Sader v Elgammal

[2023] NSWLEC 21

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sader v Elgammal [2023] NSWLEC 21

Hearing dates:

7 March 2023

Date of orders:

13 March 2023

Decision date:

13 March 2023

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1)   The documents sought in the notice to produce issued to the first respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a)   Category 6

(b)   Category 8

(c)   Category 9

(d)   Category 11,

and in relation to Category 5, only those documents relating to any application by the first respondent to change the mean high water mark shown in Schedule 3 (drawn 31 March 2016) to Crown licence RN 566152 dated 23 July 2019 be produced.

(2)   The documents sought in the notice to produce issued to the second respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a)   Category 6

(b)   Category 9

(c)   Category 11

(d)   Category 12

(e)   Category 13

(3)   The documents sought in the notice to produce issued to the third respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a)   Category 7

(b)   Category 9

(4)   All documents to be produced by reference to the relevant category particularised in the notices to produce to each of the respondents.

(5)   Costs reserved.

Catchwords:

PRACTICE AND PROCEDURE – notice of motion – set aside notices to produce – forensic purpose – relevance to the issues in dispute – whether the notices to produce are oppressive – complying development certificate – landowner’s consent

Legislation Cited:

Crown Land Management Act 2016 (NSW)

Environmental Planning and Assessment Act 1979 (NSW) ss 4.2(1)(a), 6.32

Environmental Planning and Assessment Regulation 2000 cl 49

Surveying and Spatial Information Regulation 2017

Uniform Civil Procedure Rules 2005 (NSW) rr 21.10, 33.4

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Alister v R (1984) 154 CLR 404

BCEG Australia v Yu Xiao (No 2) [2020] NSWSC 1403

Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 49

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

Joseph v Spencer (No 5) [2021] NSWLEC 139

NSW Commissioner of Police v Tuxford [2002] NSWCA 139

R v Saleam (1989) 16 NSWLR 14; [1999] NSWCCA 86

Rhinehart v Rhinehart [2018] NSWSC 1102

Sader v Elgammal [2022] NSWLEC 107

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710

Stokes v Waverley Council (No 2) [2019] NSWLEC 174

Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283

Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 9

Verde Terra Pty Ltd v Central Coast Council [2019] NSWLEC 166

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Paul Gearin (Second Respondent)
State of New South Wales (Third Respondent)

Representation:

Counsel:
J Farrell (First and Second Applicants)
L Nurpuri (First Respondent)

Solicitors:
Davidson. Legal Consulting Advisory (First and Second Applicants)
One Group Legal (First Respondent)
Submitting appearance (Second Respondent)
Legal Services Branch, Department of Planning, Industry and Environment (Third Respondent)

File Number(s):

2022/366791

Publication restriction:

Nil

JUDGMENT

Introduction

1. By way of summons filed on 5 December 2022, Mark and Sandra Sader (the applicants) seek judicial review of the decision of Paul Gearin, a registered certifier for the purpose of s 4.28 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (the second respondent), to issue a complying development certificate, Complying Development Certificate 8058994 (the CDC), on 5 September 2022. These proceedings are referred to herein as the ‘CDC proceedings’.

2. In the CDC proceedings, the applicants seek:

1. a declaration pursuant to s 4.31 of the EPA Act that the CDC issued by the second respondent on 5 September 2022 for works described therein as ‘maintenance and improvement works to boatshed’ is invalid and of no effect and is set aside; and

2. an order restraining the first respondent by itself, its servants or agents from acting upon, or carrying out any works in purported reliance on the CDC.

3. Mr Elgammal (the first respondent) is the applicant on the notice of motion filed in the CDC proceedings on 16 December 2022 (the motion), to set aside three notices to produce issued on behalf of the applicants on 7 December 2022. The first notice to produce sought to be set aside was issued to the first respondent, the second notice to produce to the second respondent, and the third notice to produce to the third respondent, the State of New South Wales.

4. The CDC proceedings, the motion and the notices to produce concern works which have been undertaken (or are proposed to be undertaken) at Lot 13 in DP 14844 located at 26 Bowden Crescent, Connells Point NSW (the property) by the first respondent, the registered proprietor of the property.

5. The applicants are the registered proprietors of the property located at 24 Bowden Crescent, Connells Point which is to the south of and immediately adjacent to the property of the first respondent.

6. The State of New South Wales (the third respondent) is the owner of land to the immediate south-east of the property, and fronting waters of Connells Bay upon which a boatshed, jetty and pool are situated (the Crown land). The formal boundary between the property and the Crown land is the mean high water mark (MHWM). The MHWM is the south-eastern boundary that cuts across both the property, as well as the applicants’ property at 24 Bowden Crescent.

7. The MHWM is identified in a 31 March 2016 survey scheduled to Crown licence (RN 566152) granted to the first respondent by the Minister administering the Crown Land Management Act 2016, pursuant to s 5.27 of that Act, commencing 3 March 2016 (the Crown licence). The licence describes the benefited land as:

“Crown land below mean high water mark of the Georges River …fronting Lot 13 DP 14844, known as 26 Bowden Crescent, Connells Point.”

