Baron Corporation Pty Ltd v Wingecarribee Shire Council

[2018] NSWLEC 132

Land and Environment Court

New South Wales

Medium Neutral Citation:	Baron Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 132
Date of orders:	29 August 2018
Decision date:	29 August 2018
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See [83] of judgment
Catchwords:	APPEAL – s 56A appeal from decision of commissioner – no error of law in refusal of construction certificate established – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, 10.16, 81A, 109C, 109F Pt 4A Environmental Planning and Assessment Amendment Act 2017 Sch 13 cl 14 Environmental Planning and Assessment Regulation 2000, 139, 145, 146, Sch 1 Pt 3 Land and Environment Court Act 1979 ss 39, 56A Local Government Act 1993 ss 44, 68, 106 Roads Act 1993 ss 138, 139
Cases Cited:	Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439; [2006] NSWCA 273 Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Baron Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1243 Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 El Boustani v Minister Administering the Environmental Planning & Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33 Gosford Waterfront Alliance Inc v TO Gosford Pty Ltd (No 2) (2016) 220 LGERA 253; [2016] NSWLEC 162 Hoy v Coffs Harbour City Council [2015] NSWLEC 1 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Moy v Warringah Council (2014) 133 LGERA 49; [2004] NSWCCA 77 Ryde Municipal Council v the Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 Seaton v Mosman Corporation (1996) 93 LGERA 1 State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 Sertari Pty Ltd v Quakers Hills SPV Pty Ltd [2013] NSWLEC 208 Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney [2014] NSWLEC 163 Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] HSWCA 17
Texts Cited:	R Bird (ed) Osborn’s Concise Law Dictionary (7th ed, 1983, Sweet & Maxwell)
Category:	Principal judgment
Parties:	Baron Corporations Pty Limited (Appellant) Wingecarribee Shire Council (Respondent)
Representation:	COUNSEL: P Tomasetti SC (Appellant) C Leggat SC (Respondent)   SOLICITORS: Mills Oakley (Appellant) Shaw Reynolds (Respondent)
File Number(s):	2018/183498
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2018] NSWLEC 1243 Date of Decision: 24 May 2018 Before: Bish C File Number(s): 17/374510

Judgment

1. The Appellant Baron Corporation Pty Ltd (Baron) has commenced an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (LEC Act) in relation to the decision of a commissioner in Baron Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1243 delivered on 24 May 2018. The Commissioner determined to refuse the construction certificate sought by Baron in relation to subdivision at Lots 1 and 3 DP 1222269 Farnborough Drive Moss Vale (the Site). Development consent for DA 15/0813 for a 40-lot residential subdivision (with one residual lot) at the Site was issued on 1 July 2016. The development consent was to be undertaken in accordance with a list of plans and documents submitted with the development application (DA) which included an Infrastructure Report prepared by Calibre Consulting referred to at [18(l)] below.

2. The Site is located approximately 1.5 kilometres north of the intersection of Farnborough Drive and the Illawarra Highway. The Site is bordered to the north by the Moss Vale to Unanderra Railway Line and to the south by residential lots and an electrical zone substation. An existing drainage reserve at Lot 40 DP 263854 owned by Wingecarribee Shire Council (the Council) (the Council Reserve) is approximately 450 metres south of the Site which flows in a south-east to north-west direction.

3. On 19 June 2018 the Council approved a modification pursuant to s 106 of the Local Government Act 1993 (LG Act) of an application under s 68 of the LG Act to allow drainage work with respect to Lot 1 DP 1222269 Farnborough Drive Moss Vale (the s 68 approval). Plans 201, 202 and 203 were approved as part of the s 68 approval. The same plans are included in the plans the subject of the construction certificate application (albeit with different revision numbers) (Exhibit N in the proceedings before the Commissioner).

Land and Environment Court Act 1979

4. Section 56A of the LEC Act provides:

Part 5 Appeals from the Court

Division 2 Class 1-4 proceedings

56A Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2)   On the hearing of an appeal under subsection (1), the Court shall:

(a)   remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b)   make such other order in relation to the appeal as seems fit.

...

5. Baron's appeal to the Court was lodged prior to the repeal of Pt 4A of the Environmental Planning and Assessment Act 1979 (EPA Act) on 1 March 2018 and its application for a construction certificate was therefore “pending” pursuant to s 10.16(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and Sch 13 cl 14(2) of the Environmental Planning and Assessment Amendment Act 2017. The unamended Act applies.

Environmental Planning and Assessment Act 1979

6. The EPA Act has had its provisions rearranged and renumbered with these changes effective on and from 1 March 2018. Provisions of the EPA Act as applied to construction certificates at the time the construction certificate was refused provided:

Part 1 Preliminary

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4   Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

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certifying authority means a person who:

(a)   is authorised by or under section 85A to issue complying development certificates, or

(b) is authorised by or under section 109D to issue Part 4A certificates.

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construction certificate means a certificate referred to in section 109C(1)(b).

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Part 4 Development assessment

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Division 2 The procedures for development that needs consent

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81A   Effects of development consents and commencement of development

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(3)   Subdivision of land

A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.

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(4)   Subdivision work in accordance with a development consent must not be commenced until:

(a)   a construction certificate for the subdivision work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and

(b)   the person having the benefit of the development consent has appointed a principal certifying authority for the subdivision work, and

(b1)   the principal certifying authority has, no later than 2 days before the subdivision work commences:

(i)   notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and

(ii)   notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the subdivision work, and

(c)   the person having the benefit of the development consent has given at least 2 days’ notice to the council, and the principal certifying authority if that is not the council, of the person’s intention to commence the subdivision work.

(5)   Regulations may provide for the issue of certificates

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

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Part 4A Certification of development

Division 1 Certification of work and other matters

109C Part 4A certificates

(1)   The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:

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(b)   a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),

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109F   Restriction on issue of construction certificates

(1)   A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless:

(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and

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(1A)   A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.

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Environmental Planning and Assessment Regulation 2000

7. Provisions of the Environmental Planning and Assessment Regulation 2000 (the Regulation) as applied to construction certificates at the time the construction certificate was refused provided:

Part 8 Certification of development

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Division 2 Construction certificates

139   Applications for construction certificates (cf clause 79A of EP&A Regulation 1994)

(1)   An application for a construction certificate:

(a) must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and

(b)   if the certifying authority so requires, must be in the form approved by that authority, and

(c)   must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.

(1A)   The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.

(2)   Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.

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Schedule 1 Forms

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Part 3 Construction certificates

5   Information to be included in application for construction certificate

An application for a construction certificate must contain the following information:

(a)   the name and address of the applicant,

(b)   a description of the building work or subdivision work to be carried out,

(c)   the address, and formal particulars of title, of the land on which the building work or subdivision work is to be carried out,

(d)   in the case of building work, the class of the building under the Building Code of Australia,

(e)   the registered number and date of issue of the relevant development consent, if consent has already been granted for the proposed development,

(f)   the estimated cost of the development,

(g)   (Repealed)

(h)   a list of the documents accompanying the application.

6 Documents to accompany application for construction certificate

(1)   An application for a construction certificate must be accompanied by the following documents:

(a)   if the development involves building work (including work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house):

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(ii)   appropriate building work plans and specifications,

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(4)   Appropriate subdivision work plans and specifications referred to in subclause (1) (c) include the following:

(a)   details of the existing and proposed subdivision pattern (including the number of lots and the location of roads),

(b)   details as to which public authorities have been consulted with as to the provision of utility services to the land concerned,

(c)   detailed engineering plans as to the following matters:

(i)   earthworks,

(ii)   roadworks,

(iii)   road pavement,

(iv)   road furnishings,

(v)   stormwater drainage,

(vi)   water supply works,

(vii)   sewerage works,

(viii)   landscaping works,

(ix)   erosion control works,

(d)   copies of any compliance certificates to be relied on.

