Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169; (2005) 63 NSWLR 124; (2005) 140 LGERA 201 (23 May 2005)

CITATION: Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169

FILE NUMBER(S):

40779/04

40812/04

HEARING DATE(S): 14 April 2005

JUDGMENT DATE: 23/05/2005

PARTIES:

Hunter Development Brokerage Pty Limited

Cessnock City Council

Tovedale Pty Limited

Shoalhaven City Council

JUDGMENT OF: Santow JA Tobias JA Stein AJA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 11564/03, LEC 40525/04

LOWER COURT JUDICIAL OFFICER: Bignold J,

COUNSEL:

A: T S Hale SC / Jeff Kildea (Hunter Dev)

R: J Ayling QC / Jane Jagot (Cessnock Ccl)

A: T F Robertson SC / J Gibson (Tovedale P/L)

R: J Webster SC / Jane Jagot (Shoalhaven Ccl)

SOLICITORS:

A: Thompson Norrie, Maitland (Hunter Dev.)

R: Cleaves Mallik Gibbs (Cessnock Ccl)

A: Kearns & Garside, Kiama (Tovedale P/L)

R: Morton & Harris, Nowra (Shoalhaven Ccl)

CATCHWORDS:

LAND AND ENVIRONMENT- Devlopment consents for subdivision of land - Whether consents had lapsed - Under Environmental Planning and Assessment Act, consent lapsed unless "building, engineering or construction work relating to" development was "physically commenced" upon land to which consent applied - Whether expression "building, engineering or construction work" was capable of including survey work and/or geotechnical investigation work - Whether survey work and/or geotechnical investigation work carried out by respective appellants was, in fact, engineering work and whether it was "physically commenced" - Relevance of whether work was "merely preparatory" - Whether work in each case "related to" approved development - STATUTORY CONSTRUCTION - "Relating to" - Ambit in context of reference, in lapsing provisions of Act, to work "relating to" the development

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

Local Government Act 1919

Surveying Act 2002

Land and Environment Court Act 1979

DECISION:

Hunter Development Brokerage Pty Limited v Cessnock City Council CA 40779/04:

(1) Appeal allowed

(2) Order 1 made by Bignold J on 17 August 2004 be set aside

(3) Order that the proceedings be remitted to the Land and Environment Court for determination by that Court in accordance with the decision of this Court

(4) Order that the respondent pay the appellant's costs of the appeal, but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified

Tovedale Pty Limited v Shoalhaven City Council CA 40812/04:

(1) Appeal allowed

(2) Order 1 made by Bignold J on 28 August 2004 be set aside

(3) Declare that the development consent granted by the respondent on 28 September 1989 (Council reference SF6559) for the subdivision of Lot 6 DP714802 and Lot 8 DP740045 at Old Southern Road, South Nowra has not lapsed

(4) Order that the respondent pay the appellant's costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40779/04

L&E 11564/03

CA 40812/04

L&E 40525/04

SANTOW JA

TOBIAS JA

STEIN A-JA

Monday 23 May 2005

HUNTER DEVELOPMENT BROKERAGE PTY LTD v CESSNOCK CITY COUNCIL

TOVEDALE PTY LIMITED v SHOALHAVEN CITY COUNCIL

Both appeals (heard together because of the common issues of law which they raised) involved the granting by, in the one case, Cessnock City Council to Hunter Development Brokerage Pty Limited (Hunter) and, in the other, Shoalhaven City Council to Tovedale Pty Limited (Tovedale) of development consent to the subdivision of land into residential lots. With respect to each consent, the relevant council contended that it had lapsed. Hunter and Tovedale challenged those contentions.

The statutory provisions relevant to the issue of whether the respective consents had lapsed (namely, s 95(4) of the Environmental Planning and Assessment Act 1979 as at 24 February 2003 in the case of the Hunter consent and s 99(1)(a) of that Act as at 28 September 1991 in the case of the Tovedale consent) both relevantly provided to the effect that a development consent for the subdivision of land would lapse after a specified period of time unless "building, engineering or construction work relating to" the development was "physically commenced" upon the land to which the consent applied.

Each subdivision involved the carrying out of physical work such as the provision of roads, water and sewerage reticulation and drainage. In each case survey work had been carried out prior to the relevant lapsing date. With respect to the Hunter consent, further work had been carried out in the nature of geotechnical investigations and landscape work.

In each case, the primary judge upheld the contention of the council that the consent had lapsed. It was from those decisions that Hunter and Tovedale appealed to the Court of Appeal.

HELD by Tobias JA (Santow JA and Stein A-JA agreeing):

(1) The natural and ordinary meaning of the expression "engineering work" is capable of including physical survey work of the nature and extent of that the subject of the appeals ([80], [83]-[85]).

Richard v Shoalhaven City Council [2002] NSWLEC 11 applied.

(2) The relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved ([86]).

(3) The physical survey work carried out by Tovedale and Hunter respectively, and the geotechnical investigation work carried out by Hunter, was neither notional nor equivocal; was, in fact, engineering work; and was physically commenced ([87], [91]).

(4) Whether one describes the relevant work as "merely preparatory" is irrelevant ([97]-[98], [106], [111]). Once it is determined that the work relied upon falls within the expression "building, engineering or construction work" and has been "physically commenced" upon the land to which the consent applies, the only remaining issue is whether that work was work "relating to" the development the subject of the consent ([100], [106], [111]).

Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231 applied.

Besmaw Pty Limited v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413 applied.

(5) The expression "relating to" involves at the very least some real relationship or connection between the relevant work and the development in respect of which consent has been granted. The required relationship is satisfied if the work is a necessary step in, or part of, the process required for the development ([104], [106], [112]). If the work serves more than one purpose, it is sufficient that one of those purposes bears a real relationship to the development ([115], [117]).

(6) In each of the present cases, the work relied upon "related to" the approved subdivision ([102]-[103], [110]).

(7) The survey work in each case and the geotechnical investigation work in Hunter was:

(a) engineering work

(b) related to the approved subdivision, and

(c) physically commenced upon the land to which the consent applied before the relevant lapsing date. As a result, neither consent lapsed ([129]).

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40779/04

L&E 11564/03

CA 40812/04

L&E 40525/04

SANTOW JA

TOBIAS JA

STEIN A-JA

Monday 23 May 2005

HUNTER DEVELOPMENT BROKERAGE PTY LTD v CESSNOCK CITY COUNCIL

TOVEDALE PTY LIMITED v SHOALHAVEN CITY COUNCIL

Judgment

1 SANTOW JA: I agree with Tobias JA

2 TOBIAS JA: These appeals, although separately instituted, were heard together because of the common issues of law which they raised. Both involved the granting by, in the one case, Cessnock City Council (Cessnock) to Hunter Development Brokerage Pty Limited (Hunter) and in the other, Shoalhaven City Council (Shoalhaven) to Tovedale Pty Limited (Tovedale) of development consent to the subdivision of land into 67 rural/residential lots in the case of Cessnock (the Hunter consent) and into 54 residential lots in the case of Shoalhaven (the Tovedale consent).

3 The Hunter consent was granted on 24 February 1998 whereas the Tovedale consent was granted on 28 September 1989. With respect to each consent, the relevant council contended that it had lapsed. Hunter and Tovedale challenged those contentions. In each case the primary judge, Bignold J, in decisions dated 17 August 2004 with respect to the Hunter consent (the Hunter judgment) and 28 August 2004 with respect to the Tovedale consent (the Tovedale judgment), upheld the contention of the relevant council that the consent had lapsed. It is from those decisions that Hunter and Tovedale appeal to this Court.

4 The Hunter appeal concerned the interpretation of s 95(4) of the Environmental Planning and Assessment Act 1979 (the EPA Act), whereas the Tovedale appeal concerned the interpretation of s 99(1)(a) of that Act. The former provision governed the lapsing of the Hunter consent as it was the relevant provision of the EPA Act in force as at 24 February 2003 which was the date at which the question of the lapsing of that consent arose. Section 99(1)(a) was the relevant provision of the EPA Act governing the lapsing of the Tovedale consent as at 28 September 1991 which was the date at which the lapsing of that consent was required to be considered. Each of those dates I shall refer to as "the lapsing date". However, to all intents and purposes, the provisions were the same and the contrary was not suggested. However, it is appropriate that I should set out each of those provisions.

5 Section 95 of the EPA Act was, relevantly, in the following terms:

Section 95 Lapsing of consent

(1) A development consent lapses:

(a) 5 years after the date from which it operates, except as provided by (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.