8. The boatshed the subject of dispute is 52.4m², and is highlighted below in the surveyed plan scheduled to the Crown licence:

Procedural history

The construction certificate proceedings

9. The applicants and the first respondent were involved in earlier proceedings in which the applicants sought a declaration that the first respondent was in breach of s 4.2(1)(a) of the EPA Act by carrying out works on the property otherwise than in accordance with a development consent granted by Georges River Council (Council) for “demolition works and construction of a dwelling house (existing boathouse and swimming pool to be retained)” (the construction certificate proceedings).

10. In the construction certificate proceedings, the applicants also sought a declaration pursuant to s 6.32 of the EPA Act that the plans and specifications of the building work specified in the construction certificate were not consistent with the DA, and that the construction certificate was invalid.

11. On 25 August 2022, Duggan J delivered judgment, holding that the construction certificate was invalid: Sader v Elgammal [2022] NSWLEC 107 (the construction certificate proceedings).

12. Her Honour noted an undertaking from the first respondent in the following terms:

1. That he will not undertake any works, or cause any works to be undertaken, that require development consent (including complying development) on the land below the High Water Mark on lot 13 identified on deposited plan 14844 without first obtaining development consent (including a complying development certificate).

2. That he will not pour, or cause to be poured, the ground floor slab, identified in development consent DA2020/0430 issued by Georges River Council on 7 October 2021, in the formwork erected on lot 13 in deposited plan 14844 at the levels identified in Annexure C to the report prepared by Robbie Davidson of Geodesy Survey Group dated 10 May 2022 at annexure B to the affidavit of Robbie Davidson sworn 20 May 2022, unless development consent is obtained to do so.

The CDC: 5 September 2022

13. On 5 September 2022, the second respondent issued the CDC. The CDC is also referred to in the materials as CDC 2022/0382, lodged 8 October 2022.

The notices to produce: 7 December 2022

14. On 5 December 2022, the applicants filed a summons commencing the CDC proceedings. On 7 December 2022, the applicants issued three notices to produce to each of the first, second and third respondents.

15. The notice to produce to the first respondent required production of the following documents or things to the Court:

1. A copy of Complying Development Certificate 8058994 issued by Paul Gearin on 5 September 2022 (CDC).

2. A copy of all documents referenced in or relating to the CDC including but not limited to:

a. Site plans prepared by Harbour Port East Coast Pty Limited dated May 2022 drawings 01, 02 and 03;

b. Applicable specifications;

c. Owners consent received 20 May 2022;

d. Long service levy receipt no L0000081753 dated 5 September 2022;

e. Domestic Crown Licence dated 23 July 2019;

f. Boundary identification survey prepared by John R Holt surveyors dated 9 March 2020, sheets 1-2;

g. Marine Habit Report dated 12 April 2020 Sheets 1-23;

h. Statement of Environmental Effects prepared by Harbour Port East Coast Pty Limited dated May 2022 sheets 1-26;

i. Standardised engineering design letter prepared by CPM Engineering reference no 2201 dated 14 February 2022;

j. CDC-DWG 3 Specifications – 26 Bowden Crescent Connells Pt Mo_CDC-90125 (signed);

k. CDC-DWG 2 Plan & Elevation – 26 Bowden Crescent Connells Point_CDC-90125 (signed);

l. CDC-DWG 1 Site Plan – 26 Bowden Crescent Connell Pt Mo_CDC-90125 (signed);

m. Certification Application Form_CDC-90125 System Generated CDC Application Form_1652954863_CDC-90125;

n. Complying Development Certificate CDC Package-Large Projects-esigned 8058994-1 (signed);

o. Complying Development Certificate Notice of Appointment – CDC – (Corporate) 8058994-1(signed);

p. 10.7 Planning Certificate;

q. Statement of Environmental Effects_CDC-90125;

r. Marine Habit Report_CDC-90125;

s. Boundary Identification Survey_CDC-90125;

t. Authority to lodge_CDC-90125;

u. Engineer’s Standardised Design Certificate 2022;

v. Local Group Certification Contract and Application Form – 26 Bowden Crescent Connells Point; and

w. SEE CDC- 26 Bowden Crescent Connells Point.

3. All documents referred to in the form entitled Application for a Complying Development Certificate Reference Number: CDC-90125 being:

a. CDC improvements to pool – DWG 3 pool sections;

b. CDC improvements to pool – DWG 1 site and roof plan;

c. CDC-DWG 2 plan & elevation – 26 Bowden Crescent Connells Point;

d. CDC-DWG1 site plan – 26 Bowden Crescent Connells Pt Mo;

e. CDC improvements to pool – DWG 2 pool plan;

f. SEE CDC- 26 Bowden Crescent Connells Point; and

g. Homeowner – 26 Bowden Crescent Connells Point.

