This will be part of my written submissions, I have been given leave to file amended written submissions.
There will be other arguments, such as one based on s.33 of the Interpretation Act.
1. The Judge found that s.95(4) requires that the work relied on to physically commence a Consent must relate to a Consent in existence at the time that work was undertaken, and that work carried out prior to Consent being granted could not operate to prevent that Consent from lapsing.
2. The judge relies does not rely on any precedent decision to support this finding, and does not rely on any principles of interpretation to limit the operation of s.95(4) to exclude work carried out before the grant of Development Consent from operating to prevent the Consent from lapsing.
3. There is no limitation expressed in the wording of s.95(4) or any other provision of the Act that excludes work carried out before grant of Consent from operating to prevent a Consent from lapsing.
4. It’s my submission that rather than making blanket rulings that all work carried out before the grant of Consent either can or can not be relied upon to prevent a Consent from lapsing, the Courts should rather consider the individual facts of every case, which can be very varied, and then decide if, on a proper application of the law to those facts, those works can be considered works that can act to prevent a Consent from lapsing.
5. The relevant facts to be considered in this matter are:
A. The hotel lodged a Development Application, along with the required architectural plans and engineering plans, to build a new beer garden on the hotel site.
B. Part of that Development Application sought to raise the level of the beer garden area and to lay a concrete floor for the beer garden.
C. The hotel then went ahead and carried out the works to raise the level of the beer garden and laid the new concrete floor of the beer garden before Consent had been granted.
D. These works were carried out in accordance with the plans lodged with the Development Application.
E. The hotel relies on their breach of the Environmental Planning and Assessment Act
to found a case that their Development Consent for the construction and use of the beer garden has lapsed.
F. The hotel stands to benefit if their Development Consent is found to have lapsed as a result of their carrying out some of the works to build the development unlawfully, as they will be able to avoid the conditions imposed by Council on that development for the protection of the environment.
G. The works to raise the level of the beer garden and lay the concrete floor of the beer garden otherwise come within the ambit of works that relate to works that can be relied upon to prevent a Development Consent from lapsing according to the principle in Hunter Development/Tovedale, in that they were necessary works that had to be carried out before some of the other works the subject of the Development Consent could be carried out.
8. It is my submission that it is to these facts considered together that s.95(4) should be applied in this case, and not applied to single facts in isolation as the Judge did.
9. Before I proceed with this point, I think it would be instructive to examine some other cases which, while not being a direct precedent, deal with the lapse of Consents pursuant to s.95(4).
10. In K and M Prodanovski v Wollongong City Council, the Court found that works relied upon to argue the Consent hadn't lapsed did not act to prevent the Consent from lapsing as the works were not carried out in accordance with the Consent, as the Consent had specified certain acts that had to be carried out before the works relied upon could be carried out.
11. While cases such as Prodanovski rule that works that were not carried out in compliance with the Consent can not be works that can be relied upon to prevent a Consent from lapsing, it must be noted that S.95(4) on it’s terms does not exclude such works from being relied upon to prevent a consent from lapsing, so it seems the Court in Prodanovski and similar cases, interpreted S.95(4) in the context of the Act as a whole, and to give effect to the purpose of Parliament as expressed in the act.
The Court stated in Waringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 346:
The legislative purpose, expressed in the Act, is to uphold, in the normal case, the public interest in upholding planning law."
And the Court went on to say: "The obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation."
12. So it seems that in Prodanovski and similar case such as Irongates, the Court was interpreting and applying S.95(4) to give effect to the legislative purpose of Parliament as expressed in the Act, namely that the Act should be complied with, and development must be carried out in accordance with the Act, and as such the Court excluded from the ambit of S.95(4) works that were not carried out in accordance with the Act or Development Consent.
13. In effect the Court was giving effect to the purpose of parliament as expressed in the Act by refusing the developer any benefit as a result of the developer carrying out work other than in accordance with the Act or Development Consent.
14. I submit that the Court should apply the same interpretation of S.95(4) the Court applied in Prodanovski to the facts of the present case, that is interpret s.95(4) in the context of the Act, and to give effect to the legislative purpose of Parliament as expressed in the Act, namely that development must be carried out in accordance with the Act,
15. However in addition, I refer to the legal Maxim, nullus commodum capere potest de injuria sua propria - (no one should be allowed to profit from his own wrong).
16. In De Marco v Chief Commissioner of State Revenue nsw (2013) NSWCA 86 the Court referred to Bennion, Statutory Interpretation 5th Edition., which said:
Unless the contrary intention appears, an enactment by implication imports the principle of the Maxim (no one should be allowed to profit from his own wrong)."
In Rathone pty ltd v Tricon (Aust) pty ltd (2005) NSWCA 443, the Court observed that it “founds like a rule of construction of statutes.
Grozier v Tate (1946) 64 WN (NSW)
in the absence of a clear intention to the contrary, the legislature is to be presumed not to have intended that persons who are in breach would benefit from their illegality."
17. So applying the interpretation of s.95(4) that was obviously used in Prodanovski, that s.95(4) be interpreted in the context of the Act, and interpreted in a way that gives effect to the legislative purpose of parliament as expressed in the Act, namely that development be carried out in accordance with the Act, and applying s.95(4) in accordance with the Maxim that no-one should be allowed to profit from their own wrong, then I submit that, applied to the unique facts of this matter.
It results in an interpretation of s.95(4) that finds that the works the hotel carried out to raise the floor level of the beer garden, and the laying of the concrete floor in the beer garden, were works that act to prevent the Development Consent from lapsing, and so as the Development Consent hasn’t lapsed, the Conditions in the Development Consent that the Respondent not play live or recorded music or amplified sound in the beer garden are valid.
18. This result arising from the proper construction of s.95(4) applied to the unique facts of this case, relies upon the fact that the hotel would receive a benefit as a result of their carrying out of development other than in compliance with the Act, if the works the hotel undertook in raising the beer garden floor and laying the concrete floor of the beer garden, were not found to be works that can prevent the Consent from lapsing.
19. The benefit they would receive in this case as a result of carrying out development other than in compliance with the Act, would be to enable them to evade the conditions imposed on their development by the Consent Authority for the protection of the environment.
