Dyldam Developments Pty Ltd v The Owners - Strata Plan 85305

Dyldam Developments Pty Ltd (the applicant) sought leave to appeal a decision of the primary judge concerning the validity of an occupation certificate issued under the *Environmental Planning and Assessment Act 1979* (NSW). The Owners - Strata Plan 85305 (the respondent) argued that the occupation certificate was invalid, which had implications for the running of the limitation period for claims under the *Home Building Act 1989* (NSW). The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Civil and Administrative Tribunal (NCAT), when exercising its jurisdiction under the *Home Building Act 1989*, possessed the power to review the validity of an occupation certificate, and whether such a review would be considered collateral to the primary proceedings. The Court also considered whether an occupation certificate issued in contravention of section 109H(2) of the *Environmental Planning and Assessment Act 1979* was invalid, and whether a document purporting to be an interim occupation certificate authorised the use and occupation of the whole of the building for the purposes of the *Home Building Act 1989*.

The Court of Appeal held that NCAT did not have jurisdiction to undertake a collateral review of the validity of an occupation certificate. The Court reasoned that the statutory scheme under the *Environmental Planning and Assessment Act 1979* provided for the Land and Environment Court to remedy or restrain breaches of that Act, including the improper issuance of certificates. Therefore, NCAT’s jurisdiction was confined to the matters expressly conferred upon it by the *Home Building Act 1989*, and it could not embark on an inquiry into the validity of an administrative decision made under a different legislative framework. The Court found that the occupation certificate, even if issued in contravention of section 109H(2), was not a nullity and remained valid until set aside by a court with the appropriate jurisdiction.

The Court of Appeal granted the applicant leave to appeal but ultimately dismissed the appeal, ordering the applicant to pay the respondent’s costs of the appeal and the application for leave to appeal.