Central Coast Council v 422 Pacific Highway Wyong Pty Ltd

[2021] NSWLEC 64

Land and Environment Court

New South Wales

Medium Neutral Citation:

Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64

Hearing dates:

15 June 2021

Date of orders:

21 June 2021

Decision date:

21 June 2021

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See declarations and order at [57] and [58]

Catchwords:

JUDICIAL REVIEW - First Respondent granted complying development certificate by Sixth Respondent for “landscaping material supplies” on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - Council seeks declaration that the certificate is invalid - necessity for engineer’s certificate of structural stability a prerequisite mandated by cl 5A.27(3)(a) of State Environmental Planning Policy (Exempt And Complying Development Codes) 2008 - no engineer’s certificate provided to Sixth Respondent - first basis of invalidity established - evidence the certificate was not issued by Sixth Respondent but by another certifier purporting to issue the certificate in Sixth Respondent's name - further basis of invalidity of certificate established - First Respondent submits to the making of a declaration of invalidity of the certificate - certificate declared invalid

JUDICIAL REVIEW - First Respondent granted second complying development certificate by Sixth Respondent for “warehouse and distribution centre” on land owned by Second to Fifth Respondents - certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across the properties owned by Second to Fifth Respondents - certificate also authorises construction of roadworks on the properties owned by the Second to Fifth Respondents and on an adjacent property - no owner’s consent from the owner of the adjacent property provided to Sixth Respondent prior to the issuing of the second certificate - Council seeks declaration that the second certificate is invalid - owner’s consent required from the owners of all property where work is to be carried out - absence of owner’s consent for roadworks on land not owned by Second to Fifth Respondents renders second certificate invalid - First Respondent submits to making declaration of invalidity of second certificate - second certificate declared invalid

DISCRETION - substantial volumes of fill placed by First Respondent relying on the first and/or second certificate - issues of relief on declarations of invalidity deferred to further hearing - directions made for further hearing

Legislation Cited:

Environmental Planning and Assessment Act 1979

Evidence Act 1995 (NSW), s 60

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 5A.27(3)(a)

Wyong Local Environmental Plan 2013

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Category:

Principal judgment

Parties:

Central Coast Council (Applicant)
422 Pacific Highway Wyong Pty Ltd (First Respondent)
Yialkin Shevket (Second Respondent)
Ozel Shevket (Third Respondent)
Arja Leena Jortikka (Fourth Respondent)
Jarmo Kari Tapio Jortikka (Fifth Respondent)
William Dagger (Sixth Respondent)

Representation:

Counsel:
Mr T To, barrister (Applicant)
Ms A Johnstone, solicitor (First Respondent)
Submitting appearance (Second and Third Respondents)
Submitting appearance (Fourth and Fifth Respondents)
Submitting appearance (Sixth Respondent)

Solicitors:
Central Coast Council (Applicant)
Connor and Co Lawyers (First Respondent)
Fox & Staniland Lawyers (Second and Third Respondents)
Direct2U Law & Conveyancing (Fourth and Fifth Respondents)
Clyde & Co (Sixth Respondent)

File Number(s):

92915 of 2018

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The parties to the proceedings

The nature of the proceedings

The procedural history

Representation

The hearing

The evidence

The relevant environmental planning instrument provisions

Introduction

Permitted uses from the LEP’s Land Use Table

The relevant provision of the Codes SEPP

Introduction

The earthworks provision

Mr To’s submissions

Introduction

The first complying development certificate

The second complying development certificate

The Company’s position

Consideration

Introduction

The first complying development certificate

The second complying development certificate

Conclusion

Declarations and Orders

Directions for the further hearing

Annexure A

Annexure B

Introduction

1. 422 Pacific Highway Wyong Pty Ltd (the Company) has caused an estimated 76,000 cubic metres of fill to be deposited, some two metres’ deep, across the majority of a property located at 450 Pacific Highway, Wyong. This property, and its adjoining property to the west, 422 Pacific Highway (collectively, the site), are located within the local government area of the former Wyong Shire Council (now Central Coast Council, following amalgamation with Gosford City Council in May 2016). The depositing of the fill by the Company was said to be authorised by one, or both, of two complying development certificates said to be issued by Mr William Dagger in 2018. Mr Dagger is an accredited certifier registered with the Building Professionals Board.

