2 Phillip Rise Pty Ltd v Kempsey Shire Council [2022] NSWLEC 1107

Catchwords: APPEAL – construction certificate – jurisdictional prerequisites – whether development consent has lapsed – appeal dismissed Land and Environment Court New South Wales Medium Neutral Citation: 2 Phillip Rise Pty Ltd v Kempsey Shire Council [2022] NSWLEC 1107 Hearing dates: 22 December 2021, written submissions on 9 and 16 February 2022 Date of orders: 1 March 2022 Decision date: 01 March 2022 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court makes the following orders: (1) The appeal is dismissed. (2) Construction Certificate Application CFT-78801 to undertake site clearing works in accordance with Development Consent T4-91-195 in respect of Lot 2 DP 1091323 known as 1 Phillip Drive, South West Rocks i s determined by refusal. (3) The exhibits are returned other than exhibits A and B . Catchwords: APPEAL – construction certificate – jurisdictional prerequisites – whether development consent has lapsed – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.4, 4.17, 6.1, 6.3, 6.4, 6.7, 6.8, 7.1, 7.11, 7.12, 8.16, 8.17, 94, 99 Environmental Planning and Assessment Regulation 2000, cl 142A Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, cll 19, 20 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 , cl 49B Land and Environment Court Act 1979, s 17 Local Government (Consequential Provisions) Act 1993 Cases Cited: Australian Protein Recyclers Pty Limited v Goulburn-Mulwaree Shire Council [2006] NSWLEC 641 Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123 Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 Hunter Development Brokerage Pty Limited v Cessnock City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149 Over our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158; [2001] NSWLEC 125 Savellis v Sutherland Shire Council [2018] NSWLEC 100 Category: Principal judgment Parties: 2 Phillip Rise Pty Ltd (Applicant) Kempsey Shire Council (Respondent) Representation: Counsel: N Brunton (Solicitor) (Applicant) T Pickup (Solicitor) (Respondent) Solicitors: Norton Rose Fulbright Australia (Applicant) Local Government Legal (Respondent) File Number(s): 2021/341481 Publication restriction: Nil Judgment COMMISSIONER: On 1 November 2021, 2 Phillip Rise Pty Ltd (Applicant) made an application (Application) to Kempsey Shire Council (Council) for a construction certificate to undertake site clearing works on the land described as Lot 2 DP 1091323 known as 1 Phillip Drive, South West Rocks (Land). At the relevant time, cl 142A of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provided that a council was taken to have made a decision to refuse to issue a construction certificate if the council fail ed to issue the certificate within the period that end ed on the day , that was 2 8 days after the day on which the application was made . When the application had not been determined by the Council within th at period, on 1 December 2021 the Applicant appealed to the Court pursuant to s s 8. 16 and 8.17 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court ’ s jurisdiction : Land and Environment Court Act 1979 (LEC Act) , s 17(d) . The appeal was heard by me on 22 December 2021. During the hearing I raised a concern with the parties as to whether the work proposed in the Application relevantly constitu ted building work which required , or could be made the subject of, a construction certificate . While the parties each made oral submissions on this issue during the hearing, it became apparent to me after judgment had been reserved that the parties had not referred the Court to authorities relevant to the issue and , on 2 February 2022 , I invited the parties to provide further written submissions addressing the question of whether the activities described in the Application constitute “ building work ” as defined in s 6.1 of the EPA Act. Further written submissions on this issue were then filed by the Applicant on 9 February 2022 and by the Respondent on 16 February 2022. The site clearing works involve : the clearing of existing trees and vegetation ; the stripping of topsoil ; the erection of temporary tree protection barriers to protect those trees which are not to be removed from accidental damage during the carrying out of the site clearing work . These are to be either “ chain wire mesh panels with shade cloth (if required) attached held in place with concrete feet ” or “ alternative plywood or wooden paling fence panels ” ( Ex A, Tab 2 – Proposed Clearing Limits Plan Drawing CL101 dated September 2021); the carrying out of erosion control works involving the construction of perimeter banks (both with and without channels), level spreaders or sills, the installation of sediment traps and hay bale sediment fences , sediment basins , rock and straw bale check dams and a temporary construction exit . The site clearing works relate to the development authorised by a development consent for a resort complex granted by the Council on 24 February 1993 (Consent). According to the Statement of Facts and Contentions filed by the Applicant on 8 December 2021, t hat development comprises 180 residential units together with a commercial and administration complex comprising shops, bar areas, conference auditorium s, restaurant/dining areas and administrative areas together with car parking , recreation facilities and associated landscaping (Proposed Development) . While a copy of the Consent was tendered in evidence as part of Ex A, neither the development application nor the plans the subject of the Consent are in evidence. The principal contested issue between the parties concerns whether the Consent is operative and , in particular, whether engineering work relating to the Proposed Development was physically commenced on the Land before the date on which the Consent would otherwise have lapsed. I t is unusual for such an issue to arise in Class 1 proceedings concerning an application for a construction certificate. Nevertheless , the question of whether a development consent ha s lapsed has been raised in several previous decisions of the Court in Class 1 appeals : see Savellis v Sutherland