4. All correspondence with any representative of:

a. Harbour Port East Coast Pty Limited;

b. CPM Engineering;

c. John R Holt;

d. The Second Respondent; and

e. The Third Respondent;

relating to the CDC and the work the subject of the CDC.

5. All correspondence with:

a. Any representative of Harbour Port East Coast Pty Limited;

b. CPM Engineering;

c. John R Holt;

d. The Second Respondent; and

e. The Third Respondent;

relating to the land the subject of the Domestic Crown Licence dated 23 July 2019.

6. A copy of any construction certificate issued pursuant to the CDC or relating to the works the subject of the CDC.

7. All stamped approved drawings in relation to the works the subject of the CDC.

8. All drafts of the documents referred to in the CDC.

9. Any document and correspondence with the Second Respondent relating to any construction certificate (or modified certificate) for building works pursuant to the CDC.

10. Any document and correspondence with the Second Respondent relating to the validity or surrender of the CDC.

11. Any document and correspondence with the Third Respondent relating to any construction certificate (or modified certificate) for building works pursuant to the CDC.

12. Any document and correspondence with the Third Respondent relating to the validity or surrender of the CDC.

13. Any document and correspondence with the Georges River Council relating to any development consent, construction certificate (or modified certificate), and complying development consent for building works at 26 Bowden Crescent Connells Point between June 2022 to date.

16. The notices to produce to the second and third respondents were in identical terms in relation to Category 1 to Category 3 of the notice to produce to the first respondent, but varied slightly, and presently immaterially, from Category 4 onwards.

The notice of motion filed 16 December 2022

17. The motion before the Court filed by the first respondent on 16 December 2022 seeks to set aside in part the notices to produce. The motion seeks the following orders:

1. That the Notice to Produce issued on behalf of the First and Second Applicants directed to the First Respondent filed 7 December 2022 be set aside in part, namely paragraphs 2(a), (b), (d) – (w), 3 – 6, 8 – 13.

2. That the Notice to Produce issued on behalf of the First and Second Applicants directed to the Second Respondent filed 7 December 2022 be set aside in part, namely paragraphs 2 (a), (b), (d) – (w), 3 – 9, 11 – 15.

3. That the Notice to Produce issued on behalf of the First and Second Applicants directed to the Third Respondent filed 7 December 2022 be set aside in part, namely paragraphs 2 (a), (b), (d) – (w), 3 – 7, 9 – 11.

4. Such further or other orders that the Court deems fit.

5. The First and Second Applicant pay the First Defendant’s costs of this Notice of Motion.

18. At the hearing of the motion on 7 March 2023, the following affidavits were read without objection:

1. affidavit of Jamie Antonopoulos, solicitor employed by the first respondent, dated 16 December 2022;

2. affidavit of Mark Sader, first applicant in the CDC proceedings, dated 9 December 2022 (paragraphs [8], [9], [21], [30] and [31] not read); and

3. further affidavit of Mark Sader dated 16 February 2023.

19. In her affidavit of 16 December 2022, Ms Antonopoulos deposed that the first respondent (the applicant on the motion) seeks to have the notices to produce set aside on the following bases:

1. the notices to produce have in part been issued for an improper purpose;

2. the notices to produce call for documents which are not relevant to any fact in issue; and

3. compliance with the notices to produce in their current form would be oppressive to the receiving party.

20. The first respondent also tendered a letter dated 17 February 2023 from the applicants’ solicitors refining the scope of the notices to produce to the effect that the following categories were not pressed:

1. notice to produce to the first respondent: categories 6, 8, 9, and 11;

2. notice to produce to the second respondent: categories 6, 9, 11, 12 and 13; and.

3. notice to produce to the third respondent: categories 7 and 9.

21. During the hearing of the motion on 7 March 2023, the first respondent informed the Court that it was prepared to produce to the applicants the documents within Categories 1, 2.c. and 7 of the notice to produce to the first respondent, being:

1. a copy of Complying Development Certificate 8058994 issued by Paul Gearin on 5 September 2022 (CDC);

2. owner’s consent received 20 May 2022; and

3. all stamped approved drawings in relation to the works the subject of the CDC.

22. The Court was also informed that:

1. the second respondent had informally produced to the applicants a bundle of documents consisting of the CDC referred to in Category 1 of the notice to produce, and documents a, b, e, f, g, h, I, j, k, l, m and n in Category 2 of the notice to produce; and

2. the third respondent had conducted relevant searches and was in a position to answer the notice to produce in its entirety, but had at this stage only provided to the applicants, informally, documents not in issue, being:

1. a copy of Complying Development Certificate 8058994 issued by Paul Gearin on 5 September 2022 (the CDC); and

2. all stamped approved drawings in relation to the works the subject of the CDC.

23. In his affidavit of 16 February 2023, Mr Sader deposed that on 9 February 2023, the solicitor for the second respondent provided the parties with a bundle of documents including:

1. the CDC issued by Paul Gearin on 5 September 2022;

2. a system generated CDC application form; and

3. domestic Crown licence dated 23 July 2019.

