Set aside by Appeal : [2005] NSWCA 169 Land and Environment Court of New South Wales CITATION : Hunter Development Brokerage Pty Limited v Cessnock City Council [2004] NSWLEC 454 APPLICANT: Hunter Development Brokerage Pty Limited PARTIES : RESPONDENT: Cessnock City Council FILE NUMBER(S) : 11564 of 2003 CORAM: Bignold J KEY ISSUES: Development Consent :- approved subdivision of land-whether consent has lapsed LEGISLATION CITED: Environmental Planning and Assessment Act, 1979, s 95 Day v Pinglen Pty Ltd (1981) 148 CLR 289; Detala Pty Ltd v Byron Shire Council (2002) NSWCA 404; Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; Ex parte Dackfield Pty Ltd (1982) 49 LGRA 363; Green v Kogarah Municipal Council (2001) 115 LGERA 231; CASES CITED: Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Noble House Corporation Pty Ltd v Sydney City Council (1999) NSWLEC 190; Richard v Shoalhaven City Council (2002) NSWLEC 11; Sharp v Hunters Hill Council (2002) 120 LGERA 155; Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170; Young v Warringah Shire Council (2001) 117 LGERA 6 DATES OF HEARING: 13/04/2004 DATE OF JUDGMENT: 08/17/2004 APPLICANT: Mr J Kildea, Barrister SOLICITORS Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT: Mr J Ayling SC SOLICITORS Cleaves Mallick Gibbs JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 17 August 2004 11564 of 2003 HUNTER DEVELOPMENT BROKERAGE PTY LIMITED v CESSNOCK CITY COUNCIL JUDGMENT HIS HONOUR: A. INTRODUCTION 1 This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 109K (the EP&A Act) against the Council's refusal to issue a construction certificate in respect of subdivision work for a subdivision of land situate at Hanwood Road, North Rothbury into 67 Rural/residential lots in accordance with the development consent granted on 24 February 1998 to development application No 150/596/76 (the development consent). 2 The sole reason stated for the Council's refusal to issue the construction certificate was that the development consent "is deemed to have lapsed pursuant to the provisions of s 95 of the Environmental Planning and Assessment Act 1979". 3 According to the Statement of Issues filed in the proceedings by each party, the only issue raised by the appeal concerns the question whether or not the development consent lapsed on 24 February 2003 (being the expiry of relevant lapsing period of five years prescribed by the EP&A Act, s 95(1)(a)). 4 At the outset of the hearing, I raised the question whether the issue commonly raised by the parties was a relevant consideration to the determination of the application for the issue of the construction certificate. I also raised the question whether the present proceedings (being class 1 proceedings) provided the appropriate vehicle for the determination of the disputed question whether the development consent had lapsed on 24 February 2003 because conventionally in this Court any adjudication on the question whether a development consent has lapsed in terms of the EP&A Act, s 95 occurs in class 4 proceedings claiming an appropriate declaration. 5 Both parties submitted that the issue raised was relevant to the determination of the application for the issue of the construction certificate and in this respect, both parties agreed that if the Court determined that the development consent had relevantly lapsed, the present appeal must be dismissed and conversely, if the Court held that the development consent had not relevantly lapsed, the present appeal must be upheld. 6 However, in the event of the upholding of the appeal, it was agreed that the issue of the construction certificate should accord the Council the opportunity to include the imposition of appropriate conditions. 7 Accordingly, the hearing of the appeal has proceeded along the same lines as if the disputed issue had been raised in appropriate class 4 proceedings seeking an appropriate declaration as to whether or not the development consent has lapsed, without involving any issue of the planning merits of the application, except for the important difference that unlike a class 4 application, the evidence adduced in the present case was not in the form of sworn testimony or affidavit evidence. B. THE DEVELOPMENT CONSENT 8 By Notice of Determination pursuant to the EP&A Act, s 92 and the Local Government Act 1919, s 331 (Exhibit C), the Council notified that it had granted development consent and subdivision approval on 24 February 1998 to the development described as "Stage V of the Hanwood Estate comprising 67 rural/residential lots and a residue lot and associated roads and services" in respect of a property described in the Notice as "Part lot 18 DP 862332, Main Road 220, North Rothbury", subject to the conditions specified in Schedule 1 to the Notice. 9 As will later appear, the parties, in advancing their respective cases, appear to have entirely overlooked the fact that the Notice relevantly notified the grant of subdivision approval under the Local Government Act 1919, s 331 (in addition to the grant of development consent under the EP&A Act) and the allied fact that the grant of subdivision approval under the Local Government Act 1919 was preserved by the provisions contained in Pt 2 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 in consequence of the repeal of the Local Government Act 1919, Part XII (which Part had continued in force after the enactment of the Local Government Act 1993). The significance of these overlooked facts will need to be considered in relation to the application to this case of the EP&A Act, s 81A(4). But the significance is potentially more fundamental inasmuch as it raises the question whether a construction certificate is required for the approved subdivision in view of the effect of the 1998 Regulation preserving the subdivision approval granted under the Local Government Act 1919, Part XII. 10 The Schedule to the Notice specified some 58 conditions. It is only necessary to recite 7 of those conditions which the Council asserts were "pre-conditions of the development consent….which have not been complied with", namely conditions 7, 11, 17, 27, 30, 36 and 47. (In passing, it should also be noted that many of the conditions imposed (eg Conditions 2 and 3) are conditions of the type conventionally imposed on the grant of subdivision approval under the Local Government Act 1919, Part XII.) The relevant conditions are in the following terms: 7. The applicant shall comply with Council's requirements as set out in its document entitled Engineering Requirements for Development or any other document amended or replacing the same (available at Council's Offices). Appropriate Engineering plans including but not limited to design and construction of roads, drainage, pavement, bitumen sealing, concrete works, soil erosion/sediment control and environmental protection, prepared by a suitably qualified Civil Engineer, are to be submitted to Council for approval by Council's Director Works prior to commencement of any works on site. The payment of appropriate performance bonds detailed in Condition No. 6 will be necessary prior to approval and release of engineering plans. 