Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5)

[2020] NSWLEC 9

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9

Hearing dates:

23, 24, 25, 26, 27 September and 1, 28, 29, 30, 31 October and 1, 4, 5, 6, 7, 8 November 2019

Date of orders:

05 March 2020

Decision date:

05 March 2020

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraph 285

Catchwords:

ENVIRONMENT AND PLANNING – construction of development consents and construction certificates – development without development consent – scope and purpose of statutory regime – over excavation of subject site – validity of construction certificates – whether construction certificate was validly modified – whether development was carried out otherwise than in accordance with the construction certificate – development without consent – public notification of voluntary planning agreement – occupation certificates – discretion and relief

Legislation Cited:

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Evidence Act 1995
Interpretation Act 1987
Land and Environment Court Act 1979

Cases Cited:

1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395
Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434
Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Cranky Rock Road v Cowra Shire Council (2006) 150 LGERA 81
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Driscoll v J Scott Pty Limited (1976) 50 ALJR 528
Gill v Donald Humberstone & Co Limited [1963] 1 WLR 929
Hecar Investments & Co Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
MLC Properties v Camden Council (1997) 96 LGERA 52
North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355
State of New South Wales v Hunt (2014) 86 NSWLR 226
Swadling v Sutherland Shire Council (1994) 82 LGERA 431
The Trust Company (Australia) Ltd in its capacity as custodian of The Asia Pacific Data Centre Trust v NEXTDC Limited [2018] NSWSC 1361
Western Aluminium Pty Ltd v Environmental Protection Authority; Western Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 82 ALJR 74
Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

Omaya Investments Pty Ltd (First Applicant)
BSM Holdings Pty Ltd (Second Applicant)
Dean Street Holdings Pty Ltd (First Respondent)
TQM Design and Construct Pty Ltd (Second Respondent)
Patrick John Elias (Third Respondent)
Maurice Freixas (Fourth Respondent)
Burwood Council (Fifth Respondent)

Representation:

Counsel
23, 24, 25, 26 September 2019:
M Wright SC and J Walker (First Applicant)
C Leggat SC and L Nurpuri (First to Third Respondents)
Submitting Appearance (Fourth Respondent)
R White (Fifth Respondent)

 

27 September and 1, 28, 29, 30, 31 October and 1, 4, 5, 6, 7, 8 November 2019:
J Lazarus SC and J Farrell (First and Second Applicants)
C Leggat SC and L Nurpuri (First to Third Respondents)
Submitting Appearance (Fourth Respondent)
R White (Fifth Respondent)

 

Solicitors
23, 24, 25, 26 September 2019:
Project Lawyers (First Applicant)
Salim Rutherford Lawyers (First to Third Respondents)
Jaku Legal (Fourth Respondent)
Houston Dearn O’Connor Lawyers (Fifth Respondent)

  27 September and 1, 28, 29, 30, 31 October and 1, 4, 5, 6, 7, 8 November 2019:
Blackstone Waterhouse (First and Second Applicants)
Salim Rutherford Lawyers (First to Third Respondents)
Jaku Legal (Fourth Respondent)
Houston Dearn O’Connor Lawyers (Fifth Respondent)

File Number(s):

2019/228381

Publication restriction:

No

[Judgment

Introduction and Background Facts

Relevant Legislative Provisions

Nature of Claims

Ground 1 – Over excavation in breach of DC1

Nature of claim

Applicants’ submissions on construction of The Consent

Respondents’ submissions on construction of The Consent

Findings on the construction of The Consent

The evidence relating to whether the excavation met the performance criteria

Applicants’ submissions on the evidence as to whether the excavation met the performance criteria

Respondents’ submissions on the evidence as to whether the excavation met the performance criteria

Credit of Mr Maroun Taouk

Findings on evidence of soft rock

Findings on whether the presence of soft rock was a sufficient reason (or a reason at all) relating to the extent of excavation

Not a reasonable response

Conclusion on whether there has been a breach of The Consent relating to the extent of excavation

Ground 2 – CC1 is invalid because it was issued in breach of Planning Condition (5) of DC2

Nature of claim

Legislative provisions

Provisions of development consents

Agreed facts

Applicants’ submissions

Respondents’ submissions

Findings on Ground 2

Conclusion on Ground 2

Ground 3 – Building works comprising shoring and piling have been undertaken in breach of CC1

Ground 4 – Building works without construction certificate

Nature of Claim

Issue for determination

Was a construction certificate required for the piling and shoring works?

The scope of the evidence

Evidence of construction of CC1

Applicants’ submissions on construction of CC1

Respondents’ submissions on construction of CC1

Findings on construction of CC1

Was CC1 amended to incorporate TQM Plans?

Legislative provisions

Evidence of treatment of TQM Plans by Respondents and the Certifier

Applicants’ submissions

Respondents’ submissions

Onus

Was there an application made to modify CC1?

Could the changes in the TQM Plans be properly characterised as a modification?

Applicants' submissions

Respondents' submissions

Findings as to whether the TQM Plans were a modification

Were the plans lodged for the purpose of CC2 and not CC1?

Was the modification to incorporate the TQM Plans in fact approved?

Date of Stamping of TQM Plans and communication of approval

The words on the stamp do not support inference of approval

The TQM Plans were stamped in error

Findings on whether in fact an approval was granted

Findings on breach of the Regulations

Does the finding of breach of regulations have the consequence that the modification of CC1 was invalid?

Did Mr Freixas give an approval as the accredited certifier or in some other capacity?

Applicants' submissions

Respondents' submissions

Findings on whether Mr Freixas was acting as accredited certifier

Conclusion to Grounds 3 and 4

Ground 5 – CC2 invalid

Applicants’ submissions

Respondents’ submissions

Findings on Ground 5

Ground 6 – Crane base erected without approval

Findings on whether crane base required development consent

Determination of relief for construction without development consent

Ground 7 – The Executed VPA is invalid as it was not notified to the public in accordance with the mandatory requirements for public notification

Nature of claim

Legislative provisions

Evidence relating to public notification of Executed VPA

Applicants’ submissions

Council’s submissions

Respondents’ submissions

Findings on whether the Executed VPA is invalid

Conclusion on Ground 7

Ground 8 – Occupation Certificate

Discretion

Costs

Conclusion and Orders

Judgment

Introduction and Background Facts

1. These proceedings are civil enforcement proceedings asserting that work carried out at premises known as 1-3 Marmaduke Street and 7 Deane Street, Burwood (the Subject Site), comprising principally the excavation, shoring and slab construction, is unlawful. It is further asserted that proposed future work comprising the construction of a mixed use development and car parking in reliance on the existing works is unlawful.

2. The First Applicant was the owner of land adjoining the Subject Site at 8-12 George Street, Burwood (the Applicants’ Land). The Second Applicant is now the registered proprietor of the Applicants’ Land. The First and Second Applicants are collectively referred to as the Applicants.

3. The First Respondent is the registered proprietor of the Subject Site. The Second Respondent is the contractor carrying out construction and development works on the Subject Site. The Third Respondent is the registered proprietor of land adjoining the Subject Site known as 4 George Street, Burwood upon which has been constructed a concrete pad to support a crane (the construction of and use of which is the subject of a claim in these proceedings). The First to Third Respondents were collectively represented and will be collectively referred to as the Respondents.

4. The Fourth Respondent, Mr Maurice Freixas, of Dix Gardiner, was appointed as Principal Certifying Authority in relation to the works to be carried out on the Subject Site. The Fourth Respondent has entered a submitting appearance in these proceedings. He was called to give evidence in the matter and to that extent was represented as needed by legal representatives.

5. The Fifth Respondent (the Council) was the consent authority in relation to the grant of development consents for development on the Subject Site and was the beneficiary of developer contributions pursuant to a condition of a development consent that required the developer to enter into a Voluntary Planning Agreement (VPA).

6. The relevant (generally agreed) chronology of facts relating to the carrying out of building works on the Subject Site are:

Date	Event	Evidence Reference
06/03/13	First Development Consent granted for 22 storey mixed use development with four basement levels (DC1).	Exhibit F
24/10/14	Modification 1 to the First Development Consent – modifications to internal layout, increase number of serviced apartments (2014 Modification to DC1).	Exhibit G
03/03/16	Second Development Consent 98/2015 granted for an additional three storeys (DC2).	Exhibit H
18/10/16	Complying Development Certificate 16/0475-01 granted for demolition.	Exhibit L at 871
03/03/17	Modification 2 to DC1 - extension of B4 and reconfiguration of basement levels (2017 Modification to DC1).	Exhibit K
08/03/18	Construction Certificate 1 (CC1) issued. Stamped plans by ABC Consulting for bulk excavation, shoring and piling.	Exhibit U
Dec 2018	The Development site was acquired by the First Respondent.	Affidavit of Mr Mark Taouk dated 17/09/19 at [5]
Mid to late January 2019	Piling works commenced at Subject Site.	T533 lines 34-37
16/01/19	Application form for CC to roof level (date signed).	Exhibit Z Tab 4
05/03/19	Revised shoring and piling Engineering plans prepared by TQM Consulting Engineers dated 21 December 2019 and marked Revision B together with accompanying material delivered by Mr Maroun Taouk to Mr Freixas on a USB stick (the TQM Plans).	Affidavit of Mr Maroun Taouk at [15]
02/04/19	Application form for Construction Certificate to roof level (date marked received by Dix Gardner).	Exhibit X at 72
07/05/19	4.15 modification application to DC1 and new development application lodged for incorporation of adjoining site and Basement 5.	Exhibit 1
23/07/19	These proceedings are commenced.	Original Summons
09/08/19	Dix Gardiner forwards the revised shoring and piling Engineering plans prepared by TQM to Respondents. Plans marked with stamp that states: DIX Gardner Group Pty Ltd Certificate Number 16/0475-02 Dated 08/03/2018 Construction Certificate Approved	Exhibit U
12/08/19	Letter from Dix Gardner to Second Respondent indicates earlier stamp on plans an: ‘administrative error’ and attaches ‘corrected’ plans with a different stamp.	Exhibit W
11/10/2019	VPA executed (the Executed VPA).	Exhibit JJ Tab 1
15/10/2019	Construction Certificate for structure to roof level issued.	Exhibit JJ Tab 2

7. As at the commencement of works at the Subject Site the relevant approval relating to that work was: DC1 as amended by the 2014 Modification to DC1 and the 2017 Modification to DC1; and CC1. Collectively this approval will be referred to as The Consent.