24. It is conspicuous that the owner’s consent said to have been received 20 May 2022 was not in evidence before me at the hearing of the motion, and does not appear to have been available to, or produced to the applicants.

25. Based on that material, and his observations onsite, Mr Sader considered that works not purportedly authorised by the CDC have been constructed by or on behalf of the first respondent on land owned by the third respondent. Further, the applicants are considering amending the summons in the CDC proceedings to seek orders that any new works to the boatshed be demolished and the boatshed be restored to its pre-existing state before the CDC was issued on 5 September 2022.

Relevant principles in relation to setting aside a notice to produce

26. There was no dispute between the parties in relation to the principles applicable to the setting aside of a notice to produce.

27. Rule 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:

21.10 Notice to produce for inspection by parties

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

28. Rule 33.4 of the UCPR provides:

33.4 Setting aside or other relief

(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2) An application under subrule (1) must be made on notice to the issuing party.

(3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

29. The considerations that apply to the setting aside of subpoenas are generally applicable to notices to produce: Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283 at [4] (Brereton J).

30. A notice to produce must be issued for a legitimate forensic purpose and must seek documents that have apparent relevance to the issues in the principal proceedings: Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 102-103 (Beaumont J). What is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings: Rinehart v Rinehart [2018] NSWSC 1102 at [47] (Ward CJ in Equity).

31. Documents will have apparent relevance where:

1. they may reasonably be regarded as (ie it is “on the cards”) having the potential to materially assist in the resolution of the issues in the proceedings: Alister v The Queen (1984) 154 CLR 404 at 414; [1984] HCA 85 (Gibbs CJ, Murphy and Brennann JJ agreeing, Wilson and Dawson JJ dissenting); R v Saleam (1989) 16 NSWLR 14 at 17-18 (Hunt J); and

1. the material could “possibly throw light on” an identified issue: Trade Practices Commission v Arnotts Ltd (No 2) at 103.

32. These principles have been applied in this Court: see Verde Terra Pty Ltd v Central Coast Council [2019] NSWLEC 166 at [62]-[73] (Pepper J) citing Rinehart v Rinehart at [43]-[48] and [51]; Joseph v Spencer (No 5) [2021] NSWLEC 139 at [35]-[36] (Moore J).

33. In the event of dispute, the party that issues a subpoena or notice to produce has the onus of establishing that the production has a legitimate forensic purpose, and that the subpoena or notice otherwise accords with the rules, the principles and any applicable court practices: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20]-[22] (Brownie AJA, Spigelman CJ and Ipp AJA agreeing); ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [20] (Tobias JA, Basten JA and Handley AJA agreeing).

34. The first respondent relied on Joseph v Spencer (No 5) where Moore J said at [36] that although it is clear that satisfaction of both “adjectival relevance”, and that it is “on the cards” that the material sought in the notice to produce will assist a party’s case, is a comparatively low one, it is still necessary that there be demonstrated some legitimate forensic purpose connected with, or of apparent relevance to, the issues in dispute in the proceedings in order to allow a notice to produce to stand.

35. The applicants submitted that where a notice to produce or subpoena is said to be oppressive, the party alleging oppression should lead some evidence of difficulty in complying with the notice or subpoena. The absence of such evidence is a reason to reject an argument that a subpoena is oppressive: BCEG Australia v Yu Xiao (No 2) [2020] NSWSC 1403 at [17] (Stevenson J). In relation to the subject notices to produce, I accept the applicants’ submission. Here, there was no evidence of any communication to the applicants by the first respondent (or in either of the second or third respondents) concerning any difficulty complying with the notices to produce. Indeed, as already noted, the second respondent has informally produced to the applicants a bundle of documents consisting of the CDC referred to in Category 1 of the notice to produce, and documents a, b, e, f, g, h, i, j, k, l, m and n in Category 2, and the third respondent is in a position to answer the notice to produce in its entirety, (but has at this stage only provided to the applicants, informally, documents not in issue). Indeed, Ms Shaw for the third respondent informed the Court, when asked, that the third respondent has no objection to the breadth, or otherwise, of the notice to produce issued to it.

36. Accordingly, I reject the submission on behalf of the first respondent that compliance with the notices to produce in their current form would be oppressive to the receiving party.

First respondent’s submissions on the motion to set aside the notice to produce

37. Having rejected the first respondent’s submission in relation to oppression, it remains to consider whether the notices to produce “have in part been issued for an improper purpose”, and whether they call for documents which are not relevant to any fact in issue.

38. The first of these contentions – namely, that the notices to produce “have in part been issued for an improper purpose” – can be disposed of shortly. There was no evidence before me capable of supporting a suggestion of improper purpose, nor was a submission to that effect advanced orally,

39. In relation to relevance, the first respondent submitted that the relevance of the documents in the notice to produce issued to him was constrained by the summons. The only ground relied upon by the applicants in the CDC proceedings and particularised in the summons is that for the purposes of s 4.26(2)(b) of the EPA Act, the consent of the third respondent was not obtained prior to or as part of the issue of the CDC.

