Reported Decision : (2001) 117 LGERA 62 Land and Environment Court of New South Wales CITATION : Young & Anor v Warringah Shire Council [2001] NSWLEC 208 APPLICANT Young & Anor PARTIES : 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) 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 ; CASES CITED: 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 APPLICANT Mr P McEwen SC SOLICITORS White Parsons LEGAL REPRESENTATIVES: RESPONDENT Mr G Newport (Barrister) SOLICITORS Wilshire Webb JUDGMENT: IN THE LAND AND MATTER No. 40069 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 7/9/01 Gabriella Young and Rosetta Vescio Applicants v Warringah Shire Council Respondent 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 Mr David Purll, a plumber, was engaged to make a connection for water on the lot. The date of the execution of such works is uncertain but the evidence establishes that payment for such work was made on or about 17 August 1999. Such work required Mr Purll to make an excavation of approximately 1 metre square around the water main in the adjoining road surface and to bore beneath the bitumen road service and concrete gutter to the footpath reserve. Another hole approximately 1 m x 1 m was excavated through the footpath reserve into the lot. A pipe connecting the lot to the water main was then installed and the excavations filled in. 7. The conditions attached to the consent clearly envisage the lodgement of a building application with the council (condition 2). The notes attached to the consent concern the implementation of the consent. Clause 1 provides:- It is to be clearly understood that the above consent is not an approval to carry out any structural work. A formal building application must be submitted to Council and be approved before any structural work is carried out to implement the above consent. Also the applicant is not relieved of any obligation to obtain any other approval required under any other Act. 8. On 12 May 2000 the applicant lodged with the council a 'Notice of Commencement of Building or Subdivision Works and Appointment of Principal Certifying Authority' ("the notice"). The notice stated that work was to commence on 15 May 2000. On the same day the council endorsed the construction certificate and also on that day Mr Parsons placed survey marks on the concrete curb on Kentwell Road to identify the place of the vehicular access to the lot. Applicants' submissions 9. The applicants submit that they are entitled to the benefit of s 95(4) of the EP&A Act which provides:- (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, 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. They submit that work of a physical nature has taken place on the lot; that the work comprises engineering work which is not purely preparatory; that the work relates to the undertaking referred to in the consent; and that the work is authorised by virtue of the consent. Council's submissions 10. The council challenges the applicants' claim for relief on numerous grounds and submits that if the works carried out are not 'works' within the meaning of s 81A(4) or of s 94(5) of the EP&A Act then they are purely preparatory in nature and therefore cannot be considered to be 'work' for the same reason as discussed by Cripps J in Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170 at 176, 178. The council submits that the Court must consider the significance of the work relied upon by the applicants to determine if work has physically commenced on the lot. The council relies upon the decision of the New South Wales Court of Appeal in Green v Kogarah Municipal Council (2001) NSWCA 123 in support of its submissions. 11. The council submits that the requirements of s 81A of the EP&A Act have not been satisfied. Section 81A(2)(a) of the EP&A Act provides that the erection of a building in accordance with a development consent must not be commenced until a construction certificate for the building work has been issued. Section 81A(4) of the EP&A Act relevantly provides:- (4) Subdivision work in accordance with a development consent must not be commenced until: (a) a construction certificate for the subdivision work has been issued by: (i) the consent authority, or (ii) an accredited certifier, and … Further s 81A(4)(c) of the EP&A Act provides:- (c) the person having the benefit of the development consent has given at least 2 days' notice to the council of the person's intention to commence the subdivision work. 12. The council submits that since the work relied upon by the applicants in their claim for relief was carried out prior to the issue of the construction certificate (except for the marking on the curb for the proposed access) it is work which is carried out without authorisation and contrary to the EP&A Act. 13. The council also submits that an important pre-condition to the execution of any work has not been fulfilled by the applicants. Condition 9 of the consent required works to be undertaken to prevent erosion and transport of soil and sediment off the site. Part of Condition 9 provided:- An erosion and sediment control plan shall be submitted for Council's approval prior to Building approval or any works. In the absence of any such control plan being prepared and submitted to council, the council submits that any work undertaken on the site is unauthorised as contrary to the consent as found by Handley JA in Iron Gates Developments Pool Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 at 134-135. Findings 1) The work was not merely preparatory 14. The pegging of the land and the connection of water supply to the lot were works referable only to the development. It could not be said that such work was 'isolated work that had no real relation' to the development: see Cripps J in Smith at 178. Accordingly the Court finds that the plumbing work undertaken was not of a preparatory nature but comprised part of the work envisaged by the development consent. Conditon 30 of the consent specifically referred to a requirement that certain services including water be provided to each lot. The survey work was also essential as part of the building works, since they could not be carried out in the absence of such survey. 2) The work was engineering work 15. The Court accepts the applicants' unchallenged evidence that the plumbing works comprised 'engineering work' within the meaning of s 95(4) of the EP&A Act. 3) The work was not authorised 16. In Iron Gates work commenced in breach of a condition requiring prior construction of an access road. The failure of the developer to satisfy the condition precedent to the development commencing rendered the work relied upon by the developer unlawful and it could not be relied upon by the developer as commencement of work for the purpose of the development consent. 17. The same approach was adopted by the New South Court of Appeal in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Ors (1999) 106 LGERA 243. In that decision a condition precedent in the conditions of the consent had not been effected. The Court applied the principle in Iron Gates and held that any work undertaken without fulfilment of the condition precedent could not be relied upon as work pursuant to the development consent. 18. The provisions of Pt 4 Div 2 of the EP&A Act is entitled 'The procedures for development that needs consent'. Section 81A of the EP&A Act is contained in Pt 4 Div 2 and relates specifically to the implementation of a development consent. The requirements of s 81A(4) of the EP&A Act are both explicit and mandatory and prohibit the commencement of any subdivision work until a construction certificate has been issued. A clear legislative intention to invalidate any actions undertaken without such authorisation pursuant to s 81A of the EP&A Act can be inferred in accordance with the principles explained by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389. 19. The applicant has not complied with the requirements of s 81A(4) of the EP&A Act. The notice to commence subdivision work was given to the council on 12 May 2000 three days before the expiry of the consent. A letter attached to the construction certificate endorsed by the council on 12 May 2000 states as follows:- At least 2 days prior to work commencing on site, Council must be informed, by the submission of Form 7 of the Environmental Planning and Assessment Regulation 1998, of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence. 20. Such letter is reflective of the statutory requirements of ss 81A(4)(b) and 81A(4)(c) of the EP&A Act. Accordingly, all work relied upon by the applicants does not satisfy the requirements of s 81(4). Such work was unauthorised by the consent and was contrary to the EP&A Act and therefore cannot be regarded as work in fulfilment of a consent: see Iron Gates. 21. In view of the above findings it is unnecessary to determine the effect Condition 9. 22. In summary the Court finds that:- (i) The works undertaken on the lots are not preparatory, and comprise work within s 95(4)(c) of the EP&A Act; (ii) Such work was carried out without the mandatory certificate required by s 81A(4) of the EP&A Act and is therefore not work which can be relied upon for the purpose of s 95(4)(c) of the EP&A Act for the reasons given in Iron Gates, Coalcliff Colleries and Green . 23. Accordingly the Court finds the applicants' claim for relief must be refused. Orders 24. The Court therefore orders:- 1. The application be dismissed. 2. Exhibits be returned. 3. 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.