2. After becoming aware of the filling of 450 Pacific Highway in March 2018, Central Coast Council (the Council) served at a “stop work” order to prevent depositing of further fill on the site; commenced these Class 4 proceedings seeking declarations that each of the complying development certificates issued by Mr Dagger in 2018 were invalid; and seeking a range of remedial orders, including requiring removal of the fill that had been imported to the site.

The parties to the proceedings

3. These Class 4 proceedings were commenced by the Council on 23 March 2018. Six respondents were initially named to the proceedings. A Seventh Respondent was added by an Amended Summons in July 2018. It is not necessary to reproduce the terms of this Amended Summons. The seven Respondents then were:

1. The Company (First Respondent);

2. Yialkin Shevket and Ozel Shevket (the Second and Third Respondents) who are the owners of 450 Pacific Highway, Wyong. These Respondents have filed submitting appearances in these proceedings;

3. Arja Leena Jortikka and Jarmo Kari Tapio Jortikka (the Fourth and Fifth Respondents) who are the owners of 422 Pacific Highway, Wyong. These Respondents have also filed submitting appearances in these proceedings;

4. Mr Dagger (the Sixth Respondent). Mr Dagger has also filed a submitting appearance in these proceedings; and

5. Warnervale Employment Zone Pty Ltd (the Seventh Respondent).

4. It is to be noted that the Seventh Respondent has been deregistered with the Australian Securities and Investments Commission and was, during the course of the many procedural attendances in these proceedings, removed as a respondent as a consequence of its deregistration.

The nature of the proceedings

5. On 1 June 2021, the Council sought, and was granted, leave to rely on a Further Amended Summons. This Further Amended Summons arose as a consequence of material made available to the Council on 27 May 2021 by Mr Dagger in response to a Notice to Produce which had been served upon him. This material caused the Council to conclude that there was a further basis upon which to seek its proposed declaration that the first complying development certificate was invalid. The nature of this material, and the consequences in these proceedings arising from it, are later detailed.

6. For present purposes, it is sufficient to set out the terms of the Further Amended Summons, as this provided the basis upon which the hearing on 15 June 2021 took place. The Further Amended Summons is in the following terms:

ORDERS SOUGHT

On the grounds stated below, the Applicant seeks the following:

1.   A declaration that Complying Development Certificate No. 18-0124 (First Certificate) is invalid and of no effect.

1A.   A declaration that Complying Development Certificate No. 18-0403 (Second Certificate) is invalid and of no effect.

2.   An order that each of the First, Second, Third, Fourth and Fifth Respondents, by themselves, their servants and agents, be restrained from carrying out development for the purpose of landscaping material supplies on the land at Lot 21 DP 1006849 known as 422 Pacific Highway Wyong and Lot 3 DP 543325 known as 450 Pacific Highway Wyong (the Land) pursuant to the First Certificate until development consent has been obtained for that use.

2A.   An order that each of the First, Second, Third, Fourth and Fifth Respondents, by themselves, their servants and agents, be restrained from carrying out development on the land at Lot 21 DP 1006849 known as 422 Pacific Highway Wyong and Lot 3 DP 543325 known as 450 Pacific Highway Wyong (the Land) pursuant to the Second Certificate until development consent has been obtained for such development.

3.   An interlocutory order that the First and Seventh Respondents, by themselves, their servants or agents, cease the importation of fill material to the Land immediately upon the making of these orders, until further order.

4.   An order that the First and Seventh Respondents, by itself, and its servants or agents:

(a)   remove all fill material which has been placed on the Land since 14 February 2018 and dispose of it to an approved waste facility within 30 days of the making of these orders; and

(b)   provide copies of the waste dockets for disposal of such fill to the Applicant within 7 days of the disposal.

5.   An order that the First Respondent remove the site shed described in the Certificate and which has been placed on the Land within 7 days of the making of these orders.

6.   An order that the Respondents pay the Applicant’s costs of the proceedings.

7.   Such further or other orders as the Court thinks fit.

DETAILS OF DECISIONS

1.   The decision maker was the Sixth Respondent.

2.   The decisions to be reviewed are:

(a)   the Sixth Respondent’s determination that the development endorsed by Complying Development Certificate No. 18-0124 (First Certificate) is complying development and complies with the relevant development standards under s.4.28(3) (previously s.85A(3)) of the EPA Act; and

(b)   the Sixth Respondent’s determination that the development endorsed by Complying Development Certificate No. 18-0403 (Second Certificate) is complying development and complies with the relevant development standards under s.4.28(3) (previously s.85A(3)) of the EPA Act.