Shire Council [2018] NSWLEC 100 and Dennes v Port Macquarie -Hastings Council [2018] NSWLEC 95 . I am satisfied that the Court can determine whether the Consent is in force (and has not lapsed) as a jurisdictional pre-requisite to the determination of the A pplication . There are also other statutory conditions that must be satisfied before an application for a construction certificate can be determined by approval. I have decided that the appeal must be dismissed. This is because I have concluded that the work relied on by the Applicant to prevent the Consent from lapsing d oes not relate to the development the subject of the Consent. This means that the Consent has lapsed and the application for a construction certificate must be refused . The statutory conditions to the grant of a construction certificate Does the application involve the “erection of a building” or “building work”? A construction certificate is required for the erection of a building in accordance with a development consent : EPA Act, s 6.7(1) . A construction certificate is a certificate to the effect that “ building work ” completed in accordance with specified plans and specifications or standards will comply with the requirements of the regulations : EPA Act, s 6.4 (a) . “ Building work ” means any physical activity involved in the erection of a building : EPA Act, s 6.1. A person must not carry out building work without a construction certificate: EPA Act, s 6.3(1). A construction certificate is therefore required both for the erection of a building (s 6.7(1)) and for the carrying out of building work (s 6.3(1)) . As described more fully in par 4 , t he Application seeks approval to carry out works involving the removal of vegetation, stormwater drainage works and soil erosion control works . While these works do not , in my view, involve the erection of a building , they are physical activities involved in the erection of a building and therefore constitute building work which cannot be carried out without a construction certificate. In Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 ( ‘ Hakea ’ ) the construction of a road was held not to be the erection of a building and not to require a construction certificate. I n the context of the phrase “ the erection of a building ” in the definition of “ development ” in s 1.4(1) of the EPA Act, Basten JA (with whom Meagher JA and Preston CJ of LEC agreed) made the following observations : “95 The answer is to be derived from the statutory context. Thus, “building work” is defined in s 4(1) to mean “any physical activity involved in the erection of a building.” Many structures require construction, that is, the putting together of disparate parts, in circumstances where one would not speak of erection. Similarly, many things are built, but do not constitute buildings, despite the common linguistic root. Further, a critical concept in the Environmental Planning and Assessment Act is “development”. That concept underlies the system of regulation. Development is defined in s 4(1) as covering (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work and (e) the demolition of a building or work. Although not entirely separate and independent concepts, these elements of the definition indicate conceptual distinctions. It is clear that “work” is a broader category than “building”… 97 It is therefore relevant that one does not ordinarily speak of erecting a road or occupying a road except, in the latter case, perhaps, by protestors. On the other hand, one can envisage many structures which are erected which may not be described as a building in ordinary usage. Television towers and radio masts may be examples. A structure which is never described as having been “erected” does not fall within the concept of a building, even on an expansive view of that term. Importantly, unlike terms such as “development” and “work”, the Act demonstrates no intention to give “building” so expansive a denotation as to encompass all kinds of structures. The fact that something may stand above the natural level of the land (such as the gates in Mulcahy or the large piles of rock envisaged by Mahoney JA in Mulcahy ) suggests that such a characteristic is not sufficient to make the thing a structure. Nor would it matter that such an item had a level of permanence or was largely immovable. On the other hand, the construction of a roadway would readily constitute the carrying out of a work and thus a development.” The activities described in the Application, involving the removal of vegetation, stormwater drainage works and soil erosion control works are , in my view, like the road in Hakea , not things that in ordinary language would be described either as “ buildings ” or as being “ erected ” . It follows that they do not involve the erection of a building and do not require a construction certificate under s 6.7(1) of the EPA Act. However, a s noted in par 11 , the definition of “ building work ” in s 6.1 of the EPA Act extends beyond the erection of a building and includes “ any physical activity involved in the erection of a building ” . In my view , the removal of vegetation, the stormwater drainage works and soil erosion contr o l works proposed in the Application are all physical activities involved in the erection of the buildings that are the subject of the Consent . As the Applicant submits, the buildings the subject of the Consent cannot be erected unless the Site is cleared of vegetation , and the necessary drainage and soil erosion controls are put in place . Accordingly, they constitute building work for the purposes of s 6.3(1) of the EPA Act and cannot be carried out without a construction certificate. This view is consistent with authority. In Over our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158; [2001] NSWLEC 125 ( ‘ Over our Dead Body ’ ) the question arose whether the demolition of buildings on the site of approved development required a construction certificate. In considering the predecessor to s 6.7 (the former s 81A(2)), Bignold J held at [49] that the defined term “ building work ” was sufficiently wide to comprehend “ demolition work or activity ” . He