11. Prior to any construction works on site or ancillary to the site, the control of erosion and the prevention of silt discharge into drainage systems and waterways will be necessary in accordance with the provisions of council's document entitled " Engineering Requirements for Development " and the Department of Conservation and Land Management's Urban Erosion and Sediment Control requirements or any other documents amending or replacing the same. The applicant will ensure that adequate and proper erosion control measures are implemented prior to the commencement of any earthworks, and shall ensure that they are maintained until satisfactory completion and restoration of site earthworks, including revegetation of all exposed areas, to the satisfaction of Council's Director, Works. All site works shall be carried out in accordance with the approved engineering plan and should be in accordance with Council's Engineering Requirements for Development. 17 Prior to commencing any work, an Environmental Management and Rehabilitation Plan, which sets out measures proposed to prevent harm to the natural environment during and as a result of construction works and detailing proposed rehabilitation measures, shall be prepared for the development site by a suitably qualified professional and submitted to Council for approval by the Manager, Development Engineering. The Plan shall incorporate (without being limited to) measures addressing the matters referred to under the Conditions 7, 11, 13, 14, 18, 19, 27, 45, 46, 48 and 50. 27. Prior to commencing any works, a detailed landscape plan, prepared by a suitably qualified professional, is to be submitted to Council to the satisfaction of the Manager, Development Services for the provision of a dense landscaped screen within the 25 metre noise buffer strip located on those lots fronting Main Road 220. The landscaping should generally consist of native species endemic to the locality, be designed to maintain the rural character of the area when viewed from Main Road 220, screen the rear of future dwellings from Main Road 220, and protect such future dwellings from headlight glare from vehicles using Main Road 220. Such landscaping shall be installed and continuously maintained at all times to the satisfaction of Council. 30. The applicant is to advise Council's Development Engineer at least 48 hours prior to commencement of any construction works on site or associated with the site, together with the approved contractor's name and address. 36. All habitat trees identified by the approved plans shall be located on site prior to any works commencing and clearly identified by a plaque of suitable long wearing material, to be approved by Council's Director of Environmental Services, such plaque being permanently affixed by a single coachbolt at chest height, 1.5 metres above ground level and being inscribed with the words HABITAT TREE – DO NOT LOP, INJURE, REMOVE OR DESTROY THIS TREE. All habitat trees so identified shall be retained, except for Habitat Tree No. 50, which may be removed, if in the opinion of Council's Manager, Development Services, it is necessary to permit the construction of a dwelling Otherwise, no development, including the erection of buildings or other works, including any changes in soil levels (excavation, trenching, filling, paving and the like), shall occur within a minimum distance of 5 metres as measured from the outer edge of the trunk of the habitat trees. If, in the opinion of Council's Manager, Development Services, it is necessary to remove Habitat Tree No. 50 to permit the construction of a dwelling, then this must be carried out in a manner that protects the hollow limb resource and under the supervision of an ecologist. Any hollow limbs shall be collected from the felled tree and re-erected in nearby trees in the adjoining vegetation retention corridor. 47. Topsoil shall only be stripped from areas approved under the Environmental Management and Rehabilitation Plan and shall be stockpiled for re-use during site rehabilitation and landscaping. C. THE RELEVANT FACTS 11 According to the Amended Statement of Basic Facts (Exhibit A): Hanwood Estate is a rural residential development located approximately 1km south of the Village of North Rothbury and approximately 3km south of Branxton. The original land holding of the Estate comprised approximately 437ha, lying within both Cessnock and Singleton Local Government areas. Stages 1 – 4 have been established with allotments ranging in area from 3800m2 to approximately 2 hectares. A tract of land approximately 250m wide separates Stages 1-3 from Stages 4 and proposed Stage 5. This land generally contains Black Creek and riparian zone. A large portion of this land is constrained from further development by matters relating to local flooding, potential habitat value and previous site use (mining). Improvements within the Estate generally comprise single storey detached dwellings with associated outbuildings. Landowners have undertaken a moderate level of clearing, particularly understorey to assist with property maintenance and bushfire management. 12 It is necessary to note some facts concerning Stage 4 of the Hanwood Estate in view of the Council's contention that some of the works relied upon by the Applicant to avoid statutory lapsing of the development consent were undertaken in respect of Stage 4 lands rather than in respect of Stage 5 lands. 13 The subdivision of Stage 4 was approved by the Council on the same day that it granted the development consent and subdivision approval for Stage 5. 14 The terms of the Council's approval for the Stage 4 subdivision were not adduced in the evidence but according to the statement of evidence of Christopher Napier Smith, the Council's Senior Planning Assessment Officer (Exhibit F), the separate development consent granted in respect of Stage 4 had imposed similar conditions to the conditions imposed on the grant of development consent and subdivision approval for Stage 5. For example, Condition 27 of each consent required the submission of detailed landscaping plans prior to the commencement of work. 15 Stage 4 comprises land situate immediately north of the Stage 5 land. Stage 4 involved the creation of 26 rural/residential lots. The physical relationship between the lands respectively designated Stages 4 and 5 is depicted on a plan prepared by the Applicant (Exhibit 9) showing the approved subdivision of each Stage (the lots in Stage 4 being numbered 32 to 57 and the lots in Stage 5 being numbered 58 to 124), a copy of which is annexed hereto and marked "A". 