3. The Applicant seeks relief from the whole of each decision in that the grant of the First Certificate, and the Second Certificate, was in each case contrary to the EPA Act.

GROUNDS

First Certificate

1A.   The First Certificate is invalid because it was not issued by the Sixth Respondent.

Particulars

(i)   Letter from the Sixth Respondent to the Building Professionals Board dated 16 July 2018.

(ii)   Letter from the Sixth Respondent to the Building Professionals Board dated 9 August 2018.

1.   The First Certificate is invalid because it purports to authorise development that is not complying development or that complies with relevant development standards.

Particulars

(i) The ‘installation of site shed and groundwork preparation for landscaping materials supply’ is not development specified by clause 5A.2(1) for the purposes of the Commercial and Industrial (New Buildings and Additions) Code in Part 5A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).

(ii)   The proposed site shed is not for the purposes of industry (other than heavy industry) or a warehouse or distribution centre.

(iii)   The proposed site shed is not an addition to the rear of existing commercial premises (on land other than on a corner lot) or an external alteration to existing commercial premises.

(iv)   The proposed earthworks, which are being carried out over the majority of the subject site (which has an area of approximately 37,000 sqm), does not relate to the proposed site shed, the footprint of which is 11.76 sqm.

(v)   The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve fill being placed on the site that would result in the existing ground level being raised by more than 1 metre, but such fill was not structurally sound.

(vi)   The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve excavation to an unspecified depth for a proposed sedimentation pond.

2.   The First Certificate is invalid because it was not open to the Sixth Respondent to determine that the development for which the application was made:

2.1   was complying development; and/or

2.2   complied with relevant development standards.

Particulars

(i)   The Sixth Respondent was did not have any information about existing uses of the land or that any such uses were lawful.

(ii)   The Sixth Respondent was provided with the first page only of Notices of Determination for DA/732/2011 determined on 9 January 2012, and for DA/367/2012 determined on 31 May 2012.

(iii)   The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve fill being placed on the site that would result in the existing ground level being raised by more than 1 metre, but that fill did not have structural support certified by a professional engineer as structurally sound, including in relation to (but not limited to) the ability to withstand the forces of lateral soil load.

(iv)   The proposed earthworks described in the Structural Fill Plan (Sheet 1 of 1 dated 07/02/18) involve excavation to an unspecified depth for a proposed sedimentation pond.

3. In the event the First Certificate is determined to be invalid, the carrying out of development on the Land comprising the installation of site shed and groundwork preparation for landscaping material supplies is not lawful as it is development for which development consent is required, but which has not been obtained, contrary to section 4.2(1) (previously section 76A) of the EPA Act.

Particulars

(i)   The Land is predominately zoned B6 Enterprise Corridor under the Wyong Local Environmental Plan 2013 (WLEP).

(ii)   The placement of the fill (Groundwork preparation for landscape supply) is properly characterised as development for the purpose of landscaping material supplies under the WLEP.

(iii)   Under the WLEP the use of land for the purpose of “landscaping material supplies” requires development consent.

Second Certificate

4.   The Second Certificate is invalid because it purports to authorise development that is not complying development or that complies with relevant development standards.

Particulars

(i)   The development requires, but had not obtained prior to the issue of the Second Certificate, an approval under the Local Government Act 1993 for each of the following activities:

a.   Stormwater drainage work, including an on-site stormwater drainage system;

b.   Dispose of waste into a sewer of the council;

c.   Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility;

d.   Operate a system of sewage management,

contrary to clauses 1.18(1)(d) and 5A.28 of the Codes SEPP.

(ii) The development requires, but had not obtained prior to the issue of the Second Certificate, an approval under section 138 of the Roads Act 1993 for the building of a crossover or driveway to the Pacific Highway, contrary to clause 1.18(1)(e) of the Codes SEPP.

(iii)   The development does not meet the following provisions of the Building Code of Australia:

a.   clauses E1.6, E4.2 and E4.4 of the National Construction Code 2016, contrary to clause 1.18(1)(c) of the Codes SEPP.

(iv)   The development includes the construction of link roads accessing Donaldson and Brussels Roads (Statement of Environmental Effects page 6, approved plan entitled Proposed Roads DCP 6.11, sheet 4/14), which is not development specified by clause 5A.2(1) of the Codes SEPP.