40. As such, the first respondent identified the issues in the proceedings as:

1. whether landowner’s consent was obtained prior to the CDC being issued on 5 September; and

2. if landowner’s consent was not obtained, whether it was required to have been obtained.

41. The first respondent read paragraphs [45] and [47] of Mr Sader’s affidavit of December 2022 filed on behalf of the applicants, sworn four days after the filing of the summons and two days after the issuing the notices to produce, in which Mr Sader deposed:

[45] I am concerned that the works that Mr Elgammal has undertaken and is undertaking at the Subject Site are inconsistent both with the Orders and with the Undertaking for the reasons set out in this affidavit.

…

[47] In order to fully assess whether Mr Elgammal has contravened, or is preparing to contravene, his Undertaking and the Orders, it is necessary to obtain a copy of the CDC together with all documents referred to it. On 7 December 2022 Davidson issued a notice to produce to the First Respondent and Second Respondent seeking production of the documents constituting the CDC. Those notices to produce are returnable on 15 December 2022. Part of the relief sought by me in these proceedings is the early return date of those Notices to Produce.

42. Counsel for the first respondent submitted that these paragraphs reflected the context in which the notices to produce were issued, and the basis upon which the applicants considered it appropriate and relevant to use the Court’s coercive powers. It was submitted that the issues described by Mr Sader, being whether the first respondent has contravened his undertaking and/or the order of Duggan J in the construction certificate proceedings, are outside the scope of the sole issue identified in the summons in the CDC proceedings, namely, the existence or otherwise of owner’s consent, and are therefore irrelevant to any identified issue in the CDC proceedings.

43. Counsel for the applicants submitted in relation to paragraphs [45] and [47] of Mr Sader’s affidavit that the highest that that evidence could be put is as to the subjective nature of his client’s belief as at 9 December 2022, that the affidavit was sworn for a different purpose (namely, the application for an interlocutory application), and that the question for the purpose of an application to set aside a notice to produce is an objective one. His client’s subjective belief could carry no weight on the objective assessment of the relevance of the documents the subject of the notices to produce in the proceedings.

44. Counsel for the first respondent also referred to paragraph [10a] of Mr Sader’s affidavit of 16 February 2023, in which Mr Sader outlines why various categories in the notice to produce to the first respondent “have the potential to materially assist in the resolution of the proceedings or may possibly throw light on those issues”. This included that:

i. The documents referred to in paragraphs 2 and 3 (which are the documents referenced in the CDC), are necessary so as to understand the full scope of work authorised by the CDC;

ii. The documents referred to in paragraph 4 bear directly on whether landowners consent was obtained;

iii. The documents referred to in paragraph 5, which bear directly on the question of the validity of the CDC;

iv. The documents referred to in paragraph 10 which bear directly on the view of the Second Respondent of the validity of the CDC which he issued;

v. The documents referred to in paragraph 12 are directly relevant to whether there is landowners consent to the works the subject of the CDC; and

vi. The documents referred to in paragraph 13 (which are documents and correspondence with the Georges River Council relating to any development consent for building works at 26 Bowden Crescent, Connells Point between June 2022 to date) bear directly on the question as to whether landowners consent (or some other form of consent) to the works referenced in the CDC exists.

45. The first respondent submitted that the issue in the CDC proceedings, as identified in the summons, is whether or not landowner’s consent exists for the CDC. The first respondent did not object to providing (although it not yet has) the CDC document in Category 1 of the notice to produce, the document in Category 2(c) being “[o]wners consent received 20 May 2022”, and the documents in Category 7 being “[a]ll stamped approved drawings in relation to the works the subject of the CDC”, which it submitted are relevant to the issue of whether or not landowner’s consent was obtained. As such, the first respondent submitted that any additional documents sought pursuant to the notice are irrelevant to the issue in dispute and not sought for a legitimate forensic purpose. As noted above at [24], the owner’s consent said to have been received 20 May 2022 has not yet been produced, informally or otherwise.

46. The first respondent also referred to the applicants’ written submissions which contended that the documents in Category 5 are relevant to an understanding of the identification of the MHWM, the question of whether the works described in the CDC will take place on Crown land, and whether the application for the CDC required the consent of the third respondent. In relation to Category 5, the first respondent submitted that the applicants were “fishing” to see whether the first respondents have made an application to move the MHWM. The first respondent submitted that the MHWM is clearly identified in the applicants’ title search of DP 14844.

47. The first respondent also addressed the applicants’ written submission that a further issue in the proceedings is the interpretation of the plans the subject of the CDC, and whether works to the swimming pool are approved. In support of this, the applicants relied on the description of the development in the CDC application as being for “proposed magnets an[d] improvement works to existing lawful boatshed and inground swimming pool”. The first respondent repeated its submission that this is irrelevant to the one ground advanced by the applicants in the summons, namely whether landowner’s consent was obtained for the making of the application for the CDC.