6 Section 99 of the EPA Act was, relevantly, in these terms:

Section 99 Lapsing of consent

99(1) A consent granted under this Division to a development application shall lapse –

(a) unless the development the subject of that consent is commenced –

(i) ... within 2 years ... of the date upon which that consent becomes effective ...

...

(2) For the purposes of subsection (1)(a) –

(a) where development comprises the erection of a building or the carrying out of a work or the subdivision (involving physical work on land (including, where applicable, the subsequent use of that building when erected, that work when carried out, or that land when subdivided) – that development is commenced when building, engineering or construction work relating to that development is physically commenced on the land to which the consent applies; or

(b) ... .

7 Each consent was for the subdivision of land and each subdivision involved the carrying out of physical work such as the provision of roads, water and sewerage reticulation and drainage. In each case survey work was carried out prior to the lapsing date which involved some clearing of vegetation, the digging of holes, the placement of permanent marks on or under the surface and the placement of pegs or stakes to act as recovery marks. With respect to the Hunter consent, further work was carried out in the nature of geotechnical investigations and landscape work. With respect to the Tovedale consent, the survey work also included the survey of a site for a proposed sewerage pumping station allegedly required as a condition of that consent and which resulted in the re-subdivision of the land the subject of the consent into two lots – one of which was for the proposed pumping station and the other as a residue lot to be subdivided into the approved 54 residential lots. The foregoing is a general summary of the works in question – I shall refer to the details later in these reasons.

8 The issue which arose in each case was whether any or all of the work referred to was "engineering ... work relating to" the subdivision the subject of each consent which had been "physically commenced on the land to which the consent applied". The primary judge answered that question in the negative in each case with the result that each consent had lapsed.

The findings of fact relevant to the Hunter consent (references to the primary judge’s decision relate to the Hunter judgment)

9 The Hunter consent was granted on 24 February 1998. It related to Stage 5 of what was known as the Henwood Estate. The consent was, so the primary judge found, both a development consent under the EPA Act and a subdivision consent under s 331 of Part XII of the Local Government Act 1919 (the LG Act). The consent was subject to 58 conditions of which only Condition 27 need be noticed. It was in the following terms:

"Prior to commencing any works, a detailed landscaped 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 landscape screen within the 25 metre noise buffer strip located on those lots fronting Main Road 220."

10 The relevant documentary evidence before the primary judge comprised a large number of written witness statements prepared by various persons concerning the works claimed to have been carried out on the land the subject of the consent which, so it was contended, avoided the statutory lapsing thereof. Those statements were tendered as witness statements and, except in relation to one, none of the authors were cross-examined. The works relied upon by Hunter comprised survey works, geotechnical investigation and landscape works.

11 His Honour found (at [45(i)]) that the relevant survey works were

"undertaken for the purposes of the approved Stage 5 subdivision."

He accepted that the nature and quality of those works were as described in a witness statement of Mr Oberman, a registered surveyor, who had been retained by Hunter to undertake survey work upon the relevant land.

12 Relevantly, those works were described by Mr Oberman as follows:

"(a) 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 the approved Stage 5;

(b) In November 1999 he placed road pegs at ground level adjacent to proposed lots 96-98 and 106 and 107 in the approved subdivision plan for Stage 5;

(c) In December 1999 he pegged out lots 60, 61 and 68 of the approved subdivision plan for Stage 5;

(d) 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 of contours of the existing ground surface. The results of this work were provided to Hunter to be used in the preparation of engineering plans for the final design of that road;

(e) In May 2001 he placed permanent marks in several of the road angles comprising the approved subdivision plan for Stage 5 ... [These] permanent marks will also fix the final position of the internal road to the Stage 5 subdivision layout."

13 According to the witness statement of Mr David England, consulting civil engineer, the survey work undertaken by Mr Oberman was work that was

"... 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.

14 With respect to the geotechnical investigation work, his Honour found (at [45(ii)]) that those works were as described by Mr Mark Allman and were carried out on Stage 5. The work comprised the excavation of test pits and the collection of soil samples from them. The work was undertaken by a civil engineer over two days in November 2003. The soil samples were subjected to laboratory tests and the results were used for the purpose of enabling the preparation of engineering plans and specifications for the proposed subdivision road payments (see [33]). His Honour held (at [61]) that that work clearly qualified as "engineering work" within the meaning of s 95(4).

15 As to the landscaping works, the primary judge found (at [45(iii)]) that that work was as described in a witness statement of Mr Mark Burns, a bushland expert, and was carried out on the Stage 5 land in September 1999. It is unnecessary for present purposes to describe the nature and extent of that work as his Honour found that at the time the work was carried out, Cessnock had not approved the landscaping plan pursuant to which they were performed. He therefore held (at [97]) that that work had been carried out in contravention of Condition 27 of the consent as a result of which it did not qualify as work that could avoid statutory lapsing: Iron Gates Developments Pty Limited v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231. Furthermore, his Honour considered (at [60]) that such work did not relevantly qualify as "engineering or construction work".

The primary judge's reasoning with respect to the lapsing of the Hunter consent

16 The primary judge posed for himself these questions:

(a) Did the work relate to the subdivision approved by the development consent?

(b) Was the work undertaken on the Stage 5 land relevantly "engineering or construction work"?

(c) Had the development consent lapsed?

17 With respect to the first question, the primary judge found (at [46]) that each of the survey work, geotechnical investigation work and landscape work which he had found to have been undertaken upon the land

"related to the subdivision approved by the development consent, in the sense that they were undertaken for a purpose relating to the approved subdivision."

18 Although (at [47]) his Honour asserted that this finding was not intended to exhaust the full meaning of the relevant "relationship" between the work and the approved development which had developed as a consequence of the judicial gloss placed upon the relevant expression by cases such as Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170, it seems to me that his Honour has answered the first question he posed for himself in the affirmative.

19 As to the second question which his Honour regarded as one of mixed law and fact, he held (at [58]) that notwithstanding the decisions of Cowdroy J in Young v Warringah Shire Council [2001] NSWLEC 208; (2001) 117 LGERA 62 at 66 and Talbot J in Richard v Shoalhaven City Council [2002] NSWLEC 11, in the context of the expression "building, engineering or construction work" in s 95(4) of the EPA Act

"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'. "

He therefore found (at [59]) "as a fact" that the subject survey work did not relevantly qualify as "engineering work". This finding of fact was based on his Honour's construction of the statutory phrase "engineering or construction work relating to" the approved subdivision.

20 His Honour made the same finding with respect to the landscape work. However, as I have observed, he considered (at [61]) that the geotechnical investigation work did qualify as "engineering work".

21 The third question raised what the primary judge regarded as the major issue in the case, namely, whether the geotechnical investigation work did not qualify as "engineering work" as it was, in truth, only "preparatory work". He considered that the resolution of that issue would be determinative of that question.

22 Cessnock had submitted that even assuming the survey work qualified as "engineering work", nevertheless both that work and the geotechnical investigation work were merely preparatory and on that account did not relevantly qualify as "engineering work relating to the subdivision" for the purposes of s 95(4). Hunter on the other hand submitted that the concept of "preparatory work", although relevant under the lapsing provisions of the LG Act and in particular s 315 thereof, was foreign to s 95(4). That contention was said to be supported by dicta of Talbot J in Noble House Corporation Pty Limited v Sydney City Council [1999] NSWLEC 190 and Richard as well as some dicta of Giles JA in Green.

23 It is unnecessary to consider the dicta of Talbot J in Noble House as I do not consider that it advances, or was intended by his Honour to advance, the resolution of the present issue. However in Richard, Talbot J stated the position more decisively when he said:

"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 (sic) 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."

24 The primary judge did not consider that this statement of Talbot J constituted an "authoritative ruling" on the issue. In one sense that is true as the applicant in Richard was seeking a declaration that the relevant consent had not lapsed but there was no contradictor as the council, although joined as a respondent, had filed a submitting appearance. However, I shall return to Talbot J's decision later in these reasons for the purpose of resolving the issue as to whether survey work is capable of constituting "engineering work" within the meaning of s 95(4).

25 In [81] and [82] of his judgment, the primary judge referred to the following passage in the judgment of Giles JA (with whom Mason P and Ipp A-JA agreed) in Green (at 243-4 [45]):

"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."

26 According to the primary judge (at [82]), Giles JA in Green did not find it necessary to deal with the issue encapsulated in [45] of his judgment but contented himself with the following observations (at 251):

"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."

27 I shall also return to the judgment of Giles JA in Green later in these reasons as I consider the observations of his Honour in [68]-[72] thereof to be of assistance in resolving the issues in the present case as to whether survey work is "engineering work" or whether it is only "preparatory".