(v)   The development includes development that is to be provided with water supply and/or sewerage services, and the applicant had not obtained prior notice or other form of written advice from the Council in its capacity as water supply authority, specifying works or other requirements to be completed as part of the development, contrary to clause 5A.2(2) of the Codes SEPP.

(vi)   The development does not include a loading bay to each building, and compliant ingress to and egress from the site, contrary to clause 5A.25 of the Codes SEPP.

(vii)   The development does not include a garbage and waste storage area, contrary to clause 5A.26 of the Codes SEPP.

(viii)   The proposed earthworks described in the Structural Fill Plan (sheet 6/14 Rev 1 dated 8/5/18) involve fill being placed on the site that would result in the

existing ground level being raised by more than 1 metre, but that fill did not have structural support certified by a professional engineer as structurally sound, including in relation to (but not limited to) the ability to withstand the forces of lateral soil load, contrary to clause 5A.27 of the Codes SEPP.

(ix)   The proposed system for stormwater drainage required an approval, but was not approved, under the Local Government Act 1993, contrary to clause 5A.28 of the Codes SEPP.

(x)   The development includes the stockpiling of fill on the land, additionally to what is described as structural fill of up to 1.95m.

(xi)   The development includes the storage of plant and machinery for commercial purposes, which is not development for the purpose of a warehouse or distribution centre.

5.   The Second Certificate is invalid because it was not open to the Sixth Respondent to determine that the development for which the application was made:

5.1   was complying development; and/or

5.2   complied with relevant development standards.

Particulars

The particulars to paragraph 4 above are repeated.

6.   The Second Certificate is invalid as it included development comprising the construction of link roads accessing Donaldson and Brussels Roads beyond the land the subject of the complying development application and over adjoining land, for which no owners consent was obtained

7.   The Second Certificate is invalid because the true purpose of the proposed development was, and is, land filling for commercial gain, and not development for the purpose of a warehouse and distribution centre.

8. In the event the Second Certificate is determined to be invalid, the carrying out of development on the Land in purported reliance on the Second Certificate is not lawful as it is development for which development consent is required, but which has not been obtained, contrary to section 4.2(1) (previously section 76A) of the EPA Act.

Particulars

(i)   The Land is predominately zoned B6 Enterprise Corridor under the Wyong Local Environmental Plan 2013 (WLEP).

(ii)   Under the WLEP each of:

a.   the use of land for the purpose of a warehouse or distribution centre;

b.   the construction of roads (as described in paragraph 4(iv) above);

c.   the use of the Land for the storage of plant and machinery for commercial purposes, which is not development for the purpose of a warehouse or distribution centre but a use for another purpose including either a truck depot or a depot; and/or

d.   the filling of land (as described in paragraph 7 above),

requires development consent.

9. The carrying out of development the subject of the First Certificate and/or Second Certificate involving access to the Land from the Pacific Highway is contrary to s.4.26(1)(b)(ii) of the EPA Act.

Particulars

(i)   Clause 2.8(g) of Chapter 6.11 of Wyong Shire Development Control Plan 2013.

The procedural history

7. These proceedings have had a very lengthy procedural history. However, given the position adopted by the Company (see [44] and [45] below), it is not necessary to set it out in detail.

Representation

8. The hearing was set down for three days. Mr Richard Clark, the director of, and guiding mind behind, the Company had appeared on those occasions when the Company was represented at the many pre-trial attendances prior to the hearing. However, at 11.53 pm on Monday 14 June 2021, less than 11 hours prior to the appointed time for commencement of the hearing proper, a Notice of Appearance was filed electronically advising that the Company was now represented by Connor & Co Lawyers, a firm of solicitors.

8. When the hearing commenced at 10.00 am on 15 June 2021, Mr T To, barrister, appeared for the Council and Ms A Johnstone, solicitor, appeared for the Company.

The hearing

10. When the hearing commenced, Ms Johnstone made an oral application to vacate the hearing on the basis that, given the extreme lateness of her being instructed to represent the Company, she was not in a position to deal with the substantive matters in issue. For present purposes, it is sufficient to note that the outcome of the morning’s phase of the hearing on 15 June 2021 (a hearing which included oral evidence from Mr Clark as to the reasons for the extreme lateness of his retaining legal representation for the Company) were:

1. The Company submitted to the making of the declarations of invalidity sought by the Council in Orders (1) and (1A) in the Further Amended Summons, being declarations of invalidity of the two complying development certificates upon which the Company had relied as a lawful basis for depositing the fill on the site;

2. Mr To would later explain why I should conclude there was a proper foundation in the evidence for making the two declarations sought by the Council and which were now not opposed by the Company; and

3. The question of what relief (if any) was appropriate to be ordered, as a consequence of the two declarations of invalidity, would be addressed at a further separate hearing before me on 2 and 3 August 2021.