The applicants’ submissions on the motion to set aside the notices to produce, and the Court’s findings

48. Consistent with the single ground in the summons, the applicants submitted that for the purposes of s 4.26(2)(a) of the EPA Act, the consent of the State of New South Wales, as owner of the land on which the proposed development, or part thereof is proposed to be undertaken, namely building works described as “maintenance and improvement works to boatshed”, was not obtained prior to or as part of the issue of the CDC. The applicants identified the issues in the CDC proceedings as:

1. the extent of the works approved by the CDC;

2. the land to which the CDC applied;

3. the location of the MHWM; and

4. if the CDC applied to Crown land, whether or not the application for the CDC had the consent of the State of NSW.

49. Subsection 4.26(2) of the EPA Act provides as follows:

(2) An application for a complying development certificate may be made –

(a) by the owner of the land on which the development is proposed to be carried out, or

(b) by any other person, with the consent of the owner of that land.

50. The applicants addressed their submissions in relation to each of the categories in the notices to produce which remained in dispute noting the first respondent’s indication of the categories it is prepared to produce at [21] above.

Category 2

51. The documents in Category 2 of all three notices to produce are all documents expressly referred to in the CDC. The applicants submitted that these documents are clearly relevant, and inform a proper consideration of the land to which the CDC applies and a proper consideration of the issue of landowner’s consent.

52. The applicants submitted that s 4.26(2) of the EPA Act is in the same terms as cl 49 of the Environmental Planning and Assessment Regulation 2000 which has been the subject of extensive judicial consideration: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (Al Maha) (Basten, Leeming JJA and Preston CJ); Stokes v Waverley Council (No 2) [2019] NSWLEC 174 (Robson J). In Al Maha, the Court of Appeal held at [9] that a development application “relates” to any land on which development particularised in the application is to take place.

53. The applicants submitted that it was plain that the documents in Category 2 may determine the nature of the proposed works, and therefore the land on which the development is proposed to be carried out.

54. In relation to Category 2, there was also an issue relating to the interpretation of the plans the subject of the CDC and whether the approved works extended to the swimming pool or not. That is because in the application for the CDC, there is also a description of the development as “proposed magnets and improvement works to existing lawful boatshed and inground swimming pool”. Again, in this regard, the applicants submitted that the Category 2 documents are relevant to the scope of works approved by the CDC.

55. I accept the applicants’ submission that the documents in Category 2 may determine the nature of the proposed works, and therefore the land on which the development is proposed to be carried out. They have apparent relevance to the issue in the CDC proceedings, namely landowner’s consent for the application for the CDC, in the sense that they may reasonably be regarded (ie it is “on the cards”) as having the potential to materially assist in the resolution of, and could “possibly throw light on” the identified issue of landowner’s consent. Generally, in relation to the notices to produce, I have accepted that submission that there is no evidence of prejudice or oppression to the first respondent (or either the second or third respondent).

Category 3

56. The documents in Category 3 are the documents referred to in the application by the first respondent for the CDC, and are again sought in identical terms in each three of the notices to produce. The applicants submitted that documents forming part of an application for development consent could be incorporated into that consent by necessary implication. This may be because these documents are on the public register: citing Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [62]-[63] and [80] (Basten and Gleeson JJA, Preston CJ of LEC).

57. As a consequence, the applicants submitted that the application for the CDC may well form part of the CDC, and that the documents in Category 3 are clearly relevant to the matter in issue (namely, the existence of landowner’s consent for an application for a CDC) for the same reasons as in relation to Category 2.

58. At the hearing, counsel for the applicants also relied on subs 141(4) of the Environmental Planning and Assessment Regulation 2021 (NSW), which provides:

141 Notice of determination of complying development certificate application

(4) Within 2 days after determining an application for a complying development certificate, a registered certifier must give the following to the council using the NSW planning portal—

(a) the application and the determination,

(b) the endorsed plans, specifications or other documents that accompanied the application or were submitted to the registered certifier in accordance with Division 1,

(c) the fire safety schedule for the building, if required under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021,

(d) the record of an inspection made for the purposes of section 140 in relation to the issue of the complying development certificate, but only if the inspection was not carried out by the council.

59. The applicants submitted that by reason of subs 141(4), all of the documents included in the application for the CDC, as identified in Category 3, are relevant to the issue in dispute, namely whether landowner’s consent was obtained to the application for a CDC.

60. Again, I accept that the documents in Category 3 have apparent relevance in the requisite sense, that there was no evidence of prejudice or oppression to the first respondent (or either of the second or third respondents), and that the documents could not said to be sought for an improper purpose.

Category 4

61. Category 4 in the notice to produce to the first respondent seeks copies of all correspondence with any representative of:

1. Harbour Port East Coast Pty Limited;

2. CPM Engineering;

3. John R Holt;

4. the second respondent; and

5. the third respondent;

relating to the CDC and the work the subject of the CDC.