28 Having expressed the view that there was no authoritative ruling on the issue, the primary judge considered (at [84]) that it was necessary for him to examine the question as a matter of principle for himself,

"recognising of course that ultimately the answer lies in the proper construction of the statutory language."

29 His Honour commenced his consideration of this issue by reference to the decision of Cripps J in Smith (No 3). As this decision was pivotal to his Honour's ultimate conclusion, I shall consider it in some detail.

30 In Smith the applicant obtained development consent to erect a six-storey residential flat building. Shortly prior to the expiration of the two year period within which the development was required by s 99(2) of the EPA Act (as it then stood) to be commenced, two employees of the developer went onto the subject land and carried out minor demolition work and excavated approximately 450m² of earth to a depth of between 600-900mm to determine what materials were likely to be encountered in the intended basement area of the proposed building. Cripps J held that that work had no real relation to the erection of the approved building but was for the purpose of inspecting the site to determine the design of the basement. In so holding, his Honour applied the decision of the High Court in Day v Pinglen Pty Limited [1981] HCA 23; (1981) 148 CLR 289.

31 The relevant factual finding of Cripps J was as follows (at 173-4):

"Mr Smith and Mr Toft, a civil and structural engineer advising Mr Smith, had given evidence concerning the circumstances of the excavation. Mr Toft advised Mr Smith that it would be necessary to investigate the site to determinate what materials were likely to be encountered in the area to be occupied by the basement of the building. He advised Mr Smith either to have the site test drilled on a regular grid pattern or to excavate certain critical areas of the site to expose fully the various strata levels. Mr Smith chose the second alternative and it was for that reason that the excavation was carried out."

32 Cripps J recorded the submissions of the respondent council at 175. Upon the assumption that excavation work was relevantly building work, it was submitted that what was done in the present case was work preparatory to building work and that the provisions of EPA Act had not affected the distinction referred to in the reported cases between what was preparatory work (and, therefore, not relevantly part of the "development" or "building work" as the case may be) and what was not. It was therefore submitted that what was done was work preparatory to the erection of the approved building because the purpose of the excavation and subsequent inspection was to permit a proper design of the basement of that building to be achieved. The council further submitted that although the excavation work was "engineering work", it had not been shown to be only (or at least clearly and unambiguously) referable to the erection of the proposed building for the reason that what was done was only relevantly referable to the design of its basement.

33 According to Cripps J (at 176) these submissions constituted three ways of saying the same thing, namely, that what was done was not relevantly referable to that for which the consent was granted.

34 Cripps J then referred (at 176) to the fact that prior to the commencement of the EPA Act, most planning schemes contained a provision that development consent would be void if the development to which it referred was not substantially commenced within a certain time. Such a provision was reflected in s 315 of the LG Act which was in the following terms:

"Any approval given under this Part, or under any ordinances made thereunder, shall be void if the building work to which it refers is not substantially commenced within 12 months after the date of the approval."

35 His Honour then noted that the cases to which he referred thereafter were concerned with the meaning of "substantial commencement". The first of these was North Sydney Municipal Council v Middle Harbour Investments Pty Limited (1963) 10 LGRA 41 at 45 where Hardie J said:

"The use of the adverb 'substantially' in the context, in my view, emphasises two points, or perhaps two different approaches to the one point. One is that the commencement must be some positive unequivocal step indicating that the building for which consent or approval has been obtained has actually been commenced; in other words that some work has been done on the site which is referable to and only referable to the particular building or structure that has been approved; in that sense, it emphasises that the commencement must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement."

It is to be observed that Hardie J considered that the requirement that the commencement be a real or actual one as distinct from preparatory work was mandated by the use of the adverb "substantially".

36 Cripps J then cited the following passage from the judgment of Gibbs J (with whom the rest of the High Court agreed) in Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350 at 360:

"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 commencement of the work in the present case."

37 The above passage from the judgment of Gibbs J in Lebnan was also cited by the primary judge in [88] of his judgment. It is to be observed, however, that like Hardie J in Middle Harbour Investments, Gibbs J was construing the expression "substantially commenced". Further, the demolition of the existing houses upon the relevant land in Lebnan was indeed preparatory in the sense that although that demolition was necessary before the developer could proceed to erect the approved residential flat building, that demolition did not itself require consent so that, in truth, it could be said that the development consent was not itself referable to that demolition and vice versa. Furthermore, Gibbs J held that the other work relied upon as constituting "substantial commencement", namely, the excavation for the footings of the approved building, was not only a commencement but also a substantial commencement of that building. There was therefore no issue but that that excavation was referable to the development which was the subject of the consent.

38 Cripps J next made reference to the decision of Hutley JA (sitting as a single judge in the Equity Division of the Supreme Court) in Liverpool City Council v Home Units Australia Pty Limited [1973] 2 NSWLR 61. Again, that was a case where the development consent was for the erection of a residential flat building. It was also a case of excavation work being carried out upon the site of the proposed development, which was held by his Honour to constitute substantial commencement.

39 After referring to the passage from the judgment of Hardie J in Middle Harbour Investments cited in [35] above, Hutley JA observed (at 69):

"It was suggested that that passage [that is, the passage from the judgment of Hardie J] means that in determining whether work has been substantially commenced, work off site was to be disregarded, such work being preparatory work. Though the passage lays it down that there has to be work done on the site for there to be substantial commencement, it does not mean that work done off the site which is referrable to a particular building or structure is to be disregarded. Such work though preparatory work in one sense can be part of the unequivocal step indicating that the building has been commenced.

The law is not compelled to disregard the transformation in building practice brought about by prefabrication on a large scale in the development of the means of erecting buildings in situ by the assembly of prefabricated sections ...

It would be ridiculous to disregard prefabricated work or firm contracts for the prefabricated work in determining whether the building is substantially commenced as in such work the great bulk of the expenditure on the building work may be made. ... A small amount of work on site may well be preceded by a great amount of work.

The distinction between preparatory work and other work is that work leading up to the making of the building contract is preparatory work, work which is part of the contract to erect is not preparatory work. Design work for incorporation in the contract is preparatory work, design work in consequence of the contract is not. Preparatory work is not work off site.

The erection of a structure has not substantially commenced if all that has happened is that planning has started to enable a contract to be let or the work of erection to be started but, provided some contract work has been done on site, all the work which is part of the contract can be looked at to answer the question."

40 It is to be noted that neither Cripps J in Smith nor the primary judge in the present case saw fit to cite the above passages from the judgment of Hutley JA in Home Units. This is unfortunate because, in my opinion, those passages make it clear that his Honour considered that even work off-site such as design work when performed pursuant to a contract for that work, and which is referable to the approved development, is capable of constituting the substantial commencement of that development provided some further work has been performed on site.

41 Cripps J next referred to the decision of Mahoney J in Auburn Municipal Council v F N Eckold Pty Limited [1974] 2 NSWLR 148. Again the case involved consent to the erection of a residential flat building. The only work relied upon as constituting "substantial commencement" was the demolition of one of three dwellings on the land. After referring to what Gibbs J said in Lebnan, Mahoney J (at 153) made the point that a

"... development consent may by implication be a consent to matters incidental to the development".

42 Thus, in Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632 at 637 Hope JA (with whom Jacobs and Manning JJA agreed) construed a consent to the erection of a service station as requiring the service station to be erected on a flat or horizontal surface at a level approximating the level of the roads to which the site had frontages. Accordingly, it was held that the consent impliedly authorised any filling of the land which was necessary for the purpose of producing such a surface. Such work, therefore, would not be regarded as preparatory to the development the subject of the consent but as work necessarily involved in that development.

43 However, following what Gibbs J said in Lebnan, Mahoney J considered (at 154) that demolition alone did not qualify as substantial commencement as it was an act preparatory to the development rather than an act

"necessarily involved in the development."

44 Cripps J then referred (at 177) to Waverley Municipal Council v Ladec Holdings Pty Limited (1978) 36 LGRA 188, where Rath J held that demolition work was not work referred to in a development consent for the erection of 14 townhouses. However, the erection of a retaining wall did qualify because there was a proved relationship between that work and the development as approved.

45 Finally, Cripps J cited the following passage from the joint judgment of the High Court in Day v Pinglen at 298:

"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 the 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 that had no real relation to the building work for which approval had been given. The job was an end in itself. It was the construction of a concrete slab."

46 Cripps J then concluded (at 178):

"Although the court [in Day v Pinglen] 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, 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 flat 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 flat building."