16 On 19 August 2002, Deposited Plan 1042140 was registered effecting a subdivision creating five lots of land including lots 3, 4 and 5 which together comprised all of the land to which the development consent relates. The plan apparently gave effect to a partition agreement between the respective owners of the lands comprised in Stages 4 and 5 of the Hanwood Estate. The Deposited Plan bears the endorsement of the Council's approval which had originally been granted on 29 June 2000 to a similar three lot subdivision which approval was apparently subsequently modified to create the five lots created by the registration of Deposited Plan 1042140. In the Notification of the Council's original consent (Exhibit 10), there is a note conveying the following advice: 1. Any future subdivision of the subject land should be consistent with subdivision approval 150/596/76 granted on February 24/998 for sixty seven/67/ lots 17 The reference in that Note to the subdivision approval is a reference to the development consent and the concurrent subdivision approval. 18 The remaining documentary evidence comprises a large number of written witness statements prepared by various persons concerning the works claimed to have been carried out on the subject land upon which the Applicant relies to avoid the statutory lapsing of the development consent. 19 These statements were tendered as witness statements and except for one of the statements, none of the authors was cross-examined. This means that the Court is left to resolve considerable areas of factual dispute arising from the respective contents of the witness statements merely on the basis of the contents of those statements, without any elucidation that may have been attainable via the cross-examination process. 20 This is the principal disadvantage in the parties seeking an adjudication in the present class 1 proceedings on the question on the lapsing of the development consent. 21 The areas in dispute include the following— (i) whether the works asserted by the Applicant were in fact carried out; (ii) if so, whether they relevantly relate to the approved development; (iii) if so, whether they are relevantly " engineering or construction works "; and (iv) if so whether they were carried out in contravention of the conditions of the development consent or of the EP&A Act , s 81A(4). 22 It is necessary to review the evidence by reference to each of these separate issues. (i) What Works Were Carried Out? 23 The works relied upon by the Applicant comprise:— (i) survey works, (ii) geotechnical investigation; and (iii) landscaping works. 24 The survey works are discussed in the witness statements of Robert Oberman (Exhibits 7 and 8) for the Applicant and Jeffrey Garry (Exhibit E) for the Council. 25 According to Mr Oberman's Statement, he is a registered surveyor who was retained by the Applicant from April 1996 to February 2003 to undertake survey work on the lands which together became known as Stages 4 and 5 of the Hanwood Estate. The works that he undertook in this behalf are described in his Statement as follows: (a) In September 1997 he identified habitat trees on the lands later known as Stages 4 and 5 of the Hanwood Estate. (It is noted that this work preceded the date of the grant of the separate development consent for each of Stages 4 and 5, and accordingly does not relate to the development consent). (b) In August 1998 he carried out survey work by fixing survey reference marks on the land comprising Stage 5. This work involved installing galvanised iron pipes underground as permanent reference works and inserting pegs at ground level. This work was intended to provide reference points for the future internal subdivision road within Stage 5; (c) In November 1999 , he placed road pegs at ground level adjacent to proposed lots 96 to 98 and 106 and 107 in approved subdivision plan for Stage 5; (d) In December 1999 , he pegged out lots 60, 61 and 68 of the approved subdivision plan for Stage 5; (e) In May 2000 he carried out survey work on the location of the proposed circular internal road to Stage 5 in order to determine the levels and contours of the existing ground surface. The results of this work were provided to the Applicant to be used in the preparation of engineering plans for the final design of the subdivision road; (f) In May 2001 he placed permanent marks in several of the road angles comprising the approved subdivision plan for Stage 5 which were used and shown in Deposited Plan 1042140. In addition to their function in respect of that Deposited Plan, the permanent marks will also fix the final position of the internal road for the Stage 5 subdivision layout. The location of the roads shown on the Deposited Plan 1042140 is identical to the proposed location of the internal road for the approved Stage 5 subdivision. (g) On 10 February 2003 he placed indicator stakes adjacent to the pegs previously installed to indicate the boundaries of the subdivision road and the road and lot layouts for the purposes of enabling the geotechnical investigations that were carried out by Robert Carr and Associates in February and March 2003 . 26 According to the Statement of Mr Garry (Exhibit E), he is the Council's subdivision and engineering co-ordinator (having been so employed since July 2003), and has since January 2003 become familiar with the Council's files relating to Stages 4 and 5 of the Hanwood Estate. Having examined the survey work and pegging of the site, he is of the opinion that that work related to Deposited Plan 1042140 and "did not deal with the setting out of the proposed road works for Stage 5….". He was also of the opinion that the survey work was preliminary survey work that is necessary for roadworks to be designed, but did not itself constitute the "physical commencement of engineering works". 27 In his Statement in reply (Exhibit 8), Mr Oberman denies that most of the works described in his original statement were undertaken for the purposes of the subdivision created by Deposited Plan 1042140 and asserts that they were carried out for the purposes of the approved subdivision of Stage 5. He disputed Mr Garry's opinion that the works did not involve physical works. 28 According to the witness Statement of David England, Consulting Civil Engineer (Exhibit 3), the survey work undertaken by Mr Oberman is work that "is invariably carried out in the land development industry in relation to subdivisions, after the grant of development consent for the subdivision and prior to application for a construction certificate" and that without that type of work having first been undertaken, it would not be possible to prepare engineering drawings and make application for the issue of a construction certificate. 29 The geotechnical investigation work is described in the witness statement of Mark Allman (Exhibit 1). 30 He received instructions on 3 February 2003 to undertake a geotechnical investigations in respect of (i) the design of the road pavement for Stage 5; and (ii) on site soil classifications for the proposed residential lots in Stage 5. He attended the site on 7 February 2003 and conducted a preliminary assessment. 