62. Again, the applicants submitted that production of documents in response to Category 4 is relevant to the issue as to whether landowner’s consent has been sought or obtained in respect of the works the subject of the CDC. The applicants noted that the redacted version of the CDC they obtained from Council included a “letter of consent” signed by a person named Peter Smith, purporting to give landowner’s consent. The production of documents from the certifier’s firm might ascertain whether this was an error. The applicants submitted that the meaning of this notation on the form was otherwise unclear.

63. The applicants also placed weight on an email they received from the second respondent on 6 December 2022, stating:

“we have already requested they surrender the CDC following some correspondence over a week ago, happy to discuss, will call you tomorrow”.

64. The applicants submitted that if the certifier, or another party, requested the first respondent to surrender the CDC on the basis of a fundamental defect in the certificate, and that advice was ultimately not accepted and the proceedings continued to a hearing, such communication may be relevant to the question of costs which are also sought in the CDC proceedings.

65. Again, I accept that the documents in Category 4 have apparent relevance, in the requisite sense, in relation to the issue of landowner’s consent, that there was no evidence of prejudice or oppression to the first respondent, and that the documents could not said to be sought for an improper purpose.

Category 5

66. The documents sought in Category 5 of the notice to produce to the first respondent are copies of all correspondence with the same persons as in Category 4, but insofar as they relate to land the subject of Domestic Crown licence dated 23 July 2019.

67. Domestic Crown licence dated 23 July 2019 applies to land adjacent to 26 Bowden Crescent, Connells Point, described as:

Crown Land below mean high water mark of the Georges River (Reserve 56146 from sale or lease generally as notified in the Government gazette on 11 May 1923 and Reserve 1011268 for future public requirements as notified in the Government gazette on 3 February 2006) fronting Lot 13 DP14844, known as 26 Bowden Crescent, Connells Point.

68. The applicants submitted that the location of the MHWM is critical to identifying the land to which the application for the CDC relates. I accept that submission. They also submitted that it is possible, by way of the Surveying and Spatial Information Regulation 2017, for the boundaries of the MHWM to be varied for a number of reasons.

69. In Sader v Elgammal [2022] NSWLEC 107, in the construction certificate proceedings before Duggan J, the first respondent sought to tender evidence and make submissions to the effect that the swimming pool and boatshed performed as a seawall, and there was therefore doubt as to the location of the MHWM. Although the Court (at [93]) concluded that these submissions were not compelling, here the applicants raised that the first respondent may have applied or may at some time in the future apply to have the MHWM moved, and that a similar argument to that already determined by the Court may then arise.

70. The applicants submitted that the production of documents in Category 5 relating to the subject Crown land would assist in identifying whether an application has been made to vary the boundaries of the MHWM, and might shed light on the precise location of the MHWM. They also submitted that the production of documents in Category 5 would likely ascertain whether landowner’s consent has been sought or obtained in respect of the works the subject of the CDC.

68. At the hearing of the motion, the applicants indicated that they would be willing to accept a narrowing of Category 5 to relate only to an application to change the location of the MHWM. Again, I find that that the documents in Category 5, so narrowed, have apparent relevance in the requisite sense (and that there was no evidence of prejudice or oppression to the first respondent, and that the documents could not be said to be sought for an improper purpose).

Category 7

72. The applicants did not press the documents in Categories 6, 8, 9 and 11. The first respondent indicated at the hearing that it is willing to produce the documents within the scope of Category 7.

Categories 10 and 12

73. Categories 10 and 12 seek to have the first respondent produce any communications between the first and second respondents in relation to the validity or surrender of the CDC, as well as correspondence between the first and third respondents relating to the validity or surrender of the CDC.

74. I find that these categories are sufficiently captured by the description of the documents in Category 4. I do not propose to repeat what I have said above at [61]-[65] in relation to those documents.

Category 13

75. Category 13 seeks to have the first respondent produce any document and correspondence between the first respondent and Council relating to any development consent, construction certificate and complying development consent for building works at the property between June 2022 to date.

76. The applicants submitted that these documents are relevant to the issue of whether the boatshed is wholly located on land on or below the MHWM. If consent has been granted to part of the boatshed on land owned by the first respondent, and conditions imposed with respect to the remainder of the boatshed pursuant to s 4.17(1)(g) of the EPA Act, that would be relevant to the relief sought in the proceedings.

77. The applicants also base this category of documents on the observations of Mr Sader in his affidavit of 9 December 2022 in relation to his attendance at the Council offices and inspection of the file relating to the CDC on 14 October 2022. On that occasion, Mr Sader observed a number of drawings and documents described by him as:

1. the replacement of boatshed doors, windows, floors, walls and for structural piers;

2. the installation of pool tiles, pool coping and pool surrounds; and

3. construction of a new spa and new pool steps.

78. Mr Sader also observed separate notations on the CDC in relation to the following:

1. a separate DA application for works below the MHWM for a slipway from the main door of the boatshed and a new jetty;

2. a planned future DA for works below the MHWM for a mooring pen adjacent to the jetty; and

3. a planned further DA for steps to be constructed transversely across from the boatshed roof to the pool area.