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Local Government Act 1993

8. Section 68 of the LG Act provides:

Chapter 7 what are the regulatory functions of councils?

Part 1 Approvals

Division 1 What activities require approval?

68 What activities, generally, require the approval of the council?

(1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

(2)   This section does not apply to the carrying out of an activity specified in Part B of the following Table:

(a)   on land within the area of operations of the Sydney Water Board under the Sydney Water Act 1994, or

(b)   on land within the area of operations of the Hunter Water Board under the Hunter Water Act 1991.

(3)   This section does not apply to the carrying out of an activity specified in item 1, 2, 3, 4 or 6 of Part B of the following Table on land within the area of operations of a water supply authority constituted under the Water Management Act 2000.

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Table

Approvals

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Part B Water supply, sewerage and stormwater drainage work

1   Carry out water supply work

2   Draw water from a council water supply or a standpipe or sell water so drawn

3   Install, alter, disconnect or remove a meter connected to a service pipe

4   Carry out sewerage work

5   Carry out stormwater drainage work

6   Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer

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Roads Act 1993

9. Relevant provisions of the Roads Act 1993 provide:

Part 9 Regulation of works, structures and activities

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Division 3 Other works and structures

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138   Works and structures

(1)   A person must not:

(a)   erect a structure or carry out a work in, on or over a public road, or

(b)   dig up or disturb the surface of a public road, or

(c)   remove or interfere with a structure, work or tree on a public road, or

(d)   pump water into a public road from any land adjoining the road, or

(e)   connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority.

Maximum penalty: 10 penalty units.

(2)   A consent may not be given with respect to a classified road except with the concurrence of RMS.

(3)   If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence.

(4)   This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person.

(5)   This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.

139   Nature of consent

(1)   A consent under this Division:

(a)   may be granted on the roads authority’s initiative or on the application of any person, and

(b)   may be granted generally or for a particular case, and

(c)   may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and

(c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and

(d)   may be granted on such conditions as the appropriate roads authority thinks fit.

(2)   In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located:

(a)   in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or

(b)   in such other position as the roads authority may direct.

(3)   In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.

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Council’s Notice of Motion dated 31 July 2018

10. The Council filed a Notice of Motion dated 31 July 2018 after the commencement of the s 56A appeal hearing seeking orders as follows:

1. The appeal be dismissed pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979, with costs.

Particulars of Grounds

There is no utility in approving the drawings in Exhibit N (at Tab 45 of the Appeal book) in circumstances where such drawings were approved by Council on 19th June 2018 (details of which have been provided) following the provision by the Appellant to Council in early June 2018 (after the commencement of the appeal) of sufficient information, which provided a reasonable basis for the approval by Council of the drawing in Exhibit N.

2.   Any other order the Court deems fit.

11. The Council submitted that all the construction certificate plans in Exhibit N sought to be approved through the s 56A appeal and remitter process have now been approved under the modified s 68 approval issued on 19 June 2018. Identical plans to those submitted to the Court under the s 56A appeal have been stamped as approved by the Council. The three plans with different revision numbers remain, according to Council, identical for all practical purposes.

12. In addition, the Council made an admission in court that Baron was able to carry out subdivision work for all civil works including stormwater drainage on Part Lot 1 DP 1222269 from 19 June 2018. Accordingly, the Council submitted that no further approvals were required to enable the works identified in the Exhibit N plans to be carried out on the Site and therefore the appeal lacked utility.

13. Baron submitted there is utility in the appeal as under s 81A of the EPA Act a construction certificate must be obtained before work can commence pursuant to the development consent.

14. I agree with Baron. Obtaining a construction certificate under the EPA Act serves a different statutory purpose to a s 68 approval under the LG Act. I consider the s 56A appeal does have utility because Baron must satisfy the conditions of the development consent by obtaining a construction certificate and because of s 81A(4)(a) of the EPA Act. The admission to the Court by the Council does not overcome the importance legally of obtaining a construction certificate. The Notice of Motion is dismissed, costs are reserved and I will proceed to consider the s 56A appeal.

Grounds of s 56A appeal

15. The s 56A appeal identified the following grounds:

1   The CC [construction certificate] application sought certification only for drainage works internal to the site. Given the findings in paragraphs [43] and [54 - last sentence] of the judgment (which were not contested by the respondent), the appeal must, as a matter of law, be upheld.

2   The findings in [58], [65] and [67] are, in light of the findings in [43] and [54], errors of law as each is a finding unsupported by relevant evidence.

3   Drainage works external to the site were not relevant in considering whether to issue the CC for internal drainage works. The plans and specification submitted in the CC application did not seek a CC for any plans and specifications for drainage works external to the site [79]. The Applicant has separately applied for and obtained a s138 Roads Act 1993 road opening permit (“the Approval”) for works external to the site from the respondent. That Mr Ashe thought the permit issued in error was irrelevant [52].

4   The Court refused to issue the CC for the internal drainage works because it (wrongly) found that there was inadequate stormwater documentation required by condition 22(b)(ii) of the DA because the Approval which the applicant applied for in response to Condition 22(b)(iv) of the development consent 15/0813 (“the DA”), and which was approved by the respondent, did not approve of drainage works beyond 41 Farnborough Drive. Whether the Approval extended to the Reserve was, an irrelevant consideration;

5.   If contrary to 4, the true construction of the Approval was relevant, properly construed, the Approval extended to drainage works all the way to the Council Reserve in Farnborough Drive: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103. Upon the true construction of the Approval:

a.   The works in Plan 200-B Rev 1 [19] [20] and the longitudinal elevations approved of drainage works external to the site to the Reserve [22] [71];

b.   The Approval included:

i.   the Storm Water Plan 200-B Rev 1 dated 16 November 2017,

ii.   the longitudinal elevations

(The longitudinal elevations in ii. are herein described for ease of reference as “the other drawings”) expressly or by necessary implication [71]; and

c.   The other drawings were not invalid [71] and there was no power for a Commissioner to declare them invalid in Class 1 appeal proceedings.

6. The Court found that the Applicant had not satisfied Condition 22(b)(iv) of the DA [8] whereas it had. It had obtained the Approval for works external to the site in Farnborough Drive from the site to the Reserve [44].

7.   The Court took into account irrelevant considerations each of which were material to the decision to refuse the CC, namely:

a.   Whether the DA approved discharge (as surcharge) to the Reserve [23];

b.   Whether the Approval was sufficient to effectively manage the stormwater discharge from the site [51];

c.   Whether the applicant had a legal right to surcharge stormwater onto the Reserve [68];

d. Whether a Plan of Management (“PoM”) under the Local Government Act 1993 was required to permit surcharge onto the Reserve [69]; and

e. Whether the DA made provision for separation of “internal” and "external" stormwater works [75].

8 In so far as it was relevant (which it was not), the Commissioner erred in finding that the Reserve could not receive stormwater from the Applicant's land absent there being a PoM for the Reserve under the Local Government Act 1993 (“the LGA”) authorising use of the Reserve for drainage. No PoM was required given s44 of the LGA: Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney [2014] NSWLEC 163;

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10 It was not open to the Court to make the finding in [73]. The Applicant's expert never made that admission. Mr Vink's uncontested evidence was that peak discharge from the site post-development would not exceed the pre-development peak discharge, which is precisely what condition 22(a)(ii) required.

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13. Condition 22(b)(ii) of the DA was complied with [73]. Reg. 145 and 146(c) was complied with [74][76]. The Court erred when it found that it had no jurisdiction to grant the CC [80].

16. Although Baron submitted that grounds 11-13 were not pressed the grounds not addressed by the parties were 9, 11 and 12. I have therefore omitted grounds 9, 11 and 12 and included ground 13 as this was addressed by the parties.