11. Ms Johnstone also foreshadowed that the Company might seek to file a cross‑claim against Mr Dagger, a cross‑claim which would be dependent on what I might determine with respect to relief during the subsequent August 2021 phase of the proceedings.

12. The proceedings were adjourned until 2.00 pm that afternoon, when Mr To addressed me as to the basis upon which the Council proposed I should be satisfied that the two declarations were appropriate to be made.

The evidence

13. In addition to the short oral evidence earlier noted as having been given by Mr Clark, three folders of documentary evidence were tendered for the Council. These folders became Exhibits A, B and C. Together, they comprised 1,365 folios of material.

14. Given the lateness of Ms Johnstone's retainer, the Company's right to object to any of the tendered material during the course of the first phase of the hearing dealing with the appropriateness of the declarations and the subsequent phase of the proceedings concerning relief was reserved. It is to be noted that no objection was taken by her to any of the material to which Mr To took me during his submissions concerning the legal and evidentiary bases for the making of the two declarations.

15. It is also to be noted that, within the three folders comprising the exhibits, there were a number of affidavits deposed by employees of the Council. Although Ms Johnstone did not object to these at this point in the proceedings, nor did she require for cross‑examination the deponents of any of those affidavits to which Mr To took me during the course of his submissions, the Company's rights of objection to, or cross‑examination of the deponents of, any of that affidavit evidence were expressly reserved for the discretion phase of the proceedings.

The relevant environmental planning instrument provisions

Introduction

16. Elements of two environmental planning instruments made pursuant to the Environmental Planning and Assessment Act 1979 (the EPA Act) are relevant for the purposes of this phase of the proceedings. The first relevant provisions appropriate to be reproduced come from the Land Use Table in the Wyong Local Environmental Plan 2013 (the LEP). The second comprises cl 5.27A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP).

Permitted uses from the LEP’s Land Use Table

17. For reasons which will later become apparent, it is appropriate to reproduce the list of uses permitted with development consent in the B6 Enterprise Corridor zone of the LEP. This list of permitted uses (as at the dates of the issuing of the two complying development certificates in contest in these proceedings) were:

3   Permitted with consent

Business premises; Community facilities; Food and drink premises; Garden centres; Hardware and building supplies; Hotel or motel accommodation; Kiosks; Landscaping material supplies; Light industries; Markets; Neighbourhood shops; Oyster aquaculture; Passenger transport facilities; Plant nurseries; Roads; Rural supplies; Serviced apartments; Sewage reticulation systems; Shop top housing; Specialised retail premises; Tank-based aquaculture; Timber yards; Vehicle sales or hire premises; Warehouse or distribution centres; Water reticulation systems; Water storage facilities; Any other development not specified in item 2 or 4

The relevant provision of the Codes SEPP

Introduction

18. Before setting out the single relevant provision of the Codes SEPP requiring consideration in this phase of the proceedings, it is appropriate to note that the Codes SEPP is a beneficial and facultative environmental planning instrument. Provided the relevant preconditions established for each of the multitude of types of developments dealt with by the relevant code are satisfied, such development can either be rendered exempt (not here relevant) or complying (as is here the position). For complying development, an appropriately accredited certifier, registered with the Building Professionals Board, can issue a complying development certificate to permit the proposed development to be carried out. This complying development certification process obviates what would otherwise be the necessity for making a development application pursuant to the EPA Act to what would be the relevant local consent authority (here, the Council).

The earthworks provision

19. The Codes SEPP contains, as its name implies, a number of codes. The here applicable code, the Commercial and Industrial (New Buildings and Additions) Code, is in Pt 5A of the Codes SEPP. This code contains one provision needing to be considered for present purposes. This appears in Div 4, “Development standards for both industrial and commercial development”.

