Posted on July 27, 2023 by Stuart Simington and Dimitrious Havadjia
Physical commencement – unlawful preparatory works in breach of condition of consent
Establishing whether a development consent has lapsed often involves a question about whether the works undertaken on the site have been “physically commenced”. However, it has long been established that works purportedly undertaken that are unlawful because they are in breach the development consent cannot be relied on to prevent the consent from lapsing because they are not works “related” or contemplated by the consent.
Recently, in Fabemu (No 2) Pty Ltd v Kiama Municipal Council  NSWLEC 79, the Land and Environment Court (LEC) considered what kinds of conditions of consent might need to be complied with to ensure commencement work is lawful and can qualify for the purposes of physical commencement – with a result somewhat different to earlier decisions.
The Applicant, Fabemu (No 2) Pty Ltd, had the benefit of a development consent (Consent) to construct a dwelling in Gerringong.
The Consent was scheduled to lapse on 25 October 2021, but because of the COVID-19 extensions of time, the revised date for lapsing was 25 October 2023.
The Applicant, concerned that the potential extension of the Kiama-Gerringong coastal walking track may impact the approved dwelling, had held off constructing the dwelling until the route of the walking track was finalised.
The Applicant thus sought a declaration from the Court that the works undertaken on the site, being boreholes and surveying works to establish the position of the driveway to the future dwelling (Initial Works), constituted physical commencement that meant that the Consent would not lapse on 25 October 2023.
The Judge found there were two relevant questions:
- Did the Initial Works constitute physical commencement as engineering works, per s4.53(4) of the Environmental Planning and Assessment Act 1979 (EPA Act)?
- Were the Initial Works carried out per the Consent?
Did the Initial Works constitute physical commencement?
As the Consent was issued before 15 May 2020, s96(1) of the Environmental Planning and Assessment Regulation 2021 did not apply (which would have explicitly prevented the Initial Works from being considered physical commencement). Section 96(1) now provides that the following work is not qualifying for the purposes of physical commencement:
(a) creating a bore hole for soil testing,
(b) removing water or soil for testing,
(c) carrying out survey work, including the placing of pegs or other survey equipment,
(e) removing vegetation as an ancillary activity,
(f) marking the ground to indicate how land is to be developed
Given that preparatory works required by a development consent can be considered as necessary steps towards to development works such works can be related to those development works. The Judge found that the Initial Works would have been sufficient to constitute a physical commencement all other things being equal.
Were the Initial Works in accordance with the Consent?
The Applicant submitted that although 8 of the 49 conditions in the Consent were framed as being required before the commencement of any works, the correct construction of the conditions was that they did not apply to the Initial Works. The Applicant argued that the Initial Works were preliminary in nature and were themselves pre-requisites to the issuing of a construction certificate, which the Consent required before substantive construction could commence.
The Judge accepted this submission except regarding condition 4, which read as follows:
The developer must provide a traffic control management plan complying with the design requirements of the Roads and Maritime Services (RMS) “Traffic Control at Work Sites” manual. The traffic control management plan must be designed by an RMS accredited designer and must be provided to and approved by Council prior to the commencement of any works.
The Applicant submitted that the condition should be understood to only relate to the substantial works authorised by the Consent and not the Initial Works, as the small scale of the Initial Works (being a single vehicle) meant it was not the type of movement for which a traffic control management plan was required.
The Judge disagreed, stating that the Initial Works had to comply with condition 4, for the following reasons:
- The condition was under the heading ‘General’, which meant the narrowing of scope of the condition suggested by the Applicant was inappropriate; and
- Although the Initial Works were preliminary in nature, the construction of the driveway itself was likely to generate significant vehicle movements. Therefore it was reasonable to presume that condition 4 was to apply to all works, including the Initial Works.
The Judge noted that an inference that the relative position of the condition (i.e., being at the top) and the heading ‘General’ meant the condition applied to all activities was “not to be given great weight”. Nevertheless, construing the consent, the Judge considered that in this case condition 4 was indeed required to be satisfied before “any work”.
 There can be no doubt that the carrying out of works to create the driveway would necessarily involve significant movement by plant and equipment onto the property from Fern Street.
 That fact, in conjunction with the fact that condition 4 occurs in the Part of the Conditions of Consent headed “General” causes me to conclude that a proper understanding of the framework of the conditions of the consent, and of condition 4 specifically, gives rise to the outcome that it was intended to be, as the heading implies, one of general (and therefore universal) application, requiring satisfaction prior to the carrying out of any works at all on the site.
On that basis, the Judge found that the Initial Works were undertaken in breach of the Consent and, therefore, could not be considered as a physical commencement.
Therefore the Consent would was still liable to lapse as scheduled on 25 October 2023.
There case stands in some contrast to Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd  NSWLEC 122). In that case, conditions under the subheading “The following conditions are to be complied with prior to any work commencing on the site” were not considered to apply to the preparatory works which were therefore not unlawful.
Caution must be exercised in construing whether conditions of consent should be interpreted as applying to preparatory commencement works. The heading under which a condition is listed (especially if it is a general heading) may be but is not determinative of how the consent should be construed and to which stages(s) of the development process it will apply.
Consent authorities should be careful to consider the positioning and categorisation of conditions of consent to ensure that they are interpreted in the way intended when granting the consent.
To discuss this post, please contact Stuart Simington on 8235 9704 or Dimitrious Havadjia on 8235 9724.