Land and Environment Court of New South Wales CITATION : Richard & Ors v Shoalhaven City Council [2002] NSWLEC 11 APPLICANTS: Reginald Benjamin Richard John Laurence Orford PARTIES : Dawn Audrey Orr RESPONDENT: Shoalhaven City Council FILE NUMBER(S) : 40126 of 2001 CORAM: Talbot J KEY ISSUES: Development Consent :- whether lapsed LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 95, s 95(1)(a), s 95(4) Local Government Act 1993 s 315 CASES CITED: Noble House Corporation Pty Limited v Sydney City Council [1999] NSWLEC 190, unreported; Young and Another v Warringah Shire Council [2001] NSWLEC 208, unreported DATES OF HEARING: 07/11/2001 EX TEMPORE JUDGMENT DATE : 11/07/2001 APPLICANTS: Mr D.R. Parry (Barrister) SOLICITORS: Kearns & Garside LEGAL REPRESENTATIVES: RESPONDENT: Mr G.N. Gleeson (Solicitor) SOLICITORS: Morton & Harris JUDGMENT: IN THE LAND AND Matter No. 40126 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 7 November 2001 Reginald Benjamin Richard, John Laurence Orford Dawn Audrey Orr Applicants v Shoalhaven City Council Respondent REASONS FOR JUDGMENT 1. HIS HONOUR: In this matter there is an agreed statement of facts supported by a number of affidavits which provide more detailed evidence of critical matters which need to be decided. 2. On 19 April 1995, Shoalhaven City Council ("the council") granted consent to a subdivision of lot 70 and part lot 71 in DP 9289. The subdivision was for the purposes of a three lot rural subdivision, comprising two areas of 1.5 hectares and a larger area, comprising lot 3, of 18.95 hectares. A subsequent subdivision approval was issued by the council on 25 January 1996 but in the circumstances it has no relevance for the present determination. 3. Pursuant to s 99(4) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") as it then was (now s 95(4)), development consent for the subdivision of land does not lapse if as, in this case, engineering work relating to the subdivision is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section. Clause (1)(a) to s 95 of the EP&A Act provides that the development consent lapses five years after the date from which it operates. The relevant date therefore for present purposes in terms of lapsing is 19 April 2000. 4. The contention raised by others who are not party to the proceedings, so the Court is told, is that the relevant work was not physically commenced on the land prior to 19 April 2000. The council, faced with submissions in that respect, has not co-operated with the applicant by formally recognising that the development consent has not lapsed. The factual statements nevertheless must be regarded in the light of statements made by the council, which indicate that at one stage at least the officers of the council held a contrary view. They accepted that the requirements of cl 4 of the relevant section had been complied with and that the relevant engineering works had been commenced within the prescribed time. 5. In order to resolve the dilemma, the applicant has commenced these proceedings seeking a declaration that the development consent has not lapsed pursuant to s 95 of the EP&A Act. Mr Gleeson appears for the council to enter a submitting appearance save as to costs. Mr Parry, who appears for the applicant, relies upon two agreed statements of facts settled with the council's solicitors, and a number of affidavits to prove what physically occurred on the land. 6. In summary, the evidence establishes that on 13 May 1997 surveyors entered the land for the purposes of establishing a traverse and measuring boundaries, locating existing survey marks and corner marks and placing a state survey mark. 7. On 23 May 1997 surveyors again entered the land for the purpose of placing marks on the external corners of the boundaries. 8. On 21 January and 30 January 1998 surveyors once more entered the land and on those occasions marked the centre line of a proposed road, placed recovery marks in anticipation of the construction of the road and made observations about levels. The work in January 1998 necessitated and involved the removal of small trees and shrubs. 9. The issue is whether within the meaning of cl 4 to s 95 of the EP&A Act ("cl 4") engineering work relating to the subdivision was physically commenced by the works carried out on 13 May 1997, 23 May 1997, 21 January 1998 and 30 January 1998. 10. Let me say at the outset that whether the works are preparatory or not is not the question to be determined. That is a distinct question from the question of whether engineering work physically commenced. The expression relating to preparatory work arose historically under the provisions of the Local Government Act 1993, prior to its recent amendments and in particular s 315. The present legislative regime speaks only of work being physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section. 11. As I pointed out in Noble House Corporation Pty Ltd v Sydney City Council [1999] NSWLEC 190, in a judgment delivered on 19 August 1999, there is no question of degree or extent of the work. If the work has physically commenced prior to the date on which the consent would otherwise lapse, then that is sufficient for the purposes of cl 4 to prevent the lapsing of the consent. 12. The category of work which the applicant seeks to establish in the present case is engineering work. Taking the dictionary definition of "engineering" as being the application of science to the design of constructions and regarding the use of the word "work" in the dictionary sense of toil or labour, it is contended by the applicant that the activities I have described fall within the ambit of the expression engineering work, where used in cl 4. 13. In a different context, in an unreported judgment delivered on 7 September 2001, Young and Anor v Warringah Shire Council [2001] NSWLEC 208, unreported, Cowdroy J recognised survey work as being essential as part of the building work, the subject of the approval in that case, since the building work could not be carried out in the absence of such a survey. Applying that approach by way of analogy to the present case, the question becomes whether it can be said that the subject survey work was essential as part of the engineering works required in respect of the construction of the subdivision. 14. The Court is satisfied, and holds, that the work which I have described was work for the purpose of the application of surveying skills resulting in the taking of levels, placing pegs, the removal of vegetation and the establishment of marks, including the centre points of a road, as part of the engineering work required for the establishment and construction of the subdivision. 15. That finding has the consequence that the combination at least, if not the individual instances, where work was carried out on 13 May 1997, 23 May 1997 and the two dates in January 1998, prevent the lapse of the development consent for the subdivision of the land by reason of those works being carried out prior to 19 April 2000. 16. I have taken no account of extraneous and irrelevant evidence that has been placed before the Court of works which have been carried out subsequently on the subject land. Presumably that evidence was formulated and presented at some stage in the proceedings when it was contemplated that the Court might be asked to exercise its discretion. That question does not arise. I am not sure that it could ever arise in the circumstances of the present application. 17. Furthermore, I have not relied upon any suggestion that the council was estopped by the statements made and assurances given by its employees in relation to the satisfaction of the requirements of the statutory regime. The question of any estoppel could only arise in an evidentiary sense if the council had elected to take a role in the proceedings that may have been in contradistinction to those utterances. 18. After having regard to the relevant evidence, the Court is prepared to make the declaration as formulated in the application. 19. By consent the Court orders that each party pay their own costs. 20. The exhibits may be returned. 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.