20. For present purposes, the earthworks carried out on the site by the importation of fill could only be complying development, capable of approval by the issuing of a complying development certificate, if the provisions of cl 5A.27 of the Commercial and Industrial (New Buildings and Additions) Code were satisfied. The relevant elements of this clause were (being in common terms as at the date of the issuing of the two complying development certificates the subject of the Council’s challenge):

5A.27   Earthworks

(1)   …

(2)   …

(3)   Structural supports

Earthworks that are more than 1m above or below ground level (existing) are structurally sound only if they have structural support that:

(a)   a professional engineer has certified as structurally sound, including in relation to (but not limited to) the ability to withstand the forces of lateral soil load, and

(b)   has adequate drainage lines connected to an existing stormwater drainage system for the site, and

(c)   does not redirect the flow of any water or cause sediment to be transported onto an adjoining property, and

(d)   …, and

(e)   …, and

(f)   …

Mr To’s submissions

Introduction

21. Mr To commenced his submissions by taking me to three air photos taken from Nearmaps. These air photos (Exhibit C, Tab 37, folios 1318 to 1320) were dated 8 April 2018, 22 April 2021 and 29 April 2017 respectively. Each of these air photos covered the same geographic area and had depicted on them an overlay of the cadastral boundaries of the various allotments shown (including the two allotments comprising the site). Mr To drew attention to the fact that, between the first air photo in time and the second in time, extensive vegetation removal and fill deposits could be observed to have taken place on 450 Pacific Highway. The April 2021 air photo showed that there had been some limited revegetation established on the deposited fill as at the date of the final air photo in the series.

22. Mr To also took me to an extract from the land use zoning map supporting the LEP (Exhibit A, Tab 21, folio 2320). This map extract shows that, with the exception of a small portion on the south‑eastern fringe of the site, which was zoned SP2 to provide for future alterations to the alignment of the Pacific Highway along the frontage of 450 Pacific Highway, the entirety of the site was zoned B6 Enterprise Corridor.

23. Mr To next took me to affidavit evidence of several council officers, where those affidavits set out observations that had been made by the relevant deponent during the course of visits to the site.

24. Mr To took me to an affidavit of Mr Rhys Richards, a health and building surveyor employed by the Council. This affidavit was deposed on 22 March 2018 (Exhibit A, Tab 22, folios 321 to 339). At paragraph 32, Mr Richards described his observations of 450 Pacific Highway during the course of an inspection on 1 March 2018. Relevantly, he said that he had observed:

●   vast amounts of fill on the site comprising sandstone type material. In the south-western section of the site, the fill was formed in earth berms approximately 2 1/2 metres in height, and encapsulated trees on the site. The fill in the north-eastern portion of the site was spread out and level with the effect of raising the height of the site;

●   sediment control fencing extended along the northern and western boundary of the site. I did not see any sediment control fencing on the southern and eastern boundaries of the site.

25. Exhibited to this affidavit was a bundle of material (Exhibit A, Tab 23, folios 340 to 449). This included, at folio 424, a photograph of portion of the site. This photograph and its caption are reproduced below:

The first complying development certificate

26. A copy of the first complying development certificate was contained in a bundle of material exhibited to the affidavit of Mr Brian Jones, the Council's Section Manager, Compliance and Health. The documents comprising the certificate and its attachments are in evidence at Exhibit A, Tab 21, folios 291 to 307.

27. The first certificate purported to grant consent for “landscaping material supplies” on the site. Development for this purpose is listed as permissible for the B6 Enterprise Corridor zone of the LEP.

28. The first certificate purported to authorise importation and placement of fill to a depth of 1.95 metres across virtually the entire site.

29. Mr To took me to the second page of the certificate documents (folio 292), a page headed “Schedule 1: References; Approved Plans and Specifications”. It is to be observed that no document of the nature mandated by cl 5A.27(3)(a) of the Codes SEPP is referenced in the various documents set out on this page.

30. Mr To also took me to a development consent for 450 Pacific Highway (Exhibit A, Tab 21, folios 263 to 278). This development consent had been issued on 9 January 2012, with a lapsing date of 9 January 2014. There is no evidence that this consent was ever activated. However, for abundant caution, Mr To took me to it in order to establish, via the terms of the document (at folio 275 and a diagram at folio 278), that the extremely limited scope of that development consent for a “Warehouse (Motor Vehicle Storage Yard)” did not provide any potential basis for validity of the activities undertaken by the Company on the site giving rise to the present extent of fill which had been imported to the site.

