Land and Environment Court of New South Wales CITATION: Ross Winston Green v Kogarah Municipal Council [1999] NSWLEC 256 PARTIES APPLICANT Ross Winston Green RESPONDENT Kogarah Municipal Council NUMBER: 40047 of 1999 CORAM: Cowdroy J KEY ISSUES: Development :- development consent - development made conditional upon satisfaction of certain conditions including grant of building approval - applicant carrying out excavation and clearing work in the absence of compliance with preliminary conditions and in the absence of building approval - work relied upon not related to any building and otherwise preparatory and prohibited - lapse of consent Environmental Planning and Assessment Act 1979 s 95(4), 91AB LEGISLATION CITED: Local Government Act s 315 Rivers and Foreshores Improvement Act 1948 s 22B DATES OF HEARING: 11/22/1999; 11/23/1999; 11/24/1999 DATE OF JUDGMENT DELIVERY: 12/06/1999 APPLICANT Mr T Hale SC with Mr E White (Barrister) SOLICITORS Brock Partners LEGAL REPRESENTATIVES: RESPONDENT Mr J Ayling (Barrister) SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND MATTER No. 40047 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 6/12/99 Ross Winston Green Applicant v Kogarah Municipal Council Respondent JUDGMENT Background 1. By application class four Ross Winston Green, ("the applicant") seeks various declarations and orders. If granted the applicant would be entitled to act upon a development consent issued by the respondent ("the council") which would otherwise lapse by effluxion of time. 2. By Notice of Determination of Development Application no 56/95 dated 10 April 1995 the council granted consent ("the consent") to the applicant subject to various conditions for a dual occupancy development comprising the erection of a detached dwelling-house and torrens title subdivision at a property known as 40 Algernon Street, Oatley ("the property. Condition no 2 referred to the proposed development being amended in certain respects and stated, ' Such details shall be indicated on the future Building Application' . 3. Condition no 3 provided for:- The submission of a Building Application accompanied by complete plans and specifications conforming with the Local Government Act, the Building Code of Australia, and any other relevant Acts and Regulations. 4. Other conditions (for example condition no 4) required details of other matters to be submitted with the building application. 5. The consent was issued pursuant to s 91AB of the Environmental Planning and Assessment Act 1979 ("the Act") as it then existed. Accordingly the consent pursuant to s 99 of the Act remained valid for a period of two years. 6. In the two year period following the grant of consent no steps were taken towards the proposed development. However towards the end of its expiry an application was made by the applicant to this Court for an extension of the consent pursuant to s 99(4)B of the Act. By judgment delivered on 6 March 1998 the Court extended the consent for a period of one year, namely until the 6 March 1999. 7. The property has an existing dwelling erected thereon. The consent related to the construction of a second dwelling upon the steeply sloping and heavily vegetated portion of the land between the existing dwelling and the Georges River. Condition 2(c) required a surveyor's certificate verifying compliance with the required 30 m foreshore building line, and accordingly surveyor Buxton was engaged in August 1998 to prepare a survey. Between September 1998 and March 1999 certain scrub and small trees within the perimeter of the proposed building site were removed by the applicant and on 2 February 1999 the applicant applied to the council pursuant to s 109(c) of the Act for a subdivision certificate relating to the subdivision of the land known as Lot 122 into two lots. In support, a plan of the proposed subdivision was prepared by surveyor Buxton and was lodged with the council. 8. On 26 February 1999 Mr Buxton attended the site and replaced certain site pegs which he had installed in August 1998 and which had been disturbed following clearance of scrub. At about the same time the applicant made inquiries of Energy Australia and Telstra to confirm the provision of underground services to the proposed dwelling. 9. On 1 March 1999 the applicant arranged for a labourer to dig certain trenches for the foundations of the proposed house. The applicant also created siltation fences as stipulated in condition no 17 of the consent following discussions with a council officer Mr Sawyer. On 2 March 1999 the applicant commenced the cutting down or lopping of trees on the site. On 3 March 1999 the applicant arranged for his labourer to dig trench lines to enable the drainage pipe-line and silt arrestor to be installed. On 4 March 1999 council inspected the site. On Friday 5 March 1999 a further inspection took place and a letter was written by John Romanous, a consulting structural engineer which stated:- The footings excavation, at the subject project, has been inspected and the foundation material is considered to be of a load bearing capacity of at least 600 kPa rock which is considered adequate for the proposed dwelling under construction. 10. A further council inspection took place on 8 March 1999 and on 12 March 1999 the council provided to its solicitors the following information concerning work performed on site as at 6 March 1999:- Photos indicated that the following works had been carried out prior to the expiry of the consent. 1. Drainage lines and pits installed along western boundary. The 100 mm PVC pipes service the existing premises and were provided to hook up the new dwelling when constructed. 2. Excavation on the footprint of the dwelling down to bedrock to enable building work to commence. 3. Trees removed from inside the building footprint. 4. Sediment control fence erected along the southern boundary (not visible from photos). 