Extracts of Commissioner’s judgment

17. Relevant extracts of the Commissioner’s judgment provide:

Planning Framework

[24]   The consent for development of a (40 lot with 1 residual lot) subdivision was made pursuant to s 4.16 (formerly 80(1)(a)) of the Environmental Protection and Assessment Act 1979 (EP&A Act), and conditions were imposed with the consent pursuant to s 4.17 (formerly s 80A).

[25]   The definition of work associated with a subdivision as defined under s 6.1 of the EP&A Act is:

subdivision work means any physical activity authorised to be carried out in connection with a subdivision under the conditions of a development consent for the subdivision of land.

[26]   Certification of subdivision works associated with this appeal is required under s 6.3 of the EP& A Act.

6.3 Work or activity that requires certificate under this Part (cf previous s 109C)

(1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity:

(a) building work,

(b) subdivision work,

(c) the occupation or use of a building (including a change of use),

(d) the subdivision of land,

(e) any other activity to which this Part applies.

(2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity.

(3) A certificate under this Part is not required for the carrying out of exempt development.

(4) This section does not apply to a compliance certificate.

[27]   The requirement for plans and specifications to support a Construction Certificate is established pursuant to s 6.8(1)(a) of the EP&A Act.

6.8 Restriction on issue of construction certificate (cf previous s 109F)

(1) 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,

[28]   Prior to approval, a certifying authority is required to assess the consistency of the Construction Certificate application for this subdivision with the development consent, pursuant to cl 145(2) and cl 146(c) of the Environmental Protection and Assessment Regulation 2000 (EP&A Reg).

145 Compliance with development consent and Building Code of Australia

(2) A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.

146 Compliance with conditions of development consent

A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless [it is satisfied] that each of the following have been complied with:

(c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.

[29] Works associated with stormwater drainage along Farnborough Drive require approval from the consent authority, pursuant to s138(1) of the Roads Act, as follows:

138 Works and Structures

(1) A person must not:

(a) erect a structure or carry out a work in, on or over a public road, or

(b) dig up or disturb the surface of a public road, or

(c) remove or interfere with a structure, work or tree on a public road, or

(d) pump water into a public road from any land adjoining the road, or

(e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority.

Maximum penalty: 10 penalty units.

[30] The works specifically approved under the s138 permit are applied pursuant to s139 of the Roads Act.

139 Nature of Consent

(1) A consent under this Division:

(a) may be granted on the roads authority's initiative or on the application of any person, and

(b) may be granted generally or for a particular case, and

(c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and

(c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and

(d) may be granted on such conditions as the appropriate roads authority thinks fit.

(2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located:

(a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or

(b) in such other position as the roads authority may direct.

(3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes.

[31]   The site is zoned R5 Large Lot Residential Wingecarribee Local Environment Plan 2010 (WLEP). The Reserve is zoned RE1 Public Recreation, pursuant to of the WLEP.

[32]   Stormwater drainage at and from the site is managed consistent with the Council relevant Policies of 2010, namely: “Engineering Specifications and Guidelines Part 1 – Design” (hereafter Guidelines 1); and “Engineering Specifications and Guidelines Part 2 – Construction” (hereafter Guidelines 2).

[33]   Management of the Reserve is described within the Council’s “Parks Strategy 2016” and the above Guidelines.

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Evidence

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[43]   Mr Ashe agrees that the detail of the “internal” stormwater drainage works provided in the application is consistent with the approved DA plans, and is not a matter of contention. There is also no issue regarding the proposed stormwater drainage works associated with the northern catchment.

[44]   Mr Ashe considers however that the proposed ‘external’ stormwater drainage works that relate to the southern catchment (along Farnborough Drive) are inconsistent with the DA. The inconsistency arises due to the need to provide for surcharge during a 5 year ARI event into the Reserve.

[45]   Mr Vink advised that the ‘Drains’ model used to support the DA application did not consider the wider catchment requirements, and the subsequent remodelling of stormwater flow for the southern catchment resulted in the stormwater flow to be discharged during a 5 year ARI event from the site exceeding that approved in the DA consent.

[46]   He determines that as a consequence, surcharge to the Reserve is now required during a peak flow event, and agrees it was not previously considered in the DA. In his discussions with Council prior to submission of the CC application, the proposed surcharge into the Reserve was supported as it was considered to ‘remove water from the road during a peak flow event to prevent flooding’.

[47]   In his opinion, the Council had indicated a preference for the Reserve to be used for the proposed purpose of surcharge rather than manage peak flow events through the augmentation of the existing wetland on the Applicants land and used by EE, which allows overland flow onto the Reserve.

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Findings

[54]   The appeal relates specifically to consistency with the stormwater drainage design proposed for the southern catchment, from the site along Farnborough Drive. All other aspects of the CC under the application are not in contention and therefore will not be further considered in assessing consistency with the development consent.

[55]   The Infrastructure Report by Calibre Consulting (Feb 2016), on page 19 states “The road drainage system has been designed with sufficient capacity to convey the 5 yr ARI storm within the in-ground pipes. The road network is also intended to act as overland flow paths to convey larger storms up to the 100 yr ARI storm event.”

[56]   This statement is consistent with the SEE that supports the DA. The SEE states that stormwater flow from the southern catchment of the site was determined as “requiring no further attenuation”, and in the Infrastructure Report would be discharged “via Council’s drainage system and a waterway through Throsby Park to combine with the runoff from the northern catchment”.

[57]   I agree with the experts that the approved stormwater drainage pipework from the site along Farnborough Drive is designed to transmit up to 5 year ARI flows and will ultimately be required to connect with the existing Council stormwater network at pit EX9/C.

[58]   It is also agreed that based on the southern catchment stormwater drainage design submitted in the CC application, surcharge would occur into the Reserve in a 5 year ARI event, and was not contended in the development consent.

[59]   I take note that Mr Vink, in the joint expert report (Exhibit 9), states “Our drains model modelled the western gutter and noted that its capacity was exceeded by the 5 year ARI flow, and would therefore overflow the crown of the road and flow to the east” and “In the post-development scenario, we calculated that the surcharge at proposed pit 9/C would be 1.39 cu mecs in the 5 year post development scenario”.

[60]   It was satisfactorily demonstrated by the experts that after a recalculation of the model parameters during the hearing adjournment, to consider “split of flows between western and eastern sides of Farnborough Drive”, an increase in surcharge in the Reserve to the order of 2.76 m3/s was predicted.

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[63]   Further to this, as explained by Sully J , Simpson J, Sperling J in Moy v Warringah Council [2004] NSWCCA 77 at [79], “The function of cl 145 is to ensure that the development as built will be in accordance with the development consent” and further to this at [80], “Clause 145 is proscriptive”.

[64]   For the stormwater drainage system to work in the southern catchment as proposed under the CC application, it relies on surcharge into the Reserve. The surcharge is therefore a fundamental component of the proposed stormwater drainage design under the CC application. This “surcharge” requirement however was not essential in the DA.

[65]   I agree with the Respondent, that the DA is supported with plans provided in the Infrastructure Report, which do not provide for discharge, in the form of surcharge into the Reserve in a 5 year ARI event. The Infrastructure Report clearly identifies that all flow up to the 5 year ARI event would be transmitted “via in-ground pipes”. I therefore find that the plans submitted by Applicant in its application for a CC for civil works associated with the subdivision of the site are inconsistent with the plans approved in the consent of DA 15/0813.

[66]   Based on the evidence before me, I find that the requirement to discharge stormwater from the southern catchment, resulting in “surcharge” during peak events (identified as 5 year ARI) into the Reserve was not contended, designed nor approved in DA 15/0813.

[67]   Therefore pursuant to cl145 of the EP&A Reg, when applying a “proscriptive” assessment, I find that the application for a Construction Certificate (for civil works) is not consistent with the approved DA 15/0813.

[68]   In consideration of cl146 of the EP&A Reg, the Applicant has not satisfied the requirement in Condition 22(a)(i) to demonstrate a legal right has been established to approve surcharge into the Reserve.