31 He noted the survey pegs marking the surveyed location of the proposed subdivision roads. He determined the location of various test pits. Subsequently he arranged for test pit excavations to be undertaken and soil samples to be collected. This work was undertaken on 14 and 17 February 2003 by a civil engineer in his employ with the assistance of a back-hoe operator hired for 9 ½ hours on the first day and 8 1/2 hours on the second day. 32 Having obtained these results and laboratory test results on some of the samples, Mr Allman prepared a report for his client of the results of the geotechnical investigation. 33 The report was sent to the Applicant on 20 March 2003 and contained Mr Allman's calculations and completed designs to enable the preparation of engineering plans and specifications for the proposed subdivision road pavements. 34 Mr Garry, in his witness statement expresses the opinion that the geotechnical investigative work undertaken by Mr Allman "does not amount to engineering work or construction work physically commenced on the land (but) is merely a preliminary step necessary in establishing soil conditions to enable adequate pavement design". He also noted that Mr Allman's report was not prepared until March 2003 (ie after the expiry of the five year lapsing period relevant to the development consent). 35 The landscaping work is described in the witness statement of Mark Burns, a bushland expert (Exhibit 2). 36 In July 1998, he was consulted by the Applicant in respect of tree establishment in the Hanwood Estate when he inspected the site with representatives of the Applicant. In his advice to the client following that inspection, he identified three areas in which tree establishment was required, two of which (identified areas 1 and 3) each included land within stage 5. 37 On 14 September 1999 he provided a written quotation for tree establishment on the Hanwood Estate. Under the heading "scope of work" there is recorded as item 6 "Stage 5—seeding along MR220". Shortly prior to 27 September 1999 he carried out tree establishment on the Hanwood Estate. The work was undertaken over a two week period, and included the following work undertaken on Stage 5 land: Establishment of screen planting 4-6 wide along the frontage to Main Road 220 by deep ripping the proposed planting area and by tree seeding using native tree and shrub species; and 38 (The work on Stage 5 was undertaken at the same time that tree establishment work was undertaken on Stage 4.) 39 In addition to tree establishment works carried out on Stages 4 and 5, lands, work was undertaken on a nearby area of land (located adjacent to the Stage 4 land) which is described in Condition 35 of the separate development consents issued for Stages 4 and 5 as requiring re-vegetation of an area degraded by former mining operations. Work undertaken on this designated area included reshaping the mounds of waste material and ripping the ground for seed planting with native tree and shrub species. 40 In the witness statement of Christopher Smith, Council's Senior Planning Assessment Officer (Exhibit F), it is stated that Condition 27 of each of the separate development consents for Stages 4 and 5 respectively required the submission of detailed landscaping plans prior to the commencement of work. A copy of the Applicant's letter dated 6 January 1999 is annexed which submitted a landscaping plan in respect of Stage 4. The landscape plan proposed by Conacher Travers in fact showed landscaping proposals for the lands respectively comprising Stages 4 and 5. The Council's approval of the landscape plan was not communicated until the Council's letter dated 14 February 2000 which was referenced "Stage 4 of the Hanwood Estate". 41 Mr Napier Smith's Statement annexes copies of documentary materials obtained from the Applicant's records which reveal that the Applicant's advice to Mr Burns immediately before he undertook his landscaping works stated that the landscaping works were confined to Stage 4 lands and that the invoices for the hire of the traxcavator are referenced as "Stage 4 of the Hanwood Estate". 42 In reply to Mr Napier-Smith's witness statement, there is the witness statement of Kerry Nichols, a Director of the Applicant who has been retained by the owners of the lands comprising Stages 4 and 5 of the Hanwood Estate (Exhibit 4). His statement includes a copy of the Council's letter to the Applicant dated 10 December 1999 which under reference to "Stage 4 of the Hanwood Estate" includes the statement that the landscaping plan submitted on 6 January 1999 "has been considered and is considered acceptable". 43 This letter appears to be an earlier version of the Council's later letter dated 14 February 2000 referred to in Mr Napier Smith's witness statement. 44 Mr Nichol's statement asserts that the landscaping works undertaken in September 1999 included works in both Stages 4 and 5. 45 Having stated the relevant contents of the various witness statements, I now proceed to record my factual findings on the question of the extent of works carried out on the Stage 5 land— (i) the survey works as described in Mr Oberman's statement were undertaken for the purposes of the approved Stage 5 subdivision (although some of those works were principally carried out for the purposes of the later approved subdivision of the relevant lands, including the lands comprising Stages 4 and 5 of the Hanwood Estate which was effected by the registration of Deposited Plan 1042140 for the purpose of the partition agreement between the owners of the lands. The nature and quality of those survey works are as described by Mr Oberman; (ii) the geotechnical investigation works as described by Mr Allman were carried out on Stage 5. Although the report of the geotechnical investigations was not prepared until 20 March 2003, visual site assessment and soil sampling occurred before 24 February 2003. (iii) the landscaping works described by Mr Burns' witness statement were carried out on Stage 5 lands in September 1999 contemporaneously with landscaping works carried out on Stage 4 lands and the adjacent area of degraded land. At the time those works were carried out, the Council had not approved the landscaping plan. That approval was first communicated to the Applicant by the Council's letter dated 10 December 1999. The Council approval of the landscaping plan was in respect of that plan in toto which included both Stages 4 and 5 lands. (ii) Did The Works Relate To The Subdivision Approved By The Development Consent? 46 Each of the survey works, geotechnical investigation works and landscaping works that I have found to have been undertaken on the land comprising Stage 5 of the Hanwood Estate related to the subdivision approved by the development consent, in the sense that they were undertaken for a purpose relating to the approved subdivision. 