Sader v Elgammal (No 2)

[2024] NSWLEC 4

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sader v Elgammal (No 2) [2024] NSWLEC 4

Hearing dates:

1 and 2 February 2024

Date of orders:

2 February 2024

Decision date:

02 February 2024

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [32].

Catchwords:

JUDICIAL REVIEW: validity of complying development certificate in respect of works to a boatshed – boatshed on Crown land – no landowner’s consent obtained prior to issue of certificate – whether declaration of invalidity should be made – absence of contradictor – utility of declaration – declaration made – certifier filed submitting appearance save as to costs – consequential procedural orders made in relation to foreshadowed costs hearing.

Legislation Cited:

Environmental Planning and Assessment Regulation 2000, cl 49

Environmental Planning and Assessment Act 1979, ss 4.26(2), 4.31

Georges River Local Environmental Plan 2021

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86

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

Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1

PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40

Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140

Category:

Principal judgment

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)
J Reid (First Respondent)

Solicitors:
Davidson Legal Consulting Advisory (First and Second Applicants)
One Group Legal (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)
Department of Planning and Environment (Third Respondent)

File Number(s):

2022/366791

Publication restriction:

Nil

EX TEMPORE JUDGMENT

A Private Certifier Issues a CDC Absent Landowner’s Consent

1. These proceedings concern the carrying out of development on Crown land on the Georges River at Connells Point, in the Georges River local government area.

2. By summons filed 5 December 2022, the applicants, Mark Sader and Sandra Sader (“the Saders”), seek a declaration pursuant to s 4.31 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) that complying development certificate 8058994 issued by Paul Gearin, the second respondent, on 5 September 2022 (“the CDC”), is invalid, is of no effect and is to be set aside. An order is also sought restraining the first respondent, Yasser Elgammal, from acting upon, or carrying out, any works in purported reliance on the CDC.

3. The basis of the application is the failure to obtain landowner’s consent in respect of the CDC from the State of New South Wales, the third respondent in the proceedings, prior to the CDC being issued. That ground was admitted by Elgammal in his response to the summons filed on 10 May 2023.

4. By consent, the parties therefore ask that the Court makes the orders sought in prayers 1 and 2 of relief of the summons.

5. As the parties accepted, unlike other orders sought by consent, declaratory relief may only be made upon the Court being satisfied as to the appropriateness of doing so.

6. In the circumstances of this case, the Court has, after reviewing the evidence and having regard to the statutory framework and the existing authorities, determined that it is appropriate to grant the declaratory relief sought in the summons.

7. The orders were made at the conclusion of an oral hearing which was truncated in order to allow the parties to resolve the outstanding issue of costs, which, despite best endeavours, they were unable to do in the timetable available. As a matter of expediency, the matter was adjourned until today for the delivery of more fulsome ex tempore reasons for the making of those orders. At the conclusion of the delivery of the reasons, upon further discussion with the parties, the terms of the injunction were amended by consent.

Works Are Carried Out on a Boatshed on the Georges River

8. The factual background giving rise to this application was set out in a statement of agreed facts tendered by the parties.

9. In addition, the parties relied upon the following evidence:

1. the CDC application;

2. the CDC;

3. a licence granted under the Crown Land Management Act 2016 to Elgammal to use the land upon which the boatshed is situated.

10. In short, the Saders are the registered proprietors of Lot 12 in DP 14844 located at 24 Bowden Crescent, Connells Point.

11. Elgammal is the registered proprietor of Lot 13 in DP 14844 located at 26 Bowden Crescent, Connells Point (“the development site”).

12. Gearin was the certifying authority who issued the CDC.

13. The CDC described the works the subject of the application for it as “maintenance and improvement works to boatshed” (“the boatshed works”).

14. The third respondent is the owner of land to the immediate south-east of the development site, being the Georges River (“Crown land”).

15. The boatshed referenced in the CDC is the boatshed structure located on the Crown land.

16. The Crown land is zoned W2 Recreational Waterways pursuant to the Georges River Local Environmental Plan 2021 (“the LEP”). Under the LEP, boatsheds are a permissible use in the W2 zone with consent.

The Application for a CDC and the Need for Landowner’s consent

17. The application for the CDC proposed building works, including the boatshed works. These works were to be carried out on the boatshed which, as stated above, was predominantly located on land owned by the third respondent. In particular, the works authorised by the CDC were located wholly on Crown Land.