went on to hold at [50]: “In my judgment, in a case such as the present, where the approved development involves an overall complex of physical activities (including the demolition of parts of an existing building, also aptly described as the “alteration” of that building) it is reasonable to conclude, as I do in the present case, that the carrying out of the demolition work relevantly “commenced” the erection of the approved building.” For the purposes of the definition of “ building work ” , the site clearing works proposed in the Application are, in my view, of a similar nature to the demolition works the subject of the decision in Over our Dead Body . T hey are part of the process involved in the erection of the buildings the subject of the Consent and may properly be described as involving physical activities involved in the erection of those buildings. Similarly , in Green v Kogarah Municipal Council (2001) 115 LGERA 231; [2001] NSWCA 123, the Court of Appeal considered whether activities involving the pegging out of foundations, the removal of scr u b and small trees, the digging of trenches for footings and drainage works were part of the erection of a building . Giles JA (with whom Mason P and Ipp AJA agreed) said (at [70] and [71] : “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.. . In the present case the scope and purpose of the activities was the erection of the second dwelling. In my opinion, as a matter of fact, the activities were part of the erection of a building, and were for that reason carrying out a development.” The activities described in the Application in my view consist of physical activities involved in the erection of the buildings the subject of the Consent and therefore constitute building work as defined in s 6.1 of the EPA Act. Accordingly, in accordance with s 6.3(1) of the EPA Act, those activities cannot be carried out without a construction certificate . Will the building work be in accordance with a development consent? A construction certificate is required for “ the erection of a building ” in accordance with a development consent : EPA Act, s 6.7(1) . The development consent referred to in s 6.7(1) must, in my view, be a development consent that is in force and has not lapsed. The Council contends that the Ap p licant bears the onus of establishing that the Consent has not lapsed and says that “ insufficient information has been provided to conclusively satisfy the Consent Authority that the Development Consent did not lapse in February 1998 ” . The Consent was granted on 24 February 1993. At that time, s 99 (1) of the EPA Act provided that a development consent would lapse unless the development the subject of the consent commenced within 2 years of the date on which the consent became effective in accordance with s 93 of the EPA Act . This provision was amended by the Local Government (Consequential Provisions) Act 1993 (LGC P Act) to provide that a development consent lapses 5 years after the date from which it operates. That amendment took effect on 1 July 1993 and applies to the Consent . The relevant lapsing date for the Consent is therefore 24 February 1998. Section 99(4) of the EPA Act provided that development consent for the erection of a building d id not lapse if building, engineering or construction work relating to the building had been physically commenced on the land to which the consent applies before the date on which the consent would otherwise have lapsed . In this appeal , that requires consideration of whether building, engineering or construction work relating to the building approved by the Consent had been physically commenced on or before 24 February 1998. Applicant’ s evidence and submissions on lapsing The Applicant contends that the Consent was physically commenced within the required time , remains valid and operative , and has not lapsed. It says that engineering work relating to the building the subject of the Consent was carried out in 1994 . That engineering work involved the carrying out of acid sulphate soil testing which was required by condition 38 of the Consent . The Applicant contends that this work was sufficient to prevent the Consent from lapsing. Condition 38 provides as follows: “Further testing for the presence of acid sulphate soils shall be undertaken prior to release of the building application and appropriate measures identified and implemented to obviate and (sic) impact. ” The acid sulphate soil testing undertaken on the Site is recorded in the report prepared by Groundwater Technology Australia (GTA) dated January 1995, “ Additional Drilling & Sampling for Groundwater Remediation Former Caltex Terminal , Phillip Drive, South West Rocks Summary Report ” (GTA Report) (Ex B , Tab 1 8 ) . The GTA Report states that it was prepared for submission to Caltex Oil (Australia) Pty Ltd (Caltex) and records that GTA had been carrying out remediation activities at the former Caltex Trial Bay Terminal at South West Rocks . It records that during the carrying out of those activities “ contamination was dete cted within the ‘ coffee rock ’ layers particularly at the eastern boundary of the known shallow contamination plume that had not been previously reported ” . GTA subsequently carried out an extensive drilling, sampling and analysis program “ designed to assess the levels and extent of deeper contamination within the coffee rock ” . The GTA Report records that a total of 30 boreholes were drilled : 6 on the terminal, 9 in Phillip Drive, 9 on the Site (then described as Lot 504 DP 774359), 5 on land vested in the Department of Conservation and Land Management (the CaLM land) and one to the east of the t erminal . Following completion of the boreholes , monitoring wells were installed. The soil samples at each site were screened for volatile organic compounds (VOCs) and the soils in 2 boreholes (DWM17 and DWM22) were also assessed for “ acid sulphate potential ” . Borehole DWM17 was located on the Site and borehole DWM22 was located on the CaLM land. The laboratory results for acid sulphate soils are recorded at [4.4.5] of the GTA Report as follows: “Acid sulphate soils were assessed in wells DMW17(Lot 