8. In these proceedings it is asserted that the conditions imposed on DC2 were incorporated into DC1. I will deal with this question where it arises. However, the reference to The Consent does not include a reference to DC2 conditions.

Relevant Legislative Provisions

9. As at the date of the hearing of this matter the Environmental Planning and Assessment Act 1979 (EP&A Act) had been amended to replace, inter alia, the provisions of s 81A and Part 4A of the EP&A Act as it related, in this case, to construction certificates. The commencement of those amendments, by operation of cl 18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, were postponed and the following provisions applied:

18   Postponement of revised building and subdivision certification provisions

(1)   In this clause, the former building and subdivision provisions means-

(a)   Sections 81A (2)-(6) and 86 of the Act, as in force immediately before the substitution of those provisions by the amending Act, and

(b)   Part 4A of the Act, as in force immediately before the repeal of that Part by the amending Act, and the regulations made under that Part as so in force.

(2)   Until 1 December 2019, Part 6 of the Act (as inserted by the amending Act), other than Division 6.7, does not apply and the former building and subdivision provisions continue to apply in respect of a matter (whether or not the matter was pending on the repeal of those provisions).

(3)   For the avoidance of doubt, the following provisions as in force immediately before 1 March 2018 continue to apply to and in respect of a breach, occurring on or after that day, of a former building and subdivision provision-

(a)   Division 4 of Part 6 of the Act,

(b)   Any other provision of the Act, or a regulation made under the Act, that provides for the prosecution of an offence in relation to the breach, including by way of issuing a penalty notice.

10. As a consequence, as at the date of the hearing the relevant provisions were those referred to in cl 18. On 1 December 2019 the postponed provisions commenced. As both DC1 and DC2 were granted prior to the commencement of the postponed provisions, the provisions in force immediately prior to that date continue to apply to the determination of the subject matter of these proceedings by operation of cl 18A which provides:

18A    Continuation of matters arising under former building and subdivision certification provisions

The former building and subdivision provisions continue to apply, despite their repeal, to or in respect of the following-

(a)   an interim occupation certificate or final occupation certificate in force under those provisions immediately before 1 December 2019,

(b)   a development consent granted before that date.

Nature of Claims

11. The Applicants’ Fourth Amended Summons and Points of Claim (filed with leave on 4 November 2019) sets out the Applicants’ claims for relief as at the conclusion of the hearing. These grounds were summarised by the Applicants as generally being:

• Ground 1 – Over excavation in breach of DC1: the Subject Site has been excavated by or on behalf of the First Respondent and/or the Second Respondent in breach of DC1 (and subject to subsequent approved modifications pursuant to s 4.55 of the EP&A Act) for a mixed-use development, with four basement levels at the Subject Site. Excavation has taken place to a level of RL 7.62 AHD when compared with the approved level of RL 13.200 AHD.

• Ground 2 – CC1 is invalid: the construction certificate issued by the Fourth Respondent approved for "CC1: Bulk excavation, shoring and piling" (CC1) is invalid because it was issued in breach of Planning Condition (5) of DC2 for, inter alia, three additional building levels containing eight residential apartments.

• Ground 3 – Breach of CC1: if (which is denied) CC1 is a valid construction certificate, the approved plans the subject of CC1 are taken to form part of DC1 and/or DC2, and the First and/or Second Respondents have carried out development comprising shoring and piling and other works otherwise than in accordance with the CC1 plans.

• Ground 4 – Building works without construction certificate: in breach of s 81A(2)(a) of the EP&A Act (s 6.7(1) from 1 December 2019), the First and/or Second Respondent have carried out building works at the Subject Site (including the construction of suspended concrete slabs) in the absence of a valid construction certificate, comprising all the works beyond the bulk excavation, shoring and piling works approved by CC1. To the extent that the First and Second Respondents rely on the TQM Plans, those plans do not form part of any construction certificate issued or approved by Mr Freixas, and there has been no valid amendment or substitution of those plans.

• Ground 5 – CC2 is invalid: CC2 for the "erection of a multi-storey, mixed-use development containing retail tenancies, serviced apartments & residential units, over basement car parking, CC2: Structural building works up to and including roof slab":

1. has no effect at all, by reason of the operation of s 109F(1A) of the EP&A Act;

2. or alternatively has no effect to the extent that it purports to authorise the carrying out of building works that had already been carried out; and

3. was issued in breach of former ss 81A(2) and 109F(1)(a) (current ss 6.7(1) and 6.8(1)(a)) of the EP&A Act and cl 146(c) of the Environmental Planning and Assessment Regulation 2000 (the Regulations);

and is therefore invalid.

• Ground 6 – Crane base without consent: the Second Respondent has carried out development without consent, in breach of s 4.2(1)(a) of the EP&A Act by erecting a crane tower base on adjoining land at 4 George Street, Burwood.

• Ground 7: the Executed VPA is not a planning agreement within the meaning of s 7.4 of the EP&A Act, as it was not exhibited in accordance with the mandatory requirements for public notification. Therefore, the Executed VPA would be invalid and would not satisfy Planning Condition (5) of DC2.

• Ground 8 – Occupation certificates: assuming the Court makes findings with respect to CC1 and CC2, any occupation certificate issued for the new building on the Subject Site would be in breach of s 109H(3) and (5) of the EPA Act (and s 6.10(2) of the Act from 1 December 2019) and would therefore be unlawful. In the alternative, to the extent that it relies upon CC1 or CC2 in respect of building works carried out before the relevant construction certificate was issued, any occupation certificate would be in breach of s 109H(3) and (5) of the EP&A Act (and s 6.10(2) of the Act from 1 December 2019) and would therefore be unlawful.

• Discretion and nature of relief: in the event that any or all of the grounds are established, what declarations and orders (if any), in the exercise of the Court’s discretion, should be made.

12. Each of these grounds was addressed by the Applicants and the Respondents. The Council only sought to be heard in connection with Ground 7 (and discretionary considerations relating to that ground) as that ground related to the Council’s entitlements under the VPA.

13. Each of these grounds requires the determination of a number of contingent and subsidiary issues, which I identify at the point that I deal with each of these grounds.

Ground 1 – Over excavation in breach of DC1

14. Whilst this claim pleads that the approved level is RL 13.200, the parties agreed that there was a benchmarking error in the original survey such that the RL of 13.200 should be read as RL 11.055m. Accordingly, this ground relates to a quantum of depth of excavation in the order of 3.55m in excess of the Structural Floor Level (SFL) of Basement 4.

14. The floor levels relevant to what has been constructed and the subject matter of these proceedings are:

Floor level	Approved plans - SFL	SFL Corrected for benchmark error
Ground Floor	24	21.855
Basement 1	21.3	19.155
Basement 2	18.6	16.455
Basement 3	15.9	13.755
Basement 4	13.2	11.055

16. For reasons of clarity (except where otherwise expressly noted) I will refer to the corrected benchmark levels as the approved SFL’s in The Consent.

17. Whilst the Applicants’ summary of this ground refers to the SFL of Basement 4, the Declaration and Orders sought in the Summons are not so limited. The parties also submitted on the basis that there may be an alternative limitation on excavation relating to the proper construction of The Consent and the need to increase excavation in the event of there being an engineering basis for such excavation. The determination of this ground will consider both of these arguments.

Nature of claim

18. This ground deals exclusively with the extent of excavation and does not relate to any piling or shoring works (which are works the subject of the claim in Ground 3).

19. This ground requires a determination of the following contingent issues:

1. Upon a proper construction of The Consent is there a limit on the extent of excavation either in express terms or by implication to a nominated benchmark or some other limitation?

2. If there is such limitation in the Consent: what is that limit; and, has it been exceeded? This issue requires findings with respect to:

1. the available evidence;

2. whether some of that evidence should be accepted having regard to submissions on credit;

3. if there has been excavation in excess of that approved level what is the consequence of any identified breach, both at law and in the exercise of the Court’s discretion?

Applicants’ submissions on construction of The Consent

20. The Applicants submit that The Consent provided that the excavation was to permit the creation of Basement 4 having an SFL of RL 11.055. The plans that formed part of The Consent did not provide for a void or additional excavation below the SFL of Basement 4. In addition, the conditions imposed on The Consent that related to excavation did not authorise additional excavation to RL 7.62. In particular, the Applicants rely upon the terms of the conditions of DC1 to support this construction of The Consent, namely: Building Conditions 26(b), (3) and (41); and Excavation Conditions (1)-(5).

21. Further, to the extent that CC1 became part of The Consent those plans are silent as to the depth of excavation except in so far as the plans have been marked by Mr Freixas in red handwriting with the requirement that the construction is “To comply with DA RL’s”, thereby reinforcing the need to excavate only to the SFL of Basement 4.

22. A combination of each of these factors, the Applicants’ contend, indicates that upon the proper construction of The Consent the depth of excavation was limited in depth to SFL of Basement 4 and an additional 1m for the socketing of piles where required.

23. It is uncontroversial that the Respondents have excavated below the SFL of Basement 4. To the extent that the excavation exceeds that level it has been carried out in breach of the terms of The Consent, and therefore, in breach of the provisions of s 4.2(1)(b) of the EP&A Act.

Respondents’ submissions on construction of The Consent

24. The Respondents submitted that upon a proper construction of The Consent there was no limitation on the depth of excavation as contended by the Applicants and, therefore, the excavation was not in breach of The Consent.

25. The first basis for this submission was that each of the approvals was required to be construed such that it permits a “practical approach” to be taken to permit “practical results” to be achieved. The Respondents cited the following in support of this submission: Gill v Donald Humberstone & Co Limited [1963] 1 WLR 929 at 933 to 934; Driscoll v J Scott Pty Limited (1976) 50 ALJR 528 at 531; Hecar Investments & Co Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323; Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [40] per Hodgson JA; DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 at [94] per Perram, Wigney and Lee JJ.

26. The Respondents contend that, during the course of excavation, soft shale soil was discovered on the Subject Site which discovery required further excavation to locate stronger rock. On a proper construction of The Consent such a practical response in the practical exercise of excavation was permitted.