47 This finding, which is not intended to exhaust the full meaning of the relevant "relationship" between the works and the approved development which meaning has been developed by virtue of the judicial gloss placed on the relevant expression (eg see Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170), is subject to two qualifications. Firstly, some of the survey work that was undertaken principally related to the later approved subdivision effecting the partition agreement between the respective owners of the lands, including the lands in Stages 4 and 5, albeit some aspects of that work was also utilisable in relation to the subdivision of Stage 5 approved by the development consent. Secondly, the landscaping work undertaken on the area of degraded land adjacent to Stage 4 lands was required by the same condition that was imposed by the separate development consents granted for the subdivisions of Stages 4 and 5, and although on that account the work could be fairly said to relate to both approved subdivisions, it was carried out principally in the context of implementing the development consent for Stage 4 (which Stage was developed in advance of any development of Stage 5.) (iii) Were the works undertaken on Stage 5 lands relevantly "engineering or construction works"? 48 This question is one of mixed law and fact because it is first necessary to determine the meaning of the relevant words appearing in the EP&A Act, s 95(4), before determining whether the primary facts (as I have found them) concerning the works undertaken on the Stage 5 lands relevantly fall within that meaning. 49 As I pointed out in Sharp v Hunters Hill Council (2002) 120 LGERA 155, the compound expression "building, engineering or construction work" appearing in the EP&A Act, s 95(4) is not defined by the Act. (The Act does in the definition section (s 4(1)) provide definitions of "building work" and "subdivision work".) 50 In these circumstances the first question to be answered is whether either the compound expression or whether its component parts is to be understood as a technical expression or whether it bears the ordinary and natural meaning of the words employed. It has not been suggested in the competing arguments that the expression has a technical meaning and in my judgment, its proper meaning is to be found in the ordinary and natural meaning of the words "engineering" and "construction". Various dictionary definitions were referred to in the argument. Uninfluenced by judicial authority, I would instinctively be of the opinion that the natural and ordinary meaning of the expressions "engineering work" and "construction work" do not include the types of survey work or landscaping work that were undertaken on Stage 5 lands. 51 However, there are decisions of this Court which have either suggested or held that survey works fall within the statutory expression. Thus, in Young v Warringah Shire Council (2001) 117 LGERA 6, Cowdroy J at 66 found that survey work (comprising the pegging of the land for the purposes of an approved dual-occupancy subdivision) "was also an essential part of the building works since they could not be carried out in the absence of such survey". 52 However, this finding was recorded under the heading "the work was not merely preparatory" and his separate finding that "engineering work" was carried out was confined to certain plumbing work and makes no reference to the survey work that he had held to be an essential part of the building works. 53 In Richard v Shoalhaven City Council (2002) NSWLEC 11, Talbot J employs Young in reasoning to his conclusion that survey work was relevantly "engineering work" in that case when he states: 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. 54 In coming to judgment in Richard, it is to be noted that Talbot J did not have the benefit of any argument advanced to the contrary of the applicant's case (which his Honour accepted) since the council had filed a submitting appearance. 55 In the present case, the Council has submitted that neither the survey work nor the landscape work relevantly qualifies as "engineering or construction work" within the meaning of the EP&A Act, s 95(4). 56 Counsel for the Applicant submitted that the expression 'building, engineering or construction work" was in truth a generic expression meaning "any physical work". However, I do not think this captures the true meaning of the statutory expression, especially in the light of the definitions of "building work" and "subdivision work" contained in the Act which were introduced at the same time that s 95 was enacted replacing s 99 in the original Act. 57 In my judgment, the decisions in Young and in Richard provide an insecure foundation for the conclusion that survey work qualifies as "engineering work" in the context of the EP&A Act, s 95(4). 58 In that context (which includes express reference to development comprising the "subdivision of land") the omission of the expression "survey work" is, in my opinion, significant and I do not think that "survey work" is comprehended by the natural and ordinary meanings of the expressions "engineering work" or "construction work". 59 Accordingly, I would find, as a fact, that the relevant survey work does not relevantly qualify as "engineering work". 60 I would make a similar finding in respect of the "landscaping work" undertaken on Stage 5. It comprised merely ripping the soil and planting tree and shrub seeds. Whereas it is easy to conceive of certain types of landscaping works comprising construction works, this is by no means the nature and quality of the landscaping work undertaken in the present case. Accordingly, I find that the landscaping work does not relevantly qualify as "engineering or construction work" within the meaning of s 95(4). 61 The geotechnical investigation work undertaken does, in my opinion, clearly qualify as 'engineering work". However, the Council submits that it does not qualify because its true character is that of preparatory work only. This submission was countered by the Applicant's submission that the concept of preparatory work is foreign to the operation of s 95(4). This issue is in truth the principal issue to emerge in the case and it is appropriate that I express my ultimate conclusion on this matter only after considering the competing legal submissions in more depth. Accordingly, my finding that the geotechnical investigation work undertaken on Stage 5 land qualifies as "engineering work" must at this stage be regarded as a provisional finding pending my conclusion on the disputed question of law as to whether or not the concept of preparatory work is entirely foreign and irrelevant to the operation of the EP&A Act, s 95(4). (iv) Were The Works Carried out In Contravention of The Conditions of The Development Consent or s 81A(4)? 62 According to the witness statement of Mr Napier Smith by 24 February 2003 there had been no compliance with conditions 7, 11, 17, 27, 30, 36 and 47 of the development consent. 