Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2002] QPEC 42 [2003] 1 QPELR 83

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2002] QPEC 42 PARTIES: AQUA BLUE (NOOSA) PTY LTD Applicant and NOOSA SHIRE COUNCIL Respondent FILE NO/S: 5866 of 2001 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 24 July 2002 DELIVERED AT: Brisbane HEARING DATE: 11 February 2002 JUDGE: Alan Wilson SC, DCJ ORDER: Declare that the erection of a building on the land the subject of the approval in respect of which the respondent issued TPC 2645 on 1 July 1997 was commenced (within the meaning of that term where appearing in LGPEA s 4.13(18) prior to 1 July 2001, and that TPC has not lapsed within the meaning of that section. CATCHWORDS: PLANNING AND ENVIRONMENT – Lapsing of development permit under Local Government (Planning and Environment) Act 1990, s 4.13(18) –whether variation in conditions of approval prevents lapse – whether Integrated Planning Act s3.5.21 applies where original approval issued under former Act, but conditions of approval varied by order after new Act in force PLANNING AND ENVIRONMENT – whether applicant had commenced work under a development permit sufficient to prevent permit lapsing under Local Government (Planning and Environment) Act 1990, s 4.13(18) – meaning of ‘erect’ and ‘erection of a building’ in s1.4 and s 4.13(18) Local Government (Planning and Environment) Act 1990, s 1.4, 4.13(18) -- 1 of 14 -- 2 Integrated Planning Act 1997, s 3.5.21 Friends of Stradbroke Island Association Inc v Kennedy & Ors (1999) QPELR 117 McRoss Development Pty Ltd v Douglas Shire Council (2001) QPELR 98 BCC v Micalizzi (2000) QPELR 354 at 356B COUNSEL: Mr C L Hughes SC for the applicant Mr M Hinson SC for the respondent SOLICITORS: Phillips Fox for the applicant Wakefield Sykes for the respondent [1] The applicant seeks declarations and consequential orders about the currency of a development approval in respect of land situated at 94 Noosa Drive, Noosa Heads. The relief sought is as follows: “1. A declaration that upon a proper construction of the provisions of the Integrated Planning Act 1997 (“the Act”), the Applicant’s right to develop land situated at 94 Noosa Drive, Noosa Heads in the State of Queensland, more fully described as Lot 2 on Surfers Paradise 110327, Parish of Weyba (“the subject land”), in accordance with the Development Permit granted by Order of the Court on 10 November, 1999, authorising assessable development to the extent stated in that Order, and subject to those modified conditions forming part of that Order, will not lapse until 10 November 2003; 2. An order that the standard Planning and Development Certificate dated 22 November, 2001, issued by the Respondent, be set aside and the Respondent issue a fresh Certificate including, within the list of Decision Notices for Development Approvals for the land which have not lapsed, reference to the said Development Permit granted by Order of the Court on 10 November 1999; 3. Alternatively, if necessary, a declaration that the use of the subject land for the use or erection of a building or other structure on the land, subject to the approval in respect of which Town Planning Consent Permit No. 2645 was issued by the Respondent on 1 July 1997, was ‘commenced’ (within the meaning of that term where it appears in section 4.13(18) of the Local Government (Planning and Environment) Act 1990 (‘the repealed Act’), prior to 30 June 2001; 4. Alternatively, if necessary, orders and directions to facilitate an application by the Applicant for an extension of the period of Town Planning Consent Permit No. 2645 up to, and including, 10 November 2003 (or such other date as the Court determines appropriate); 5. Such further or other order as the Court deems meet to facilitate the timely development of the subject land in accordance with the Order of this Court made on 10 November 1999.” There is no doubt the Court has power to make declarations, and orders providing ancillary relief: Integrated Planning Act 1997 (IPA) s 4.1.21; and, see McGrath “Planning and Environment Courts Declaratory Powers” (2002) 22 Qld Lawyer 147. -- 2 of 14 -- 3 Relevant History [2] The land is the balance of a parcel formerly described as Lot 2 on MCH 2618, Parish of Weyba which was rezoned to the Special Facilities (Resort Accommodation and Ancillary facilities) zone, Special purposes (Tourist facilities) zone and Open Space zone by Order in Council published in the Government Gazette on 25 October 1986. In 1993 a previous owner applied to the respondent Council under s 4.12 of the Local Government (Planning & Environment) Act 1990 (LGPEA) for a permit to use the land for the erection of multiple