27. Secondly, The Consent did not impose any limit on excavation. The only constraint is contained in Excavation Condition (1), imposed on DC1, that required the work to be undertaken in “a safe and careful manner in accordance with appropriate professional standards” and the excavation in this case accorded with that requirement in the response to the discovery of the soft shale soils. Such a possibility was identified in the documents that formed part of DC1 by operation of Condition (1). The response to this discovery was consistent with those reports. CC1 also did not place any limitation on the depth of excavation. As with DC1, CC1 incorporated reports that identified the possibility of soft shale soils and the response to this discovery was consistent with those reports.

28. Finally, if there was a limitation placed on the extent of the excavation by The Consent that consent was modified (or permission was given) to vary that requirement. It was said that this variation or permission arose as a consequence of the approval given at or around 5 March 2019 to incorporate the revised Shoring and Piling Plans prepared by TQM. This incorporation was either a formal modification of CC1 or, alternatively, a determination by Mr Freixas that the revised plans were consistent with the requirements of DC1 and CC1 such that the work could be undertaken without the need to modify CC1.

Findings on the construction of The Consent

29. The principles of construction of development consents are relatively well settled and prescribe that:

1. A development consent, being a statutory instrument, is to be construed in accordance with the usual rules of statutory construction: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395 at [99];

2. The development consent is to be construed according to the terms of the Notice of Determination and any other document or matter incorporated into its terms either by express reference or necessary implication: Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439 at [35]-[36] (the decision was overturned in Western Aluminium Pty Ltd v Environmental Protection Authority; Western Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 82 ALJR 74, however the principles of construction of consents was not criticised: see [17]), Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434 at [72];

3. A development consent is to be construed in accordance with its objective terms rather than the subjective intentions of the consent authority: Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434;

4. A development consent, being an entitlement that is enduring, is to be considered as akin to an instrument of title and construed accordingly: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [23].

30. As noted above, the Respondents contended that it was a principle of construction that consents were required to be construed such that a practical approach is to be taken to permit practical results to be achieved. If this submission is intended to suggest that consents and like instruments are not to be construed in accordance with the principles outlined above but rather be subject to an overarching obligation (independent of the general principles of construction) to construe the terms by determining what is practical and what will achieve a practical result I do not accept such formulation, nor is such formulation reflected in the authorities cited in support of the submission.

31. The authorities cited do not create an independent rule of construction for “practical results”. Rather the authorities recognise that the general principles of construction permit consideration to be given to the purpose and object of the instrument and to determine a construction that best meets that purpose by employing the usual principles of statutory construction which includes a consideration of the context and purpose of the instrument. In that respect, the fact that a development consent, or similar instrument, is prepared with practical application in mind for the undertaking of physical work by practical people may be of assistance in determining the construction of the instrument. This approach is mere recognition that the task of construction permits text, context and purpose to be considered in that exercise. The authorities do not elevate that single factor to a separate and independent requirement to be applied outside the context of the interwoven and complex considerations that apply to the task of construction: Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd at [72].

32. To the extent that it was submitted that it was a “requirement” to construe The Consent in a practical way I do not consider that approach is appropriate as an independent consideration, however, I do accept that such a consideration is available as part of the matrix of considerations forming context and purpose that is required to determine the proper construction of The Consent.

33. Consistent with the outlined principles of construction, it is necessary for The Consent to be construed according to its terms. The Consent expressly incorporates: conditions; plans; and nominated reports. A consideration of the totality of these documents, having regard to the text, context and purpose of The Consent, indicates that there is no express limit by reference to an RL (or other benchmarking number) in any of the material that comprises The Consent.

34. The Applicants suggest that the SFL of Basement 4 at RL 11.05 provides such an express limit on excavation. The express words of The Consent and its contextual indicia do not support such a construction. What is plain from the plans that make reference to the SFL is that the SFL of Basement 4 is referring to the upper surface of the basement slab. The slab has to be formed below this level – on any construction of the consent the SFL of the lowest slab could not be an indication of the BEL. Additionally, neither the plans incorporated in The Consent consisting of the plans nominated in DC1 nor the plans approved in CC1 (the ABC Plans) purport to be plans relating to excavation. The DC1 plans show the architectural features of the proposed building and the ABC Plans are expressed to be “Shoring Plans”. Whilst both sets of plans rely on the excavation to enable effect to be given to the works to which they relate (either with respect to the spatial requirements of the building or its requirement for structural support) they do not purport to express a limitation on the extent of any excavation, but rather, indicate the manner in which such excavation will be shored and then filled by the proposed building. To the extent that the plans refer to a handwritten notation by the certifier that the construction certificate works are “To comply with DA RL’s” such a reference relates to the finished or structural levels of the building rather than the extent of excavation.

35. To the extent it is suggested that the SFL is an implied benchmarked limit on excavation, for the same reasons as expressed above, such implication is not available when The Consent is considered as a whole.

36. However, The Consent does not confer an unlimited entitlement to excavate. The Consent formulates performance criteria that operate to control the manner of excavation and its limits. Such an approach is consistent with the condition making power in s 4.17(4) of the EP&A Act. This performance-based limitation is indicated, in particular, by a combination of the following elements of The Consent:

1. Development consent Building Condition (3) that provides:

All excavations and backfilling associated with the erection or demolition of a building shall be carried out in a safe and careful manner and in accordance with appropriate professional standards. All necessary planking and strutting shall be of sufficient strength to retain the sides of excavations. A Certificate verifying the suitability of structural details for any proposed shoring is to be submitted to the Principal Certifying Authority before excavating.

Excavation Condition (1) that is in materially similar terms to Building Condition (3).

2. Pursuant to s 4.17(11) the EP&A Act also nominates certain conditions prescribed by the Regulations to which a development consent is subject. Clause 98E of the Regulations makes such provision in respect of shoring in the following terms:

98E   Condition relating to shoring and adequacy of adjoining property

(1)   For the purposes of section 4.17(11) of the Act, it is a prescribed condition of development consent that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the development consent must, at the person’s own expense—

(a)   protect and support the building, structure or work from possible damage from the excavation, and

(b)   where necessary, underpin the building, structure or work to prevent any such damage.

(2)   The condition referred to in subclause (1) does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.

3. Development consent Building Condition (41) that provides:

The following engineering details or design documentation shall be submitted to the Principal Certifying Authority (Council or Accredited Certifier) prior to the issuing of a Construction Certificate:

(a)   Documentary evidence prepared by a suitably qualified professional geotechnical engineer that confirms the suitability of the site for the proposed excavation and building, as well as certifying the suitability and adequacy of the proposed design and construction of the building for the site.

(b)    A report shall be prepared by a professional engineer prior to the issuing of a Construction Certificate, detailing the proposed methods of excavation, shoring or pile construction including details of vibration emissions and detailing any possible damage which may occur to adjoining or nearby premises due to building and excavation works. Any practices or procedures specified in the engineer’s report in relation to the avoidance or minimisation of structural damage to nearby premises, are to be fully complied with and incorporated into the plans and specifications for the Construction Certificate.

37. Together, these conditions indicate that the manner and extent of excavation are to be identified subsequent to the grant of development consent and prior to the grant of a construction certificate. To the extent that CC1 that forms part of The Consent expressly authorises to “bulk excavation” it incorporates a number of materials that refer to the extent and manner of excavation. Firstly, the ABC Plans indicate that the piles should be socketed 1m into “Class III shale or better”. This provision does not identify an absolute depth of excavation, rather it identifies the depth by reference to a geological feature on the Subject Site.

38. The supporting incorporated material also identifies excavation depth by identifying performance criteria. The reports, having been prepared prior to excavation, are predictive based primarily upon four borehole results on the Subject Site and the interpolation of other general knowledge of the geological features of the broader locality. Making predictions from that data the reports express an expected outcome but also make provision for the real potential for the actual outcome to vary from the predicted. This variation in the actual features of the Subject Site can only be exposed and assessed during the actual process of excavation. To accommodate these potentialities the reports identify the extent of excavation to be the extent that meets those criteria. In particular the following were identified:

1. Geotechnical Engineers Jeffery and Katoukas -

Bulk Excavation level assumed at about RL15 comprising excavation about 7.8 depth to North and 10.3 to the South (folio 1106);

The purpose of the investigation was to obtain geotechnical information on subsurface conditions at four borehole locations as a basis for comments and recommendations on excavation, groundwater, retention, footings and floor slabs (folio 1104);

Within the augered portions of the boreholes, the strength of the underlying shale and sandstone was assessed by observation of the drilling resistance of a tungsten carbide (TC) bit attached to the augers, together with examination of the recovered rock chips and subsequent correlation with laboratory moisture content tests. Rock strength assessments in this way are approximate and variances of one strength order should not be unexpected. The strength of the cored rock was assessed with reference to Point Load Strength Index {I5(501)} tests carried out on the recovered rock core. The results of the point load strength index tests are summarised on the borehole logs and the attached Table B (folio 1104);

The classifications were made based on representative sections of the rock, typically about 2m thick and should be sued for indicative purposes only. Some of the higher classes (Class II, BH2) of rock may contain bands of weaker material with a greater degree of fracturing and presence defects. The transition from Class V shale to Class IV shale were assessed based on the augered portions of the boreholes so should be taken as approximate only (folio 1105);

Foundation conditions should not be problematic with relatively high bearing pressures on class II shale at the assumed Bulk Excavation Level (BEL) at about RL15m. If the BEL is higher than this then footings should be designed for a lower class of shale (Class III) (folio 1106);

The geotechnical investigation has provided a basis for the comments and recommendations which follow. However, it will be essential during excavation and construction work that frequent geotechnical inspections are carried out to assess exposed subsurface conditions, so as to provide appropriate geotechnical advice (folio 1106);

Excavation of the rock of very low to low strength will require assistance with rock excavation equipment, such as hydraulic rock hammers, ripping hooks, rotary grinders or rock saws. Some of the cored rock contained some very high strength bands, although at the borehole locations they were relatively bands (folio 1106);

Since the proposed basement will extend to the site boundaries, insufficient space will be available for the formation of temporary batters and the excavation will need to be supported by full depth shoring systems installed prior to the start of the excavations. Based on the borehole results, the base of the excavation will be within medium strength shale. A number of points were observed within the recovered rock cores and we therefore consider terminating the shoring above bulk excavation level to be too great a risk. We recommend that the shoring system be extended to at least 1m below the level of the excavations, including an allowance for local excavations for service, footings, lift pits, etc (folio 1106);

Occasionally, the subsurface conditions between the completed boreholes may be found to be different (or may be interpreted to be different) from those expected. Variation can also occur with groundwater conditions, especially after climatic changes. If such differences appear to exist, we recommend that you immediately contact this office (folio 1108).