63 In his witness statement in reply to Mr Napier Smith, Mr Kerry Nichols states that habitat trees had been identified by Mr Oberman on Stage 5 lands but no plaques had been affixed to the trees. 64 In his earlier witness statement, Mr Nichols had stated that the landscape plan submitted to the Council had covered the lands comprising both Stages 4 and 5 and that the Council's approval of that landscape plan had been communicated to the Applicant by letter dated 10 December 1999. 65 However, in other respects, there was no significant rebuttal of the allegations contained in Mr Napier Smith's statement of non-compliances with the specified conditions of the development consent. 66 The relevance of those non-compliances lies in the stipulation by those conditions (all except condition 47 contain relevant stipulations) that no on-site works are to be commenced until the requirements of the conditions are satisfied and in the legal consequences of those non-compliances that have been held by decisions of the Court of Appeal to disqualify relevant works from having effect to avoid the statutory lapsing of a development consent. 67 The principles established by the Court of Appeal decisions in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc and Green v Kogarah Municipal Council in relation to works undertaken in contravention of conditions of the relevant development consent have been extended by the later Court of Appeal decision in Detala Pty Ltd v Byron Shire Council to include works undertaken in contravention of the EP&A Act, s 81A(4) which provides as follows: (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 the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and (b) the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and (b1) the principal certifying authority has, no later than 2 days before the subdivision work commences: (i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and (ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and (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. 68 In my opinion, there is little need in the present case, in view of my other factual and legal conclusions, to examine the application of these principles, the only exception being in respect of the landscape works. 69 Although the parties have assumed the relevance of s 81A(4), they have done so by overlooking the fact that the development consent was granted concurrently with subdivision approval under the Local Government Act 1919, Part XII and that approval was preserved by the 1998 Savings and Transitional Regulation made under the EP&A Act. 70 However, it is possible that that approval may have lapsed (see s 335 of the Local Government Act 1919) by the time that the Applicant lodged its application for a construction certificate in the present case. If this is the case, and having regard to my findings of fact and law in this case, it is not necessary to conclude that the relevant works were undertaken in contravention of the EP&A Act, s 81A(4). 71 However, in passing, I would accept the sensible and practical submissions advanced on behalf of the Applicant that s 81A(4) should be interpreted in a manner that did not impede or stultify the process of preparing detailed engineering plans required for the issue of a construction certificate. D. HAS THE DEVELOPMENT CONSENT LAPSED? 72 This question is to be answered solely by reference to the EP&A Act, s 95 which relevantly provides— 95 Lapsing of consent (1) A development consent lapses: (a) 5 years after the date from which it operates, except as provided by paragraph (b), or …………………. …………………. …………………. (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. 73 It is common ground that the development consent operated from 24 February 1998 and that the five year lapsing period prescribed by s 95(1) concluded on 24 February 2003 unless s 95(4) applies to avoid the statutory lapsing. 74 As already noted, the principal issue in dispute in the competing submissions concerns the question whether the works were merely preparatory works and on that account do not relevantly qualify as "engineering or construction work" for the purposes of the EP&A Act, s 95(4). 75 The question has yielded different answers in the decisions of this Court and although the question has been raised in two decisions that were appealed to the Court of Appeal, that Court's decisions in those appeals did not deal with the question, at least in any final or conclusive manner. 76 The Applicant's contention that the concept of "preparatory work" is foreign to s 95(4) is supported dicta of Talbot J in Noble House Corporation Pty Ltd v Sydney City Council (1999) NSWLEC 190 and Richard v Shoalhaven City Council (2002) NSWLEC 11 and some dicta of Giles JA in Green v Kogarah Municipal Council (2001) 115 LGERA 231. 77 In Noble House, Talbot J had to adjudicate upon the council's argument that the building work undertaken was a sham. His Honour said: 17. The council has made the issue of whether the work carried out is a sham the cornerstone of its argument. 18. The terms of s 99 itself need to be considered. 19. Pursuant to subs (4), development consent for the erection of a building does not lapse if building, engineering or construction work relating to the building is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section. 78 Notwithstanding his Honour's ultimate conclusion that the construction of a steel column was relevantly construction work relating to the approved building that was physically commenced, his Honour's judgment also contains the following enigmatic statement: The excavation of the footings in the circumstances are properly to be regarded as preparatory work prior to construction. I am not prepared to rely upon the coring carried out prior to the relevant date and in respect of which concrete was poured after the relevant date as being relevantly a physical commencement of the building 79 In the result, I do not think the decision in Noble House demonstrates a total rejection of the concept of "preparatory works" in the operation of s 95(4). 80 However in Richard, Talbot J's judgment on the issue is more decisive when he states: 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 is 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. 81 In Green, Giles JA's analysis of the trial judge's judgment includes the following passage at p 243/244: For the second ground, his Honour considered that the work on which the appellant relied was purely preparatory, and did not constitute "building, engineering or construction work" irrespective of its relationship to the proposed second dwelling. His Honour referred to a number of authorities on the concept of substantial commencement found in a more distant predecessor to s 95(4) of the Act (1999), s 315 of the Local Government Act 1919 (NSW). He noted that Cripps J applied such principle to the provisions of s 99 of the unamended Act in Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170. 