of a Country Dwelling. With reference to the above Development Application dated 16th October, 1978, I wish to advise that Council has given its approval subject to lodgement of a satisfactory building application" Building Application 9 On 10 January 1979, Mr Crompton lodged a building application with Council (BA 11/79). At pages 25 to 49 of Exh MM1 is a copy of the building application. 10 On Council's file there is a note concerning the relevant floor levels for the country dwelling. At page 50 of Exh MM1 is a copy of the note. 11 On 8 February 1979, Council wrote to Mr Crompton concerning the relevant floor levels, which may have referred to the note set out in paragraph 11 immediately above (8 February 1979 Council Letter). At page 50 of Exh MM1 is a copy of the letter. "I refer to the above application and now wish to advise that council's building Inspector is in possession of data from the Engineering Department concerning the requirements for the filling required on your allotment, and also in connection with minimum floor levels of the building. A photostat of the information is enclosed herewith for your benefit and you are requested to carry out the necessary investigation to establish the requirements of depths of fill and height of floor level, in order that you may advise Council as to the depth and heights. Should you require any information in connection with this matter, would you kindly contact Council's Building Inspector." 12 The building application was subsequently cancelled on an unknown date, but having regard to a notation on the building application, the date is likely to be sometime after 8 February 1979. Electricity Connection 13 On or around 5 July 1984, Council prepared a Development Application Report concerning a development application for a dwelling on the Property (DA 841258) (1984 DA Report). At page 53 of Exh MM1 is a copy of the 1984 DA Report. 14 The 1984 DA Report noted that the Property benefited from electricity services. 15 A document entitled "6344 84/258 D.R. Tait- Engineering Comments" is at page 56 of Exh MM1 (Engineer Report). This document is presumably a document prepared by Council's engineer at the time as part of the assessment for DA 84/258. 16 The Engineer Report includes the comment that: "Electricity has been extended to the allotments ...". … 18 On 7 December 2005, Mr Wal Leeke, who I understand was at the time a real estate agent in the Byron Shire, wrote a letter to Country Energy on behalf of Mr Tait (Leeke Letter). At page 60 of Exh MM1 is a copy of the letter. This letter refers to electricity poles located at the Property with numbers "7 4214, 7 4213 & 7 4212". "Re: Electricity poles numbered 7 4214, 7 4213 & 7 4212 at Riverside Cres; Brunswick Head NSW 2483 These poles reticulate/carry electricity to lots 332 & 334 in DP755692. This land is owned by Donald Tait…" 19 Recently taken photos of the electricity poles located at the Property are at pages 61 to 82 of Exh MM 1. 20 On 21 December 2005, Country Energy sent a letter to Mr Wal Leeke, a copy of which is at page 83 of Exh MM1. The letter notes that: "The poles in question have been there for many years, certainly well before 1979. Unfortunately though, Country Energy has no records of when the poles were installed, when power was first connected to the lots or when it was last disconnected. The poles and wires are still there but it has been a long time since we had a connection to the block." … 23 A copy of a survey prepared by Canty's Surveyors dated 10 May 2010 is at page 87 of Exh MM1 (2010 Survey). The 2010 Survey shows an electricity service pole located at the Property along with a single overhead power line connecting from the road reserve to the service pole on the Property. 24 When Whites Beach purchased the Property, the previous owner of the Property was Julian Matthew Dawson, as shown on the title search at page 88 of Exh MM 1. The wife of Mr Dawson, Ms Freya Dawson, provided me with an email that she had received from Essential Energy dated 28 March 2019. A copy of that email is at pages 89 to 90 of Exh MM 1. Water Connection 25 The 1984 DA Report (at page 53 of Exh MM1) noted that the Property benefited from a water services connection: "Rous CC". I understand that this refers to Rous County Council which is the local government authority in the Northern Rivers responsible for bulk water supply and rural water supply. 26 The Engineer Report (at page 56 of Exh MM1) includes the comment that: "... and there is a water supply taken from the Rous County Council main ...". 27 The Tait Letter [2005] (at page 57 of Exh MM1) states that "...water supply has been connected from the Rous County Council water line to the site". 28 On 20 December 2005, Rous County Council (under the operating name of Rous Water) sent a letter to Mr Leeke on behalf of Mr Tait. At page 91 of Exh MM1 is a copy of the letter. That letter includes the following: "The original connection was made under the name of Crompton. Council cannot confirm the year the water service was connected to the property, however, Council's Meter Reader has indicated that the connection was made prior to 1979." … Filling of Property 32 The 8 February 1979 Council Letter (at page 50 of Exh MM1 included via the flood level note it enclosed dated 5 February 1979) recommended a minimum fill level of RL 1.75m at the Property. 