31. The intended extent of the fill proposed to be approved for placement on the site by the first complying development certificate can be seen on the Structural Fill Plan noted in Schedule 1 to this complying development certificate, under the heading “Endorsed architectural plans”. This Structural Fill Plan, Sheet 1/1 revision:0, is in evidence at Exhibit A, folio 302. A section through the edge of the proposed fill is on the left-hand margin of the plan at its midpoint. This discloses that the fill is intended to be 1.95 metres’ deep across the site. A copy of this plan is reproduced as Annexure A to this decision.

32. Mr To submitted that the evidence that demonstrated that the first certificate had not, in fact, been issued by Mr Dagger provided a first proper basis to declare it to be invalid.

33. Mr To submitted that the absence of the mandated prerequisite certification required by cl 5A.27(3)(a) of the Codes SEPP provided a second and sufficient basis to conclude that the first complying development certificate was invalid.

The second complying development certificate

34. A copy of the second complying development certificate (CDC 18-0403) is in evidence (Exhibit A, Tab 26, folios 505 to 517). This certificate is dated 10 May 2018.

35. The second certificate purported to grant consent for a “warehouse and distribution centre” on the site. Development for this purpose is listed as permissible for the B6 Enterprise Corridor zone of the LEP.

36. The second certificate also purported to authorise importation and placement of fill to a depth of 1.95 metres across virtually the entire site.

37. As with the first complying development certificate, the second certificate includes, in its Schedule 1 (at folio 507), a list of documents upon which Mr Dagger had relied for the purposes of issuing the certificate.

38. In this schedule of documents, it is to be noted that a document entitled “Codes SEPP Part 5A Compliance-Landfill Limits for CDC referencing P5A.27(3) and dated 8 May 2018” is referenced. A copy of this document does not appear to be in evidence.

39. A Statement of Environmental Effects and Proposed Land Uses supporting the application for this complying development certificate is also referenced in the schedule. This document is noted as having been prepared by “Director Richard Clark-Operator”. This Statement of Environmental Effects is in evidence at Exhibit A, Tab 26, folios 544 to 570. At page 6 of the Statement of Environmental Effects (folio 548), the document describes, relevantly, under the heading “1.4 Proposed Development”, an aspect of that for which the complying development certificate is sought. This element is in the following terms:

Access to the site is currently via the existing driveway from Pacific Highway, however, linked roads accessing Donaldson and Brussles roads are part of this application (see Indicative Road plan 6.1).

40. The Indicative Road Plan is referenced on the second page of the schedule of documents relied upon for the issuing of this complying development certificate. It is referred to, under the heading “Architectural Drawings”, as being “Proposed Roads DCP 6.11 and Ancillary Structures”. It is described as “sheet 4/14 revision 1”. A copy of that plan (bearing Mr Dagger’s certification and signature) is in evidence at Exhibit B, Tab 30, folio 981. A copy of this plan is attached as Annexure B to this decision. I have inserted, on this plan, the red rectangular marking showing the element of the proposed road running to the north which would connect the site with a proposed extension of Brussels Road.

41. As can be seen from the attached plan, this road is described as “proposed road as designated in enterprise corridor and subject to final alignment at subsequent date”. The area in the red outline on Annexure B depicts, in green, the boundary of 422 Pacific Highway with its neighbouring property to the east as running within this road for which consent is sought by this complying development certificate. The element of this road to the east of the marked boundary is not within the ownership of the owners of 422 Pacific Highway (the Fourth and Fifth Respondents); nor is it within the ownership of the owners of 450 Pacific Highway (the Second and Third Respondents).

42. No consent from the owners of the property to the east for construction of this road is listed in the schedule of documents for the second complying development consent (nor can I find such a document in the material in evidence).

43. Mr To submitted that this was a sufficient basis upon which I could conclude that the second complying development certificate was invalid.

The Company’s position

44. At the conclusion of Mr To’s submissions concerning the validity of the first complying development certificate and, later, at the conclusion of his submissions concerning the second complying development certificate, I asked Ms Johnstone whether she wished to be heard to take me to any other material concerning the relevant certificate or to make any submissions on behalf of the Company contesting the conclusion which Mr To submitted I should draw, in each instance, that the relevant certificate was invalid.

45. On each occasion, Ms Johnstone indicated that the Company did not wish me to go to any further material, nor did she wish to advance any submissions on behalf of the Company that I should not draw the conclusion that each certificate was invalid.