82 In the result, the Court of Appeal did not find it necessary to deal with this point, but Giles JA makes the following passing observation at 251 upon which the present Applicant places much reliance in support for its argument: I should add, however, that I have some doubt about his Honour's apparent acceptance of substantial commencement as a principle applied by Cripps J to s 99 of the unamended Act in Smith v Wyong Shire Council (No 3). Cripps J did refer to substantial commencement and cited from a number of decisions on s 315 of the Local Government Act 1919 (NSW). He did so, however, in the context of a submission that what had been done was not relevantly referable to that for which consent was granted. His Honour said (at 174-5) that, whatever might have been the position under that Act "the matter is now regulated by s 99". It is necessary to adhere to the language of (now) s 95(4) of the Act (1999), which speaks not of substantial commencement but of physical commencement. 83 Earlier, in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 the Court of Appeal found it unnecessary to determine whether work that the trial judge had held to be "engineering work" was unavailing to avoid statutory lapsing of the development consent on account of the contention that the work was "only preparatory work". 84 In my judgment, it is clear that the question under present discussion is not the subject of any authoritative ruling and it is necessary that I examine the question as a matter of principle for myself, recognising of course that ultimately the answer lies in the proper construction of the statutory language. 85 I commence my consideration with the decision of Cripps J in Smith v Wyong, this being the first reported decision of this Court on the meaning and operation of the EP&A Act, s 99(1) and (2) (which was the legislative antecedent to s 95(1) and (4) and for present purposes employed materially the same language). In that case, the council in contending that the development consent had lapsed pursuant to s 99(2), advanced a number of arguments, including the following bracket of arguments (which Cripps J at 176 considered were "three ways of saying the same thing, viz that what was done was not relevantly referable to that for which consent was granted"), namely: (i) the work done was " preparatory to building work " and preparatory work did not qualify to avoid statutory lapsing; (ii) although the work was " engineering work " it was not shown to have been referable to and only referable (or at least clearly and unambiguously referable to) the approved development because it was relevantly referable to the design of the basement for the proposed building; and (iii) the commencement was a sham inasmuch as it was not relevantly referable to the approved development at all but was carried out for the purpose of design. 86 At pp 176 and 177, Cripps J considered a number of the decided cases on the question whether development was 'substantially commenced "within a stipulated period to avoid lapsing, including the then recent decision of the High Court of Australia in Day v Pinglen Pty Ltd (1981) 148 CLR 289 concerning which decision Cripps J said at 178: In Day v. Pinglen Pty Ltd (1981) 55 A.L.J.R. 416; 45 L.G.R.A. 168 that court said However, it remains necessary to consider, applying an objective test, whether, firstly, there was a commencement of the building work, and if so whether that commencement was substantial. There are some persuasive indicators pointing to a conclusion that there was no commencement of the building work in March 1977. There was, of course, the construction of a concrete slab. But the detailed drawings for the approved project had not been prepared. Tenders had not been called, and no contract had been let. The casual arrangement by which a builder, already engaged in another project for the owner, transferred some of his men on the site for three or four days that were necessary to complete the particular work to which he was assigned strongly suggests that this was an isolated work which had no real relation to the building work for which the approval had been given. The job was an end in itself. It was the construction of a concrete slab. Although the court was not prepared to disturb the trial judge's finding that the work had commenced, it concluded that there had been no "substantial" commencement. In my opinion, however, the observations of the High Court are apposite to the facts of the instant case. The owner used some of his men for a few days to do some isolated work that had no real relation to the erection of the residential fiat building in the sense referred to by the High Court. The job was an end in itself in that it was for the purpose of inspecting the site to determine the design of the basement. Although, as I have said, in appropriate circumstances excavation could amount to physical work preparatory to the commencement of the erection of a building, in this case the work was not done for that purpose. What the section requires is that the development the subject of the consent is commenced within a period of two years. That commencement occurs when the building, engineering or construction work relating to the development the subject of the consent is physically commenced. In my opinion, there has not been established a sufficient nexus or relation between what was done by Mr Smith's employees in June 1983 and the development the subject of the consent, namely the erection of a six-storey residential fiat building. Accordingly, I refuse to make the declarations sought. Application dismissed. Applicant to pay respondent's costs of the proceedings. 87 It is apparent that in Smith, Cripps J was able to extract some principles from that part of the High Court's judgment in Day which concerned the question whether the development had been commenced (it was only if that question was answered affirmatively that the second part of the question concerning "substantial commencement" arose). 88 Similarly, it is apparent from the leading judgment of Gibbs J in the earlier High Court decision in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 that the concept of preparatory work was a meaningful response to the question whether development had commenced, when Gibbs J said at 360: The final question for decision is whether the work the subject of the approval and consent was substantially commenced within twelve months after 2nd November 1971. Clearly the work and development which s. 315 of the Act and cl. 38 (2) of the Ordinance require should have been substantially commenced is that to which the approval or consent itself refers, and it would seem to follow that work or development is not commenced when nothing more has been done than acts preparatory to the work or development which is the subject of the approval or consent. It may therefore be assumed, although it is not necessary to decide, that the demolition of the existing houses should not be regarded as a commencement of the work in the present case. 89 The decision of Connolly J in the Supreme Court of Queensland in Ex parte Dackfield Pty Ltd (1982) 49 LGRA 363 provides an apt illustration of how the decided cases on the statutory concept of "substantial commencement of development" can be usefully employed in the statutory context similar to the EP&A Act, s 95 where statutory lapsing of the approval of any building work was provided for "if the building work is not commenced" within a stipulated period. 