dwellings (276 units) and associated facilities (administration, shop, restaurant and recreation facilities). The application was subsequently approved but the owner appealed to this Court (425/1995) against several conditions attached to the approval. On 19 June 1997 his Honour Judge Quirk allowed the appeal and approved the application, subject to some revised conditions. [3] On 1 July 1997 the respondent issued Town Planning Consent Permit No. 2645 (TPC 2645) setting out those conditions, as it was required to do under LGPEA s 4.13(12). In November 1998 the original Lot 2 was fully cancelled by a new plan SP 110327 creating new Lots 1 and 2. Lot 1 was transferred by the owner at the time to the respondent and dedicated as public parkland, at no cost to the respondent (pursuant to a condition imposed in TPC 2645). The balance, comprising 5.844 hectares, was acquired by this applicant in that month, November 1998. [4] In May 1999 this applicant applied under the Integrated Planning Act (IPA) s 3.5.33 to change the development proposal by altering the intensity of the development, and to permit construction of it in three stages. On 10 July 1999 his Honour Judge Quirk was persuaded the original conditions should be altered, and the matter was adjourned to permit the parties to reach agreement about them. The major effect of the changes was to reduce “population density” from 518 to 409 persons; and, commensurately, to reduce the gross floor area of the development, and car parking spaces. [5] On 10 August 1999 his Honour made appropriate orders, agreed by the parties, altering the conditions. Subsequently, however, work on the site indicated other changes were necessary and in a further proceeding before his Honour on 10 -- 3 of 14 -- 4 November 1999 an order was made which again altered the conditions. That order shows on its face that it referred back to the previous application under IPA s 3.5.33 and that the applicant sought to change the conditions “imposed on a town planning consent permit issued pursuant to an order of this Court given on 10 August 1999”. [6] On 24 October 2001 the applicant’s solicitors asked the respondent to issue a standard planning and development certificate under IPA s 5.7.10, for the purpose of obtaining “a copy of every decision notice or negotiated decision notice for a development approval that has not lapsed”. By letter 21 November 2001 the respondent sent that certificate and advised that “development permit TPC 2645 is not mentioned within that document as it is considered to have lapsed on 30 June 2001”. [7] Under LGPEA s 4.13(18) a permit lapsed where the use of land or the use or erection of a building or other structure had not been commenced within four years of the date of issue of the permit, or such extended period as the Council (upon application made to it) approved. The applicant contends, however, that its right to develop the land only crystallised with the last order of Quirk DCJ of 10 November 1999, which set the lapsing period running again so it does not, now, expire until 2003; or, that it has commenced work which comprises “the use of the land or the use or erection of a building or other structure on land”, since 1997, sufficient to prevent lapse. Does the four year Lapsing Period begin to run in 1997, or 1999? [8] Essentially, the dispute concerns the question whether a development permit issued under LGPEA, which has its conditions subsequently varied by a Court applying the IPA legislation is, by that process, re-enlivened (for the purpose of lapsing provisions) so that time in respect of it begins to run anew. [9] TPC 2645 was issued by the respondent Council on 1 July 1997 under LGPEA s 4.13(12) which provides that, in respect of an applicant for consent which has been determined by the Court after the hearing of an appeal (as occurred here), the respondent’s chief executive officer must forthwith issue a Town Planning Consent permit. That permit, and not the Court’s approval of the application for it, was the -- 4 of 14 -- 5 source of the entitlement under LGPEA to use this land for multiple dwellings, and ancillary facilities: ss 4.12(1), 4.13(12), (16), and (17). Under 4.13(16) the permit continued in force until (relevantly, here) it lapsed in accordance with s 4.13(18), i.e. where the use of the land or the use or erection of a building had not been commenced within four years “of the date of issue of the permit”, or such extended period as the respondent, upon application made to it, approved. (No application for an extension was ever made.) [10] The procedure under IPA is quite different. Under s 3.1.5 a “development permit” is required to authorise assessable development