Consideration

Introduction

46. I had indicated during the morning hearing that, at the conclusion of Mr To’s submissions and those made for the Company, I would indicate whether I was satisfied that making of the two declarations had a proper legal and evidentiary basis and that I would subsequently provide written reasons why I had reached that conclusion, if I was to do so. I indicated, at the conclusion of the hearing on 15 June 2021, that I was satisfied the declarations sought by the Council should be made. These are my reasons for so concluding.

47. It is to be noted that, in anticipation of there being a contest as to the validity of the legal and evidentiary basis for the making of the declarations sought by the Council, Mr To had prepared lengthy, detailed and helpful submissions in support of the making of the declarations.

48. However, it is sufficient, for present purposes, to explain why I am satisfied that the two declarations of invalidity sought by the Council should be made.

The first complying development certificate

49. A letter from Mr Dagger to the Building Professionals Board of 16 July 2018 (Exhibit C, Tab 44, folios 1450 and 1451) sets out the circumstances by which Ms Raina Barnes, a registered certifier (trading through an entity known as Granda Consulting Pty Ltd) had caused the first complying development certificate to be issued in Mr Dagger’s name. This material is admissible as being a business record of Mr Dagger’s company, Associated Building Certifiers Pty Ltd (s 60, Evidence Act 1995 (NSW)). The contents of this letter are not contested by the Company.

50. It is, therefore, the uncontested position that the first complying development certificate (CDC 18-0124), although purporting to be issued by Mr Dagger, was not issued by Mr Dagger but was issued by Ms Barnes. This, in itself, is sufficient to demonstrate the invalidity of the first complying development certificate.

51. The absence of the mandated prerequisite engineer’s certificate required by cl 5A.27(3)(a) of State Environmental Planning Policy (Exempt And Complying Development Codes) 2008 is a second sufficient basis to demonstrate the invalidity of the first complying development certificate.

The second complying development certificate

52. Any development consent, including a complying development certificate, which purports to approve development on land where there is no owner’s consent for such development is invalid (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245).

53. As can be seen from Annexure B, portion of the development which Mr Dagger purported to approve in the second complying development certificate was to be carried out on land adjacent to the northern portion of 422 Pacific Highway, where the owners of 422 Pacific Highway, and those of 450 Pacific Highway, did not own that land and were, thus, incapable of giving owner’s consent for that development. As earlier noted, no separate owner’s consent had been given for the development not on the site.

52. In these circumstances and where, as noted above, the Company, as the beneficiary of the second complying development consent, does not seek to provide any evidence (such as the relevant owner’s consent); does not contest the making of a declaration of invalidity of both complying development certificates; and submits to the making of such declarations of invalidity, it is appropriate to conclude that the second complying development consent is invalid.

53. As a consequence, it is also appropriate that the second complying development certificate (CDC 18-0403) be declared invalid.

Conclusion

56. For the reasons explained above, there is no doubt that both the first and second complying development certificates are invalid. As a consequence, declarations (1) and (1A), as sought by the Council in its Further Amended Summons, are appropriate to be made.

Declarations and Orders

57. It therefore follows that the declarations of the Court are:

1. The Court declares that Complying Development Certificate No 18‑0124 is invalid and of no effect; and

2. The Court declares that Complying Development Certificate No 18‑0403 is invalid and of no effect.

58. The Court orders that:

1. Costs are reserved.

Directions for the further hearing

59. The Court notes that the following agreed directions for the further progression of the matter were made on 15 June 2021:

1. The First Respondent is to file and serve any Notice of Motion seeking leave to file a cross‑claim against the Sixth Respondent (attaching a draft cross‑claim) and affidavit evidence in support of the motion by 29 June 2021. The Notice of Motion is to be listed for hearing before Justice Moore at 8.30 am on 2 July 2021;

2. The First Respondent is to file and serve any lay evidence from any of the current Respondents to the proceedings in relation to the relief sought, and an expert report from an engineer (Mr David England), by 7 July 2021;

3. Mr England and expert(s) on behalf of the Applicant are to confer and serve the parties with a Joint Report setting out the matters on which they agree and disagree, and the reasons for any disagreement, by 21 July 2021;

4. The Applicant is to file and serve an outline of submissions in relation to relief by 26 July 2021;

5. The First Respondent is to file and serve an outline of submissions in relation to relief by 29 July 2021; and

6. The matter is listed for hearing in Court on 2 and 3 August 2021.

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Annexure A

Annexure B

Decision last updated: 21 June 2021