2. iSTRUCT - structural engineers column grid and footing System -

Anticipated BEL 11.6

Piles to be socketed 1m below BEL into shale bedrock

During excavation inspections to be undertaken for joints

39. Accordingly, I find that on a proper construction of The Consent the extent of excavation is limited to that which will produce a BEL level sufficient: to give effect to the approved basement plans with four basement levels; to permit the piles to socket 1m below the BEL into shale bedrock; and to a level at which point the soil condition underling the BEL will be sufficient, from a structural perspective, for the structural footings to accommodate the erection of the proposed building above.

40. It is then necessary to determine whether the BEL actually undertaken on this site exceeds or meets those performance criteria fixed by The Consent.

41. The Consent, by adopting performance criteria is not prescribing the manner of meeting that criteria; the determination of the manner is left to the person undertaking the work: Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd at [69] and [163]. There may be multiple ways in which the criteria may be satisfied. The selection of method is not dictated by terms of The Consent nor is there a dictate on what can be considered in determining which method should be adopted. Therefore, having regard to the terms of The Consent and, in particular, the performance criteria adopted by it, provided the manner selected provides a sufficient response to satisfy the specified criteria, the reason it was selected over any other option is not relevant to the satisfaction of the performance criteria imposed by The Consent.

42. Therefore, on the basis of the construction of The Consent determined above, in order for the Applicants to succeed on this ground it is necessary for them to establish that no part of the reason for the excavation related to meeting the performance criteria set by The Consent or that the method adopted did not meet the performance criteria in The Consent. That is, it is not sufficient to identify that there may have been other additional reasons to motivate the depth of the excavation, or even that such other considerations were the primary motivation for the decision to excavate to the current depth; they must demonstrate that that there is no reasonable justification from an engineering perspective to excavate to the current depth in order to meet the performance criteria. In effect this means that a finding must be made (on the evidence) that there was no soft rock or if there was soft rock the response of the Respondents to excavate to the present depth was not within the range of responses to the presence of soft rock.

43. The evidence on this question is controversial. The primary evidentiary question is whether, during the course of excavation in the area of Borehole 3 there was discovered to be an area of what was described as “soft shale” material which was insufficient to meet the performance criteria, and that the excavation to the present RL was undertaken to provide for the meeting of the performance criteria. The evidence of the presence of this soft rock is disputed.

The evidence relating to whether the excavation met the performance criteria

44. The primary evidence relating to the possibility of soft rock comprised:

1. The pre-excavation investigations and recommendations contained in the J&K report referred to at [38(1)] above. These boreholes did not extend to the full depth of excavation required to facilitate the four basement levels. Borehole 3 indicated the presence of softer rock at the lowest point of the borehole.

45. By the commencement of these proceedings the bulk excavation had been completed. The only evidence relating period of time at which the excavation occurred was:

1. The observations of Mr Maroun Taouk. With respect to this issue his evidence was given in his affidavit sworn 17 September 2019 in the following terms:

13.    In about January 2019, I attended the Site and I observed a pile rig or drill rig being used to conduct test bores on the Site. While watching the drill rig being used in the north east section of the Site, I observed that, at a certain depth, the vertical displacement of the augur drill slowed down indicating to me that the augur drill hit dense rock which is also a phrase known as ‘refusal’. I understood that dense rock had been hit based upon my previous experience observing the operation of drill rigs to conduct test bores and how those drills behaved when dense rock was encountered, namely that the vertical displacement of the drill slowed down during extended periods of rotation.

14.   I observed that the slowing of the vertical displacement, or ‘refusal’ of the drill only occurred for a short period of time and then I observed the augur drill increased its vertical displacement once more, indicating to me that a layer of soft rock was present below the initial band of dense rock. Again, this indication was based upon my previous experience observing the operation of drill rigs to conduct test bores. The drill continued again for an extended period of time until I observed the vertical displacement slow once more indicating the presence of dense rock.

Mr Maroun Taouk was not cross examined on these observations. The references to the north-east section of the site is generally in the location of what had been the location of Borehole 3.

2. On 5 March 2019 Mr Maroun Taouk personally attended upon Mr Freixas to provide him with documents relating to a revised shoring and piling plans. A conversation between Mr Freixas and Mr Taouk took place and its content attested to at [19] of Mr Taouk’s affidavit was admitted pursuant to s 136 of the Evidence Act for a non hearsay purpose. Therefore, whilst the content of the conversation is not evidence of the fact of the presence of soft rock, the content of the conversation is taken to be a record of what was said. Neither Mr Freixas nor Mr Taouk was questioned about the content of this conversation. It was in the following terms:

I said:   Maurice, here are the revised shoring and piling plans and a structural certificate.

He said:   Thanks. What are the changes?

I said:    We’ve identified poor quality rock on site. These are the revised drawings.

He said:   Ok I’ll go through them.

3. The Respondent had appointed a project engineer, Mr Mena Daniel. By letter dated 5 March 2019 Mr Daniel advised Dix Gardiner (inter alia):

The quality of the rock/shale masses is essentially dependent on the shear strength, orientation and continuity of joints, bedding planes or fault planes within the rock mass. Onsite inspections during excavation revealed fractures in the rock formation at RL:12m along the north east section of the site, bands of weaker material were deemed to be a defect in the shale/rock mass. There was no alternative but to excavate this defective seam until the underlying bedrock was exposed and was deemed suitable for the design foundations.

…

All voids between the footings and the basement 4 slab can be filled once all subsurface fire and sprinkler tanks and other services tanks with validated compaction fill so as to achieve the first level of RL: 11.055.

Therefore, the reduced level of the footings and permanent lateral restraint elements should not be construed to be the same level of the approved car park slab. All finished levels will be consistent with Reduced Levels as approved by Burwood Council.

This letter was delivered to Mr Freixas as part of a package of material provided to him in person by Mr Maroun Taouk on 5 March 2019. A letter in the same terms dated 12 June 2019 was also sent to Dix Gardner.

4. By email exchange between Mr Maroun Taouk and Mr Freixas dated 26 June 2019 photographic evidence of “spoon tests” was provided. Mr Freixas responded to that material (inter alia) in the following terms:

Given the latest news in Sydney with regards to weak engineering design practices, as the responsible engineer you are, you should drill up to suitable rock.

5. By email dated 1 August 2019 Mr Freixas emailed the Council and advised:

I have inspected the site on the following dates and have reviewed the documentation from the applicant and their Structural Engineer.

Dates: 02/07/2019 & 30/07/2019

I am of the opinion that the over excavation of the site was required for structural reasons as advised to me by the Structural Engineer, for which I have no information to the contrary from another Structural Engineer.

I am in receipt of an application for the next CC (for structural building works up to and including the roof slab) with the RL of basement 4 clearly consistent with the Council’s Development Consent.

I concur with the Council that any unused void under the lower basement is not of concern to the Council or the PCA as this is a commercial decision by the builder based upon structural advice, and not a compliance issue….

46. The Applicants also relied upon the following evidence to demonstrate, it was submitted, that there was not an engineering purpose for the excavation (or at least not the sole purpose) but rather it was the Respondents’ intention to construct a fifth level of basement:

1. The Applicants cross examined both Mr Mark Taouk and Mr Maroun Taouk as to their intention to construct a fifth basement level and ultimately submitted that the Respondents had always had an intention to excavate a fifth basement level as evidenced by:

1. The existence of the TQM Plans illustrating or referencing a fifth basement level, such plans first came into existence in December 2018. In those plans, whilst there is no illustration of a fifth basement level the “work method statement for shoring and piling work” does state: 14. Pour concrete for Basement 5.

2. Plans had been circulated by the Respondents in December 2018 to Infrabuild - a company that constructs the steel pile cages - for pricing purposes. Quotes were provided on those plans in mid-January 2019. Those plans were also dated December 2018 and indicated in both the work statement and on the plans and elevations the presence of a fifth basement. The RL for Basement 5 is noted at RL 8.355 and the BEL below that as RL 8.155. It is apparent from the existence of these plans that at least in December 2018 the Respondents were entertaining the possibility of a fifth basement level being constructed at the Subject Site.

3. Pile cages were ordered and delivered at the lengths and in the numbers determined by reference to the December plans.

4. On 7 May 2019 (Exhibit 1) the Respondents lodged a development application together with a s 4.25 modification application with the Council to develop the adjoining land at 4 George Street and to reconfigure some of the residential accommodation and add an additional 5 storeys to the existing approved 22 storey development and to provide a fifth basement level on the Subject Site to accommodate parking for that proposed development. It is noted that the development application and s 4.15 application did not rely upon the additional development approved in DC2. The proposed SFL for Basement 5 was SFL 8.355 which was consistent with that shown on the plans sent to Infrabuild and within the area of excavation undertaken below Basement 4.

47. Mr Maroun Taouk was cross examined about the reasons giving rise to the extent of excavation and on matters going to his credit.

48. As to the reliance upon the identification of soft soil, it was put to Mr Maroun Taouk that at T446 lines 31-46:

Q:   Under any or all of the first development consent and the second development consent or CC1, you were aware as at the end of 2018 that the approved bulk excavation level was intended to be RL10.4; do you agree?

A:   It would have been whatever was on the varied approved drawings, which was that figure less 2.15 because of the error.

Q:     It was 13.2?

A:    No, less.

Q:     Yes, less the figure for the error; correct?  Do you agree with that?

A:    Yes.

Q:     At some point, I think you say January 2019, [TQM] made a decision to change the shoring design from the ABC design; correct?

A:    Our intention was always to chain [change], not use that design.  Yeah, you can see the design because it didn't work for us.