504) and DMW22(CaLM). Five soils from each borehole, 2.5m, 3.5m, 4.0m , 5.5m and 7.0m were assessed for acid producing potential. In summary, the total sulphur contents were low being present mostly as sulphate. This will result in no net acid generation through the oxidation of sulphides in the top 7.0 metres of soil. The results are summarised in Table 6. ” The GTA Report does not explain why the testing of soils (both on the Site and on the CaLM land ) was done. Evidence was given by Malcolm Dale , now Senior Principal – Contaminated Land at EIA Australia , both in a written expert report (Ex C) and orally. Mr Dale was previously employed by GTA and in 199 4 and 1995 was the project manager for the rem e diation works carried out at the former Caltex Trial Bay fuel terminal . Mr Dale ’ s evidence is that the works carried out by GTA “ were essentially to address soil and grou n dwater contamination identified at the former Golden Fleec e fuel terminal ” . He says that the works were also to be undertaken on residential land along parts of Phillip Drive and on Lot 504, particularly the areas of Lot 504 backing Lots 58 to 72 along Phillip Drive . He said that GTA w as engaged by Caltex to investigate polycyclic aromatic hydrocarbons , lead in groundwater and to investigate the extent and nature of acid sulphate soil potential on Lot 504. His evidence is that GTA was not aware of the specific requirements of condition 38 of the Consent but was aware from Cal tex that it was required to carry out acid sulphate soil testing on Lot 504 “ in accordance with the Access Deed between the owner and Caltex ” . His evidence is that testing for acid sulphate soils “ was not mainstream ” in the mid-1990s and that, at the time , one borehole was considered sufficient to assess the presence of acid sulphate soils or potential acid sulphate soils . In answer to the Council ’ s criticism that there is no clear evidence that the acid sulphate soil testing was undertaken in order to satisfy condition 38 of the Consent , the Applicant says that the testing was carried out in accordance with an access deed betwee n the owner of the Site and Caltex “ entitling Caltex to carry out groundwater testing on the Land , as part of its contamination investigations in relation to its former fuel terminal on adjacent land ” . The access deed (Deed) was made on 30 September 1994 between Caltex and the owner of the land, Chrisbeck Pty Limited (Chrisbeck) (Ex A, Tab 11). It contains the following recital: “ Chrisbeck has the benefit of, and intends to develop Lot 504 in accordance with the Lot 504 Development Consent, and has agreed to permit Caltex to enter the Land, and Caltex has agreed to enter the Land, on the terms and conditions of this Deed.” Clause 2 of the Deed defines “ Lot 504 ” to mean Lot 504 in DP 774359 . Lot 504 is relevantly now described as Lot 2 DP 109 1323 and is the Site the subject of the application before the Court. The Deed also defined the “ Lot 504 Development Consent ” to mean “ the development consent for Lot 504 granted on 24 February 1993 . ” The Deed provide d in cl 3 that , for an agreed licence fee of $140,000 , Chrisbeck granted Caltex a non-exclusive licence to enter the Site via agreed access points for the purposes of carrying out a range of works including investigations to ascertain the extent and nature of any acid sulphate soils or potential acid sulphate soils on the Site , investigations to ascertain the extent and nature of any polycyclic aromatic hydrocarbons (PAHs) in soils on the Site, testing groundwater on the Site for the presence of lead and carrying out remediation works. The Deed require d Caltex to provide Chrisbeck with a copy of all documents prepared by its consultants (cl 4) . Clause 14 impose d an obligation on each party to: k eep secret and confidential the contents of the Deed and of any documents received by it from the other party either directly or indirectly; and make no commercial or other use of that information other than for the purposes of the Deed or with the consent of the other party . The Applicant also relies on a letter from Gadens Ridgeway (for the Beck Group) to Freehill Hollingdale & Page (for Caltex) dated 7 June 1994 (Ex B, Tab 20) . That letter refers to letters from Caltex ’ s lawyers dated 24 May and 6 June which are not in evidence. Relevantly, that letter is as follows: “Could you please provide, in detail, the methods, procedures and protocols (including testing sites) to be used i n the confirmatory testing specifically proposed for Lot 504 to determine whether or not there are acid sulphate soils or potential acid sulphate soils in or on the relevant part of Lot 504. Concerning the confirmatory testing we note that the Environmental Geoche mistry International report titled Caltex Trial Bay – Acid forming potential of soils in the vicinity of the Caltex fuel terminal and implications for site remediation , contains only brief references to Lot 504. While it contains the general statement “the samples (obtained from Lot 504) should be tested in accordance with the procedures described in this report” it does not describe the specific procedures or methods to be used.” The Applicant submits that this correspondence, taken together with the Deed and its references to the Consent , indicates that the parties at the time contemplated that acid sulphate soil testing would be undertaken on the Site “ including in relation to satisfying condition 38 of the (Consent) ” . The Applicant argues that: The decision to refer to the Consent in the Deed “ is highly suggestive that the parties to the Deed were familiar with the De v elopment Consent and had expressly contemplated its requirements in their negotiation and drafting of the Deed ” . In its letter of 7 June 1994 , the Landowner “ clearly pressed for the undertaking of acid sulphate soil testing on the Land and detailed particulars regarding that testing ” . The Applicant submits that , given the timing of that letter, “ it seems highly unusual that the Landowner would have been so preoccupied with inclusion of that testing in the Deed for a purpose other than fulfillment of the