[69]   The Council’s Guidelines 1, section D5.26 (5), clearly specifies that “Discharge to Recreation Reserves (Community Land)” in the form of “piped stormwater drainage” requires a Plan of Management. The parties agree that the Reserve is “community land” and that no PoM exists for this purpose. I therefore accept the Respondents position that a PoM is required to permit surcharge from piped works onto the Reserve.

[70] I do however note that the overflow of stormwater drainage from the EE site through the Applicant’s adjacent Lot (207) into the Reserve during peak periods does not require a PoM, as the Guidelines specifically refers [sic] to “piped” flow. I accept that the Applicant attempted to seek concurrence with Council for augmentation of this approach, however sort to abandon this on the initial advice of Council that the design for a piped flow was appropriate and a “good engineering solution”.

[71] I accept that the Applicant made, pursuant to s138 of the Roads Act, an application for the stormwater drainage works to extend from the site to the Reserve. However, for the following reasons, I agree with the Respondent that the s138 permit issued on 23 November 2017 only approved those stormwater drainage works shown in Plan 200-B, Rev 1, which extends from the site to 41 Farnborough Drive. This plan is the only stamped plan attached to the s138 permit. The other submitted plans are not referred to in the permit nor stamped for approval. They are therefore invalid with respect to the approved s138 permit.

[72] It is unfortunate that the Council has provided no justification for approving the s138 permit in the form that it has, which in effect has approved a structure/works that cannot function, nor is consistent with the development consent to ensure 5 year ARI events are piped “via Council’s drainage system”. Under the approved works, the discharge does not connect to Councils drainage system.

[73]   I find that Condition 22(a)(ii) of the consent has also not been complied with, as by the Applicants own expert’s admission, the peak discharge from the site will be greater that the pre-developed peak discharge, in the order of 86.5%. There is no ability to regulate offsite flow during peak periods, which results in all stormwater discharge from the site’s southern catchment being discharged during a peak flow event.

[74]   It therefore follows that compliance with cl146(c) of the EP&A Reg has not been achieved.

[75]   I find that the DA does not make provision for the separation of “internal” and “external” site works, and I agree with the Respondent that to do so would result in a system that cannot function effectively. If the “internal” works are approved separately, as suggested by the Applicant, there is no capacity for the system to function. I consider the intent of the requirement to show a “legal right to discharge”, as stipulated in Condition 22(a)(1), was to avoid this outcome.

[76]   I find that the CC application does not comply with the relevant regulations, namely EP&A Reg, cl145 and cl146. Therefore, s 6.8(1)(a) of the EP&A Act has not been complied with in relation to the application for a Construction Certificate for the civil works associated with the subdivision of the site.

[77]   The definition of a construction certificate is provided in s 6.4(a) of the EP&A Act as follows:

6.4 Kinds of certificates under this Part (cf previous s 109C)

There are the following kinds of certificates under this Part:

(a) construction certificate—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.

[78]   Section 6.4(a) requires that to have effect, the works must be completed “in accordance” with the plans and specifications given under the DA consent, and relevant regulations. For this appeal, the stormwater drainage works associated with the CC application must therefore be in accordance with the stormwater management plans nominated in the DA.

[79]   The difference in the plans submitted in the CC application relates to the design for surcharge into the Reserve which was not considered in the approved DA. I therefore find that the plans provided in the CC application are not in accordance with the DA, and a Construction Certificate pursuant to s 6.4(a) of the EP&A Act is not complied with.

[80]   For the reasons provided above, I therefore agree with the Respondent and find that the Court has no jurisdiction in this appeal to resolve the Construction Certificate application based on the stormwater drainage proposed for the southern catchment of the site as provided in the CC application. In this circumstance, I am precluded from issuing a Construction Certificate (for civil works) for subdivision of the site.

…

Evidence on appeal

18. The appeal books (Exhibit A) contained extensive material. I have only listed what was referred to during the hearing:

1. Summons commencing the appeal filed 13 June 2018 (see [15] above);

2. Baron Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1243;

3. transcript of the hearing on 4 and 26 April 2018;

4. amended statement of facts and contentions filed 2 March 2018;

5. notice of determination for DA 15/0813 dated 1 July 2016;

6. application form for construction certificate DA 15/0813.02 dated 17 November 2016;

7. Council Reserve Stormwater drainage diagram;

8. two aerial photographs of the locality of the Site;

9. joint expert report on stormwater drainage authored by Mr Vink principal engineer (for Baron) and Mr Ashe civil and environmental engineer (for the Council) filed 24 April 2018;

10. construction certificate application prepared by Calibre Consulting dated 3 November 2017;

1. notice of determination of s 138 application for Lot 201 DP 1095417;

2. infrastructure report prepared by Calibre Consulting dated February 2016 (the Infrastructure Report);

3. statement of environmental effects prepared by SAKE Development with Calibre Consulting dated August 2015;

4. amended plans for the construction certificate application (Exhibit N in the proceedings before the Commissioner); and

5. plans supporting the DA.

Conditions of development consent

19. Two conditions of the development consent are relevant and provide:

Condition 7

Construction Certificate (Subdivision)

Subdivision work in accordance with the consent must not be commenced until a Construction Certificate has been applied for and issued by Council, pursuant to section 81 A (4) (a, b, and c) of the Environmental Planning and Assessment Act 1979. The application for a Construction Certificate needs to be accompanied by detailed engineering plans and specifications and completed design checklists found in Council’s Engineering Policies. The Construction Certificate fee is payable at the time of lodgement of the application.

…

Condition 22

Provision of Works and Services

The provision, by the Developer, at their expense, of the following works and services to be documented and constructed in accordance with Council’s Engineering Policies, to the satisfaction of the Development Control Engineer. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE the Developer must obtain approval for the works to be undertaken by submitting adequate documentation including plans, standard notes and completed design checklists, calculations and specifications, to Council which justify that the proposed works are in accordance with all Councils standards and other relevant Codes and guidelines.

(a)   Stormwater Drainage

(i) Construction of Stormwater

Provision of adequate stormwater drainage infrastructure (pits/pipes/open channels/detention storage) for the conveyance of stormwater passing through the site from upstream and sourced from the development to a discharge outlet to be approved by the Development Control Engineer. The point of discharge is to be clearly depicted and the legal right to discharge at that point to be justified. Status of the point of discharge is to be made clear, i.e. provision of drainage easements.

(ii) Control of Peak Discharge

Future provision of adequate and suitable stormwater infrastructure OSD, Tank/Basin and water quality treatment to ensure the peak discharge from the site is no greater than the pre-developed peak discharge. This infrastructure shall be provided in accordance with Council’s Engineering Policies and Road works and Drainage Plan – Drawing Number C2 – 01, 02, 03, 04, 05, 06 & 10, Job Number S130491, revision (B) prepared by Calibre Consulting and dated 31 July 2015.

Calculations to demonstrate that the post-development peak discharge will not exceed the predevelopment peak discharge SHALL BE PROVIDED WITH THE APPLICATION FOR A CONSTRUCTION CERTIFICATE.

(iii) Control of Water Quality

Provision of adequate infrastructure (gross pollutant traps/trash racks/water quality ponds) is to be provided to guarantee satisfactory discharge quality from the site.

(iv) Inter allotment Drainage for Upstream/Adjoining Property

Inter allotment drainage is to be provided for Lots that do not drain naturally to a public system (road, watercourses, etc. All inter allotment drainage system (pipes, pits, etc) are to be contained within a suitable easement to drain water a minimum of 2 metres wide.

(v) Construction of kerb & Gutter and Drainage

Concrete kerb and gutter and associated drainage system in Farnborough Drive on the frontage to the subdivision for the adequate discharge of stormwater.

(vi) Construction of kerb & Gutter and Drainage for Subdivision

Concrete kerb and gutter and associated drainage system in subdivision roads for the adequate discharge of stormwater.