79. The CDC which was before me at the hearing of the motion itself refers to other potentially relevant and applicable development consents. The applicants submitted that these may also condition works on or off site: see s 4.17(1)(g) of the EPA Act. The applicants submitted that documents of this nature are likely to be relevant to the proceedings for the following reasons:

1. a failure to provide landowner’s consent to the CDC might affect the relief sought in the proceedings if the boatshed or swimming pool wholly or partially has the benefit of another development consent (pre-dating or post-dating the CDC) or is otherwise the subject of a condition of consent; and

2. if the Court finds in the applicants’ favour and the CDC is set aside, rectification of works already carried out is likely to become an issue. Mr Sader says at [9] and [11] of his 16 February 2023 affidavit that he is considering an amendment to the summons to seek orders that works performed pursuant to the CDC be demolished and removed. In these circumstances, works that are approved pursuant to any other development consent (some of which are flagged in the CDC itself) are relevant to the issue of the utility of any declaration.

80. I find that the documents in Category 13 may reasonably be regarded as having the potential to materially assist in the resolution of the issues in the proceedings and could “possibly throw light on” the identified issue of landowner’s consent. As in relation to other categories, I have accepted the submission that there is no evidence of prejudice or oppression to the first respondent.

Different and additional categories of documents sought in the notices to produce to the second and third respondents

81. The applicants submitted that the categories in the notices to produce to the second and third respondents are materially in the same or similar terms to those in the notice to produce to the first respondent.

Notice to produce to the second respondent

82. As noted above at [16], Categories 2 and 3 in the notice to produce to the second respondent are in the same terms as Categories 2 and 3 in the notice to produce to the first respondent.

83. Category 4 requests “[a]ll correspondence with Mr Elgammal…or any of his representatives relating to the CDC and the work the subject of the CDC.” Category 5 requests “[a] copy of any document recording or referencing or otherwise relating to your request to the First Respondent or any of his representatives to surrender the CDC.” The applicants submitted that the production of documents pursuant to these categories is likely to ascertain whether landowner’s consent has been sought or obtained in respect of the works the subject of the CDC. I accept that submission.

84. Categories 7, 8, 14 and 15 are in materially the same terms as categories 4, 5, 12 and 13 in the notice to produce to the first respondent. My conclusions at [65], [71] and [80] above apply.

85. Categories 6, 9, 11, 12 and 13 are not pressed by the applicants.

Notice to produce to the third respondent

86. Categories 2 and 3 are in the same terms as categories 2 and 3 in the notice to produce to the first respondent.

87. Categories 4 and 5 are in the same terms as Categories 4 and 5 in the notice to produce to the second respondent. My conclusion is above at [83].

88. Category 6 seeks “[a] copy of any document relating to the validity of the CDC.” The applicants submitted that if the landowner, the third respondent, has formed a view that the CDC is suffering from a legal defect such as an absence of landowner’s consent, and has communicated it particularly to the first respondent, such a document is in a similar category to Category 4 in the notice to produce to the first respondent, and is relevant to both the validity of the CDC and as to costs.

89. Categories 7 and 9 are not pressed by the applicants, and category 8 is not disputed by the first respondent.

90. Categories 10 and 11 are in similar terms as category 13 in the notice to produce to the first respondent. My conclusions are at [80].

Conclusions

91. The applicants seek the following orders:

1. The documents sought in the subject Notices to Produce, with the exception of the documents identified as not being pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023, are provided to the applicants within one week of these orders being made.

2. The documents produced are by reference to the relevant category particularised in the Notices to Produce.

3. Costs for the applicants.

92. The court has inherent jurisdiction to award costs of an application to set aside a subpoena either for or against the applicant: Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 at 504 (Hunt J). In the circumstances of this application, including the categories not pressed by the applicants, and although it appears rather curious that the first respondent has not yet produced, informally or otherwise, the document referred to as “owner’s consent received 20 May 2022”, I consider it appropriate for the question of costs of the motion to be dealt with by the judge hearing the substantive CDC proceedings.

93. It follows from my reasons, that the Court makes the following orders:

1. The documents sought in the notice to produce issued to the first respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

1. Category 6

2. Category 8

3. Category 9

4. Category 11,

and in relation to Category 5, only those documents relating to any application by the first respondent to change the mean high water mark shown in Schedule 3 (drawn 31 March 2016) to Crown licence RN 566152 dated 23 July 2019 be produced.

2. The documents sought in the notice to produce issued to the second respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

1. Category 6

2. Category 9

3. Category 11

4. Category 12

5. Category 13

3. The documents sought in the notice to produce issued to the third respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

1. Category 7

2. Category 9

4. All documents to be produced by reference to the relevant category particularised in the notices to produce to each of the respondents.

5. Costs reserved.

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Amendments

14 March 2023 - Typographical error

Decision last updated: 14 March 2023