49. The oral evidence of Mr Taouk indicated that from a date in early January 2019:

1. The Respondents had decided to change the shoring design from that shown in the ABC Plans as it “did not work for them” for a number of reasons unrelated to the quality of the rock on the Subject Site.

2. After the pile testing with an augur, as referred to at [45(1)], the potential for unsuitable soft rock raised a concern that this area of soft soil would impact on the capacity to meet the performance criteria.

3. The excavation and shoring plans were revised to take the soft soil and the general unsuitability of the shoring method into account.

50. The substance of his evidence was that there were two reasons for the change to the TQM Plans, first, the unsuitability of the design to this builder, and second, the presence of soft rock at a level that was proposed for structural support.

Applicants’ submissions on the evidence as to whether the excavation met the performance criteria

51. The Applicants contend that the evidence of Mr Maroun Taouk should be rejected and that he is not a witness of sufficient credit for his evidence to be accepted without some independent corroborating factor. The Applicants contend the evidence of Mr Maroun Taouk should not be accepted on the basis that his evidence was generally unreliable having regard to a number of matters relating to the development generally and matters unrelated to the development of the Subject Site but bringing into question his reliability, and general character as a witness of truth.

52. The Applicants submit that the motivation was not an engineering one but was founded on a desire to achieve a fifth basement level in anticipation of further development potential on the Subject Site in conjunction with other land.

53. It was further submitted that if there was the soft shale present the Respondents could have employed other engineering solutions other than increasing the depth of excavation to achieve the performance criteria. As there were other options open to the Respondents it cannot be accepted that the work was necessary to meet the performance criteria.

Respondents’ submissions on the evidence as to whether the excavation met the performance criteria

54. The Respondents submit that Mr Maroun Taouk’s evidence is compelling. He is a witness of truth and his evidence should be accepted. Whilst not conceding that corroborative evidence was necessary, they submit that there is sufficient evidence to give further credence to the evidence of Mr Maroun Taouk.

55. The Respondents also contend that there is no prescription in the performance criteria that dictates the manner in which it is to be met and provided the response adopted is a reasonably open response within the range of responses available that is sufficient to justify the response.

Credit of Mr Maroun Taouk

56. The primary evidence in relation to the issues in this matter relate to the evidence of Mr Maroun Taouk. Mr Mark Taouk also gave evidence, however, the substance of that evidence is not relied upon to the same extent as that of his brother. For that reason I will deal with the submissions as to the reliability of the evidence of Mr Maroun Taouk and address the reliability of the evidence of Mr Mark Taouk to the extent that evidence given by him is critical or determinative to an issue in dispute.

57. The submissions put on credit concluded with the proposition that the evidence of Mr Maroun Taouk was “unreliable, self-serving and at times contradictory. [The Court] would not accept their evidence unless corroborated by contemporaneous documentation”. The essence of this submission was not that Mr Maroun Taouk had a poor memory or that for some other reason his evidence should be considered unreliable, rather, the fundamental proposition underlying the submission (albeit not stated in terms) was that Mr Maroun Taouk was not telling the whole truth, but fabricating evidence to suit the case being put on behalf of the Respondents either as to the presence at all of the soft rock, or if there was soft rock, whether the excavation was a response to the soft rock.

58. Where such a finding is invited two factors must be present: it is necessary that the Court identify the reasons it has concluded that the truth has been deliberately withheld; and that the witness must have been given an opportunity to deal with the criticism: State of New South Wales v Hunt (2014) 86 NSWLR 226 at [32]-[40]. In the cross examination of Mr Maroun Taouk it was not put to him that he was fabricating his evidence as the presence of soft rock. Whilst Senior Counsel for the Applicant was careful not to put the submission of fabrication directly, it is the finding I would be required to make if I was to accept the proposition that because of the nature of Mr Maroun Taouk’s evidence I should not accept it without corroboration. In light of Mr Maroun Taouk not being given the opportunity to deal with the criticisms of his evidence I am unable to satisfy the requirements that must be present in order to make the findings the Applicants suggest. This matter was raised with the Applicant in submissions and it was indicated that notwithstanding that the proposition of fabrication had not been put in terms to Mr Maroun Taouk the submission was maintained. It was acknowledged by Senior Counsel for the Applicants that it was once put to Mr Maroun Taouk that his evidence was false. This occasion, however, related to whether ground anchors were proposed in the ABC Plans and the fact that no such anchors were proposed. This related to a suggestion of why the Respondents abandoned the ABC Plans rather than the presence of soft rock either existing or being a factor in the decision to carry out excavation to the current depth. Such isolated statement is insufficient to constitute the opportunity by Hunt to enable the finding sought by the Applicants that, in effect, the totality of his evidence should not be accepted.

59. Accordingly, I do not accept that as a general proposition, or in respect of any particular aspect of Mr Maroun Taouk’s evidence, that he is not a witness of truth.

60. If I be wrong that the cross-examination of Mr Maroun Taouk was insufficient to meet the second limb of the test in Hunt, I would not find that his evidence was so unreliable or that his evidence was to be viewed with suspicion such that it would not be accepted without corroborative evidence. The reasons for declining to accept such a submission are provided with respect to each of the individual matters raised by the Applicant to support its submission in [105] of the Applicants' closing submissions. I attach [105] of the Applicants’ closing submissions to these reasons and deal with each proposition below.

1. [105](a) –

1. Mr Maroun Taouk is a director of the Second Respondent. He is not a director but he is the shareholder of the First Respondent (of which his brother Mark is the director). Whilst the businesses have relationships where the First Respondent owns and develops the land and the Second Respondent constructs the development, the companies are otherwise independent in directorship and purpose. In those circumstances I do not find it unusual for Mr Maroun Taouk not to know of the details of what goes on in a company of which he is a shareholder and not a director. I do not consider that his disclaimer of responsibility for the actions of the First Respondent to reflect adversely on his credit.

2. [105](b) –

1. Mr Taouk swore an affidavit in the interlocutory application heard in this matter prior to the final hearing. The affidavit was not tendered or read in these proceedings. Mr Maroun Taouk was cross-examined on the content of that earlier affidavit. It was no part of this case that required me to make findings in the final hearing as to those matters in the interlocutory proceedings except in so far as they may impact on the credit of Mr Maroun Taouk.

1. Further, I observed that Mr Maroun Taouk, although a man of clear learning and intelligence, had difficulty when being asked questions that contained legal phraseology; for example, when asked about the "consideration" for the contract rather than the contract price. His answers were delivered in an attempt to answer the questions but were audibly delivered in a less certain manner. I also observed that when non-legal language was used his answers became more confidently delivered. To that extent where the criticism points to Mr Maroun Taouk changing his evidence or obfuscating on these issues I consider that if there be a defect it lay with the language used in the questions rather than the content of the answers.

2. Mr Taouk acknowledged the inaccuracy of the evidence in the earlier sworn affidavit and explained that the affidavit was based on information given to him rather than information known to him and that it was done in pressured circumstances both relating to the fact that the application for interlocutory relief was brought on urgently and that the affidavit had to be prepared overnight and sworn in the early morning of the hearing. I accept this explanation. Not all inaccuracies are deliberate attempts to consciously mislead. I found Mr Maroun Taouk to express regret at the inaccuracy and his explanation was understandable and was proffered by him in sincere terms. For that reason, whilst I accept that the initial affidavit was inaccurate and that such is unacceptable, the explanation of the cause does not lead me to find that Mr Maroun Taouk is a witness who is not to be relied upon without corroborative evidence.

3. [105](c) –

1. This confusion was admitted by Mr Maroun Taouk and it appeared to rely, in part, on his misunderstanding as to land ownership of the blocks to the North of the Subject Site. For the reasons I outline below as to land ownership I would not find this error undermined Mr Taouk’s credit to a significant degree.

4. [105](d) –

1. Mr Maroun Taouk admitted that this was an error and that he had held a belief at the time that the land at 4 George Street was owned by Omaya. He also indicated that some time after the interlocutory proceedings when he had a chance to reflect on the affidavit sworn by him for that application he brought the error to the attention of his solicitors. This statement was not challenged. Despite Mr Maroun Taouk being vigorously cross examined as to the assertion of Omaya ownership he held his position that he was not lying or seeking to sheet home responsibility for the change in design to Omaya. I find his answers consistent with him being a witness of truth. Whilst the fact was wrong, there is no real basis for me to accept the proposition that the evidence was intentionally false or seeking to lay blame at the feet of the Applicants.

5. [105](e) –

1. The statement of environmental effects is said to be of his company's property and contracts for bulk excavation. Whilst it is true his company had a contract with the First Respondent for carrying out the bulk excavation it was not the owner of the Subject Site nor did his company commission the SEE or negotiate with Mr Elias with respect to that development proposal. The SEE and the development discussions were matters within the purview of Mr Mark Taouk's company and he had the discussions with Mr Elias. Accordingly, I do not consider this criticism well founded or an indication that I should treat Mr Maroun Taouk's evidence with caution.

6. [105](f) –

1. This complaint is a reference to the development application made by the First Respondent (that is, not the company of which he is a director) to develop the Subject Site with adjoining land and an application for a fifth basement level on the Subject Site. The transcript reference provided in support of this criticism of Mr Maroun Taouk is that at T514 line 20. The question and the answer relied upon are as follows:

Q:   And it's correct to say, isn't it, that Dean Street's intention is to continue to pursue amalgamation with other land, including the Omaya land, isn't it? I withdraw the question. It's true to say, isn't it, that as at 1 May 2019, Dean Street's intention was to continue to pursue amalgamation of its land with other land, including the Omaya land; do you agree?   

A:   Not to my knowledge.

To the extent that Mr Maroun Taouk's denial is related to his knowledge I find that eminently explicable for the same reasons I found that Mr Maroun Taouk's lack of detailed knowledge of the operations of his brother's company is explicable. For the same reasons I would find that this evidence does not reflect adversely on Mr Maroun Taouk's evidence such that I would not accept it absent corroborative evidence.

7. [105](g)-(j) –

1. The examples given have either been dealt with or are consistent with findings as to the construction of the material relating to The Consent. I do not find these examples to be compelling such that I would find that Mr Maroun Taouk's evidence should not be accepted absent corroborative evidence.