(vii) Fencing – Public reserves/Drainage Reserves/Council Lands

Developer at their expense is required to erect fencing to all public reserves, drainage reserves or Council owned land to ensure public safety. Details of fencing shall be submitted to Council for approval PRIOR TO ISSUE OF THE CONSTRUCTION CERTIFICATE.

(viii) Infrastructure Maintenance Considerations

The design of all infrastructure shall take into consideration the maintenance aspects and costs associated with the techniques being proposed.

(b)   Roadworks

…

(vi) Approval Required for Work within Road Reserve – Section 138 Roads Act 1993

Where works are proposed within the road reserve, the Developer must obtain approval from Council (as the Roads Authority and / or as required under Section 138 of the Roads Act 1993) before any works are undertaken. Works within the road reserve may include activities such as erect a structure, dig up or disturb the surface of a public road, remove or interfere with a structure, or any other activities as defined within the Roads Act 1993.

The following details must be submitted to Council in order to obtain the Section 138 approval:

•   A copy of approved design plans related to the development and proposed works to be undertaken.

•   Traffic Control Plan (TCP) to provide protection for those within and adjacent to the work site, including the travelling and pedestrian public. The TCP must comply with the Roads and Traffic Authority’s manual “Traffic Control at Work Sites”. Warning and protective devices shall comply with the provisions of AS1742.3 – 2002 Traffic Control Devices for Works on Roads. The plan must be prepared and certified by a person holding the appropriate Roads and Traffic Authority accreditation, a copy of which is to be submitted with the plan.

•   Insurance details – Public Liability Insurance to an amount of $20 million, to be held by applicant/contractor undertaking the works.

Principles applied to s 56A appeal

20. I outlined the principles relevant to determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [7]-[11]:

[7] It is important to state at the outset the principles which apply in appeals under s 56A of the Court Act in matters of this kind. Principles which have been well recognised as applying to s 56A appeals are correctly stated in the Council’s submissions and these were drawn on and further developed in this and the following paragraphs. An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner’s decision cannot be the subject of a s 56A appeal.

[8] An appeal under s 56A is “on a question of law” not limited, however, to “an error of law”: ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12].

[9]   A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to “deal with every argument raised and every possibility that could be adverted to”: Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71].

[10]   The judgment should be read on the basis that the Commissioners and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79].

[11]   An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O’ Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].

21. I will apply these principles in this judgment.

Grounds 1, 2, 3, 4, 6, parts of 7

22. The principal issue underlying most of the grounds of appeal was that the construction certificate sought related only to works internal to the Site not external to the Site. That the Commissioner took into account matters off site in relation to stormwater disposal in her reasoning was erroneous. It was not disputed that Baron amended its application at the Class 1 hearing to remove plans relating to external stormwater works. The plans in Exhibit N relating to the Site were the subject of the construction certificate application. Baron stated that it had obtained a s 138 Roads Act approval in accordance with Condition 22(b)(vi) which included stormwater works (the s 138 approval). This issue underpins grounds 1, 2, 3, 4, 6 and parts of ground 7 and they can be largely dealt with together.

Baron’s submissions

23. Issuing of a construction certificate under s 109C(1)(b) of the EPA Act requires consideration of whether plans are consistent with a development consent (see s 109F(1)(a)). That was all that was required of the Commissioner in this case.

24. Prior to the application for the construction certificate for the internal stormwater works an application for approval under s 138 of the Roads Act was made to the Council to carry out work external to the site in Farnborough Drive. The approval was obtained. The extent of the approved works under the s 138 approval became an issue in the proceedings. The Commissioner erred in considering the off-site disposal of stormwater at all in holding at [54] that consistency with the stormwater drainage design proposed for the southern catchment along Farnborough Drive. The merit appeal was not seeking approval for any work along Farnborough Drive. Mr Ashe’s opinion was irrelevant. The Commissioner erred at [51]-[52] in her consideration of whether the s 138 approval was consistent with the development consent as this was irrelevant to her decision.

25. The Commissioner erred by taking into account an irrelevant consideration being works external to the site and relatedly the opinion of Mr Ashe. Condition 7 of the consent required a construction certificate to be obtained. Condition 22 of the consent stated what the construction certificate was required to address including stormwater drainage inter alia. The Commissioner was wrong in stating that the stormwater was to drain from the southern boundary of the site down Farnborough Drive and into the Council Reserve. An approval pursuant to s 138 of the Roads Act for works in Farnborough Drive was obtained.

26. The Council’s expert Mr Ashe stated that the s 138 approval had been issued in error as the stormwater drainage system did not work as a whole, notwithstanding that the stormwater drainage system for the interior of the site was adequate and therefore satisfied cl 145 of the Regulation. This was irrelevant. That the Council issued a s 138 approval in a way which did not practically work in Mr Ashe’s view was irrelevant to the decision the Commissioner had to make. The Council could not contradict its own approval by reference to extrinsic evidence (see authorities cited below in [65]).

27. The Commissioner similarly erred in considering the stormwater surcharge into the Council Reserve in a five year ARI event as this was irrelevant. The stormwater drainage system in the proposed construction certificate did not rely on surcharge into the Council Reserve as the construction certificate only related to internal works. Whether it was lawful or not for stormwater surcharge to go into pit Ex9/C was irrelevant to the proceedings as the physical works in Farnborough Drive had been approved by the s 138 approval. The statement of contention at [36] of the Commissioner’s decision that the construction certificate application contained stormwater drainage plans for external works was a misstatement. There were no such plans in the application. A mistake in understanding facts, applying the law and reasoning to a conclusion could amount to a constructive failure to exercise jurisdiction if the resulting flaw is so serious as to undermine the lawfulness of the decision: State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 (State Super) at [11] (Basten JA, McColl JA and Preston CJ of LEC agreeing).

28. The appeal of the application for the construction certificate that was before the Commissioner did not concern the external works in Farnborough Drive or the related s 138 approval. To the extent the Commissioner considered works external to the Site, the s 138 approval or Mr Ashe’s opinion on the s 138 approval she took into account an irrelevant consideration and her conclusion at [65] was in error.

Council’s submissions

29. The Council submitted that the Commissioner correctly considered and applied Condition 22 of the development consent. Her conclusions in [61]-[67] are correct. She was not satisfied as she was required to be that cll 145 and 146 of the Regulation were complied with. The Council contended that neither the development consent nor the documents incorporated in that consent including plans and the Infrastructure Report provided for discharge in the form of surcharge into the Council Reserve in a five year ARI event. The Infrastructure Report clearly identified that all flow up to the five year ARI event would be transmitted via in-ground pipes. The plans submitted by Baron for the construction certificate were inconsistent with the development consent. The requirements of cl 145(2) of the Regulation were not met.

30. Baron had not complied with Condition 22 of the consent because it had not submitted adequate documentation to the Council which justified that the proposed works were in accordance with all of the Council's standards. This meant that Baron had not complied with cl 146(c) of the Regulation and again the Court had no power to issue the construction certificate. The Council set out the engineering specifications to which it said the proposed works did not comply in the amended statement of facts and contentions.

31. The removal of plans relating to the external works at the Class 1 hearing did not have the effect that Baron sought because of the terms in which Condition 22 is framed. A number of points about Condition 22 should be noted:

1. The developer must obtain approval for the works to be undertaken by submitting adequate documentation to the Council which justify that the proposed works are in accordance with all of the Council's standards and all other relevant codes and guidelines prior to the issue of a construction certificate. That means the Court could not grant a construction certificate if the documentation was not adequate to justify that the proposed works were “in accordance” with all the relevant standards.

2. Whether or not the application was only for “internal works”, Condition 22(a)(i) is in clear terms that the certifying authority had to approve a discharge outlet for the stormwater drainage infrastructure and the legal right to discharge at that point had to be justified by the developer.