33 The Engineer Report (at page 56 of Exh MM1), includes the following comment: "... (existing ground level is in the vicinity of RL 1. 7 AHO)." The Tait letter 2005 states "…31/08/1984 A development Application by Tait to erect a dwelling was approved by Council. The application lapsed while I was overseas. Approval was subject to land filling and at the time I had commenced to have soil trucked in to build up the land…" 34 The 2010 Survey notes the RL heights of the Property as being between 1.66 and 1.67. 35 In December 2022, I obtained a further survey of the Property, a copy of which is at page 93 of Exh MM1. 36 In June 2023, I obtained a Geotechnical Report for the Property, a copy of which is at pages 94 to 113 of Exh MM1. 37 I have obtained a Tree Report from Byron Bay Tree Services dated April 2024. A copy of the Tree Report is at pages 114 to 131 of Exh MM1. Oral evidence 1. In examination in chief Ms Morison explained to the Court how she formed the views and obtained the documents contained in her affidavit dated 7 May 2024, set out above in [25]. 2. In oral evidence Mr Marquet solicitor for the Applicant explained that he obtained a copy of the Council file for the 1978 Consent by lodging an access request. The file was then provided in its entirety to Ms Morison. Relevant principles 1. In Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 (Hunter Brokerage) Tobias JA (Santow AJA and Stein AJA agreeing) held at [83]-[86], [104]: 83 In my opinion, the expression "engineering work" in its context of forming part of the composite phrase "building, engineering or construction 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. There can be no doubt that engineering as such can involve many different elements: relevantly with respect to a subdivision, it involves civil engineering work such as the design and (possibly) the construction of roads, sewerage systems, drainage and the like. 84 But once consent is granted for a subdivision, the implementation of that consent ultimately resulting in the construction of the subdivision roads, drainage and sewer lines as well as the laying out of the allotments in accordance with the approved layout, requires as a necessary first step in the engineering or construction of that subdivision, including the physical works contemplated thereby, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. This would accord with common sense and industry practice (as to which see at [13] above). 85 The carrying out of survey work to establish the correct location of these elements, in my opinion, is capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. Accordingly, it follows that the natural and ordinary meaning of the expression "engineering work" in the context relevant to the present issue is capable of including physical survey work of the nature and extent of that the subject of these appeals. 86 That is not to say that any survey work, albeit of a physical nature, would so qualify. Simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not, in my view, necessarily qualify. There is an element of fact and degree in each case. Although in Besmaw Pty Ltd, Talbot J (at [112]) observed that once Parliament had decided to delete the requirement of substantiality, there was little room for an argument that the works must not be de minimus, and that it was therefore reasonable to exclude any test of the degree and extent of the work under the present statutory regime, nonetheless the requirement that the relevant work relate to the approved subdivision requires a real nexus between them. In particular, the concept that the work must be "physically commenced", requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved: cf Besmaw Pty Ltd at [111]. … 104 I accept that the ambit of the expression "relating to" depends upon the context in which it appears: Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at [68]‑[69]. It involves, at the very least some real relationship or connection between the work and the subdivision in respect of which the consent has been granted. In my opinion, the required connection or relationship is satisfied if the relevant work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent. 1. Physical commencement was distinguished from the former legislative provision requiring 'substantial commencement', Tobias JA at [110]-[111] stating that describing work as preparatory is not a relevant distinction. The approach to physical commencement identified at [83]-[80], [104] in the context of a development consent for subdivision will be considered in relation to the evidence relied on by the Applicant. 2. The Applicant submitted that an inference can be drawn on the balance of probabilities that work had been done sufficient to give rise to physical commencement as at 1 September 1982 as follows: 1. fill had been placed on the site prior to 1984 most likely in 1979; 2. an electricity pole had been erected on Lot 334 by late 1979 and electricity connected; and 3. water had been connected by 1979. 