Findings on evidence of soft rock

61. As outlined above, there is evidence of the geotechnical engineer advising of the prospect of soft rock near Borehole 3 before the excavation started and the evidence of the observations of Mr Maroun Taouk during construction of the presence of soft rock.  Further, there is the relatively contemporaneous acceptance by Mr Freixas of the presence of soft rock.  There was no evidence adduced that would contradict any of that evidence.  On the evidence adduced I find that, on the balance of probabilities, there was soft rock in the area generally in the South Eastern portion of the Subject Site.

Findings on whether the presence of soft rock was a sufficient reason (or a reason at all) relating to the extent of excavation

62. The Applicants challenged that the soft rock was any part of the impetus for the change to the TQM Plans and/or the change in excavation levels.

63. As referred to above, the Applicants must establish either that the presence of the soft rock played no part in the excavation level or that the excavation level was not a response sufficient to address the performance criteria referred to above. I do not accept that the soft rock played no role in the extent of the excavation level. The evidence of Mr Maroun Taouk and that of Mr Freixas (outlined above) indicates a direct connection between the presence of soft rock and the excavation level. The evidence also clearly demonstrates that even if there were no soft rock the Respondents intended (and had taken steps to implement this intention) to change the piling and shoring design from that in the ABC Plans. The fact that there were two reasons for the change from the ABC Plans does not preclude a finding that the extent of excavation was to meet the excavation performance criteria in The Consent.

64. In addition to the evidence outlined above, the presence of the soft rock influencing the excavation level is also consistent with the following evidence:

1. Notwithstanding the desire to build a fifth basement, it was not built. The excavation void below Basement 4 remains a void (treated with drainage measures).

2. The December plans sent to Infrabuild illustrated a fifth basement level with a BEL of 8.155 with 1m socketed piles below RL 8.355 (I note these RL’s appear accurately determined and do not need to be adjusted for the initial benchmark error). Therefore, it was not necessary to excavate to a BEL of RL 7.62 (the current excavated level). In those circumstances it would appear that the BEL was determined for a reason unrelated to the desire to achieve a fifth basement as illustrated in the December 2019 plans.

3. The development application lodged that proposed a fifth basement was made on 7 May 2019 and the plans have an initial date of March 2019. Whilst this indicates that the proposal was being formulated at the same time as the TQM Plans were given to Mr Freixas and excavation was already underway and the soft rock identified, this does not demonstrate that the fifth basement level was the sole driver for the excavation. It is equally open to infer that the proposal was formulated to exploit the excavated void required for the soft rock.

65. Therefore, I find, on balance, that these factors do not evidence that the sole or only reason was the desire to achieve a fifth basement level.

Not a reasonable response

66. In their oral evidence each of the geotechnical experts agreed that there was no need arising from the finding of soft rock to warrant excavating to the current BEL. Each of the structural engineers also agreed that the presence of soft rock in the area assumed by them to represent the area affected (as shown on Exhibit 8) that an engineering response of some type would be required.

67. The structural engineers advised that there were a number of responses open, including for example, differential excavation for the footings affected by soft soil. However, they also agreed that one of the engineering responses included increasing the extent of excavation across the site. The dispute in the evidence was to the selection of a particular response that they would adopt in their professional opinion, not that the alternative was not open from an engineering alternative.

68. On the basis that the evidence supports the finding that excavation of the whole site to the current BEL is within the range of engineering responses to the presence of soft rock I find that excavation to the current BEL was a reasonable response to the presence of soft rock. Accordingly, I dismiss the claim that the excavation was in breach of CC1.

Conclusion on whether there has been a breach of The Consent relating to the extent of excavation

69. For the reasons outlined above having found that there was no limit in The Consent on the extent of excavation to a specified RL, I dismiss the Applicants’ ground that the excavation was limited to the SFL of Basement 4.

70. Having found that The Consent was limited in depth to the performance criteria of identified at [39] and having found on the evidence that soft rock was present and that the extent of excavation was within the range of responses available to meet the performance criteria I also dismiss the Applicants’ ground that the excavation was carried out otherwise than in accordance with The Consent.

71. In light of this conclusion it is unnecessary for me to determine in the context of Ground 1 whether The Consent was modified to incorporate the TQM Plans. This issue, however, will require determination in Ground 3. If the issue of amendment was required to be determined in this Ground no other consideration would be relevant than the consideration I deal with in Ground 3 and accordingly that determination would apply equally to this Ground.

72. As I have determined to dismiss the Applicants claim it is not necessary for me to determine the issue of discretion. I do observe that a significant volume of the evidence was adduced to address discretion and I make no observations with respect to that evidence as it does not arise in connection with this Ground in light of my findings.

Ground 2 – CC1 is invalid because it was issued in breach of Planning Condition (5) of DC2

Nature of claim

73. This claim relates to whether it was a requirement of DC1 that Planning Condition (5) imposed on DC2 required a VPA to be entered into prior to the grant of CC1. This claim turns upon the proper construction of DC1 and its relationship to the requirements of DC2.

74. Consequently, if Planning Condition (5) was required to be satisfied prior to the issuing of CC1, the failure to comply with that condition was a breach that would result in CC1 being invalid.

Legislative provisions

75. Section 109F(1)(a) of the EP&A Act that provides:

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 s 81A(5) have been complied with and…

76. Section 81A(5) of the EP&A Act was the regulation making power. The relevant regulation for the purposes of this ground was said to be cl 146(c) of the Regulations that provided:

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 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.

Provisions of development consents

77. In this case it was contended that the relevant conditions that related to the requirement in cl 146(c) were:

1. Planning Condition (5) imposed upon the DC2 in the following terms (Planning Condition (5)):

(5)   This consent is subject to a Voluntary Planning Agreement (VPA) with Council. The VPA shall be executed following the grant of this consent and the monetary contribution paid to Council on or before the date of execution of the VPA and prior to the issuing of a Construction Certificate.

2. Condition (3) imposed upon the 2017 Modification of DC1 that provided:

(3)   The S96 modification shall be subject to all original conditions of development consent contained in DA 136/2012 and DA 98/2015 relating to this site.

Agreed facts

78. There was no dispute as to the factual basis for this claim. The dispute turns on the proper construction of the development consents and, if a breach be found, the consequence of such breach.

79. The relevant facts are that at the time of grant of CC1 a VPA as referred to in Planning Condition (5) had not been executed by the Council. The VPA referred to in Planning Condition (5) was not executed until 11 October 2019 (the Executed VPA). The validity of the Executed VPA is the subject of Ground 7 in these proceedings.

Applicants’ submissions

80. The sole basis that the Applicants put this Ground was that on a proper construction of the development consents the carrying out of development the subject of DC1 became subject to the conditions in DC2, which, as a consequence, would require compliance with Planning Condition (5) prior to the issue of CC1. It was said that DC1 and DC2 constituted a single integrated approval of one development with 26 above ground levels and four basement levels in accordance with the conditions of both consents (as modified). In effect the Applicants submitted that the provisions of Condition (3) of the 2017 Modification to DC1 had the legal effect of merging or amalgamating the two consents such that they operated as a single development consent indivisible each from the other.

81. The consequence of such construction was submitted to be that the Respondents were bound by the singularity of the development consents and could no longer elect whether to take up one of the consents to the exclusion of the other as Condition (3) to the 2017 Modification to DC1 compelled the two consents to operate as a single unit. The consents (including the conditions imposed thereon) were valid unless declared invalid and therefore, in this case, continued to operate in accordance with their combined terms: Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436.

82. The failure to comply with Planning Condition (5) prior to the grant of CC1 was submitted to be a breach of the requirements of s 81A(2) and 109F(1)(a) and cl 146 of the Regulations. The consequence of such breach was that CC1 was invalid as the primary purpose of a construction certificate is to ensure compliance with the conditions of a development consent prior to the commencement of work. There is a discernible legislative intent that the consequence of a breach of the type contended should produce invalidity as indicated by: the unambiguous mandatory terms of cl 146(c); and the scope and purpose of the EP&A Act that provides a “vitally important step” in the certificate process of verifying that certain pre-conditions to building work have been met.

83. To the extent that the Respondents relied upon Burwood Council v Ralan Burwood Pty Limited (No 3) (2014) 206 LGERA 40 (Ralan) such decision was not directly applicable to the facts of this case as:

1. Ralan was concerned with the issue of inconsistency between a development consent and construction certificate. This case is concerned with the issue of whether pre-conditions to the power that limit the issue of a construction certificate had been met, as such it is a matter going to the power of the certifier to issue the certificate rather than an error in the exercise of that power; and

2. Central to the Court’s reasoning in Ralan at [175] was the proposition that cl 145 of the Regulations involved an “inherently contestable judgment”, as to whether there was a relevant inconsistency between the development consent and construction certificate. In this case the provisions of cl 146(c) do not contain a contestable judgment, rather it calls for a straightforward analysis of whether the pre-conditions have been complied with.

84. It was submitted that the Court would exercise “great caution and indeed reluctance, to extend the reasoning in Ralan to effectively excuse any failure to satisfy pre-conditions” to the issue of a construction certificate provided for in conditions of consent.

Respondents’ submissions

85. The Respondents’ primary submission was that this Court was bound by the decision in Ralan which, by the application of its stated principles to the facts of this case, would indicate that there was no legislative intent that a construction certificate issued in breach of cl 146(c) of the Regulations would be invalid. The principles in Ralan were not distinguishable from the issues in this case and therefore they must be applied. Therefore, even if there were a breach of the identified provisions, the breach would not invalidate CC1 for the reasons in Ralan.

86. Further, the Respondents contended that CC1 only related to DC1 and therefore Planning Condition (5) that was imposed on DC2 did not apply to the issue of CC1.

87. It was also said that the legislative regime did not depend on the constraint on the issue of a construction certificate to ensure compliance with the conditions of development consent that require payment of a VPA as that is guaranteed by the operation of s 6.10 of the EP&A Act.

88. Finally, the Respondents submitted that even if there were a breach that had the consequence of invalidity the Court in the exercise of its discretion would not make the declarations or grant the relief sought.

89. The Respondents did not directly engage with the Applicants’ Submission as to the proper construction of the development consents and in particular the construction of Condition (3) of the 2017 Modification to DC1.