3. Condition 22(a)(ii) requires that the stormwater infrastructure had to be in accordance with certain plans. There is a requirement to provide calculations to demonstrate that the post-development peak discharge will not exceed the pre-development peak discharge with the construction certificate application.

32. Condition 22(b)(vi) did require a s 138 Roads Act approval for any works that might occur within the road reserve. That condition was not directed at stormwater works and did not purport to override the need for a s 68 approval under the LG Act. The nature of a s 138 Roads Act approval is that it is additional to a development consent and conditions made under such consent.

Finding on grounds 1, 2, 3, 4, 6, parts of 7

33. A construction certificate was defined under the EPA Act as in force 13 October 2017 to 14 December 2017 as: “…a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5)” (s 109C(1)(b)). A certifying authority is defined as, relevantly, “a person who ... is authorised by or under section 109D to issue Part 4A certificates” (EPA Act s 4). This includes, in relation to construction certificates, a local council as a consent authority or in its own right (s 109C(1)(b)). In this case, Baron requested the Council to be the certifying authority for their construction certificate. Consequently the Court was the certifying authority in the Class 1 appeal.

34. Clause 139 of the Regulation required that the application be in any form approved by the certifying authority and had to include specified information, set out in Pt 3, Sch 1 to the Regulation. Clause 5 of Pt 3, Sch 1 sets out the information to be included in the application for a construction certificate and cl 6 sets out the documents that must accompany the application. Relevantly, these include “[a]ppropriate subdivision work plans and specifications”. Additional requirements are specified in cll 145 and 146 of the Regulation set out in the Commissioner’s judgment at par [28]. The Commissioner correctly identified the relevant planning framework in her judgment.

35. There is no dispute that the plans proposed under the construction certificate for internal works were compatible with the development consent as the Commissioner recorded at par [43]. That reflects the requirement in s 81A(4)(a) of the EPA Act and cl 145(2) of the Regulation. Clauses 145(2) and 146(c) of the Regulation made pursuant to s 81A(5) of the EPA Act must also be complied with. Clause 146 requires compliance with each condition of a development consent which must be complied with before a construction certificate may be issued for building or subdivision work.

36. In her findings from [54]-[80] the Commissioner identified the issue in [54] as being “consistency with the stormwater drainage design proposed for the southern catchment from the site along Farnborough Drive” and identifies that consistency with the development consent was required by cll 145(2) and 146. The Commissioner concluded at [67] that the construction certificate application was not consistent with the DA contrary to cl 145. Turning to cl 146 in [68] the Commissioner found Baron had not satisfied the requirement in Condition 22(a)(i) of demonstrating a legal right to release surcharge into the Council Reserve. At [73] the Commissioner found that the development consent had not been complied with as the peak discharge from the Site would be greater than the pre-developed peak discharge. While 86.5 percent did not reflect the agreed position of the expert’s opinion accurately as I discuss below at [77], the Commissioner’s conclusion that the post development peak discharge would exceed the pre-development peak discharge was correct as I find at [79].

37. Under s 56A an appeal can be made in relation to a question of law not of merit (see above at [20]). Leaving to one side for the moment whether all the grounds of appeal identify questions of law, the key issue which determines the success or failure of many of the grounds of this appeal namely 1, 2, 3, 4, 6 and parts of 7 is whether Condition 22 of Baron’s development consent was complied with as necessary precondition to the issuing of the construction certificate.

33. As I found in Gosford Waterfront Alliance Inc v TO Gosford Pty Ltd (No 2) (2016) 220 LGERA 253; [2016] NSWLEC 162 at [47] and the authorities cited therein “... a development consent must be construed in order to give it practical effect and to avoid uncertainty…” and must be a “standalone document”. Condition 22 (a)(i) and (ii) are set out above at [19]. They require the provision of adequate stormwater drainage for the conveyance of stormwater passing through the Site and for adequate future provision of stormwater infrastructure to ensure that the peak discharge from the Site is no greater than the pre-developed discharge. The point of discharge of stormwater is to be identified and the legal right to discharge at that point to be justified.

34. As the Council submitted whether stormwater drainage requirements as specified in Condition 22(a)(i) and (ii) were met was a precondition to the approval of the construction certificate. This was expressly identified in the judgment at [23] where the Commissioner recorded the Council’s new contention that the Court lacked jurisdiction as the construction certificate application was not consistent with the development consent as the stormwater drainage plans for the southern catchment in the construction certificate application did not have the same design outcome as the approved DA. In particular, the proposed discharge as surcharge to the Council Reserve was not approved in the DA. This new contention, I infer, was a response to the change in Baron’s case at the Class 1 hearing to amend its application to refer only to internal drainage works, to remove plans for external stormwater works and to rely on obtaining the s 138 approval in accordance with Condition 22(b)(vi) as covering all external stormwater works for the subdivision.

35. Condition 22(b)(vi) appears to be essentially a re-statement of what the Roads Act requires, namely approval before work in a road reserve can be carried out. That condition does not deal expressly with stormwater which is the subject of Condition 22(a). It is an approval necessary for those wishing to carry out work in a public road as the section states. It exists separately from any obligation to comply with a condition of development consent under the EPA Act. Further there is nothing in Condition 22(a) which suggests that the s 138 approval sought under Condition 22(b)(vi) is sufficient for the purposes of Condition 22(a)(i) and (ii) in relation to stormwater inter alia. That Baron asserted that it was does not make it so. That Baron chose to rely on the s 138 approval in this manner did not act as some kind of estoppel on the Council’s expert Mr Ashe having the opinion that the s 138 approval did not comply with the development consent and the Commissioner accepting that opinion in considering the adequacy of off-site stormwater disposal as Condition 22(a)(i) and (ii) required.

36. I agree with Baron that whether the s 138 approval was validly issued could not arise before the Commissioner as a matter of law given that s 39(2) of the LEC Act had not been invoked by either party, assuming that it could have been. As the Council submitted whether the Court could have considered the merits of the s 138 approval under s 39(2) is not clear. I do not agree with Baron that it was not open to Mr Ashe to contradict the efficacy of that approval as a matter of law. That Mr Ashe considered the s 138 approval had been issued in error as recorded by the Commissioner was not irrelevant to the question of whether it was consistent with the DA. Baron’s reliance in reply submissions on Ryde Municipal Council v The Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 (Royal Ryde Homes) at 324 and Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (Allandale) at [43] (Meagher JA) concerning the construction of such an approval can be accepted but that does not address the issue of how a s 138 Roads Act approval interacts, or not, with the EPA Act.

37. That opinion was not central to Mr Ashe’s conclusions or the Commissioner’s in any event. The judgment deals clearly with the substantive issues of stormwater disposal of the southern catchment off site at [64]-[67].

38. Baron submitted several times that the s 138 approval provided a legal right of discharge from the Site, a matter that must be addressed under Condition 22(a)(i). That does not appear to be legally correct. Nothing in ss 138 or 139 of the Roads Act suggests that is within the legal scope of such an approval. A consent under Pt 9 Div 3 of the Roads Act enables specified work to be carried out in a road reserve. No other legal entitlement arises from the terms of the section. An approval under s 68 of the LG Act allows connection of a private drain to a public drain. The words “legal right to discharge” do not appear in the section but that appears a correct description of what is intended by s 68.

39. Baron submitted that the point of discharge for the purposes of Condition 22(a)(i) was the point where the drainage pipes went from the Site to the public road, not the discharge point into the Council Reserve. That narrow reading of Condition 22(a)(i) would result in the disjunction identified by the Commissioner at [75] potentially giving rise to a stormwater system overall that does not function effectively. I do not accept that construction of Condition 22(a)(i) as it is too narrow given the purposes of the condition is to ensure effective stormwater disposal.

40. It follows that I do not agree with Baron’s submission that the Commissioner was incorrect in stating the issue in [54] or her finding that the appeal related to the consistency with the stormwater drainage design proposed for the southern catchment from the Site along Farnborough Drive. Nor do I accept Baron’s submission that the appeal was only considering no more than whether the plans and supporting documents were inconsistent with the development consent.