to occur. Under Schedule 10 a “development approval” is defined as a decision notice, or a negotiated decision notice that, e.g., approves development applied for in a development application. [11] When an application is made to an assessment manager, the manager is required to issue a decision notice under s 3.5.15, and that notice is taken to be a “development approval” under s 3.5.19. In the case of an appeal to the Court against approval, or the conditions attached to approval, the development approval takes effect when the appeal is finally decided and notice of the decision is given to the assessment manager: IPA, s 3.5.53(9). [12] The LGPEA was repealed, and IPA commenced, on 30 March 1998. Under IPA s 6.1.23(1)(b) the “permit” comprised of TPC 2645 was a “continuing approval” and, by s 6.1.23(2) had effect, despite the repeal of the LGPEA, as if it were a development permit. Under s 6.1.23(3), however, the continuing approval of the original permit had effect “…only for the period the continuing approval would have had effect if the repealed Act (LGPEA) had not been repealed”. [13] After 30 March 1998 it was not possible to apply under the LGPEA to modify the original permit, or any condition attached to it. Any changes sought to be made had to be brought under IPA s 3.5.33 to “…the entity that decided the condition or required the condition to be imposed on or attached to the approval…”. This Court was the “entity” which imposed the conditions in 1997 which, in turn, lead to the issue, by the respondent, of TPC 2645 under LGPEA s 4.1.3(12). Hence, when -- 5 of 14 -- 6 application was made in 1999 to change the conditions, it was properly made to the Court as the appropriate entity under IPA s 3.5.33(2). [14] The applicant posits that the order of 10 November 1999 was, in effect, a “development permit” which, under IPA s 3.5.21 would not lapse until 10 November 2003. On its face, however, that section deals with a “development approval” as defined in Sch 10, meaning a decision notice, or negotiated decision notice. A “decision notice” is a notice given under s 3.5.15 (and a “negotiated decision notice” is one given under s 3.5.17(2)). In both cases they are notices given by an “assessment manager” recording the decision made on a development application. The Court is not, however, an assessment manager. When an application is made under IPA s 3.5.33 to vary conditions, the Court’s decision is not, and cannot be, a development permit; rather, it is merely a decision to change, or cancel a condition. The Court was required, under s 3.5.33(9) to give the assessment manager (the respondent) written notice of the change or cancellation. [15] The applicant argues that the order of 10 November 1999 was both a development approval under IPA s 3.5.21, and Schedule 10, and a “development permit” for the purposes of IPA, vis-a-vis the former legislation. The applicant had no right, it is said, to develop this land in accordance with the present plans until the order of 10 November 1999 and it was not until that “development approval” that the applicant’s rights to develop in the new form crystallised, at which point time should properly begin to run afresh; or, in other words, an entirely new “development approval” issued, under IPA, with a new four lapsing period so that, in effect, the original 1997 permit became entirely redundant, and irrelevant. The argument ignores, I think, the fact that nothing in the IPA legislation suggests the underlying approval contained in the development permit of 1997, or the conditions attached to it, is subsumed in that way. [16] The applicant relies upon McRoss Development Pty Ltd v Douglas Shire Council (2001) QPELR 98, in which a town planning consent had issued in October 1994 for multiple dwelling units and associated facilities, followed by a permit under the LGPEA. In 1996 the applicant sought to have the approval modified and the respondent consented, but failed to issue a new permit for that modified approval, as -- 6 of 14 -- 7 required under LGPEA s 4.15(14). The respondent council contended, in the proceedings which ultimately came before his Honour Judge Quirk on 23 August 2000, that the applicant’s right to develop the land in accordance with the modified approval had lapsed pursuant to s 4.13(18) because the four year period commenced to run when the original approval was given in 1994; but his Honour held that the permit under s 4.15(14) was a necessary pre-requisite to the applicant’s right to develop the land in accordance with the modified approval which could not, then, have been exercised until that permit issued, so the lapsing period would not commence to run until that