47 The primary judge then referred to the decision of Connolly J of the Supreme Court of Queensland in Ex parte Dackfield Pty Limited [1983] 1 Qd R 10 as providing "an apt illustration" of how the decided cases on the statutory concept of "substantial commencement of development" can usefully be employed in the statutory context of s 95.

48 One of the principles extracted by Connolly J (at 13) from the decided cases in which commencement was required to be "substantial" was the following:

"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."

49 The work relied on in Dackfield concerned excavation work within the limits of the external foundation walls of the approved building with a view to bringing the level of the land down to that at which piling machines could commence their work of constructing piles. After referring to the passage from the judgment of Gibbs J in Lebnan at 360 to which I have referred in [36] above, Connolly J observed (at 14) that it would be possible to distinguish the finding of Gibbs J in Lebnan that the excavation work performed in that case was a substantial part of the work referred to in the consent by treating the subject excavation as no commencement because it was work preparatory to the siting of the piling machines and was not excavation of the footings or of any other part of the approved building. However, his Honour was constrained by the definition of "building work" in the relevant legislation to find that, preparatory or not, the excavation work fell within the definition and, therefore, qualified as building work which had been commenced.

50 The suggestion by Connolly J in Dackfield that Lebnan could be distinguished for the reason he gave involved a finding not dissimilar to that of Cripps J in Smith where the latter found that the excavation work in question was only carried out as an end in itself for the purpose of enabling the site to be investigated in order to determine the materials likely to be encountered in the area to be occupied by the basement of the proposed building. For reasons which will become apparent, I do not consider that the distinction sought to be made in Dackfield on the one hand and Smith on the other is one which should dictate the general proposition which the primary judge seems to have adopted, namely, that work performed upon the land to which the consent applies but which is preparatory to the physical commencement of the actual erection of the approved building or actual construction of the approved subdivision works is ipso facto disqualified from constituting "engineering or construction work relating to" that building or subdivision.

51 In this regard, the primary judge's conclusions were as follows:

"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." (original emphasis)

52 As I understand these passages, the primary judge held that although the work relied on to prevent the consent lapsing may have been, as was the geotechnical investigation work, "engineering work" and although that work had been physically commenced on the land to which the consent applied, nonetheless because they were "merely preparatory works" (in that they were undertaken for the purpose of enabling design and/or engineering plans to be prepared), they were not works "relating to" the approved subdivision. In my view, his Honour was in error in so holding.

The findings of fact relevant to the Tovedale consent (references to his Honour's decision relate to the Tovedale judgment)

53 The work, which Tovedale argued had physically commenced the subdivision the subject of its consent was, relevantly, survey work. It comprised clearing, pegging of roads and lot boundaries and placement of permanent survey marks.

54 The consent was subject to a number of conditions of which Condition 7 is presently relevant. It was in the following terms:

"Provision of sewerage service to all proposed lots in the subdivision, at the subdivider's expense, all to Council's requirements. A site for a sewerage pumping station with the provision for access and electricity supply to the pump station and rising mains will also be required. The actual location will be determined upon the submission of engineering plans indicating the sewerage reticulation layout."

55 Prior to the lapsing date (28 September 1991), the following survey work was, it was agreed, carried out upon the relevant land:

(a) On 6 November 1989 the land was traversed for the purpose of fixing its boundaries which involved the clearing of a line of sight so that observations between marks placed on the ground could be made and then the placing of marks in the ground at intervals of approximately 100 metres.

(b) On 17 November 1989 work was performed upon the land involving the physical placement of pegs in the ground, the clearing of underscrub and trees on or near the proposed centreline of the designed position of the road infrastructure of the subdivision, the observing of measurements both horizontal and vertical and the locating of marks placed and recorded.

(c) Between 21 and 23 November 1989 work was undertaken involving the levelling and observation of cross-sections of the centreline of two roads the subject of the approved subdivision and which involved observing vertical and horizontal dimensions, clearing the lines of sight between the points denoting the centre line of those roads and clearing where the recovery pegs, required for the construction of the roads, were to be placed.

(d) On 23 November 1989 vertical and horizontal observations were undertaken at the intersection of two existing public roads of which one, Browns Road, was unmade so that a detailed design could be prepared for the proposed intersection and which involved the clearing of vegetation along the line of sight from the theodolite to the optical prism and staff and placing of marks in the ground for reference purposes.

(e) On 24 November 1989 a site was surveyed for the proposed sewerage pumping station which involved clearing of land so that levels of the location of the sewer main could be observed for design purposes.

(f) On 27 November 1989 work was performed involving the observation of levels along the rear boundary in the western traverse stations to determine ground heights for landfill design contour purposes and which further involved the clearing of vegetation to determine those ground heights.

(g) On 29 November 1989 work connected with the preparation of a plan of survey over the land was carried out involving the physical marking by placing pegs in the ground of the lot to be excised from the land for the purpose of the sewerage pumping station site.

(h) On 23 January 1990 the centreline marks placed along Browns Road to determine ground heights for road design and drainage purposes were levelled (which involved clearing of vegetation).

(i) On 14 and 15 February 1990 engineers involved in road design works cleared vegetation along the centreline of two of the proposed roads in the approved subdivision and levelled (in the survey sense) centreline marks which had been placed to locate those roads.

56 On 6 March 1990 road, drainage and sewer design plans for the approved subdivision were lodged with Shoalhaven and approved on 12 April 1990. Amended sewer design plans were lodged on 4 May 1990. In the same month an area of the land was cleared and temporary marks were placed in the ground to locate the boundaries of 17 of the 54 lots.

57 On 30 August 1990 Shoalhaven advised that it would require the land for the sewer pumping station to be transferred to it in fee simple as a condition of the release of any sewer plans. In November 1990 a plan of subdivision of the land to create Lots 55 and 56 was finalised, it being intended that Lot 55 would be the site of the proposed sewerage pumping station. This two-lot plan of subdivision was registered on 3 April 1991 as DP808935.

58 On 30 April 1991 pegs were placed in the ground denoting the centreline location of the proposed sewer main in Browns Road which involved the clearing of land so that levels could be observed.

59 On 17 May 1991 further amended sewer design plans were lodged with Shoalhaven which were approved on 19 July 1991.

60 The sewerage pumping station was never constructed on Lot 55: nor was that lot transferred to Shoalhaven. It appears that the latter never allocated any funds for that work to commence although it accepted responsibility for constructing the facility. The primary judge found (at [33]) that the subdivision created by the registration of DP808935 on 3 April 1991 was "an emanation from condition 7 of the development consent" but that it did not even partially fulfil the requirements of that condition. However he never did explain what he intended by that observation.

The primary judge's reasoning with respect to the lapsing of the Tovedale consent

61 The primary judge found (at [33]) that

"the whole of the work undertaken on the subject land in respect of the emanation was survey work and was preparatory or ancillary survey work for the preparation of the plans showing the subdivision sewerage works, which works required, and obtained the grant of approval under the LG Act, Pt XII."

62 His Honour then addressed himself to the question as to whether the Tovedale consent had lapsed on 28 September 1991. In responding to that question an issue arose as to whether the survey work undertaken on the land could relevantly qualify as "building, engineering or construction work relating to" the approved subdivision. The primary judge held (at [39]) that it did not for the following reasons:

(a) Survey work was not comprehended by the statutory expression "building, engineering or construction work"; and

(b) Even if survey work was so comprehended, it was merely preparatory work which did not involve the physical commencement of relevant work on the subject land.

The legal basis for these two reasons his Honour said had been expounded by him in the Hunter judgment.

63 However, the primary judge noted that, since he had reserved judgment in Hunter, Cowdroy J had decided Biwazu Pty Limited v Cessnock City Council [2004] NSWLEC 411. In that case Cowdroy J, distinguishing the decision of Talbot J in Richard, held that he was not satisfied that the survey work allegedly performed upon the subject land prior to the relevant lapsing date had occurred. The work in question was confined to the placement of pegs and stakes in the soil to mark out the centreline of some of the approved subdivision roads. However, it was found (at [38]) that that work did not require the consent of the council; nor was there evidence that such work was essential for the preparation of engineering plans.

64 Upon the assumption that that work had been performed, Cowdroy J held that the placement of survey pegs or stakes per se was not "engineering work" for the purposes of s 95(4) of the EPA Act.