41. Numerous paragraphs in the judgment were criticised as disclosing an error of law namely [7],[18],[36], [64] and [65] because the Commissioner referred to external stormwater drainage works for the southern catchment extended from the Site along Farnborough Drive as if these were part of the construction certificate application. As Baron submitted the only plans for which approval was sought in the construction certificate application was for internal works within the Site. While the Baron submission is literally correct when the judgment is read as a whole the Commissioner was clearing using a shorthand way to refer to the s 138 approval. That was part of the package presented to the Commissioner by Baron at the Class 1 hearing and did arise for consideration given the terms of Condition 22(a).

42. Given the legal framework under the EPA Act it was appropriate that the experts address whether the proposed off-site discharge of stormwater in the s 138 approval relied on by Baron was consistent with the DA. The Commissioner records the experts’ agreements at [38]-[43] and their contrasting opinions and reasoning at [44]-[51]. The Commissioner recorded at [44] that Mr Ashe did not consider that the s 138 approval was consistent with the DA. As identified at [51] the issue was whether the s 138 approval was sufficient to effectively manage the required stormwater discharge from the site.

43. Turning to the grounds of appeal ground 1 fails to acknowledge the obligations in cll 145(2) and 146(1) of the Regulation which require compliance with Condition 22(a)(i) and (ii) in particular, a matter the Commissioner had to consider. The finding that the plans for internal drainage works were consistent with the approved DA plans did not require the Commissioner to uphold the appeal as a matter of law. Section 81A(4)(a) of the EPA Act is not the sole criteria for approval of a construction certificate in light of s 109F(1)(a) and cll 145 and 146 of the Regulation. This ground fails because, as the Council submitted, it does not recognise the second reason given by the Commissioner for dismissing the appeal at [73]-[75] and as identified in the amended statement of facts and contentions. I agree with the Council that the Commissioner’s approach to cl 146 and the requirements identified in Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 at [158]-[159] (Sackville AJA, McColl and Barrett JJA agreeing) and Moy v Warringah Council (2014) 133 LGERA 49; [2004] NSWCCA 77 at [62]-[63] (Sperling J, Sully and Simpson JJ agreeing) was correct. The Commissioner recorded what the Infrastructure Report prepared by Calibre Consulting as part of the DA had specified for discharge of stormwater off site at [55]. The Commissioner correctly identified that the discharge by surcharge into the Council Reserve was a fundamental component of the proposed off-site stormwater drainage system but was not the system approved in the development consent at [64]-[66].

44. My finding above means that all the other grounds relying on this same issue must also fail.

45. Ground 2 is difficult to understand. It appears to be raising the same issue as ground 1 expressed in a different way. The finding in [43] that the internal drainage works for which approval is sought in the construction certificate are consistent with the DA and the Commissioner’s statement of the key issue in the appeal of consistency of the southern drainage of stormwater with the DA in [54] are said to result in errors of law in [58], [65] and [67] because the latter are unsupported by relevant evidence. Paragraph [58] is an agreed matter. Paragraph [65] is the finding that the DA supported by the Infrastructure Report did not provide for discharge in the form of surcharge into the Council Reserve in a five year ARI event. Paragraph [67] is the Commissioner’s conclusion that cl 145 has not been satisfied. Baron’s submission is essentially that these matters were irrelevant because they arose from a consideration of stormwater disposal off site. For reasons already stated this is not correct. No error of law is identified of ground 2.

46. The same findings as in ground 1 apply to ground 3 which essentially restates the case in ground 1. Ground 3 fails.

47. Ground 4 is difficult to understand. Assuming that the reference in the third line to Condition 22(b)(ii) “road upgrade” is to Condition 22(a)(ii) “control of peak discharge”, it alleges that the refusal of the construction certificate because the s 138 approval applied for as required by Condition 22(b)(vi) was construed not to go past 41 Farnborough Drive rather than to the Council Reserve was an irrelevant consideration. Baron chose to rely on the s 138 approval at the Class 1 hearing. The Council did not as a matter of law have to accept that as the end of the matter. The Council and its experts were responding to Baron’s case relying on the s 138 approval. If this ground is also about the Commissioner’s construction of the s 138 approval, that is the issue raised in the alternative in ground 5. It otherwise fails.

48. Ground 6 incorrectly attributes error to the Commissioner. As stated it asserts that the Commissioner incorrectly found that Condition 22(b)(iv) [sic] (22(b)(vi)) had not been complied with when it had. The Commissioner is simply recording early in the judgment at [8] that the s 138 approval had been obtained. No finding is made that Condition 22(b)(ii) had not been complied with.

49. As already stated neither the Commissioner nor the Council were bound by the fact that the s 138 approval had been issued from considering whether the scheme Baron chose to rely on was in accordance with the development consent.

50. That the Commissioner was not satisfied that measures to dispose of stormwater consistent with the development consent were proposed is the end of the matter. No question of law arises from the Commissioner’s approach.

51. The matters alleged to be irrelevant in ground 7 at (a), (b), (c) and (e) simply cannot be in light of my findings above. All concern aspects of stormwater discharge in the context of the development consent and the s 138 approval which were material to the decision before the Commissioner.

52. As the Council submitted and as its expert Mr Ashe attested the necessary assessment of the construction certificate required a holistic consideration of stormwater disposal quite sensibly to ensure that what came off the Site could be dealt with satisfactorily in the public road reserve. No error of approach by the Commissioner has been demonstrated.

53. No error of law as identified in State Super or El Boustani v Minister Administering the Environmental Planning & Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33 at [117]-[121] (Preston CJ of LEC, Beazley P and Gleeson JA agreeing) referred to by Baron arises from the Commissioner’s decision.

Ground of appeal 5

59. Alternatively, Baron submitted that the Commissioner erred in her construction of the s 138 Roads Act approval in holding that only Plan 200-B was approved at [71]. This issue does not arise as a result of my finding above.

60. The Council submitted that the findings are obiter as they are not fundamental to the Commissioner’s conclusions. Counsel for Baron submitted they were not and cited the definition of “obiter dictum” in Osborn’s Concise Law Dictionary (R Bird (ed) (7th ed, 1983, Sweet & Maxwell) at 238) as:

[a]n observation by a judge on a legal question suggested by a case before him, but not arising in such a manner as to require decision. It is therefore not binding as precedent. But there is no justification for regarding obiter dictum a reason given by a judge for his decision because he has given another reason also.

61. I do not need to consider this ground as even if Baron is correct it would not vitiate the Commissioner’s decision. As a finding has some practical utility for Baron I will consider this issue.

62. The s 138 approval included the following table:

APPROVED DOCUMENTATION

1.   The proposed works are to be implemented in accordance with the approved plans and supporting documents set out in the following table except where modified by any conditions of approval:

Plan Number. /supporting Document	Reference/ Version	Prepared By	Dated
Engineering Plans	Rev 1 200-B STORM WATER PLAN & LONG SECTIONS	Calibre Consulting	16/11/17

63. Plan 200-B Revision 1 had a council stamp on it stating “Section 138 Application Consent: Sec 138 17/1626: PLANS APPROVED pursuant to the Roads Act 1993” and was dated 23 November 2017. The stamp had the handwritten annotation “Sheet 1 of 1” on it. Plan 200-B included the words “stormwater plan sheet 1 of 5” on it.

64. Baron referred to numerous stormwater plans and numerous long sections it submitted with the s 138 approval application to argue that is what was approved. Plan 200-B Revision 1 was marked as adjoining Plan 210-B. Plan 210-B showed pit Ex9/C where the stormwater was to discharge. A number of plans identified long sections of the proposed stormwater drainage system being 252-B, 253-B, 254-B and 257-B. Plan 525-B. Baron submitted that the s 138 approval approved Plan 200-B Revision 1 and other stormwater plans including Plan 210-B and long sections extended to drainage works all of the way to the Council Reserve ending at pit Ex9/C.