occurred. [17] Here, the position is quite different: this applicant’s right to develop the land certainly came into existence on 1 July 1997 when TPC 2645 issued. After the promulgation of IPA on 30 March 1998, that permit had continued force and effect, and later changes to the conditions attached to it took effect from the day written notice of the decision was given. IPA contains no provision corresponding to s 4.15(14), LGPEA. Further, all of these events occurred before IPA commenced and, as Quirk DCJ points out at para 7 of the judgment, continued to be governed by the former Act: IPA, s 6.1.25. The failure to issue the permit meant the outcome of the application to modify had no force and effect. It was to that failure his Honour was referring when he said: “The modified approval involves a new package of rights which must be identified in the relevant permit. No right to develop the land in accordance with the modified approval could be exercised until the permit for the modified approval had issued.” This applicant’s reliance upon that passage here is, with respect, misconceived. The proceedings before this Court in 1999 did not create a new “development approval” under the IPA legislation, but simply varied the conditions of the original permit under the former Act. The permit is the source of rights under the LGPEA: s 4.13(16). Under that section, where conditions are imposed the right created by the permit is subject to them, or any modifications of them. Neither under LGPEA s 4.15, or IPA s 3.5.33 does a change in the conditions create a new right. Rather, the change simply alters the terms upon which the right which derives from the permit may be exercised. -- 7 of 14 -- 8 [18] The order made on 10 November 1999 might have contributed to the applicant’s misconception of the position. It was ordered, first, that the application to change the conditions be permitted; then, the following appears: “It is further ordered that the subject application for Town Planning Consent be approved…” At the time there was no application for town planning consent before the Court but, simply, a request under IPA s 3.5.33 to change conditions. No adverse consequence flows but, as Mr Hinson SC submitted and I agree, the order in that respect went further than was necessary, and further than lay within the Court’s jurisdiction. [19] For the applicant, it is also contended that order was in effect an “appeal decision” under IPA s 4.1.54 which provides, relevantly, that in deciding an appeal the Court may make the orders and directions it considers appropriate including orders which change the decision appealed against and which become, under s 4.1.54(3) the decision of the “entity” referred to in s 3.5.33. The 1999 proceedings did not, however, involve an appeal and his Honour Judge Quirk was not exercising appellate jurisdiction but rather, original jurisdiction under s 3.5.33. The distinction can be illustrated by example: had the respondent been the entity to which a request to change or cancel conditions been made under s 3.5.33 and refused it, the applicant might have appealed to this Court (under s 4.1.31) and in those circumstances s 4.1.54(3) would have applied to the ultimate decision; but the 1999 application did not involve an appeal but, rather, an application clearly made under s 3.5.33. [20] In summary, the applications in 1999 and the orders made in them involved no more than a request to change conditions under IPA s 3.5.33, with the effect that the terms upon which the rights arising under the original 1997 permit might be exercised were changed; but, that right always remained one to develop the land for the use which was originally approved (in this case, multiple dwellings and ancillary facilities). That right continued with, simply, alterations to its conditions about format and layout, etc. after the 1999 orders. No new right or “development approval” was created by them. Was the ‘use of the land or the use or erection of a building or other structure… -- 8 of 14 -- 9 commenced within four years’ of 1 July 1997 ? [21] The applicant argues, in the alternative, that within the four year period after it was granted TPC 2645 it undertook sufficient work on the land, referrable to the development permit, to enable it to escape the proscription in LGPEA s 4.13 (18), which provides: “(18) A permit issued pursuant to subsection (12) lapses where – (a) the use of the land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 4 years of the date of issue of the permit …” [22] It is not in dispute that because, as I have found, the rights which govern this development are based in the original permit issued on 1 July 1997, the question is