65 After referring to the Macquarie Dictionary definition of "survey" and of "physical" and the definition of "survey" in s 3 of the Surveying Act 2002, Cowdroy J noted (at [39]) that the only possible effect upon land resulting from the defined activities was the installation of survey marks. As s 95(4) required the relevant work to be "physically commenced on the land", what was required was work which resulted in a material alteration to the land upon which it was performed. Thus, Cowdroy J concluded in these terms:

"43. The literal meaning of the words "building, engineering or construction work" as used in s 95(4) of the EP&A Act with the juxtaposition of the word "engineering" between "building" and "construction" suggests that the engineering envisaged requires a material alteration to the existing circumstances.

44. Applying the above principles of statutory interpretation, the placing of pegs into the land as part of a survey did not result in a material change to the land. No physical impact upon the land in the nature of construction or engineering works for roads and drains was carried out, as envisaged by the consent. In such circumstances the survey work, by itself, cannot constitute engineering work for the purpose of s 95(4) of the EP&A Act. It follows that the engineering work had not been commenced by the expiration of the five year period contained in 95(1)(a) of the EP&A Act.

45. Such conclusions are consistent with the decision of Bignold J in Hunter Development Brokerage Pty Limited v Cessnock City Council [2004] NSWLEC 454."

66 After repeating [74]-[93] (inclusive) of the Hunter judgment, the primary judge referred to the unreported decision of this Court in Cariste Pty Limited v Blue Mountains City Council, 18 November 1996 (unreported). Simos A-JA, with whom Clarke and Beazley JJA agreed, held with respect to a development consent to establish a flora and fauna park, that the excavation for a dam intended to constitute a macrophytic pond, which his Honour held was authorised by the consent, did constitute the physical commencement of engineering and/or construction work. Simos A-JA held that that work was

"on the evidence, more than merely preparatory, and was not simply a sham, notwithstanding that it may have been done only days before the lapse of the development consent, and notwithstanding that no tenders had been called, no building contract let and no survey work done in relation to the pond."

67 The primary judge considered that the reference by Simos A-JA to the relevant works being "more than merely preparatory" and "not simply a sham" had been expressly derived from the judgment of Cripps J in Smith which had been cited at first instance as propounding the "true test" in determining the meaning and operation of s 99(2).

68 His Honour then concluded in the following terms:

"50. In my opinion, the Court of Appeal's judgment in Cariste provides some additional support for the conclusions that I reached in Hunter Development Brokerage that works which are merely 'preparatory works' to the physical commencement on the development site of building, engineering or construction works relating to the approved development, do not qualify as relevant works that avoid statutory lapsing.

51. In the present case, I would hold that the survey works relied upon by the Applicant are properly characterised and understood as merely preparatory works, since it is obvious that all of the survey works were undertaken for the purpose of preparing engineering plans for the subdivision roadworks and sewerage works (which works required the Council's approval under the LG Act, Part XII which approvals were duly obtained)." (original emphasis)

69 Finally, the primary judge noted that it was a matter of significance that before the subject land could be lawfully subdivided it was not only necessary that the proposed subdivision be granted development consent under the EPA Act but also that it required approval under Part XII of the LG Act. As the relevant survey work had been undertaken after the grant of development consent but before the grant of subdivision approval under Part XII, his Honour considered (at [54]) that it was

"... equally clear that the survey work was undertaken for the purpose of obtaining the requisite approvals under the LG Act, Pt XII. So understood, it is also clear that the survey work was not only merely 'preparatory work' but was two steps removed from the physical commencement on the subject land of 'building engineering or construction work' relating to the approved subdivision, in the sense that after the development consent had been obtained it was first necessary to obtain the outstanding approval under the LG Act, Part XII before the approved subdivision could be lawfully undertaken (including being commenced) on the subject land."

The issues on the appeal

70 Essentially, two issues of law or mixed fact and law arise out the primary judge's decisions. The first is whether survey work is capable of falling within the description "building, engineering or construction work". A subset of this issue is whether the survey work carried out in each of the cases was in fact "engineering or construction work" and whether that work had been "physically commenced" on the relevant land. The second issue is whether there is any room in ss 99(2) or 95(4) for the concept of "preparatory work" which, according to the primary judge, disqualifies that work, even if engineering or construction work, from constituting "engineering or construction work relating to" the approved subdivision. To those issues I now turn.

Is survey work capable of constituting "engineering or construction work" within the meaning of the relevant statutory provisions?

71 Hunter adopted Tovedale's submissions on this issue. In this respect it was not suggested that, with the exception of the survey work relating to the creation of DP808935, the survey work in one case was relevantly different from that in the other case.

72 Tovedale therefore submitted that survey work comprising land clearing, pegging and the erection of permanent survey marks and which, therefore, involved physical activities upon its land, was capable of constituting "engineering or construction work relating to" the approved subdivision which had been "physically commenced" upon the subject land. It was further submitted that once one accepts that ss 99(2) and 95(4) concentrate upon the physical activity which is required to be commenced (but not completed) so that the statutory provisions are concerned only with identifying the point at which physical site works (as distinct from office design and planning) commence, then it follows that:

(a) the reference to "building, engineering or construction work" is to a process and not to an outcome;

(b) that process is "physically" commenced by the application of physical labour on the land to which the consent applies;

(c) so long as the labour is for the purpose of building, engineering or construction work (and relevantly relates to the development the subject of the consent), it satisfies the statutory requirements;

(d) as the work is the process rather than an outcome of the process, it is irrelevant that it occasions no material change to the land, is impermanent or is of limited or modest extent.

These principles, it was submitted, are consistent with the decision of Talbot J in Besmaw Pty Limited v Sutherland Shire Council [2003] NSWLEC 181; (2003) 127 LGERA 413 at 432-6.

73 It was further submitted that the natural and ordinary meaning of the word "engineering" included surveying. Given that the term "engineering work" is not defined in the EPA Act (unlike the term "building work"), the natural and ordinary meaning of the word "engineering" as defined in the Macquarie Dictionary is

"the art or science of making practical application of the knowledge of pure sciences such as physics, chemistry, biology etc."

74 It was therefore submitted that mathematics, amongst other things, is the science that deals with measurement and is a pure science that is an abstract or theoretical rather than applied skill. When taken in conjunction with the Macquarie Dictionary meaning of "survey" which is, relevantly,

"to determine the form, boundaries, position, extent, etc, of, as a part of the Earth's surface, on linear and angular measurements and the application of the principles of geometry and trigonometry",

the physical act of surveying (as distinct from marking up plans) constitutes part of the discipline of engineering. It fits readily into the category of engineering work in the present context as it involves the practical application of the pure science of trigonometry and geometry.

75 An appendix to Tovedale's written submissions collects a deal of material relied upon to demonstrate such matters as the location of surveying schools within engineering faculties in tertiary institutions and the accreditation of surveying courses as a component of engineering degrees. Thus, for instance, the University of New South Wales provides an undergraduate program in its Faculty of Engineering whereby one can read for a Bachelor of Engineering in Surveying and Spatial Information Systems. Again, the Academic Press Dictionary of Science and Technology defines "survey" in terms of both science and engineering and, with respect to the latter, defines the word as follows:

"to accurately measure and delineate the features of a land area, for mapping or as a preliminary to a construction project."

76 In response, Shoalhaven submitted that the broad dictionary definition of "engineering" relied upon by Tovedale ought not to attract significant weight. Although it accepted that the word "engineering" was part of the composite phrase "building, engineering or construction work" and that each element of the phrase may overlap with the other, nonetheless it was submitted that the only work which would constitute "engineering work" was some action or work of a civil, mechanical or structural nature required to be performed on the relevant land.

77 Accordingly, so it was submitted, activity comprising placement of survey markers, although a product of physical labour, was not the physical work contemplated by a consent involving such work which, in the case of an approved subdivision, could only be constituted by road construction, sewer or drainage construction, filling, excavation or other civil engineering works authorised by the consent and its conditions.

78 It is at this point that the following passage in the judgment of Giles JA in Green is of some relevance. In that case the relevant activities relied upon by the appellant as engineering or construction work preparatory to carrying out the development the subject of the consent, comprised pegging out, clearing, excavation for footings, digging drainage trenches and making provision for silt control. The issue that arose was whether such activities constituted the erection of the approved building in the context of considering the need for development consent to their carrying out. As to that, Giles JA observed (at 250 [70]):

"The concept is carrying out development, relevantly erection of building, the act or process as distinct from the product of the act or process. In my opinion it would be unrealistic to sever work of the nature of the activities from later steps in the erection of the second dwelling on the appellant's land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work. The erection of the second dwelling would begin with clearing of the site, pegging out, and digging trenches for footings; then or at later times there would be silt control measures and the digging of trenches for drainage pipes. Clearing to make a garden or digging for a fish pond may not be erection of a building, but the totality of the activities and their purpose informs the nature of the activities: so in North Sydney Municipal Council v Middle Harbour Investments Pty Ltd Hardie J said (at 45) that 'The laying of the foundation was the most important and substantial part of the work; it was fundamental to and the first essential step in the building process ...’." (emphasis added)

79 The point made by Giles JA in the above passage is of two-fold relevance to the present case. Firstly, there is his Honour's conclusion that the erection of a building commences or begins with the clearing of the site followed by the pegging out of the building, a form of survey. Secondly, there is the notion (which is relevant to the second issue in this case) that it is unrealistic to sever those first steps in the process from later steps where all are necessary parts of that process, a matter to which I shall return.