65. Baron relied on well-known authorities concerning the construction of development consents such as Royal Ryde Homes at 324; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 (Szabo) at 433-434; Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439; [2006] NSWCA 273 at [35]-[36] (Basten JA, Spigelman CJ and McColl JA agreeing); Allandale at [43] (Meagher JA) to submit that the approval should be construed in a similar fashion so that all the stormwater plans and long sections submitted in the s 138 approval application were approved not just Plan 200-B. The approval expressly referred to Plan 200-B Revision 1. That plan speaks for itself but clearly requires by express reference on the face of the plan, consideration of Plan 210-B. Plan 210-B was incorporated by express reference or by necessary implication in the Approval. The approval also expressly incorporated the “long sections”. The long sections track the proposed works in Farnborough Drive beyond 41 Farnborough Drive to pit Ex9/C.

66. On the proper construction of the s 138 approval, the Council had approved drainage works to be constructed in Farnborough Drive from the subject site boundary all the way to pit Ex9/C. The Commissioner did not explain how in her reasoning, the long sections could be ignored notwithstanding that they were expressly referred to in the s 138 approval. She appears to have found that the long sections were not referred to in the permit [78] whereas they were expressly.

67. The Council submitted that the Commissioner had not precisely identified its position in [71] as it had submitted the approval included Plan 200-B and any long section referrable to that plan. There was otherwise no substantial error in the Commissioner’s conclusion.

Finding on ground 5

68. Baron referred to well-known authorities identifying the principles of construction of development consents and similar instruments which I consider are appropriate to apply to the s 138 approval. Most recently the Court of Appeal in Allandale considered these in relation to a development consent concerning whether another document not part of a development consent could be considered in its construction. Meagher JA held that the meaning must be determined objectively, with limited reference to extrinsic documents which would only be permissible if these were incorporated expressly or by necessary implication at [42]-[45]. In Allendale Ward JA at [155]-[156] cited Szabo and Spigelman CJ in Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 stating at [4]:

A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.

69. Generally these principles require that the document itself be considered. Only if that is unclear can extrinsic documents be considered: see Sertari Pty Ltd v Quakers Hills SPV Pty Ltd [2013] NSWLEC 208 at [40] and the authorities cited therein, being largely those relied on by Baron.

70. The table in the s 138 approval refers only to one stormwater plan, Plan 210-B Revision 1 expressly and stormwater plan singular. It refers to long sections. It does appear from the table in the s 138 approval set out above at [62] and the annotation on that plan by the approving officer that Plan 200-B only was approved. The reference to long sections should be construed as limited to any arising from that plan. No relevant error arises from that omission by the Commissioner in [71] as it does not change the substance of what was approved. As the Commissioner identified the approval stamp was affixed only to Plan 200-B and annotated in handwriting as sheet 1 of 1. That provides a strong indication of what was intended by the approving officer. That Plan 200-B is one of five stormwater plans and numerous long section plans submitted does not undermine these important indicators. No error of construction of the s 138 approval giving rise to a mistake of law is identified in the judgment at [71].

71. That the Commissioner found other plans invalid in [71] is not strictly legally correct as Baron identified. Nothing flows from that finding. The point the Commissioner was obviously making was that those plans were not approved.

Grounds 7 (part) and 8

72. Ground 7 particular (d) and ground 8 identify the issue of whether a plan of management under the LG Act was required to permit stormwater surcharge into the Council Reserve. This arises from findings made in [68]-[69] that no legal right to discharge surcharge into the Council Reserve had been demonstrated by Baron. This issue is not fundamental to the Commissioner’s reasoning either. Section 44 of the LG Act states that the nature and use of public land must not change until a plan of management is adopted for community land.

73. Baron submitted first that the issue of discharge to the Council Reserve was irrelevant. I have found above that is not correct. Baron also submitted that Watpac Construction (NSW) Pty Ltd v Council of the City of Sydney [2014] NSWLEC 163 (Watpac) is authority that no plan of management was required.

74. The Council submitted that a plan of management was required to enable a change of use for the discharge of stormwater. In the present case, there is no piped discharge into the Council Reserve at present. What is proposed is the piped discharge of stormwater on a permanent basis. The land is designated as a public reserve for recreation and is not designated in any way for drainage. Therefore the Commissioner’s findings with respect to the need for a plan of management were entirely correct (see judgment at [68]-[69]).

75. Watpac at [44] cited Seaton v Mosman Corporation (1996) 93 LGERA 1 (Seaton) at 22 which states:

Both “nature” and “use” are concepts which can have both qualitative and quantitative aspects. In my opinion, an increase in use can amount to a change in use of land. A slight change may not be sufficient for the purposes of s 44, or alternatively, or at least, may not be sufficient for a court to grant any relief. However, where, as here, the proposed development involves a substantial increase in seating capacity, I am of the opinion that there has been a change in use within the meaning of s 44. It follows that the combined effect of the increase in seating capacity and the provision of function room facilities constitutes a change in use within s 44. It is not necessary to consider separately whether a change so as to provide function room facilities is a change which, by itself, would have contravened the section. It follows that the development consent is invalid.

76. As the Council submitted Seaton and Watpac is authority that whether there is a change of use within the meaning of s 44 is a question of degree, measured quantitatively and qualitatively. This is a matter of fact which fell squarely in the Commissioner’s role in determining the merits. No question of law is identified.

Ground 10

77. In the Infrastructure Report at page 7 the post development rate of discharge was identified as 1.91 cubic metres per second at the five year ARI level. Baron relied on this figure in its submissions at p 11-12. The evidence before the Commissioner was different. In Exhibit 9 addendum to the joint expert report dated 5 April 2018 Mr Ashe stated that the fraction increase between pre-development and post-development was 86.5 percent. In the joint report Mr Ashe stated that after further calculation the increase was 55.2 percent. Mr Vink agreed with that increase in the joint report.

78. Baron submitted that to make a finding of fact for which there is no evidence is to make an error of law per Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] (Hayne, Heydon Crennan and Kiefel JJ). Baron submitted that the Commissioner’s finding in [73] was not open on the evidence. That is correct in one respect. The Council agreed that Mr Vink did not agree that the post development peak discharge from the site would be 86.5 percent greater than the pre-development peak discharge. That was Mr Ashe’s original conclusion (see folio 566 Exhibit A).

79. The important matter however is the agreement of the experts following joint conferencing that the post development discharge would be greater than the pre-development peak discharge as reflected in their evidence (folio 562 Exhibit A). They agreed the increase was in the order of 55.2 percent (folio 560 Exhibit A). No material error in the overall finding of the Commissioner in [73] has been established. This ground of appeal fails.

Ground 13

80. Ground of appeal 13 is difficult to understand. Baron asserted that the construction certificate did comply with the relevant regulations – that was conceded at [52]. The Commissioner was distracted by irrelevant issues. This ground and the arguments appear largely repetitive of matters identified and dealt with above in relation to the bulk of the appeal grounds.

81. I note that an issue arose in the course of the hearing with the three plans for which approval was sought for internal drainage works (Exhibit N). These did not extend to the boundary of the Site with the road reserve in Farnborough Drive. Consequently the point of discharge of stormwater was therefore well within the Site in Lot 3, not at the boundary.

82. As Baron has been unsuccessful in this appeal it should be dismissed. The usual costs order in s 56A appeals is that the unsuccessful party pays the successful party. Accordingly, Baron should pay the costs of the Council. I will delay making such an order for 14 days.

Orders

83. The Court makes the following orders:

1. The appeal filed 13 June 2018 is dismissed.

2. The Appellant is to pay the Respondent’s costs of the proceedings unless a notice of motion seeking a different costs order is filed within 14 days.

3. The exhibit may be returned.

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Decision last updated: 31 August 2018