90 At p 366, Connolly J extracted four principles from the decided cases on the statutory concept of "substantial commencement" of development, it being only necessary to notice the fourth principle which was stated in the following terms: Fourth, where a provision calls for substantial commencement of the work within a specified time, the work concerned is that to which the approval itself refers and work is not commenced when nothing more has been done than acts preparatory to the work which is the subject of the approval. 91 At p 366, Connolly posed the question whether that principle could be applied to the legislation that he was considering (which postulated "commencement of building work" within a stipulated period) noting that the question posed created difficulty. Ultimately, at 367, his Honour held that the principle did not apply to the circumstances of his case, stating: It is true that what was done was work preparatory to the erection of the building but having regard to the definition of building work such preparatory work as was done in this case was building work and it was approved and it was commenced. 92 In my judgment, given its obvious function and purpose in context with s 95, the statutory expression "building, engineering or construction work relating to…..the building, subdivision or work is physically commenced on the land….." does not comprehend such works that are merely preparatory works to the physical commencement of the approved development. 93 Accordingly, where the only relevant works are preparatory works they do not qualify to avoid the statutory lapsing of the development consent. 94 In my judgment, all of the survey and geotechnical works relied upon by the Applicant are properly characterised as preparatory works. Both the survey and geotechnical works were undertaken for the purpose of enabling design engineering and survey plans to be prepared for the approved subdivision and to be submitted to the Council. 95 It follows that for this reason, those works do not qualify as relevant "engineering or construction works" relating to the approved subdivision. 96 It follows that neither the undertaking of the geotechnical works (which I have found to be engineering works) nor the survey works (which I have found not to be engineering or construction works but in the present context can be assumed to be so) qualified as relevant works that avoided statutory lapsing of the development consent. 97 I have previously held that the landscaping work relied upon by the Applicant does not qualify as "engineering or construction work". However, even if it did so qualify, it was carried out at a time before the Council had approved the landscape plans in a manner that involved a clear contravention of Condition 27 of the development consent. 98 This latter feature clearly invokes the principles established by the Iron Gates and Green decisions to the effect that such work was unlawfully carried out and on that account, does not qualify as work that avoids statutory lapsing. 99 The Applicant's attempt to avoid that legal consequence by its reliance upon the more recent decision of the Court of Appeal in Detala Pty Ltd v Byron Shire Council (2002) NSWCA 404 is, in my judgment, unavailing. 100 In his leading judgment in Detala, Davies AJA accepted the earlier decisions of the Court of Appeal on the statutory lapsing provisions of the EPA (ie s 99 of the original Act and s 95 of the Act as amended) but distinguished those cases insofar as there had been a breach of a condition of development consent (condition 23) on the basis of the facts of that case stating the following reasons at pars 36 and 37: 36 I would distinguish those cases in so far as there was a breach of condition 23. That is because the appellant did all that on its part ought to have been done to obtain compliance with condition 23. The reason why approval was not granted was that the Council itself determined to obstruct the development. In that circumstance, it would be wrong to hold that the work done by the appellant was not work "relating to the building, subdivision or work" for the purposes of s95(4) of the EPA Act. The failure to comply with condition 23 was the failure of the Council through Mr Pratt to give the approval to which the appellant was entitled. 37 The work that was done accorded with the specific terms of the development consent save that the Council failed to issue an approval under condition 23, the duty to issue which was imposed upon it by the development consent. In my opinion, the Council cannot rely upon that failure to ground an argument that the work done did not comply with s 95(4). This is not to put the case on the basis of estoppel or waiver. Nor is it to dispute the cases to which counsel referred. It is merely to put the point that the work that was done was done in accordance with the consent save for the technicality that Mr Pratt failed to give an approval which the consent required him to give. 101 There is nothing in the facts of the present case that aligns it to the facts in Detala in any manner that would justify distinguishing the Iron Gates and Green decisions from the present case. 102 Moreover, although in Detala Davies AJA at par 15 interpreted the relevant condition in a manner that held it to be not of "sufficient force to require it to be a condition precedent to any works whatever commencing", he nonetheless interpreted it as applying to a more limited scope of works than the works that would have been comprehended by the words "any works" if those words had not been read down. 103 Again, there is nothing in Condition 27 of the development consent that would justify a reading down of the condition so as to exempt from its operation the landscape works undertaken on behalf of the Applicant before it had obtained the Council's approval to the submitted landscape plan. E. CONCLUSIONS AND ORDERS 104 The Applicant's case has not established that the statutory lapsing of the development consent was avoided by virtue of the fact that relevant qualifying "building, engineering, or construction work" relating to the approved subdivision was physically carried out on the land comprising Stage 5 before 24 February 2003. 105 Having so failed, it is common ground that the present appeal must be dismissed. 106 Accordingly, I make the following orders— 1. Appeal be dismissed. 2. Exhibits be returned. 3. The question of costs be reserved with the liberty to apply. 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.