to be decided by reference to the former legislation: LGPEA s 6.1.23 (3); Acts Interpretation Act, s 20; and, see BCC v Micalizzi (2000) QPELR 354 at 356B. [23] In Micalizzi a town planning consent issued to the respondent on 24 January 1995 for the erection of a building on land at Ascot. On 15 January 1999, just within the four year period, the respondent’s architects received a building approval. The issue of that approval had been preceded, as his Honour Judge Brabazon QC found, by activity on the part of architects and engineers retained by the respondent to construct the building – soil testing and the provision of a report about it; and, the preparation of architectural and engineering drawings, also provided to the Council which, nevertheless, contended nothing had been done sufficient to avoid the effect of s 4.13(18). In reasons which I respectfully adopt, his Honour said at 353E – 354G: “The result is that it is only necessary that something described within subs.(18)((a) must commence within the four years. In this case it can be seen that it is critical to see whether or not there has been such a commencement before the expiry of four years which took place at midnight on 24 January 1999. There are a number of considerations that might be kept in mind. First of all, as mentioned in The Friends of Stradbroke Island case subs.4.13(18)(a) requires that there be a complete absence of commencement of any activity authorised by a permit within four years before the permit lapses. Secondly, as one can see from the decision in the High Court of Australia in Owendale Pty Ltd v. Anthony and Another 117 C.L.R. 539, there is no need for substantial work over a long period of time to have commenced. In that case, a few hours work done on the day before the expiration of a notice was sufficient where there was a requirement that a lessee had to “commence to erect” a building within a prescribed period. Similar considerations apply here. -- 9 of 14 -- 10 Also to the same effect are the views of Professor Fogg of the University of Queensland, writing in his Study Guide No. 7 at p.13. The situation here can be contrasted where there is a requirement that work “substantially starts:. That was the position, in effect, under the former Local Government Act which required that “substantial progress” had to be made (see s.33(16D)(b)(i)(A))). With the adoption of that standard in the Integrated Planning Act the wheel has turned full circle, but that difference must be kept in mind in considering the provision under the Planning and Environment Act. Attention has to be paid to the decision of Connolly J in Dackfield (1983) Q.R. p.10. There, some general propositions were drawn from the established cases, but it should be kept in mind that they were dealing with a test of substantial commencement. In that case, Connolly J’s fourth proposition was to the effect that: ‘Where a provision called for substantial commencement of the work within a specified time, the work concerned is that to which the approval itself refers and work would not be commenced when nothing more had been done than acts preparatory tot he work the subject of the approval.’ Connolly J relied on the decision of the High Court of Australia in Drummoyne Municipal Council v. Lebnan (1974) 131 C.L.R. 350 at 360 in deriving that fourth proposition. If one reads that decision of the High Court of Australia, it can be seen that the definition of ‘building work’ led to a probable conclusion that preparatory demolition work was not included. However, Gibbs J at p.360 went on to say that excavation work would be included within the work allowed under the permit. It is interesting to take into account the definition which is relevant in this case in s.1.4 of the Planning and Environment Act. The word ‘erect’ includes: ‘(a) erect or commence or continue to erect; or (b) do or commence or continue to do any work in the course of or for the purpose of erecting.’ That definition with its inclusion of work which is done for the purpose of erecting is wider than that considered by the High Court in Lebnan’s case. In the present case, work was actually done on this land before the expiry of the four years. The soil testing by the engineers was actually done before the approval was issued. Then, after the approval was issued, some demolition work was carried out. The town planning consent approval itself had a condition that required all existing buildings and structures to be removed from the land before any building work was commenced. Some of that demolition was achieved before the expiry of the four years, that is, a laundry was demolished and a garage was demolished. Then a trench about five