18. The System Generated CDC Application Form lodged on the NSW Planning Portal included the following words:

Application documents

The applicant has included the following documents to support their application.

Document type	Document file name
Architectural Plans	CDC Improvements to Pool – DWG 3 Pool Sections CDC Improvements to Pool – DWG 1 Site & Roof Plan CDC – DWG 2 PLAN & ELEVATION – 26 Bowden Crescent Connells Point CDC – DWG 1 SITE PLAN- 26 Bowden Crescent Connells Pt Mo CDC Improvements to Pool -DWG 2 Pool Plan
Other Documents	SEE CDC – 26 Bowden Crescent Connells Point Local Group Certification Contract and Application Form-26 Bowden Crescent Connells Point
Owner’s consent	Domestic Crown License-26 Bowden Crescent Connells Point Homeowner-26 Bowden Crescent Connells Point

19. It is not in dispute, however, that the consent of the third respondent was not in fact obtained prior to, or as part of, the issuing of the CDC. The “owner’s consent” referred to in this and other relevant documents put before the Court are not referrable to the third respondent.

20. Section 4.26(2) of the EPAA 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.

21. The application for the CDC was not made by the owner of the land the subject of the development, as was agreed by the parties and as was evident from the material before the Court. Accordingly, the consent of the owner of the land, namely, the third respondent, was required pursuant to s 4.26(2)(b) of the EPAA.

22. Gearin, as certifier, therefore had no power to issue the CDC. That is, the CDC was not authorised pursuant to the EPAA on any other relevant statutory provision.

23. There can be no doubt that the Court has the power to declare the CDC invalid in such circumstances. Section 4.31 of the EPAA states:

4.31   Validity of complying development certificate

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a complying development certificate is invalid if—

(a)   proceedings for the order are brought within 3 months after the issue of the certificate, and

(b)   the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued.

24. Both prerequisites were satisfied here.

Applicable Legal Principles in Relation to the Granting of Declaratory Relief Absent a Contradictor

25. The relevant legal principles in relation to the granting of declaratory relief were set out by Preston J in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 (at [20]-[25]). They were recently summarised by Pritchard J in PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 (at [72]-[75]):

72   The principles in relation to the obtaining of declaratory relief are well-established in this jurisdiction. The principles were enunciated by Gibbs J (as his Honour then was) in Forster v Jododex (Forster) at 437 as requiring:

(1)   a real and not a theoretical question;

(2)   the person raising the question to have a real interest to raise it; and

(3)   the person to be able to secure a proper contradictor, being someone presently existing who has a true interest to oppose the declaration sought.

73   The Court’s correspondence with the parties (see above at [68]–[71]) arose from a concern that there was no proper contradictor in circumstances where Council indicated that it “takes no position on whether or not the development consent has lapsed”.

74   In Penrith City Council v Dincel Construction System Pty Limited and Gaonor Pty Limited (OSSM case), Robson J observed as follows:

14.   It has been held that a condition precedent to granting declaratory relief is that, inter alia, the plaintiff must be able to secure a proper contradictor, that is, someone presently existing who has a true interest to oppose the declaration sought: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 438.

15.   In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 (‘MSY’), the question that arose was whether, having regard to the consent of the parties to the granting of the declaratory relief proposed, the primary judge was prevented from granting that relief. Put another way, the question was whether consent to the relief sought precluded the respondent from being a “proper contradictor”. The Full Federal Court (Greenwood, Logan and Yates JJ) held, at [30], that the correct position could be found in the judgments of Dawson J in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 at 648 and French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231 at [47]. The Court stated that if a party had a true interest in the plaintiff’s claim, even if they saw that interest served by not opposing the relief claimed, that would be sufficient to render them a “proper contradictor”: MSY at [16]. Similar sentiments were expressed in Zetting v Müller [2017] NSWSC 659 and in the matter of Beechworth Land Estates Pty Ltd (administrators appointed) [2017] NSWSC 1447.

75   In this case, there was no proper contradictor, active or inactive. It is true that the Court has granted declaratory relief in circumstances where there was no contradictor: see Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council (Zaymill), a case relied on by Council, and Donvito v Hawkesbury City Council (Donvito). It is also clear that the Court’s jurisdiction to make a declaration is a “very wide one”, limited only by the Court’s discretion. Whilst the jurisdiction may be ousted by statute, the right of a subject to apply to the court for a determination of their rights will not be held to be excluded except by clear words.