1. The Applicant did not address to any extent whether these activities are building, construction or engineering works relating to the development consent for a country dwelling, simply submitting that they satisfied physical commencement requirements of s 99(2)(a). There is no definition of building, construction, or engineering work in the EPA Act. In the Oxford English Dictionary (online ed, accessed July 2024) construction is defined as '[t]he action of framing, devising, or forming, by the putting together of parts; erection, building'. In the Macquarie Dictionary (online ed, accessed July 2024) construction means 'the way in which a thing is constructed'. Engineering means 'action, works or profession of an engineer'. The categories of construction and engineering may well overlap depending on the nature of the work, Hunter Brokerage at [110]. The cases relied on by the Applicant, Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149 (Norlex), Zaymill Pty Ltd v Ryde City Council [2009] NSWLEC 86 (Zaymill) and Smith v Wyong Shire Council [2008] NSWLEC 115 (Smith) considered these terms in the circumstances of those cases. 2. The findings in the cases relied on by the Applicant were informed by the nature of the development the subject of the development application (DA) in question. In Hunter Brokerage, extracted above, survey work comprising land clearing, pegging and the erection of permanent survey marks involving physical activities on the land was capable of constituting engineering or construction work in relation to the approved subdivision. In Norlex the development approved was the collection of spring water extracted under commercial licence. That the water was extracted, and an acoustic engineer engaged to undertake an acoustic assessment, was held to be sufficient physical commencement, at [95]. In Zaymill the consent permitted the construction of 32 dwellings, excavation work was undertaken in various areas of the site and significant quantities of soil removed to be tested as part of the preparation of a remediation report required by the consent. This work was accepted to be engineering work related to the approved development, consistent with [83]‑[88] of Hunter Brokerage. In Smith development consent permitted demolition of existing site improvements and the erection of a residential flat building. Work relied on to establish commencement of demolition of structures on the land and other construction and engineering work was found to be lawful and the consent had therefore not lapsed. Any physical activity must involve an appearance of reality and not be a sham, Hunter Brokerage at [86]. 3. Considering the placement of fill, such activity can be considered construction or engineering work within the meaning of those terms as considered in Hunter Brokerage. The issue arises of whether the Court can infer that fill was placed on Lot 334 on or after 1979 and before 1 September 1982 given the evidence does not establish precisely when fill was placed on Lot 334. The 1978 Consent permitted the construction of a country dwelling on 6 November 1978. A building application was lodged with the Council on 10 January 1979. Reference is made to required fill levels of 1.75m in 1979 by a council officer in a letter to the then owner Mr Crompton dated 8 February 1979. The building application was cancelled on a date unknown (likely after 8 February 1979 according to Ms Morison). No dwelling has been built on Lot 334. 4. Another DA was filed with the Council on 6 June 1984 by the then owner Mr Tait (1984 DA). The presence of 1.7m of fill on Lot 334 was identified in the Council engineer's report on the Council file prepared in relation to the 1984 DA. The 1984 DA was approved in August 1984. A letter sent by Mr Tait to the Council in 2005 referred to the lodgement by him of the 1984 DA and grant of development consent and stated 'approval was subject to land filling and at the time I had commenced to have soil trucked in to build up the land …', giving rise to the possibility that Mr Tait commenced putting fill on Lot 334 around the time he lodged the 1984 DA with the Council. 5. There is no indication provided in the Council file or in any other material relied on by the Applicant to establish when fill was placed on Lot 334 in the period between the grant of the 1978 Consent on 6 November 1978 and the Council engineer's report prepared around 5 July 1984. The Applicant asked the Court to draw the inference that it was placed before 1 September 1982. The 2005 letter from Mr Tait to the Council supports a possible inference that he commenced bringing fill onto Lot 334 around the time he made the 1984 DA. His statement is unclear about precise timing. The building application lodged after the 1978 Consent was cancelled and no house built. 6. The 2010 survey in evidence shows fill levels on Lot 334. A geotechnical report for Lot 334 dated June 2023 stated that fill had been placed on Lot 334 in the past. An arborist report dated April 2024 estimated that 'fill material was imported to the site circa 1970s-1990s' and that trees between 20-40 years old were planted after this event. None of this material sheds any light on when fill was placed on Lot 334 simply confirming that it was. 7. Taking all the available circumstances into account does not support drawing an inference that fill was placed on Lot 334 in 1979, or before 1 September 1982. The Applicant has not discharged its onus which must arise by inference on the balance of probabilities that the fill referred to by the Council engineer in 1984 was in place before 1 September 1982. 