TODBERN PTY LTD v HURSTVILLE CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 30 April 1998, 30 April 1998 [1998] NSWCA 234 SOURCE of power for a variation of a Development Consent period - interpretation of statute — s99 Environmental Planning and Assessment Act 1979 (NSW) — s36 Interpretation Act 1987 (NSW) Cole JA The judgment of Justice Pearlman dated 17 April 1997 recites the factual circumstances giving rise to the issues in contention, the competing submissions of the opposing parties concerning the construction of cl(b) of the Consent and her Honour's reasons for resolving that construction in favour of the respondents. Those same contentions had been re-agitated on appeal. For my Part I would be content to adopt the reasons of Pearlman J as my own. In my view they are plainly correct. However, we have been informed that at least three matters have been raised on this appeal which were not raised in the Court below. I must say it is not entirely clear to me that that is so. The first matter is the contention that s99(2) is the only source of power for a variation of the period referred to in s99(1) Environmental Planning and Assessment Act 1979 after which a Development Consent lapses. Accordingly, if the power under s99(2) is to be exercised, then it is said that there must be a clear exercise of the power under s99(2) and to introduce notions of acting upon" is to introduce a foreign notion or to pollute the source of referred to in s99(2). I think it is a sufficient answer to that submission to say that any fair reading of cl(b) indicates that the period of the consent has been varied pursuant to s99(2) from five years to two years. The second contention said to be additional to those argued below is that it is impermissible to relate the expression "unless acted upon within two years" as used in the Development Consent, with the expression used in s99(4) namely, "building, engineering or construction work relating to the building subdivision or work physically commenced". The reason why it is said the two notions are different is because of the contention that one could "act upon" the terms of a Consent without engaging in physical commencement of work of a building, engineering or construction nature. In my view the use of the expression "acted upon" in the Consent means the performance of acts contemplated within the Environmental Planning and Assessment Act 1979 as being an act of the type which negates the termination of the consent or cessation of the consent. Those acts are those referred to in s99(4) the consent, after all, is a consent under the Environmental Planning and Assessment Act and is to be read against the background of that Act. The third contention raised was that there was a distinction to be drawn between s99(1), s99(2) and s99(3) which speaks of a period of time after a given date, being the date from which the Consent operates, and a period of a 2 UNREPORTED JUDGMENTS Development Consent which is said to lapse "within two years". The distinction is said to be equivalent to the distinction of a period of time from a given date when compared with a period of time after a given date. The difference is said to be one day. Accordingly, because the consent speaks of "within" which is equivalent to "after", that is said to be a different period of time from a period time calculated "from" a date after a specified date. In my view that contention fails because of the provisions of s36(1) of the Interpretation Act, or in the particular circumstances of this case, the provisions of s36(2) as the date upon which the two year period would expire, in this instance, falls on a Saturday. For those reasons, in my view, the appeal should be dismissed with costs. Beazley JA I agree. Stein JA I also agree. Appeal dismissed with costs. Counsel for the appellants: M Enfield QC/ J B Maston Solicitors for the appellants: Verekers Counsel for the first respondent: P Riss Solicitors for the first respondent: Deacon Graham & James Counsel for the second respondent: D Parry Solicitors for the second respondent: Abbott Tout