requirements of the Development Consent it had just secured over the Land . The inclusion of both the Council and Chrisbeck on the Steering Committee gave them access to documents prepared by Caltex and this “ adjudicates against the Respondent ’ s comments … that the Applicant was not entitled to make any other use of the information produced under the Deed . ” The “ very specific inclusion of a borehole on the subject Land , in addition to that of the adjacent land, is consistent with a conclusion that the parties to the Deed were concerned with ensuring the testing was undertaken specifically on the Land the subject of the Development Consent . The purpose of that testing may well have been dual, but when read together with the Deed and correspondence, it is squarely inferable that part of the commercial bargain struck between the parties was for the contamination investigations commissioned by Caltex to also include acid sulphate soil testing on the Land in fulfilment of the requirements of the Development Consent. ” Council’s submissions on lapsing The Council submits that the Deed is merely an agreement allowing Caltex to access the Site for the purposes described in the Deed and that the Deed does not impose any obligation on Caltex to do anything on the Site . In particular, the Deed does not require Caltex to actually do any testing on the Site for acid sulphate soils. The Council points out that cl 3.8 of the Deed enables Chri s beck to carry out its own sampling and testing on the Site (including taking and testing samples from wells placed on the Site by Caltex) and submits that this is inconsistent with an interpretation to the effect that Chrisbeck was anticipating that the acid sulphate soil testing to be done by Caltex was directed to achieving compliance with condition 38 of the Consent . The Council also argues that , on a reasonable interpretation of the Deed, the inclusion of the confidentiality provision in cl 14 resulting in Chrisbeck being unable to disclose the results of the acid sulphate soil testing to the Council except with the further consent of Caltex , is contrary to an inference being drawn that Chrisbeck had intended to use the test results to satisfy condition 38. The Council also says that the borehole is not in a part of the Site that is proposed to be developed and argues that this is also an indication that the acid sulphate soil testing was not carrie d out for the purpose of satisfying condition 38. Relevant principles There was no real disagreement between the parties on the legal principles relevant to whether the Consent has lapsed. The leading authority is the decision of the Court of Appeal in Hunter Development Brokerage Pty L t d v Cessnock City Council (2005) 63 NSWLR 124 ; [2005] NSWCA 169 ( ‘ Hunter ’ ) . From that decision the following principles emerge: S ite investigation work such as the carrying out of survey work is capable of constituting “ engineering work ” if it relates to the development approved by the development consent (at [85]) ; The requirement that the work relate to the approved development requires a “ real nexus between them ” (at [86 ]) ; The work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to the approved development (at [86]); The expression “ relating to ” requires some real relationship or connection between the work and the approved development (at [104]) ; The necessary connection is satisfied if the relevant work is a necessary step in, or part of, the process required for or involved in the carrying out of the development authorised by the development consent (at [104]); The work may serve more than one purpose. Provided one of those purposes relates to the approved development , it does not matter that the work may also serve another purpose (at [115]) . It is worth noting that in that case at first instance Bignold J had found that the excavation of test pits and the collection of soil samples for testing qualified as “ engineering work ” within the meaning of the relevant statutory provision (then s 95(4)). This conclusion was not questioned in the Court of Appeal: see Hunter at [14] and [89] to [ 91] . Similarly, in Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149 (at [95] ) , Pepper J held that the collection, testing and analysis of spring water was “ engineering work ” . Findings on lapsing There is no real dispute and I am satisfied that the acid sulphate soil testing carried out on the Site is capable of constituting “ engineering work ” for the purposes of s 99(4) of the EPA Act . Whether it does so in fact in the present case depends on whether the testing carried out relevantly relates to the approved development . There is no formal onus of proof in a Class 1 merit appeal. However, as Preston CJ observed in Australian Protein Recyclers Pty L t d v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]: “ … an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed. ” W here the Applicant seeks the issue of a construction certificate for building work based on the existence of a development consent authorising the carrying out of that work, the Applicant must persuade the Court that the development consent on which it relies is operative and has not lapsed. In the present case , the Applicant must show that the acid sulphate soil testing on which it relies relates to the development for which development consent was granted. It seeks to do this by demonstrating that the acid sulfate soil testing was carried out for the purpose of satisfying condition 38 of the Consent. I find that t he evidence establishes the following facts: Condition 38 of the Consent required “ further ” testing for the presence of acid sulphate soils to be undertaken prior to the release of the building application , and appropriate measures identified and implemented to obviate any impact (Ex A, Tab 3 ) . The scope of the further testing required is not specified in the Consent . At some time prior to June 1994, Caltex had obtained a report from Environmental Geochemis try International relating to the acid forming potential of soils in the vicinity of the former fuel terminal at Trial Bay , and the ir implications