8. Considering the provision of water to the Property, the Council's 1984 DA report states 'Rous CC' under 'water'. The Council engineer's report for the 1984 DA identifies that water supply is taken from the Rous County Council main. A letter from Rous County Council to Mr Leeke real estate agent dated 20 December 2005 stated that connection was first made for the name of Crompton, the connection year could not be confirmed and the Council's meter reader indicated that the connection was made prior to 1979. What is meant by the reference to meter reader is unclear. There is no evidence of a water meter on Lot 334. The inference arises that water was connected to Lot 334 by 1984 and most likely by 1979 given the reference to Crompton the then owner. In drawing that inference the next issue to arise is whether s 99(2)(a) was satisfied, namely did the connection of water to Lot 334 amount to building, engineering or construction work relating to that development being physically carried out on Lot 334. 9. There is no evidence of what physical acts resulted in the connection of water to and, more relevantly, on Lot 334. The Court was asked to take judicial notice that a water meter must have been installed on Lot 334 at a location unknown in or around 1979 because of the reference to connection in the Council's 1984 DA report and engineering report for the 1984 DA. I appreciate that the Applicant has a difficult task in that Rous Water and other records it seeks to rely on are somewhat scant but whether the presence of a water meter on Lot 334 can be assumed as at 1979 up to 1 September 1982 cannot be dealt with by way of judicial notice. There is no evidence of a water meter being installed anywhere relevant to Lot 334. Apart from referring to judicial notice no submission was made about how that concept can apply in this context. I was unassisted at the hearing by reference to s 144 of the Evidence Act 1995 (NSW) concerning matters of common knowledge. Section 144 has replaced the common law doctrine of judicial notice of matters of general knowledge according to Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394; [2004] HCA 6 at [17] (Gleeson CJ, McHugh, Hayne and Heydon JJ). 10. Section 144 of the Evidence Act states: 144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is— (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 1. Subsection (1) commences with 'proof is not required about knowledge that is not reasonably open to question', so that only knowledge that is not reasonably open to question can be considered in moving to subss (1)(a) and (1)(b). I am not convinced that the presence on Lot 334 of a water meter in or around 1979 satisfies the preamble to subs (1), nor if it did whether this was common knowledge in the locality or generally, or capable of verification by a document whose authority cannot be questioned. At the hearing the Applicant had the opportunity to make submissions and refer to relevant information as identified in subs (4). The Applicant has not discharged its onus of proving that the supply of water gave rise to physical commencement in the relevant period. 2. Considering the supply of electricity, at issue is whether the evidence establishes by inference the installation of electricity by physical activity on Lot 334 before 1 September 1982. That electricity had been supplied to Lot 334 was noted in the Council's 1984 DA report and the Council's engineering report. A 2005 letter from a real estate agent to Country Energy identified poles with sequential numbers 7 4214, 7 4213 and 7 4212 as providing electricity to Lot 334. Country Energy responded in December 2005 that the poles had 'been there for many years, certainly well before 1979', further stating that no records existed for when the poles were installed or when power was first connected to Lot 334. An employee of Essential Energy sent an email to another former owner Ms Dawson in March 2019 attaching a diagram showing pole 7 4214 installed 23 March 2007 and 7 4213 installed 1 December 1979. The boundary of Lot 334 is not shown in that diagram. An electricity pole is shown on Lot 334 and an electricity pole is shown on the next door land which I was informed was a road reserve in the 2010 survey. A survey prepared in or around December 2022 shows an electricity pole on Lot 334 and an electricity pole on the next door road reserve. The numbering of the poles on Lot 334 is not shown on the surveys. 3. Undated photographs described as being taken recently were attached to Ms Morison's affidavit and show electricity poles with the numbers 7 4213 and 7 4214 on metal plates attached to the poles. The location of the numbered poles on a map or where the photographs were taken was not provided in the affidavit. The Applicant's counsel asserted, based on instructions, what pole was where in the photographs to the effect that pole 7 4214 was located on Lot 334 and Lot 7 4213 was outside Lot 334. As I understand the Applicant's case it relies on the pole numbered 7 4214 being placed on Lot 334 sometime between 1979 and before 1 September 1982. 