80 In my opinion, the submissions of Tovedale should be accepted. In Richard, Talbot J correctly held that physical work on the land involving the application of surveying skills resulting in the taking of levels, placing of pegs, the removal of vegetation and the establishment of permanent survey marks including the centre points of an approved subdivision road were part of the engineering work required for the establishment and construction of the subdivision.

81 However in Hunter, the primary judge considered that the omission of the expression "survey work" from the expression "building, engineering or construction work" exhibited an intention of the legislature that survey work should not be comprehended by that statutory expression. Further, his Honour opined that "survey work" was not comprehended by the natural and ordinary meaning of the expression "engineering work". He considered that the decision of Talbot J in Richard provided an "insecure foundation" for the conclusion that survey work qualifies as "engineering work" in the context of s 95(4) of the EPA Act. I do not agree.

82 One difficulty with the primary judge's reasoning is that if survey work is not comprehended by the natural and ordinary meaning of the expression "engineering work" or, for that matter, "construction work", then the fact that there is no reference to "survey work" in the composite expression "building, engineering or constructions work" is irrelevant. The question, therefore, is whether in a context concerned with the physical management of an approved subdivision which involves the provision of infrastructure such as roads, water and sewerage reticulation, drainage and the like, the natural and ordinary meaning of the expression "engineering or construction work" is capable of including survey work comprising the physical fixing on the relevant land of survey reference marks as permanent reference points marking the whole or part of the centreline of one or more of the approved roads, or the proposed drainage and/or sewerage lines serving the proposed lots within that subdivision.

83 In my opinion, the expression "engineering work" in its context of forming part of the composite phrase "building, engineering or construction work", should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. There can be no doubt that engineering as such can involve many different elements: relevantly with respect to a subdivision, it involves civil engineering work such as the design and (possibly) the construction of roads, sewerage systems, drainage and the like.

84 But once consent is granted for a subdivision, the implementation of that consent ultimately resulting in the construction of the subdivision roads, drainage and sewer lines as well as the laying out of the allotments in accordance with the approved layout, requires as a necessary first step in the engineering or construction of that subdivision, including the physical works contemplated thereby, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. This would accord with common sense and industry practice (as to which see [13] above).

85 The carrying out of survey work to establish the correct location of these elements, in my opinion, is capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. Accordingly, it follows that the natural and ordinary meaning of the expression "engineering work" in the context relevant to the present issue is capable of including physical survey work of the nature and extent of that the subject of these appeals.

86 That is not to say that any survey work, albeit of a physical nature, would so qualify. Simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not, in my view, necessarily qualify. There is an element of fact and degree in each case. Although in Besmaw Talbot J (at 436 [112]) observed that once Parliament had decided to delete the requirement of substantiality, there was little room for an argument that the works must not be de minimus, and that it was therefore reasonable to exclude any test of the degree and extent of the work under the present statutory regime, nonetheless the requirement that the relevant work relate to the approved subdivision requires a real nexus between them. In particular, the concept that the work must be "physically commenced", requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved: cf Besmaw at 436 [111].

Did the work in Tovedale qualify?

87 Subject to the issue of whether the relevant work was merely preparatory and, if so, whether that disqualified it from preventing the lapsing of the consent, in my opinion the physical survey work carried out by Tovedale (and which his Honour found to have occurred prior to the lapsing date) was neither notional nor equivocal. In fact, his Honour did not suggest to the contrary. Equally, there can be no doubt that that work was physically commenced. I appreciate that Cowdroy J in Biwazu found that for engineering work to be physically commenced on the land there had to be a "material alteration of the existing circumstances". It would appear that this expression by his Honour was intended to require a material change to the land as a consequence of the physical impact due to the commencement of the relevant work. The difficulty with this construction is that the statutory provision only requires the relevant work to be "physically commenced": it need not continue, let alone be completed: see Besmaw at 430 [83]; 436 [111]-[112]. Furthermore, as Tovedale submits, the statutory concept requires only some application of labour which manifests itself on the land. I am unable therefore, to endorse Cowdroy J's approach.

88 Given the obvious difference between the expressions "substantially commenced" and "physically commenced", in my opinion the only statutory requirement is that the relevant work is commenced upon the land in a physical sense (as was clearly the position in the present cases). What is to be distinguished is work which is not physically commenced on the relevant land but is off-site work such as design and planning work. In my respectful opinion, Cowdroy J went too far when he held that the engineering work must result in a material change to the physical nature of the land. The statutory provisions contain no such requirement.

Did the work in Hunter qualify?

89 There is really no contest in relation to the answer to this question for two reasons. The first is that the Hunter case was in Class 1 of the Land and Environment Court's jurisdiction as a consequence whereof the primary judge's finding of fact is not open to challenge in this Court which is confined to questions of law: Land and Environment Court Act 1979, s 57(1). Accordingly, as his Honour found that the geotechnical investigation work which had been carried out upon the land was "engineering work", the only real issue was whether he was correct in finding that that work was preparatory work and, for that reason, did not qualify. Secondly, it was not suggested by Cessnock that if survey work was capable of constituting "engineering work" then the work actually carried out was not, in fact, "engineering work".

90 In any event, his Honour did make findings as to the nature of the survey work carried out but held (at [58]) that that work was not comprehended by the natural and ordinary meaning of the expressions "engineering work" or "construction work". Although he then purported to find "as a fact" that the relevant survey work did not relevantly qualify as "engineering work", that fact was based upon a misconstruction of the expression "engineering work".

91 Accordingly, as with Tovedale, the survey work the subject of Hunter was not only capable of constituting "engineering work" but was in fact engineering work. However, it is sufficient for present purposes merely to proceed in this case upon the basis that the geotechnical investigation work was found to be "engineering work" so that the only remaining issue was whether the fact that his Honour found that work to be "merely preparatory" in the sense of having been undertaken for the purpose of enabling design, engineering and survey plans to be prepared for the approved subdivision, resulted in that work not qualifying as "engineering or construction work relating to" that subdivision.

Is there any room for the concept of "preparatory work" when applying the statutory lapsing provisions?

92 I have already set out (when dealing with the primary judge's reasoning process) the authorities which his Honour found relevant to this issue. To those decisions I add the following. In Besmaw the council sought to distinguish between commencing construction work on the one hand and commencing work preparatory to construction work on the other. Reliance was placed upon the decision of the High Court in Owendale Pty Limited v Anthony [1967] HCA 52; (1967) 117 CLR 539.

93 That case concerned a lease for a term of 99 years granted by the Commonwealth to a company under which the lessee covenanted to commence erection on the demised land of a building costing a certain amount and in accordance with plans approved by the Commonwealth. The lessee did not commence erection of the building on the land within the prescribed period. The Commonwealth issued a notice to the lessee requiring it to comply with the covenant not later than a particular date. The Commonwealth asserted that that notice was not complied with and purported to terminate the lease. The lessee sued the Minister and the Commonwealth claiming that it had complied with the notice and, therefore, the Minister was not entitled to determine the lease. It relied upon the fact that it had engaged a contractor on the day before the expiry of the notice who had begun to remove trees from the site. It was contended that the removal of those trees constituted the commencement of the erection of the building.

94 It was held by Barwick CJ, McTiernan and Taylor JJ that the lessee had "commenced to erect" the building within the prescribed period. Barwick CJ agreed with Taylor J. The latter held (at 598) that the work of preparing the site by levelling trees with the aid of heavy equipment marked the commencement of the work of erecting the building. McTiernan J (at 580) referred to the work which consisted of clearing away trees and shrubs growing on the site and the levelling of the site as "preparatory to building". However, the question was whether the work amounted "to making a beginning with the construction of the building". His Honour answered this question in the affirmative observing:

"It is true that a beginning was not made with erecting the fabric of the building. But I think the work was an initiatory step in the building operations which the performance of the lessee's covenant would involve."