for site remediation . That report recommended samples being taken from Lot 504 (the Site) and tested (Ex B, Tab 20) . Caltex wanted to test for acid sulphate soils because the presence of acid sulphate soils would affect Caltex ’ s ability to use air sparging to remediate the contamination of the Site ( GTA Sampling and Analysis Protocol Ex B , Tab 19 ). Caltex required access to Chrisbeck ’ s land to be able to carry out the acid sulphate soil testing and negotiated a deed of access for that purpose. On 7 June 1994, Chrisbeck ’ s lawyers wrote to the lawyers acting for Caltex , requesting details of the specific procedures and methods to be used in carrying out the acid sulphate soil testing on Lot 504 . Caltex entered into a Deed with Chrisbeck on 30 September 1994 under which , for a payment of $140,000 , Caltex was granted a non-exclusive licence to enter the Site for the purpose of carrying out a range of investigations which included investigations to ascertain the extent and nature of any acid sulphate soils . The Deed recites the existence of the Consent and requires Caltex to provide Chrisbeck with copies of documents prepared by its consultants . A confidentiality provision prevents Chrisb e ck from providing those test results to the Council except with the agreement of Caltex . The Deed imposes no obligation on Caltex to carry out any of the investigations and expressly reserves Chrisbeck ’ s ability to carry out its own sampling and testing (including taking and testing samples from the wells installed by Caltex (Ex B, Tab 19) . Caltex engaged GTA to carry out the investigations the subject of the GTA Report (Ex C) . The sampling and testing for acid sulphate soils was carried out in accordance with a sampling and testing protocol prepared by Mr Malcolm Dale , the project manager at GTA (Ex B, Tab 19) . Mr Dale ’ s oral evidence was that he decided where sampling would be done. There is no mention in the Protocol (or anywhere else) of Chrisbeck or the Council having specified any requirements for the acid sulphate soil sampling and testing program . Sampling for acid sulphate soils was carried out on both Lot 504 and the adjacent CaLM Land. The bore hole dug on the Site (DMW17) is located outside the area proposed to be developed : see Site Clearing and Soil and Water Management Plan Drawing C 020 (Ex B, Tab 12 ) and TPH Concen t ration Contours – Groundwater Figure 8B (Ex A, Tab 11). To the extent that GTA ’ s investigations required access to the Site, GTA was required to carry out its investigations in compliance with the Access Deed (Ex C) . A copy of the GTA Report was not sent by Chrisbeck to the Council until 29 November 2007 (Ex A, Tab 9). The evidence clearly establishes that the acid sulphate soil testing carried out by GTA was carried out on the instruction of Caltex for the purpose of determining the presence of acid sulphate soils , as these wou ld impact on the proposed method of remediating hydrocarbon contamination in the land. I accept that acid sulphate soil testing is relevantly engineering work that is capable of constituting the physical commencement of development for the purposes of s 99(4) of the EPA Act. It is also well established that such work can relate to the development even if it serves more than one purpose: Hunter at [115]. However, I am not satisfied that the acid sulphate soil testing in this appeal was carried out for the purpose of complying with condition 38 of the Consent , and thus “ relates to ” the development the subject of the Consent . My reasons for coming to this conclusion are as follows: Chrisbeck had no involvement in the design of the acid sulphate sampling protocol devised by GTA . If the testing was being done in part to satisfy Chrisbeck ’ s obligations under condition 38, one might reasonably have expected that Chrisbeck would have indicated what its , or the Council ’ s , requirements were in relation to that testing. The Deed allowed Caltex, for a fee, to access Chrisbeck ’ s land for the purpose of carrying out the acid sulphate soil testing but did not impose any obligation on Caltex to do any sampling or testing. Again, If the testing was being done in part to satisfy Chrisbeck ’ s obligations under condition 38, one might reasonably have expected that it would have required Caltex to carry out the testing required for that purpose. Chrisbeck did not provide the results of the testing to the Council until 2007, some 12 or 13 years after the testing had been done. While the Deed makes reference to the existence of the Consent, it does not recite that the Consent required testing for acid sulphate soils or that the results of the testing to be done by Caltex would be relied on by Chrisbeck for the purpose of satisfying condition 38. The confidential it y provision in the Deed meant that Chrisbeck could not provide the results of the acid sulphate soil testing to the Council except with the further agreement of Caltex. If Chrisbeck had intended to provide the acid sulphate soil test results to the Council to satisfy its obligations under condition 38 , one might reasonably have expected to see its ability to do so , without the need for any further approval from Caltx, reflected in the terms of the Deed . The only bore hole and well established by Caltex on the Site for the purpose of testing for acid sulphate so ils , is located outside the area proposed to be developed under the Consent. This is a strong indicator, in my view, that the testing was done solely for Caltex ’ s purposes and not also for the purpose of satisfying the requirements of condition 38. Returning to the principles established in Hunter , i n my view the Applicant has not demonstrated : a “ real nexus ” between the acid sulphate soils testing carried out by GTA for Caltex and the additional testing required by condition 38 of the Consent ; that there is more than a merely notional or equivocal connection between the testing carried out by GTA and the testing required by condition 38 of the Consent ; a real relationship or connection between the testing carried out by GTA and the testing required by condition 38 of the Consent ; that the