A ‘Road’ is not a ‘Building’

In the recent case of Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240, the NSW Court of Appeal held that the construction of a road did not constitute the erection of a building, and as a result did not require a construction certificate.

Background

The background to the case was complex, and arose from the grant of consents in 2005 to  Louisiana Properties Pty Ltd (‘Louisiana’) in relation to land which was then subdivided, and part sold to Hakea Holdings Pty Ltd (‘Hakea’).

One of the original consents related to the whole of the land (prior to its subdivision) and authorised the construction of a road.

After purchasing part of the land (Lot 101), Hakea entered onto the other part which was retained in Louisiana’s ownership (Lot 102) and constructed the road on that land.

Louisiana commenced proceedings against Hakea for trespass, and issues arose regarding whether the road was authorised by the consents attaching to the land, and whether the construction of the road required a construction certificate.

The ‘road is not a ‘building’ 

The EPA Act defines a building as including part of a building, and also includes any structure or part of a structure.

Section 81A(2) of the EPA Act (as it then was) provided that the erection of a building in accordance with a development consent could not commence until a construction certificate was obtained.

The primary judge had accepted that the road could satisfy the definition of ‘building’ if it were appropriately regarded as a ‘structure’ and, in doing so, the primary judge relied on a dictionary definition of the word ‘structure’.

The Court of Appeal rejected this interpretation and held that the road was not a ‘building’ as defined in the EPA Act.

The Court cautioned against the use of dictionary definitions because dictionary definitions do not provide the statutory context necessary to determine the purpose of the  provisions being interpreted, which is required under s 33 of the Interpretation Act 1987 (NSW).

In applying that ‘purposive‘ approach, the Court referred to the definition of ‘building work‘ in the EPA Act, being  ‘the physical activity involved in the erection of a building‘. The Court said many structures require construction, being the putting together of disparate parts, but in circumstances where you would not say the structure was ‘erected‘. The Court did not consider that one would speak of ‘erecting‘ a road, and therefore it could not be intended that constructing a road was ‘building work’.

The Court also noted that occupation certificates are required for buildings, and the Court did not consider that one would speak of ‘occupying‘ a road.

Constructing a road, on the other hand, would clearly constitute the carrying out of work, and ‘development‘ for the purposes of the EPA Act.

Having regard to that statutory context Basten JA said:

…Bearing all these considerations in mind, a roadway which follows the natural lie of the land (even with the occasional culvert) should not be identified as a ‘building’ for the purposes of the Act…

However, the Court noted that this finding is restricted to the particular road constructed by Hakea and that certain kinds of roads, such as a raised freeway which does not follow the lie of the land, may constitute a building.

Implications

The decision limits the range of structures which will be considered to fall within the definition of a building . The reasoning of the Court would apply to other types of works, not just roads,  and would require a consideration of whether the works can properly be considered to be ‘erected‘ or ‘occupied‘.

As the definition of ‘building‘ is relevant to many parts of the EPA Act including the requirement for construction certificates and occupation certificate, and the issue of various types of development control orders, the decision is relevant to the operation of  many parts of the EPA Act and instruments under the EPA Act.

The case also serves as a general reminder to consider the context of legislation and not to simply apply dictionary definitions when interpreting the meaning of words used in  legislation.

To read the decision in full, click here.

To discuss this post please contact Elaine Yeo on 02 8235 9712 or Megan Hawley on 02 8235 9703.

About megan hawley

Partner. Megan is a highly respected specialist planning, environment and local government lawyer with over 20 years' specialist experience. During her career Megan has worked in 2 of Australia's top tier law firms, including 5 years as a partner. Megan frequently advises state government, local government and private sector clients in relation to issues pertaining to the Environmental Planning and Assessment Act 1979, the Local Government Act 1993, and the Environment Protection and Biodiversity Conservation Act 1999. Megan has particular expertise in acting for public authorities and private developers in negotiating and drafting commercial agreements, planning agreements and other agreements, particularly where the agreement involves contaminated land, pollution issues, or the provision of affordable housing. Megan is an Accredited Specialist in Local Government and Planning Law as regulated by the Law Society of NSW's Specialist Accreditation Board.
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One Response to A ‘Road’ is not a ‘Building’

  1. Melinda Jeoffreys says:

    A fence is erected, but attracts a compliance certificate rather than an occupation certificate, and needs a construction certificate (if it doesn’t meet the criteria for being exempt development): an in-ground swimming pool is not erected, it is installed, but needs a construction certificate/CDC and receives either an occupation certificate or compliance certificate…… so, I can’t say I’m fully convinced by the judge in this instance. I think I will have to sit on the fence with this one.