11. On 18 March 1999 certain additional trees were removed with permission from the council as contained in a letter dated 30 March 1999. The removal of the trees was unrelated to the consent. Applicant's Claim 12. The applicant says that by virtue of the foregoing, he is entitled to the benefit of s 95(4) of the 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. 13. The applicant submits that the work undertaken on the site was work relating to the building and comprised , 'building, engineering or construction work relating to the building' , and accordingly the consent has not lapsed. Council's submissions 14. Council disputes that the works undertaken entitle the applicant to rely upon s 95(4) of the Act. The council submits that there are several basis for such conclusion. Firstly it submits that since no building approval has ever been granted by council as envisaged by the consent, any work that has been undertaken by the applicant does not relate to the building. 15. Secondly it submits that the work carried out was insubstantial in any event and does not qualify as amounting to ' construction, building or engineering work' . Finally it submits, since no building application was approved any work undertaken was done without the permission of council and is unlawful. i) Absence of building approval 16. It is obvious that building approval for the proposed dwelling house was required prior to the commencement of any construction by virtue of the conditions contained in the consent. For example condition no 2 required the development to be amended in various ways and directed that the details ' shall be indicated on the future Building Application' . Special condition no 3 provided:- The submission of a Building Application accompanied by complete plans and specifications conforming with the Local Government Act, the Building Code of Australia, and any other relevant Acts and Regulations. 17. Condition no 10 (Landscaping) provided:- Prior to the commencement of any site works, all trees to be retained shall be enclosed with protective fencing to prevent the tree trunk and root system being damaged during the construction period. Details shall be submitted with the Building Application. 18. Condition no 11 related to contributions required pursuant to s 94 of the Act and stated:- This Contribution will be indexed from the date of consent to allow for cost increases and must be paid prior to the approval of the required Building Application/release of linen plan. Condition no 12 referred to s 94 contributions under a contributions plan and contained the same notation as that set out above in relation to condition no 11. Condition no 13 (Design) requires the submission of details of the colours of the building to be provided to council and states:- Such details are to be submitted and approved by Council prior to the release of the building approval. 19. Each of the above conditions related to various aspects of the proposed dwelling but the consent also stipulated conditions required as a pre-requisite to building in relation to excavations and earth-works. Condition no 17 provided:- Provision of silt control devices in the vicinity of the building site prior to commencement of land clearing and construction works. Such details shall be submitted with the Building Application. 20. The applicant had lodged a building application on 8 April 1997 (Building Application 139/97). By letter dated 4 July 1997 the Council wrote to the applicant suggesting that such application be withdrawn and re-submitted with accurate details of the driveway. On 15 September 1997 the applicant received a refund of $330 in respect of the building application. Accordingly no building approval exists. 21. The applicant submits that he had undertaken all possible work on the site that could be physically undertaken preparatory to the construction of a dwelling. Reliance is placed upon the fact that the footings were dug and clearing work was undertaken which constituted ' work relating to the building' . 22. The difficulty in the applicant's submission lies in the fact that there was no 'building' to which any work relied upon could be referable as required by s 95(4) of the Act. The terms of that subsection are predicated upon building or engineering or construction work being undertaken in relation to a building which can be constructed lawfully. The consent was made expressly conditional upon the submission of a building application for the work comprising the development. The conditions as set out above make it clear that council's approval was required before the commencement of any building work. 23. In these circumstances any work that was undertaken on the site could not be work to which the provisions of s 95(4) apply. In Irongates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. (1992) 81 LGERA 132 the New South Wales Court of Appeal held that work of an engineering nature undertaken by a developer in the absence of approval by the council of engineering plans could not be regarded as building, engineering or construction work relating to the development. Handley JA said at 135:- In my opinion the work in question was not work 'relating to that development' for the purpose of s 99(2)(a) because it was prohibited by the consent, and was therefore not 'the subject of that consent' within s 99(1)(a). Section 99 of the unamended Act is the equivalent of s 95 of the Act. Work in that case was 'prohibited' because it was carried out contrary to the requirements of the consent. Similarly in the present case any work undertaken could not be work 'relating to' the proposed dwelling for the reasons stated by Handley JA. Nature of the Work 24. In view of findings referred to above it is unnecessary to deal with the remaining questions. It is appropriate however that I should consider the work relied upon by the applicant to determine if it could constitute work which is ' building, engineering or construction' within the meaning of that section irrespective of its relationship to the building. Numerous authorities exist which relate to the doctrine of 'substantial commencement' under the provisions of s 315 of the Local Government Act and Clause 41(5) of the County of Cumberland Planning Scheme Ordinance. 