A Failure to Obtain Owner’s Consent Results in Invalidity

26. The case law makes it plain that the result of a failure to obtain landowner’s consent where it is mandated for the lawful grant of a CDC or development consent, is invalidity.

27. The leading authority dealing with the issue of landowner’s consent is the decision of the Court of Appeal in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86. In that case, Preston J considered in detail with the issue of landowner’s consent (at [81] – [101]). His Honour found that the giving of landowner’s consent to the making of a development application with respect to the owner’s land for the purpose of cl 49 (as it then was) of the Environment Planning and Assessment Regulation 2000 (“the Regulation”) was an “essential prerequisite to, and part of the process of, a consent authority’s determination of the application” (at [95]). The development application is ineffective and incomplete when it does not contain the information and is not accompanied by the documents that the EPAA and the Regulation require. His Honour held there can be “no valid determination of the development application until there is substantial compliance with such statutory prescriptions” (at [97]).

28. Ultimately on the facts in that case, his Honour found that the decision to grant consent without landowner’s consent involved jurisdictional error. Owner’s consent was not “merely a requirement to be fulfilled before work is undertaken on any affected land. The Commissioner’s decision to grant consent was therefore outside power” (at [174]). On this issue, Basten JA agreed stating that, “the result is the invalidity of the development consent” (at [9]).

29. Following Al Maha, in Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64, Moore J put the position more emphatically, stating that “any development consent, including a complying development certificate, which purports to approve development on land where there is no owner’s consent for such development is invalid” (at [52] emphasis added).

30. More recently, in Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140, Pritchard J considered the failure to obtain landowner’s consent from the Minister administering the Crown Land Management Act 2016 on behalf of the Crown in respect of a State significant development (“SSD”) consent. Despite the Minister for Planning being the proponent for the project (a school), the Court held that the relevant SSD consent was invalid on the basis that landowner’s consent of the Minister for Crown Lands had not been granted. Her Honour found that this was a jurisdictional error that was not merely technical, but was fundamental to the proper exercise of the consent authority’s functions. Pritchard J declined to exercise the Court’s discretion under s 25B of the Land and Environment Court Act 1979 to provide for the conditional validity of the consent. In relation to the materiality of the breach, the Court found that the making of the decision to grant consent to the development application without the consent of the Minister was material compliance could have resulted in a different decision.

The Declaration Ought to be Made

31. Applying the principles and authorities referred to above to the facts of this case:

1. there is a real and not hypothetical question as to whether owner’s consent was required for a validly issued CDC, and moreover, if it was, whether that consent had been obtained. In the result, notwithstanding the express statutory proscription against the making of an application for a CDC by “any other person” without the consent of the landowner, the application was made and the CDC was issued;

2. the Saders, as the adjoining landowners are directly affected by the boatshed works, have a real interest in the question of whether the CDC application was validly made, and if not, whether its issue was unauthorised under the statutory planning regime;

3. Elgammal is a proper contradictor to the proceedings notwithstanding that he consents to the declarations sought by the Saders. Until the hearing on 1 February 2024, the making of the declaration was resisted by him;

4. the making of the declaration will have the practical effect of confirming that landowner’s consent was required from the third respondent, that it was not obtained, and therefore, that the CDC application was not lawfully made and that the CDC was issued without any statutory authority to do so; and

5. the declaration will confirm that the CDC no longer confers any rights and that any works undertaken or proposed to be undertaken pursuant to it are unlawful. An injunction is warranted to ensure that the works cease.

Conclusion and Orders

32. For the reasons given above, the Court has determined to make the declaration and grant, subject to some amendment, the relief sought in the summons:

1. a declaration pursuant to s 4.31 of the Environmental Planning and Assessment Act 1979 that complying development certificate 8058994 issued by the second respondent on 5 September 2022, for works described as “maintenance and improvement works to boatshed” is invalid, is of no effect, and is set aside;

2. an order restraining the first respondent by himself, his servants, or his agents from acting upon, or carrying out, any works in purported reliance on the complying development certificate referred to in order (1), excluding any works that otherwise constitute exempt development; and

3. the exhibits are to be returned.

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Amendments

05 February 2024 - Amended "Class 1" to "Class 4" on coverpage of judgement.

10 April 2024 - Added (No 2) to the case name.

Decision last updated: 10 April 2024