Findings on Ground 2

90. The determination of this ground turns upon the proper construction of Condition (3) of the 2017 Modification to DC1 and whether it had the effect of requiring the VPA referred to in Planning Condition (5) to be executed prior to the issue of CC1.

91. Adopting the principles of construction earlier identified to the consents containing the conditions in question in this case requires regard to be had to the express terms of the condition viewed both with respect to the words used and the context of the whole of the consent and the nature of the power sought to be exercised. In that context the first thing to be observed is the terms of the express words of Condition (3). Contrary to what is submitted by the Applicants the words of the condition do not in terms incorporate any conditions into the modified consent. Rather, the words expressly provide that the modification is to be subject to “all original conditions of development consent” contained in DC1 and DC2. These words, viewed in isolation (and without context) in fact require the conditions of DC1 as originally imposed and the conditions imposed on DC2 to prevail over the modification to which Condition (3) relates. Condition (3) expressly requires compliance with all of the conditions of each of the nominated consents. Such a construction of these terms is consistent with the ordinary meaning of the words “all” and “original” as used in this condition. Such words are generally understood to mean:

Respondents’ submissions

238. The Respondents submit that CC2, properly construed, identifies works carried out to put in context work yet to be undertaken on or within those areas.

239. Alternatively, the plans are provided to evidence the structural support to be given to the structural works to be undertaken above which are required for CC2. Additionally, the basement level details are provided to demonstrate compliance with relevant conditions imposed by DC1, including, Building Condition (32).

Findings on Ground 5

240. A proper construction of CC2 undertaken in accordance with the principles earlier identified requires the whole of CC2 to be considered in undertaking a construction of its terms. The whole of CC2 indicates that it is intended to provide justification for the structural elements having regard to the requirements of future compliance with conditions of development consent. Of particular note is the certification that the number of basement car parking spaces will be provided and can operate in accordance with the nominated Australian Standard; certification that the total building when constructed will comply with the provisions of the building code of Australia, all relevant Australian Standards and the Council’s conditions of development consent; and that mechanical and garbage services will operate. These features rely both on the existing structures constructed under CC1 and those proposed to integrate with those works as part of CC2.

241. On this basis, the inclusion of the completed works are not intended to “apply for” or “obtain” approval, but are provided to justify the later additions to those structural works. Accordingly, I do not accept that the works already constructed are approved again by CC2 such that to issue that construction certificate would be in breach of s 109H(1A) of the EP&A Act.

242. Further, if there is any ambiguity (which I do not find there is) CC2 would be construed within power which would limit the work approved to solely those works not yet undertaken and not include those works already approved and constructed pursuant to CC1.

243. On either of the above bases this ground should be dismissed.

Ground 6 – Crane base erected without approval

244. This ground was the subject of very little evidence and was dealt with largely by submissions.

245. The Applicants submitted that the erection of the crane base at 4 George Street (owned by the Third Respondent) was development that required development consent and that such consent had not been obtained. It was apparent on the evidence tendered (and that was not disputed) that no development consent was granted that authorised the crane base.

246. The Applicants submitted that a consent was required as the erection of the crane base was either the erection of a building and/or the carrying out of a work as those terms are used in the definition of “development” in the EP&A Act.

247. The Respondents, in its pleadings, did not admit development consent was required and made no submissions in response to the submissions made by the Applicants. However, in its closing submissions it was noted by the Respondents that they had given an undertaking to the Court that they would remove and not use the crane base in the terms outlined at paragraph 5 of the Points of Defence filed on 2 August 2019. Senior Counsel for the Respondents indicated that he was instructed to maintain the undertaking in those terms (T818 lines 20-47). The undertaking as it appeared in the Respondents’ Points of Defence and maintained in the final hearing was in the following terms:

The First and Second Respondents undertake to the Court, without admission, that:

(i)   They will not use the tower crane base for the purpose of swinging a tower crane jib; and

(ii)   They will remove the tower crane base upon the issue of an occupation certificate for the Development Site.

248. In response to either the giving of or the reaffirmation of the undertaking, Senior Counsel for the Applicants indicated that, save for the issue of costs-related circumstances surrounding the timing of the giving of the undertaking, this ground could be resolved with the acceptance of the undertaking (T853 line 47).

Findings on whether crane base required development consent

249. I accept the submissions of the Applicants. The extent of the crane base comprising a concrete base of 6.5m x 5.8m x 1.8m supported on two piers of approximately 12m in depth is properly characterised as a building (which definition includes a structure). Therefore, it is development which requires development consent on the land. There being no evidence that this construction is somehow exempt from the operation of the provisions of the EP&A Act, I find that the crane base required development consent for its construction and that it was constructed without the necessary consent.

Determination of relief for construction without development consent

250. Having found the crane base was carried out in the absence of a required development consent a consideration of the appropriate consequential orders must be considered including a consideration of the matters relating to the general discretion of the Court to grant relief. In this case I do not consider that the crane base should remain indefinitely – nor was this submission put to me. In light of the re-statement of the undertaking to remove the crane base and the general acceptance of that undertaking as an appropriate measure of relief I consider that it is appropriate that the First and Second Respondents’ undertaking be accepted and no further order is made.

251. I accept the First and Second Respondents’ undertaking to the Court in the terms as outlined at [247] above.

Ground 7 – The Executed VPA is invalid as it was not notified to the public in accordance with the mandatory requirements for public notification

Nature of claim

252. By [29]-[30] of the Fourth Further Amended Points of Claim the Applicants contended that the Executed VPA was invalid and of no effect as:

1. Section 7.5(1) of the EP&A Act together with cl 25D(1) of the Regulations required the VPA to be notified contemporaneously with or as soon as possible after any notice of the development application;

2. The Executed VPA was notified more than 3 years after the grant of DC2.

253. I understand the Applicants to be contending that if the VPA is not a valid VPA there is no satisfaction of Planning Condition (5) and as a consequence the now granted CC2 is invalid and cannot be relied upon by the Respondents to construct any further development on the Subject Site. However, no declarations of invalidity of CC2 were sought. Further, such a declaration is said to have the potential to impact upon the findings required in connection with Grounds 5 and 6 and the exercise of any discretion.

254. As a preliminary matter the Respondents submitted that the Court should not entertain this ground as it was purely theoretical and not directed to the determination of a particular legal controversy: The Trust Company (Australia) Ltd in its capacity as custodian of The Asia Pacific Data Centre Trust v NEXTDC Limited [2018] NSWSC 1361 at [21]. Whilst this argument was initially formulated to respond to a declaration in relation to a VPA that was not yet executed, it was maintained in response to the amended claim formulated after the execution of the Executed VPA.

255. The Land and Environment Court has jurisdiction to hear and dispose of claims for declarations of right in relation to the exercise of a function in connection with an obligation or duty arising under, inter alia, the EP&A Act: s 20(2) Land and Environment Court Act 1979. The Applicants seek such a declaration at prayer [10A] of the Fourth Further Amended Summons. Whilst the legal consequence of such a declaration is not the subject matter of a claim, the substance of the ground is one within the Court’s jurisdiction, it is material, in that it is not purely theoretical, as whether a VPA is valid has practical consequences without the need for consequential orders. For those reasons I consider the matter one that should be determined in these proceedings and to do so is consistent with the duty conferred upon the Court by s 22 of the Land and Environment Court Act that provides:

22   Determination of matter completely and finally

The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

Legislative provisions

256. Part 7 Division 7.1 of the EP&A Act makes provision for developer contributions and, relevant to these proceedings, provides for the entering into of a planning agreement that is defined to be a voluntary agreement referred to in s 7.4.

257. With respect to the requirement for any such agreement to be notified to the public, ss 7.5 and 7.10 of the EP&A Act relevantly provides:

7.5   Information about planning agreements

(1)   A planning agreement cannot be entered into, and a planning agreement cannot be amended or revoked, unless public notice has been given of the proposed agreement, amendment or revocation, and a copy of the proposed agreement, amendment or revocation has been available for inspection by the public for a period of not less than 28 days.

(2)   The regulations may provide for the public notice to be given under subsection (1) and may provide that it may be given contemporaneously with, in association with, or as part of, any other public notice or public notification that is required to be given of any matter relevant to the planning agreement.

7.10   Regulations—planning agreements

The regulations may make provision for or with respect to planning agreements, including the following—

(a)   the form of planning agreements,

(b)   the subject-matter of planning agreements,

(c)   the making, amendment and revocation of planning agreements, including the giving of public notice and inspection by the public,

(d)   the public inspection of planning agreements after they have been made.

258. Clause 25D(1) of the Regulations then provides:

25D   Public notice of planning agreements

(1)   If a planning authority proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a development application, the planning authority is to ensure that public notice of the proposed agreement, amendment or revocation is given:

(a)   if practicable, as part of and contemporaneously with, and in the same manner as, any notice of the development application that is required to be given by a consent authority for a development application by or under the Act, or

(b)   if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of the development application that is required to be given by a consent authority for a development application by or under the Act and in the manner determined by the planning authorities that are parties to the agreement.