metres long, half a metre wide and half a metre deep was excavated on the alignment of the rear footing of the project, as shown on the engineering drawings. That trench was excavated for the ultimate purpose of using it for the footings designed for the southern wall of the project. A safety fence was erected around the trench for the safety of the occupants of the house not then demolished. The trench was inspected by the consulting engineer to determine its adequacy in view of the soil conditions that had been earlier found. In my opinion, that work collectively amounts to a commencement before the expiry date. I should say that, in taking the view the demolition work is included within work done under the town planning consent, not only have I referred to the definition of the word ‘erect’ but also the decision of the House of Lords in London County Council v Marks and Spencer Limited (1953) Appeal cases at 535. There, in a statutory requirement which spoke of ‘the erection or alteration of a building has been begun but not completed before the appointed day’, it was held that it was not -- 10 of 14 -- 11 necessary that work of a constructional nature was done before the expiry of the time. It was sufficient if demolition for the purpose to enabling construction to be done was carried out. The same considerations apply here. Therefore it follows that commencement of the erection of a building within the meaning of s.4.13(18) of the Planning and Environment Act had been done. The consequence is that the permit did not expire at midnight on 24 January 1999.” [24] It follows the applicant need merely establish, under the LGPEA definition of ‘erect’, (s 1.4) that it has commenced to erect a building or structure or performed, or commenced to perform, work ‘in the course of or for the purpose of erecting’. [25] The applicants material shows that, in the relevant four years 1 July 1997 to 2001, it expended almost $1m on consultants’ fees (architects; civil, structural, hydraulic, and water and water quality engineers; and licenced, quantity, and soil surveyors); bank charges ( in respect of guarantees lodged with the respondent Council); application fees paid to the Council; and, external roadworks contributions. In exhibit 6, the applicant tabulated this expenditure and the various events, including the issue of subsequent necessary approvals by the Council for such matters as landscaping, sewerage and associated works, bulk earthworks, and building, associated with it. Of interest is the fact that the Council issued a Decision Notice approving building work in March 2000 which does not, on its face, expire until 16 March 2003. Exhibit 8 is a series of photographs showing survey markers, tree numbering, trees marked with ribbons and, perhaps, a bore hole (the photos are not of good quality); but, in any event, some obvious, clearing work undertaken in connection with them. [26] The affidavit of Linda Gaye Morris filed 10 December 2001 exhibits these approvals for the various works, and the documents the applicant provided to obtain them. They reveal a considerable amount of work undertaken to identify, mark and map trees on the site; dig bore holes and take soil samples, and analyse them; survey the site and, generally, perform tasks which had no apparent purpose other than to progress the development of the site. It is helpful to set out parts of the table in Exhibit 6 summarising steps taken in the period 1997 – 2000: “06 05 99 Applicant submits two (2) trading bank guarantees totalling $200,000 (pursuant to condition 43 of TPC 2645) 24 05 99 Applicant obtains P & E Court to change development proposal, pursuant to section 3.5.33 of IPA -- 11 of 14 -- 12 10 08 99 Applicant obtains P & E Cuort order allowing changes to conditions imposed by previous Court Order to permit a different development proposal comprising multiple dwellings (149 units) and ancillary facilities (conference centre, restaurant, shop and recreation facilities), subject to conditions 10 11 99 Applicant obtains further P & E Court order changing conditions imposed on the new development approval 15 11 99 Applicant obtains Council issued Decision Notice approving application for operational works (access roads, filling) 22 12 99 Applicant enters agreement with Council and Thannhauser (re construction of roundabout at intersection of Noosa Drive and Leslie Drive) 04 01 00 Applicant obtains Council issued Negotiated Decision Notice approving application for lot reconfiguration (reciprocal easements and new road) 08 02 00 Applicant obtains Council issued Decision Notice approving application for operational works (landscaping) 18 02 00 Applicant obtains Council issued