95 Kitto J, with whom Owen J agreed, dissented holding (at 583) that the relevant work did not go beyond the stage of preparing the site. His Honour relied upon the distinction which Harman J drew, and Jenkins LJ approved, in Marks & Spencer Limited v London County Council [1952] Ch 549 at 563-4, between beginning "works for the erection of a building" and beginning "the erection of a building". In Kitto J's opinion the lessee carried out preparations with a view to beginning the erection of the building but did not begin it.

96 In Besmaw the council, in reliance upon the minority views in Owendale and Marks & Spencer, submitted (at 343 [100]) that the replacement of the requirement of substantiality with a qualitative analysis of whether what was done had the quality of amounting to construction work, supported the argument that before that type of work was lawfully undertaken there would be a need for significant preparation to occur which the express words of s 99(4) did not encompass and which, accordingly, must be assumed to be outside the intention of Parliament. This argument was rejected by Talbot J who held (at 435 [10]) that the clearing of the approved access road in that case was (consistent with the approach taken by the majority in Owendale) "construction work" as it constituted "part of the action of framing and preparing the land for the completion of the roadworks in due course".

97 In [78] above, I set out a passage from the judgment of Giles JA in Green, which is, as I observed in [79], of relevance to the present issue.

98 The point to be taken from the emphasised part of that passage is that the erection of a dwelling begins with clearing of the site followed by its pegging out and then the digging of trenches for footings. It must logically follow that the erection commences with the first of those items. It matters not that neither the clearing of the site, its pegging out nor the digging of trenches involves the actual erection of the fabric of the building. So in the present cases, once it is accepted that the survey and geotechnical investigation work that was carried out was "engineering work", it must follow that that work, in the context of a development consent to a subdivision was, to adopt the words of McTiernan J in Owendale, "an initiatory step" in the process of subdividing the relevant land in accordance with that consent. Provided that "initiatory step" is a necessary part of that process that is all the statutory provisions require. Accordingly, whether one describes that step as preparatory is irrelevant.

99 The foregoing is, in my opinion, consistent with the underlying basis of the approach adopted by Hutley JA in Home Units in the passages from his judgment which I have extracted at [39] above.

100 Once it is determined that the work relied upon falls within the expression "building, engineering or construction work" and has been "physically commenced on the land to which the consent applies", the only remaining issue is whether that work was work "relating to" the subdivision, the subject of the development consent.

101 In the present cases the primary judge relied heavily on the conclusion of Cripps J in Smith that the excavation of the land to a depth of between 600-900mm over an area of 450m² was an isolated work that had no real relation to the erection of the residential flat building the subject of the consent as it was an end in itself carried out for the purpose of inspecting the site to determine the design of the basement. Thus in the present cases the primary judge held that the relevant survey work was "merely preparatory" as it had been undertaken for the purpose of enabling design, engineering and survey plans to be prepared (in Hunter) and for the purpose of preparing engineering plans for the subdivision roadworks and sewerage works (in Tovedale).

102 No doubt his Honour was correct in finding that at least some of the survey work was undertaken for the purpose referred to. But it was equally true that the work related to the approved subdivision. In Hunter, the primary judge expressly so found when he said (at [46]) that the relevant work

"related to the subdivision approved by the development consent, in the sense that they were undertaken for a purpose relating to the approved subdivision."

103 It was because of the so-called "judicial gloss" placed upon the statutory formula by cases such as Smith that the primary judge considered that it excluded engineering work that was "merely preparatory" because such work did not relate to the approved development. Although his Honour made no similar finding in Tovedale, contenting himself with the conclusion that the survey work was undertaken for the purpose of preparing engineering plans for the subdivision roadworks and sewerage works, nonetheless there can be no doubt on the facts as found by his Honour that the survey work in question related to the approved subdivision in the sense that it was undertaken for a purpose relating to it.

104 I accept that the ambit of the expression "relating to" depends upon the context in which it appears: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 at 487-8 [68] and [69]. It involves, at the very least some real relationship or connection between the work and the subdivision in respect of which the consent has been granted. In my opinion, the required connection or relationship is satisfied if the relevant work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent.

105 In the present cases, as Tovedale submits, the primary judge, on the basis of authorities decided with respect to a different statutory formulation (apart from Smith), has placed "preparatory work" into a separate and independent category of work which, even if it is building, engineering or construction work, cannot qualify to prevent the consent lapsing even though it is physically commenced upon the land to which the consent applies.

106 As Tovedale also submits, work may be preparatory in a number of different senses. Normally one would regard work as "preparatory" if, chronologically speaking, it was work required to be performed prior to some other work being performed. But if the former is building, engineering or construction work and if it is a necessary step in the process which either expressly or by implication is authorised by the consent, then that is the end of the enquiry. No warrant exists for introducing into the expression "building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies", an exception in the case of work which is regarded as preparatory in the above sense where it otherwise meets the elements of the statutory formula. In my opinion, there is no warrant for the imposition of such a gloss upon what are relatively unambiguous words.

107 Shoalhaven and Cessnock sought to justify the primary judge's decision on the basis that to characterise the work as preparatory is merely shorthand for saying that it is not part of the approved development and accordingly cannot constitute a commencement of it. They submitted that although the survey work may well have been necessarily incidental to the implementation of the consent, it was not part of the work consented to. In particular, it was submitted that where the work does not form any part of that for which consent has been granted because that work itself does not need consent, then it cannot be seen as capable of amounting to the physical commencement of the approved subdivision. It is the kind of work, so it was submitted, that could be lawfully carried out even if there were no consent in existence.

108 If the foregoing submissions are intended to assert that the subject survey work and, in the case of Hunter, the additional geotechnical investigation work, were not part of the approved subdivision works, then I would respectfully disagree with it. As Mahoney J said in Eckold (at 153):

"A development consent may by implication be a consent to matters incidental to the development."

109 In my view a development consent to a subdivision involving the laying out of lots and roads and requiring by way of conditions (as in the present cases) the construction of those roads as well as drainage, sewerage and other facilities, either expressly or by necessary implication authorises any physical work on the land that is necessary to enable the consent to be implemented in accordance with those conditions. Neither Cessnock nor Shoalhaven has directly suggested that the carrying out of the relevant survey work and/or geotechnical investigation work constituted of itself development requiring development consent. Although it was submitted that the subject work was "not part of the work consented to" in that it did not involve the actual construction of roadworks or drainage or sewerage works, the consents must be taken to have authorised (so far as the EPA Act is concerned) not only the construction of the works the subject of the consent, but also the carrying out of engineering work associated therewith and/or which was necessary to enable those works to be undertaken. Survey and geotechnical investigation work is such work.

110 I appreciate that the expressions "engineering work" and "construction work" overlap to a degree but the former clearly includes work which is "pure" engineering work. Thus on the one hand civil engineering work may also be described as "construction work". On the other hand, geotechnical investigation work and survey work could not be regarded as falling within the expression "construction work" although they fall within the expression "engineering work" as I have found. As both types of work are authorised by the consents, it must follow that the work relied upon in the present cases relevantly forms a necessary part of the approved subdivisions.

111 It follows from the foregoing that in my opinion there is no room in ss 99(2) and 95(4) for the concept of work which is "merely preparatory". The primary judge erred in perpetuating that concept, which has its origin in cases relating to the now abandoned statutory requirement of "substantial commencement". To seek to ascertain whether the relevant work is preparatory diverts the court from the only relevant questions, namely,

(a) was the work relied on building, engineering or construction work; if so,

(b) did it relate to the approved development; if so,

(c) was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?

112 The admonition of Giles JA in Green, that it is necessary to adhere to the language of ss 99(2) or 95(4) (as the case requires) which speaks not of substantial commencement but of physical commencement, should be adhered to. There must, as Cripps J said in Smith, be a "real" relationship between the work relied upon as having been physically commenced and the development, be it a building or subdivision, the subject of the consent.

113 However I would, with respect, part company with Cripps J and the adoption of his approach by the primary judge insofar as the former considered that there could be no "real relation" between the excavation work in Smith and the erection of the residential flat building, the only work the subject of the consent in that case. It seems to me that the excavation served two purposes. The first was that it was necessary to provide for the basement of the approved building. It does not seem to have been suggested in that case that the excavation was not located in the position where the basement was to be provided according to the approved plans. The second was that the excavation would enable inspection of the underlying material of the site which would inform the engineering design of the basement. The existence of the first purpose would, in my opinion, have been sufficient to justify the conclusion that there was a "real relation" between the work and the approved building. It may, therefore, be the case that I would have come to a different conclusion on the facts to that of Cripps J.