Evidence relating to public notification of Executed VPA

259. There was documentary and affidavit evidence adduced relating to the notification of the VPA generally. This evidence was largely not in dispute and evidenced the following matters contained in the Council’s chronology (which has been updated to include exhibit references and reference now defined terms):

Date	Event	Exhibit/ affidavit Reference
06/03/13	First Development Consent granted for 22 storey mixed use development with 4 basement levels.	Exhibit F
July 2015	DA 98/2015 submitted to Council	Ms Kucic Affidavit at [6]
September 2015	Council receives draft VPA from Sky Profit	Ms Kucic Affidavit at [9]
15/12/15- 29/1/2016	VPA publicly notified	Exhibit R5.1
23/2/2016	Council resolves to enter into VPA	Exhibit R5.2
03/03/16	Second Development Consent 98/2015 granted for an additional 3 storeys. Condition no 5 requires VPA to be entered into by developer	Exhibit H
20/12/2018	The Development site was acquired by 1R & Council notified of that fact	Affidavit of Mark Taouk at [5]
06/02/19	Mark Raineri emails Dix Gardner & TQM requiring execution of VPA and payment of outstanding monies	Exhibit R5.9
06/02/19	Council issues Stop Work Order	Exhibit R5.10
26/02/19	S 94 contributions paid to Council	Ms Kucic affidavit at [21]
26/02/19	Mark Taouk and Marianna Kucic have a conversation re requirement to amend the VPA	Ms Kucic affidavit at [22]
Late Feb 19	Marianna Kucic commences work on revising VPA	Ms Kucic affidavit at [25]
06/06/19	Council advises TQM that draft VPA will need to be publicly notified	Exhibit R5.11
25/06/19	Council members advised that officers had determined that draft VPA needed to be publicly notified	Exhibit R5.14
27/06/19	Council sends draft VPA to TQM for comment	Exhibit R5.13
09/07/19	Council publicly notifies draft VPA from 9 July to 6 August 2019	Exhibit R5.15 & Ms Kucic affidavit at [27]
23/07/19	These proceedings are commenced	Original Summons
August 2019	Council joined to proceedings	Order of Moore J
11/10/19	VPA executed & monies paid	Mr Mark Taouk Affidavit 30 October 2019 at [7]-[8]

Applicants’ submissions

260. The Applicants submit that the Executed VPA was not exhibited contemporaneously with the DA and therefore it is in breach of the requirements of s 7.5(1) of the EP&A Act. It contends that there is a clear mandatory statutory requirement that notification take place concurrently with the DA and in this case there is no compelling reason why it was not so notified. It is said that where there is a breach of the mandatory requirement there is a clear statutory intent that the breach will lead to invalidity.

261. The Applicants accepted that a VPA was exhibited contemporaneously with the DA but contended that it was not the VPA as executed by the Council such that it could not be said to satisfy the legislative requirements.

262. The Executed VPA if it be a “new” VPA such that it comprises an amendment to the VPA exhibited with the development application for DC2, it was not notified as soon as practicable as the Council became aware of the need for an amendment on 20 December 2018 and the amended VPA was not notified until 9 July 2019.

263. On these bases, it was said that the Executed VPA was not a VPA within the meaning of s 7.4 of the EP&A Act and therefore would not satisfy the requirements of Planning Condition (5). Further it was contended that the consequence of the breach of the legislative requirements for notification would render the Executed VPA invalid.

Council’s submissions

264. The Council’s primary submission was that the VPA has been notified to the public in accordance with the requirements of the EP&A Act twice: first, with the second DA; and secondly, when it was amended prior to execution. The changes in substance between the two periods of notification were not so material as to render the Executed VPA a “new” VPA as opposed to an amendment to the VPA the subject of the first notification.

265. It is also submitted that, if the Executed VPA was not relevantly the same VPA for the purposes of public notice, it was not practicable to notify the Executed VPA with the DA as the amendments (including the identity of the developer) changed after the grant of DC2. The Executed VPA was notified to the public as soon as possible after its preparation.

266. Further, even if there had been a breach, the statutory scheme would not anticipate a breach of this nature to render invalid the making of the VPA as:

1. It would lead to inconvenient consequences where the Council would be unable to recover funds bargained by it;

2. The public had been notified in substance on two occasions – this was not a case where there was no public notification;

3. There was no undue delay in the notification of the Executed VPA for the reasons outlined in the affidavit of Ms Kucic sworn 5 September 2019 which explains: the circumstances surrounding the need to amend the VPA; the steps taken to give effect to the amendment; and the timing of the steps after the Council became aware of the requirement to amend; and

4. Delays to notice and amendments to VPA’s were expressly envisioned in the legislative scheme such that the requirements of s 7.15 were not mandatory in the sense that a breach of any kind would lead to invalidity.

267. Alternatively, if there were a breach of the legislative requirements that would lead to invalidity there were compelling discretionary reasons why declarations and orders relating to the validity of the Executed VPA would not be made.

Respondents’ submissions

268. The Respondents adopted the Council’s submissions.

269. The additional submissions made by it related primarily to the issue of whether the question was purely hypothetical, which I have dealt with above.

Findings on whether the Executed VPA is invalid

270. For the reasons that follow I find that the Executed VPA is valid and therefore a VPA within the meaning of Planning Condition (5).

271. The first, and primary, reason is that whilst the requirement for public notice prior to the entering into of a VPA is mandatory, I do not find that there is a mandatory requirement for such notice to occur contemporaneously with any DA. The mandatory requirement for public notice is contained in s 7.5(1). What is mandated by that provision is a planning agreement cannot be entered into unless the public notice has been given and that a copy of the proposed agreement is available for inspection for a period of not less than 28 days. The prohibition is on the entering into the VPA, there is no dictate on the time between the notice and the execution of the VPA. Further, whilst notice (and the period of notice) is mandated, the mechanics of giving such notice are not mandated in s 7.5(1). The requirements of the actual notice are left to the Regulations by operation of s 7.5(2) and s 7.10. This division between the requirement for notice and the mechanism for the giving of that notice is a distinction between the mandatory requirement of s 7.5(1) and the mechanisms provided for in s 7.5(2). Therefore, if there are mandatory requirements as to the manner in which notice is to be given so as to comply with the provisions of s 7.5(1) it is to be found in the Regulations not the Act.

272. The relevant provision of the Regulations, cl 25D contains mandatory language as to the requirement “to ensure that public notice...is given” but the operative provisions that dictate the manner of notice are not as certain. The concepts of “if practicable” and “as soon as possible” contain subjective elements that could not, having regard to this statutory language, be intended to dictate an absolute mechanism. What the language does indicate is that whilst the requirement for notice is imperative, manner and timing of the notice (other than that the notice must be before the VPA is entered into) is more flexible. This construction is consistent with the regulation making power expressed in s 7.5(2) that leaves a discretion as to whether to permit or require contemporaneous notification. The drafting of the Regulations indicates by its language that the contemporaneous timing of the notification is not mandatory.

273. Secondly, I find that the VPA and the DA were, in any event, notified concurrently. The subsequent changes to that VPA were amendments to the VPA as originally notified. There is no statutory requirement that the VPA as notified be executed prior to an amendment and therefore there is no statutory irregularity with the re-notification of the amended Executed VPA. The changes were not materially different and did not reduce the impost on the developer or the public benefits proposed such that it was to be required to be assessed as a separate or new VPA to that notified with DC2.

270. Thereafter, the amendments to the first notified VPA were notified in accordance with the requirements of s 7.5 of the EP&A Act, in that public notice was given as soon as possible after the amendments were made. Whilst the Council became aware of the need to amend the first notified VPA in December 2018 steps were required to be undertaken to give effect to this knowledge. Ms Kucic provided evidence by way of affidavit which was admitted without objection and upon which she was not cross examined. The affidavit discloses a course of conduct that was not unreasonable in the circumstances and the time taken to effect the changes and notify the amendment was also not unreasonable such that it would be found to be in breach of cl 25D of the Regulations.

271. Additionally, even if it were the case, contrary to what I have found above, that the Executed VPA was one to which the provision of cl 25D applied such that it was, prima facie, required to be notified with the development application for DC2, I would find that it was not practicable to do so as the amendments contained in the Executed VPA were not ascertainable at that date such that a VPA in the terms of the Executed VPA could have been notified. I would also find for the same reasons as outlined above that the notice of the terms of the VPA as contained in the Executed VPA was notified as soon as possible after the notification of the development application to which it related.

Conclusion on Ground 7

276. For those reasons I dismiss this ground.

Ground 8 – Occupation Certificate

277. This issue only arises if I find that the Applicants should succeed on any of grounds that seek a declaration of invalidity of either CC1 or CC2.

278. For the reasons outlined above I have found that the Applicants on the matters raised by them are not entitled to a declaration of invalidity of either construction certificate and accordingly this issue does not arise and I dismiss it.

Discretion

279. There was considerable evidence and submissions relating to the exercise of the Court’s discretion in the event the Applicants succeeded on any of the grounds they raised. I have dealt with the exercise of discretion with respect to Ground 6. As to the balance of the grounds, as I have not found the ground made out there has no need for me to further consider the issue of discretion and for that reason I have not.

Costs

280. A number of costs orders have been made to date in these proceedings. Any order for costs I make in connection with the disposition of the hearing are in addition to and not in substitution of or derogation of those orders.

281. In proceedings of this nature costs usually follow the event. No submissions were made during the course of proceedings (with the exception of Ground 6) that there was any reason as to why the usual order would not be made.

282. As to Ground 6 it was contended by the Applicants that the Respondents’ offer of the undertaking was made very late in the proceedings, namely during closing submissions. The Respondents maintained that the undertaking given in connection with the interlocutory application was never withdrawn and therefore should have been understood as enduring.

283. The undertaking was not expressly given in the substantive hearing. The Respondents opening submissions did not raise the undertaking nor did their pleadings in the substantive case. The raising of the undertaking, whilst appropriate, should be treated as occurring at a late stage of the proceedings.

284. As is noted in the judgment, the evidence and submissions on this matter were very limited. Notwithstanding this factor, I consider that the lateness of the offer of the undertaking is a circumstance that warrants a variation to the usual order, in that the Respondents should not receive an order for costs relating to this issue. However, in light of the bulk of the substantive matters being found in the Respondents’ favour I do not consider that an order that it pay the Applicants’ costs for Ground 6 is warranted.

Conclusion and Orders

285. For the reasons outlined above, apart from the Ground relating to the crane base the Applicants have not been successful on any of the other Grounds raised by them. Accordingly, the Court orders that:

1. The Court notes the undertakings to the Court of the First and Second Respondents in the following terms:

1. The First and Second Respondents undertake to the Court, without admission, that:

1. They will not use the tower crane base for the purpose of swinging a tower crane jib; and

2. They will remove the tower crane base upon the issue of an occupation certificate for the Development Site.

2. The Fourth Amended Summons filed on 4 November 2019 is otherwise dismissed.

3. The Applicants are to pay the Respondents’ costs of the proceedings except the costs relating to the allegation relating to the crane base.

4. The exhibits together with the exhibits in the interlocutory application before Moore J are returned.

Applicants' Closing Submissions [105] (26.6 KB, doc)

**********

Amendments

05 March 2020 - typographical error: at [79] change 2011 to 2019.

Decision last updated: 05 March 2020