testing carried out by GTA was of the type required to satisfy the requirements of condition 38 of the Consent . I have therefore concluded that the acid sulphate soils testing did not relate to the Consent . Accordingly , I find that the Consent lapsed on 24 February 1998 . This finding is sufficient to refuse the construction certificate and dismiss the appeal . However, as the remaining jurisdictional pre-requisites were the subject of evidence and submissions , I will briefly set out my findings relevant to those matters. Payment of long service levy and compliance with the EPA Regulation Section 6.8(1) of the EPA Act provides that a construction certificate must not be issued with respect to the plans and specifications for any building work unless— (a) the requirements of the regulations have been complied with, and (b) any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid. I will discuss compliance with the EPA Regulation below. The parties informed the Court on 23 December 2021 that the long service levy had been paid. The requirements of s 6.8(1)(b) have therefore been satisfied. Compliance with Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 Clause 19 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (Certification Regulation) provides that a construction certificate must not be issued for building work unless: (a) the relevant building work plans and specifications include the matters required by a relevant BASIX certificate, if any, and (b) the design and construction of the building, as described in the relevant building work plans and specifications and in other information given to the certifier under section 12, is consistent with the development consent, and (c) the building will comply with the relevant requirements of the Building Code of Australia as in force at the time the application for the construction certificate was made. In my view each of these requirements is satisfied in the present appeal : Clause 1 9(a) does not apply as the proposed “ buildings ” do not involve the e rection of a dwelling and are therefore not “ BASIX affected building (s) ” within the meaning of that expression in the Certification Regulation . Given my finding that the proposed activities do not themselves constitute the erection of a building, sub cll 1 9(b) and (c) also do not apply . Clause 20 of the Certification Regulation provides that a construction certificate must not be issued unless each of the following are complied with: a condition of the development consent or an agreement referred to in the Act, section 4.17(6) requiring the provision of security before building work is carried out, a condition of the development consent, referred to in the Act, section 7.11 or 7.12, requiring the payment of a monetary contribution or levy before building work is carried out, a condition of the development consent that must be complied with before a construction certificate may be issued. Conditions requiring the provision of security – clause 20(a) In relation to cl 20 (a), condition 16 of the Consent requires the provision of a bond of $15,000 “ prior to the release of the Building Application ” . This is stated to be for the rehabilitation of the Site “ if the proposed development is abandoned during construction ” . The reference to a Building Application in this and the other conditions of the Consent is to be read as a reference to a construction certificate: see Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, cl 49B(a). T he parties informed the Court on 23 December 2021 that the bond required by condition 16 of the Consent had been paid. Clause 20 (a) has therefore been complied with . Conditions requiring the payment of monetary contributions – Clause 20(b) The Consent includes several provisions requiring the payment of monetary contributions in accordance with the provisions of the then s 94 of the EPA Act . These are monetary contributions for the embellishment of open space in the sum of $104,536 (condition 31), water supply augmentation in the sum of $156,060 (condition 32) and sewerage treatment works augmentation in the sum of $ 156,060 (condition 33) . Each of these monetary contributions is payable “ prior to release of the Building Application ” . Clause 20 (b) of the Certification Regulation refers to monetary contributions “ as referred to in ss 7.11 or 7.12 of the Act ” . While the contributions the subject of conditions 3 1, 32 and 33 were all imposed under s 94 , the then equivalent provision to s 7.11, a monetary contribution cannot now be imposed under s 7.11 for water supply or sewerage services. This is because the definition of “ public amenities or public services ” in s 7.1 expressly excludes water supply and sewerage services . I note that this restriction was also to be found in s 94(9) of the EPA Act. However, that sub-section was inserted by the LGC P Act , which commenced on 1 July 1993 and was not in force on the date on which the Consent was granted. Arguably, therefore, conditions 32 and 33 of the Consent, which require the payment of contributions for water supply and sewerage services are not conditions “ referred to in ss 7.11 or 7.12 ” and therefore fall outside cl 20 (b). However, as that point was not argued, I will proceed on the assumption that each of conditions 31, 32 and 33 are conditions requiring the payment of a monetary contribution or levy before work is carried out in accordance with the consent and are conditions to which cl 20 (b) applies . The Applicant submits that these conditions must be construed according to the EPA Act “ as in force then and now ” . It says that , instead of a single building approval being granted for the carrying out of development authorised by a development consent, the EPA Act now provides for “ layered certification ” with construction certificates being issued for various aspects or stages of a project. It argues that a “ common sense reading ” of the Consent ought to result in the monetary contributions not being required to be paid prior to the issue of a construction certificate for preliminary or preparatory works , such as those proposed by the subject application , but