114 I note, however, that Cripps J (at 178), after finding that the excavation work was an end in itself carried out for the (presumably single) purpose of enabling the site to be inspected to determine the design of the basement, observed:

"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."

115 If by this passage Cripps J intended that excavation work could relate to the erection of an approved building notwithstanding that it was preparatory to the commencement of the actual erection of the fabric of that building, then I would respectfully agree with him subject to the rider that the work may serve more than one purpose. Provided one of those purposes is that described by his Honour, it matters not that the other purpose is to enable the area excavated to be inspected for future design purposes.

116 I have referred above (at [110] to the overlap of the expressions "engineering work" and "construction work". The actual commencement of roadworks by, for instance, levelling out the site of the road or the performance of other earthworks, would be more accurately described as the commencement of "construction work" rather than "engineering work": that is, such works would be the beginning of the building or forming of the road: cf Besmaw at 434 [101]. On the other hand what I have referred to as "pure" engineering work (which involves no element of construction) can only refer to work such as survey work and geotechnical investigation work. Conceptually there is no difference between the two. Both may be said to involve work "preparatory" to the commencement of the building or forming of the road in the sense that the latter work cannot proceed without the former. It is that fact that renders the former a necessary step in, or part of, the process involved in the latter.

117 So in the present cases, I accept that the survey work and the geotechnical investigation work were preparatory to, but necessary for, the commencement of the actual road and sewerage works. They were also carried out for the purpose of facilitating the further detailed engineering design work. The latter purpose did not, on the approach I have adopted, disqualify the work from being carried out for a purpose which bore a real relationship to the approved subdivision works. The primary judge's decision to the contrary was, with respect, in error.

Was the relevant work in Tovedale unlawful?

118 In [54] of the Tovedale judgment, the primary judge held that the survey work relied upon was two steps removed from the physical commencement of "building, engineering and construction work" relating to the approved subdivision in that it was necessary to obtain subdivision approval under Part XII of the LG Act before the subdivision could be lawfully undertaken including its commencement upon the subject land.

119 Tovedale submitted that at least so far as the survey work associated with the proposed sewerage works contemplated by the approved subdivision was concerned, his Honour had erred as subdivision approval under Part XII of the LG Act, although required before land could be subdivided or roads opened, did not extend to sewerage works. His Honour's implicit decision to the contrary involved (so it was submitted) a misconstruction of s 327 of that Act.

120 In my opinion, Tovedale's submissions should be accepted. In fact it was not in contest that s 327 did not extend to sewerage works so that council approval was not necessary for the carrying out of those works unless required by a condition of development consent. No such condition was suggested. However, I would go further. Section 323(1) of the LG Act provides that a public road shall not be opened and land shall not be subdivided except in accordance with the provisions of that Act. Section 327(1) provides that a public road shall not be opened and, in the case where a subdivision provides for the opening of a public road, land shall not be subdivided until an application in respect thereof has been approved under the Act. The provisions of Part XII do not require the granting of that approval before work on the subdivision commences. The public road is opened when it is available to the public to pass and repass. Land is subdivided where the separate lots are created by registration.

121 None of the conditions of the Tovedale consent expressly required council approval before the road or sewerage works were commenced. Condition 11 set out certain requirements of Shoalhaven with respect to the construction of new roads in the subdivision. Condition 16 required the submission of necessary engineering plans and specifications for the work referred to in Condition 11 for examination and approval by the City Engineer. However, in my opinion that condition did not provide a basis for finding (if that is what his Honour did) that the survey work physically commenced on the land the subject of the Tovedale consent would not qualify to prevent the lapsing of that consent because it was unlawful. After all, it was common ground that the survey work was necessary to enable compliance with Condition 16.

122 I should note in passing that this issue did not arise in Hunter as the consent of 24 February 1998 was both a development consent and a subdivision approval under s 331 of the LG Act.

Miscellaneous issues

123 Hunter submitted that the primary judge erred in holding that the landscaping work relied upon by it did not qualify as "engineering or construction work". Further, it submitted that upon the basis that it did so qualify, his Honour further erred in holding that the carrying out of the work was in contravention of Condition 27 of the development consent. This was because that condition did not prohibit the carrying out of landscaping work before notice of approval of the landscape plan was received or the plan was approved. Rather, it only required submission of the plan prior to the landscaping work being commenced.

124 In my opinion this submission should be rejected. Condition 27 is clear in its terms and required, prior to the commencement of any work, that the landscape plan should not only be submitted to Cessnock but that it should be to the satisfaction of the Manager, Development Services. There was no evidence that that officeholder was satisfied with the plan prior to the carrying out of the work. Accordingly, it follows that his Honour was correct in holding that the landscape work contravened Condition 27 and, accordingly, could not qualify for the purpose of meeting the requirements of s 95(4). Hunter's argument based on this Court's decision in Detala Pty Limited v Byron Shire Council [2002] NSWCA 404; (2002) 133 LGERA 1 at 12 [36]- [37] was correctly rejected by his Honour.

125 In Tovedale, Shoalhaven submitted that even if the consent had not lapsed, nonetheless as a matter of discretion the Court should not make the declaration sought. Because of the findings he made, his Honour did not need to deal with the discretionary defence which Shoalhaven had raised. Nevertheless, it was pressed on the appeal. Shoalhaven submitted that on the authority of Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243 at 258, the fact that there were allegedly potential adverse environmental effects associated with the subdivision the subject of the consent required that the Court's discretion be exercised by refusing Tovedale declaratory relief.

126 In Coalcliff, this Court held that the relevant consent had lapsed. The applicant argued that this notwithstanding, the Court should exercise its discretion not so to declare. The present case is the converse. The consent has not lapsed with the consequence that it remains capable of being implemented and will, s 99(5) of the EPA Act having been repealed in 1998, enure indefinitely. In these circumstances, I see no reason which would justify this Court refusing to exercise its discretion to grant the relief sought.

127 Finally, I should note that I have not specifically dealt with Tovedale's argument to the effect that the carrying out of the necessary survey work which resulted in the creation of DP808935 so as to create a lot for the sewerage pumping station prevented the lapsing of its consent as I find it unnecessary to do so. I note, however, Tovedale's submission that the creation of a lot for the pumping station was an essential component of the development because without a pumping station, sewerage could not flow from the site due to its topography. Accordingly, survey work relating to sewerage reticulation and, in particular, the creation of the lot for the pumping station and its excision from the residue of the land was work necessary for the implementation of the consent and, in particular, Condition 7.

128 The primary judge in [33] of the Tovedale judgment accepted that the subdivision created by DP808935 was "an emanation from Condition 7" although it did not fulfil the requirements of that condition "even partially", an observation which I find difficult to understand but which in any event is irrelevant given that fulfilment of the requirements of that condition was not a precondition to the commencement of the subdivision. This notwithstanding, his Honour found that the whole of the work undertaken on the subject land in respect of that "emanation" was survey work which was preparatory or ancillary to the preparation of the plan showing the subdivision sewerage works. This being so, in my view, the legal effect of that survey work is covered by my findings generally with respect to the survey work performed in respect of the Tovedale subdivision.

Conclusion

129 For the foregoing reasons, in my opinion the primary judge erred in rejecting the work relied upon by Tovedale on the one hand and Hunter on the other as constituting "engineering work relating to" the approved subdivision in each case which had physically commenced upon the land to which the respective consents applied. The survey work in each case and the geotechnical investigation work in Hunter was, firstly, engineering work; secondly, related to the approved subdivision; and, thirdly, physically commenced upon the land to which the consent applied before its lapsing date. As a result, neither consent lapsed.

130 Accordingly, I would propose the following orders:

Hunter Development Brokerage Pty Limited v Cessnock City Council CA 40779/04:

(1) Appeal allowed.

(2) Order 1 made by Bignold J on 17 August 2004 be set aside.

(3) Order that the proceedings be remitted to the Land and Environment Court for determination by that Court in accordance with the decision of this Court.

(4) Order that the respondent pay the appellant's costs of the appeal, but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

Tovedale Pty Limited v Shoalhaven City Council CA 40812/04:

(1) Appeal allowed.

(2) Order 1 made by Bignold J on 28 August 2004 be set aside.

(3) Declare that the development consent granted by the respondent on 28 September 1989 (Council reference SF6559) for the subdivision of Lot 6 DP714802 and Lot 8 DP740045 at Old Southern Road, South Nowra has not lapsed.

(4) Order that the respondent pay the appellant's costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

131 STEIN A-JA: I agree with Tobias JA.

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LAST UPDATED: 23/05/2005