25. Such authorities establish that the work relied upon must be real and actual as distinct from preparatory work and ' as distinct from a notional or equivocal or sham commencement' to satisfy the requirement of 'substantial commencement'. (See Hardie J in North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1953) 81 W.N. Pt 1 35 at 38; Liverpool City Council v Home Units Pty Ltd [1973] 2 NSWLR 61 at 68). Other authorities relating to the same provisions have made it clear that the test is objective and not subjective ( Auburn Municipal Council v FN Eckold Pty Ltd (1974) 34 LGRA 101 at 105; Waverly Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188; Day v Pinglen Pty Ltd (1981) 148 CLR 289). 26. Whilst the concept of 'substantial commencement' is not expressly enshrined in s 95(4), this principle is nevertheless useful. In Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170, Cripps J applied such principle to the provisions of s 99 of the unamended Act. The Court is entitled to consider whether the work relied upon is purely preparatory work ( North Sydney Municipal Council at 38; Liverpool City Council at 68; Drummoyne Municipal Council v Leban (1974) 131 CLR 350 at 360) also whether the work is a 'sham' ( North Sydney Municipal Council at 38; United Dominions Corporation v Woollahra Municipal Council [1973] 1 NSWLR 616 at 622). This involves a consideration of the nature and extent of the work performed compared to the work to complete the project. 27. The applicant relies heavily upon the fact that drainage pipes have been laid to drain water from the existing house above the site of the proposed dwelling and the fact that foundations have been dug in the location of the proposed dwelling. The applicant also relies upon the fact that certain trees have been cleared from the site as was referred to in the consent. The applicant says that the engineer's certificate establishes that the excavations were related to the proposed building. 28. The obstacle for the applicant is that none of the work undertaken is referable to any building specification which has been considered by council. The applicant acknowledges that the ultimate position of the excavations were not as shown in the plan submitted to council with the development application, nor were the drainage lines shown at all. Due to a surveying error the proposed dwelling would be narrower than that shown on the plan. Furthermore, the engineer's certificate does no more than certify that the bedrock would be able to support a dwelling. It does not deal with details concerning the depth or width of the excavations, nor does the engineer suggest that any construction plans exist. 29. According to the council's evidence the excavations were incomplete. In response, the applicant explained that certain excavation was unnecessary because of the existence of bedrock at or close to the surface for which no foundations were required. This is not however a matter which needs to be resolved, because on any view the work could only be regarded as preparatory in the absence of any specifications. 30. The applicant relied upon Liverpool City Council , wherein the Court determined that substantial excavation work and the construction of a small brick wall was sufficient to constitute 'substantial commencement'. It says that the same analogy applies to its excavations on the site. An examination of the decision however reveals that the substantial excavation effected comprised part of the building approved, and they were of an entirely different magnitude to the manually dug trenches in this case. In the Court's opinion the work relied upon by the applicant is purely preparatory and does not constitute 'building, engineering or construction work'. Additionally it must remain so in the absence of any approved building plans. Prohibited Work 31. The consent makes it apparent that the proposed development was to take place provided that the conditions therein were satisfied. It is plain that a building application and approval was required before building work commenced and that preliminary steps be undertaken to ensure that environmental issues such as protection of trees (condition no 1) and silt retention measures be provided (condition no 17). Although the applicant has submitted to the contrary, there is no distinction between the circumstances confronting this Court compared to those before the New South Wales Court of Appeal in Irongates . It follows that the applicant was prohibited from undertaking work for the development in breach of the conditions of the consent. 32. The council also relies upon the circumstance that the applicant has carried out excavation contrary to the provisions of the Rivers and Foreshores Improvement Act 1948. Section 22A of that Act defines protected land as including land which is not more than 40 m from the top of the bank or shore of protected waters. 'Protected waters' as defined in the same section includes a river. It is not disputed that some of the excavations have taken place within 40 m of the Georges River and as such a permit was required pursuant to s 22B of such Act for such work. There is no evidence that the council or any authority has proposed any prosecution for the work undertaken by the applicant. Prima facie the excavation work relied upon by the applicant contravenes s 22B and in accordance with the principle that a party cannot rely upon its own wrong (see Alghussein Establishment v Eton College [1988] 1 WLR 587; TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 147) it could scarcely be relied upon by the applicant. However this is not a matter which needs to be determined in these proceedings in view of the findings already made. Orders 33. The Court orders:- 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. The exhibits 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.