only when a construction certificate is sought for a major component of the approved development . In this regard , the Council generally agreed with the Applicant ’ s submission s. The principles applicable to the interpretation of a development consent are well known . As Lloyd J said in Kendall Street Developments Pty L t d v Byron Shire Council [2004] NSWLEC 227 : “12 It must be remembered, however, that a development consent such as the present one, is not a document drafted by lawyers. It was drafted by town planners, to be read by town planners and non-legally trained people. The development consent and the conditions must be read in a common sense way so as to give effect to the obvious intention of the draftsperson. Conditions of a development consent are to be construed, not as if the words were the language of a statute, but from a practical viewpoint: see Gill v Donald Humberstone & Co Ltd (1963) 1 WLR 929; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; and Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323. 13 Moreover, a court will strive to give effect to the words used rather than strike down a clause or condition. Accordingly, if necessary to give effect to the condition, I am prepared to read it in the way that the Act allows.” Reading the Consent in the way proposed by the Applicant, w ould not deprive the Council of the opportunity to require the payment of relevant monetary contributions prior to the issue of a construction certificate for later stages of the project . Requiring payment of all monetary contributions prior to the issue of a construction certificate for preliminary works such as those proposed by th e A pplication seems unlikely to have been the intention of the draftsper son and would not produce a practical and workable result . In those circumstances, I agree with the Applicant that a construction certificate may be issued for the works described in the Application consistently with cl 20 (b) of the Certification Regulation , despite the non-payment of the monetary contributions required by conditions 31, 32 and 33 of the Consent . Other conditions of the C onsent that must be complied with before the issue of a construction certificate – Clause 20(c) There are numerous other conditions in the Consent requiring things to be done “ with the building application ” , “ prior to the issue of the building approval ” , “ prior to release of the building approval ” or “ prior to the release of the building application ” . The reference to “ building application ” in the latter phrase must, in my view, be read as a reference to the building approval. These conditions require the provision of a detailed flood study (condition 4), a hydrogeology report (condition 5), details of external building materials (condition 9), the creation of restrictions on use on the title to the Site (condition 11), a detailed landscaping plan (condition 12), a bushfire hazard reduction strategy (condition 13) , a stormwater and wastewater monitoring system (condition 17) , a solid waste management plan (condition 30) , further testing for acid sulphate soils (condition 38), details of cutting and filling (condition 39) , a detailed parking plan (condition 40), and a letter from the Australian Telecommunications Commission confirming the provision of an underground telephone plant to the development (condition 43) . Of these conditions, the Applicant contends that conditions 5, 15, 16, 17 , 30 , 38 and 39 have been complied with . While the Council disputes that condition 38 was complied with prior to the date on which the Consent lapsed, it made no submissions in relation to compliance with the other conditions referred to by the Applicant. As noted above at par [ 64 ] , the Applicant submits that the references to “ building application ” and “ building approval ” in the various conditions of the Consent should not all be read as referring to the grant of any construction certificate for the development. The Applicant points out that little will be gained by requiring compliance with many of the Consent conditions prior to carrying out the works proposed by the A pplication . The Council did not argue otherwise. Adopting the same approach to the interpretation of the consent conditions discussed at par [ 65 ] above, it seems to me that the purpose of requiring the provision of the various things specified by the Consent as being required to be done prior to the issue or release of the building approval , will still be achieved i f they were done prior to the issue of a construction certificate for the construction of the proposed development . In my view , the Council would not have intended that all of the conditions would need to be complied with prior to the issue of a construction certificate for only the works proposed by the Application . As Llo yd J said in Kendall (at [15]) “ the Court must be concerned with practical considerations and adopt an interpretation which leads to a reasonably practical result ” . In my view, requiring compliance with each and every condition of the Consent requiring something to be done prior to the issue of a construction certificate for the clearing of vegetation from the Site , would not produce a reasonably practical result. None of the conditions , beyond those the Applicant says have already been satisfied , are conditions that impose requirements that, to achieve a practical result, must be satisfied before a construction certificate is issued for the clearing of vegetation from the Site . In those circumstances I find that cl 20 (c) of the Certification regulation is complied with. Conclusion Given my finding that the Consent has lapsed , the application for a construction certificate must be refused. The Court makes the following orders: The appeal is dismissed. Construction Certificate Application CFT-78801 to undertake site clearing works in accordance with Development Consent T4-91-195 in respect of Lot 2 DP 1091323 known as 1 Phillip Drive, South West Rocks is determined by refusal. The exhibits are returned other than exhibits A and B …………………………………… A Bradbury Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2022