Burwood Council v Ralan Burwood Pty Ltd (No 3)

In the case of *Burwood Council v Ralan Burwood Pty Ltd (No 3)*, the dispute concerned the validity of construction certificates issued by Burwood Council in relation to a development carried out by Ralan Burwood Pty Ltd. The Council appealed a decision of the primary judge in the Land and Environment Court, who had found that the construction certificates were not inconsistent with the development consent. The appeal was heard by McColl and Barrett JJA, and Sackville AJA.

The Court of Appeal was required to determine whether the primary judge erred in finding that the construction certificates were not inconsistent with the development consent. A further issue was whether, if such inconsistency were found, it would render the construction certificates invalid. The Court also considered whether the development had been carried out otherwise than in accordance with the development consent, and the application of section 80(12) of the *Environmental Planning and Assessment Act* (EPA Act), which deems construction certificates to form part of the development consent. The Court also examined the responsibility of the respondent developer for carrying out the development in accordance with the EPA Act.

The Court of Appeal reasoned that the scope and purpose of the statutory regime, when construed as a whole, did not necessitate a finding of invalidity where construction certificates were found to be inconsistent with the development consent. The Court noted that the primary judge had erred in their factual finding regarding the inconsistency. While the Court of Appeal had the capacity to make findings to resolve factual questions, it proceeded by assuming the primary judge's factual finding of inconsistency to address the legal question of the validity of the construction certificates. The Court ultimately dismissed the appeal and ordered the Council to pay Ralan's costs.