Decision Notice approving application for operational works (sewerage, pump station, rising main) 09 03 00 Applicant obtains Council issued Decision Notice approving application for operational works (bulk earthworks) 10 03 00 Applicant obtains Council issued Decision Notice approving application for operational works (civil works) 16 03 00 Applicant obtains Council issued Decision Notice approving building work (N.B. Expires 16 March 2003) 30 08 00 Applicant pays Council external roadworks contribution of $140,908.00 15 09 00 Applicant submits bank guarantee for water supply and sewerage headworks of $889,295.00 11 10 00 Applicant submits supplementary bank guarantee for headworks of $168,516.00” [27] Other exhibits corroborate the claim that, in preparing such things as the application for bulk earthworks approval (Morris affidavit, exhibit 16) and an environmental management plan, a large amount of work was undertaken on the site, and in the preparation of reports and documents, in the way of geotechnical investigations and the like. All the exhibits to the Morris affidavit are in total about 8cm thick, and speak eloquently, I think, in support of the notion the applicant has not been sitting on its hands. -- 12 of 14 -- 13 [28] For the respondent Council Mr Hinson SC argued the extended definition of ‘erect’ in LGPEA s 1.4 does not assist the applicant because it must envisage, at least, some actual physical work on the land referrable to a building or structure – eg, the demolition of existing structures, or the digging of trenches for foundations, etc (as in Micalizzi (supra)). It is not apt, he submitted, to include work which, even if extensive, does not alter or adapt the land in some way relevantly connected with the erection of a building; and in the context of the definition, ‘work’ must involve the exertion of manual or mechanical labour which is directed toward the construction of a building – and, not the physical or mental labour involved in merely securing authorisation legally required for construction to occur. Each of the cases examined by Brabazon QC, DCJ involved, at least, demolition work or something like a trench which was obviously related to a building. Each, of course, also turns on the wording of the statute governing the circumstances arising in it. None, in my opinion, establish a principle of the kind contended for by the respondent; and, here, the statute sets a test which is, on its face, extraordinarily light and very easy to satisfy. [29] In Micalizzi Brabazon QC, DCJ affirmed s 4.13(18) is couched in terms that require there be a complete absence of commencement of any activity authorised by a permit within the four year period – a view which, in my respectful opinion, is entirely in accord with the clear meaning and intent of that section read, as it must be, in conjunction with the definition of ‘erect’ in s1.4. Plainly, the fact that the recipient of a permit for development need do no more than ‘commence…any work in the course of or for the purpose of erecting…’ (my underlining) does not impose a requirement that, for example, a certain number of sods be turned, or a hole of certain proportions be dug. Any work for the purpose of erecting must, in my view, include almost any undertaking in the way of labour, mental or physical, which bears a clear connection to the eventual construction of the approved development. The section was designed to catch those who, having obtained approval, did nothing. Its apparent leniency, and the lightness of the burden it imposed is now, largely, of historical interest: IPA contains a much more stringent requirement that work ‘substantially starts’. [30] In this case the work performed by the applicant’s various professional agents could have no purpose save one directed toward the aim of developing the project -- 13 of 14 -- 14 approved in 1997, and varied in 1999. Mr Hinson SC made the further points that the applicant’s evidence did not show any specific work referrable to building since the building permit issued in March 2000, and that much of the investigation and reporting relied upon was preparatory to the submission of material to support the application for that permit, but neither seems to me to detract from the fact the work was obviously performed in the course, and for the purpose, of erecting the approved structures. [31] I declare that the erection of a building on the land the subject of the approval in respect of which the respondent issued TPC 2645 on 1 July 1997 was commenced (within the meaning of that term where appearing in LGPEA s 4.13(18) prior to 1 July 2001, and that TPC has not lapsed within the meaning of that section. -- 14 of 14 --