4. There is no clear evidence of the number of the pole currently on Lot 334 being 7 4214 in any of the diagrams or surveys in evidence. The location of the poles in the photographs attached to Ms Morison's affidavit is not made clear in her affidavit. Giving the Applicant's director the benefit of the doubt I will accept counsel's submission based on her instructions that pole 7 4214 is on Lot 334. The evidence about when the electricity pole 7 4214 was erected on Lot 334 is equivocal. The only record in evidence which identifies when pole 7 4214 was installed is the March 2019 email from Essential Energy with the date of installation of 23 March 2007. The Applicant submitted that this must be inferred to be a replacement of that pole given that other evidence gives rise to an inference that electricity was connected to Lot 334 earlier than 2007, in 1979 or earlier. Pole 7 4213 on the land next door was installed on 1 December 1979 according to the Essential Energy diagram. The 2005 real estate agent letter to Country Energy refers to the three sequentially numbered poles supplying electricity to Lot 334. 5. Taking these various matters into account including the sequential numbering of the poles the evidence does establish by inference that an electricity pole 7 4214 on Lot 334 was built before 1 September 1982. The next issue to consider is does that erection of an electricity pole amount to building, construction and engineering work relating to the approved development on the land to which the 1978 Consent applies, as required by s 99(2)(a) of the EPA Act? Given that the development approved at the end of 1978 was for a country dwelling for which electricity would be needed I consider that work on Lot 334 is construction work for the purposes of the 1978 Consent, is not a sham and can be relied on for the purposes of s 99(2)(a) to establish physical commencement. 6. I note for completeness that Ms Morison's affidavit referred to another document prepared well after the period in question. Around 2008/2009, the Council commissioned an assessment by a firm Parsons Brinkerhoff to consider whether certain lots could be considered for rezoning including Lot 334 which identified the possibility that the 1978 Consent or the 1984 DA could be considered commenced. The general nature of the opinions and observations made about events around 1979 were essentially speculative and did not assist the Court's consideration of the matters in issue. Was work relied on lawful? 1. The Applicant can only rely on work which was carried out lawfully at the relevant time, Iron Gates Developments Pty Ltd v Richmond‑Evans Environmental Society Inc (1992) 81 LGERA 132 at 135. This must be considered in the context of the electricity pole erected on Lot 334. It submits that the works it relies on should be presumed to be lawful absent any evidence to the contrary. Firstly, the work was not carried out in breach of a condition of the 1978 Consent. Secondly, nothing in the LG Act in effect at the time suggests approval was needed. Thirdly, the presumption of regularity ought to apply to the effect that the Applicant can rely on the work being carried out lawfully in the absence of any evidence that the work was not carried out lawfully, Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 169-170 (Clarke AJA), Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105; [2002] NSWCA 269 at [40] (Davies AJA, Mason P and Handley JA agreeing), Stephen Bowers Architects Pty Limited v Waverley Council (2003) 125 LGERA 292; [2003] NSWLEC 16 at [18]-[21]. 2. While I do not have any submissions about the legal regime which applied to the supply of electricity to a lot in 1979 or thereabouts, the Council's recognition that electricity was connected at the time of the 1984 DA being lodged with no issues being identified in any of the correspondence or reports suggests that the presumption can be relied on for this purpose and that there was no breach of the 1978 Consent. The Council engineer who inspected the site in 1984 made no observation that any service connection was unlawful. 3. Accordingly the Applicant has established that construction work occurred on Lot 334 warranting a finding that physical commencement occurred by 1 September 1982. This finding supports the making of the first declaration sought by the Applicant in its summons. It is unnecessary to make the second declaration. Country dwelling – prayer 3 1. In relation to the relief sought in prayer 3 of the summons concerning a declaration in relation to 'country dwelling', it is appropriate to give the Applicant the opportunity to approach the Council to seek to reach agreement on that matter. Orders enabling this opportunity will be made before prayer 3 of the summons is finalised. Costs 1. The Applicant seeks an order that the Council pay its costs. The Applicant wishes to reserve submissions on costs until delivery of the final judgment. The appropriate order if any will be discussed with the Applicant. Declaration and order 1. The Court declares: 1. Development consent to Development Application dated 16 October 1978 for the erection of a country dwelling at Lot 334 Riverside Crescent, Brunswick Heads (being Lot 334 in Deposited Plan 755692) issued by the Respondent on 6 November 1978 was physically commenced before 1 September 1982 in accordance with s 99(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (NSW) (as then in force). 1. The Court orders: 1. Prayer 3 of the summons dated 2 February 2024 is stood over to 1 August 2024 or until further order of the Court. 2. Costs reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2024