The Owners Strata Plan 83556 trading as Aspect Apartments v Dehsabzi

Case •

[2020] NSWLEC 175

•

15 December 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: The Owners Strata Plan 83556 trading as Aspect Apartments v Dehsabzi [2020] NSWLEC 175
Hearing dates: 17-19 November 2020
Date of orders: 15 December 2020
Decision date: 15 December 2020
Jurisdiction:Class 4
Before: Preston CJ
Decision:

The Court:

(1) Declares that complying development certificate number 00064397 issued by Professional Certification Group on 22 April 2020 for tenancy fitout of pizza shop at Shop 1, 154-156 Sailors Bay Road, Northbridge NSW 2063 (the site) is invalid.

(2) Declares that Pamir Dehsabzi and Anita Dehsabzi have breached s 4.2 of the Environmental Planning and Assessment Act 1979 in carrying out the following works in basement B1 of the building on the site, being part of the common property in Strata Plan 83556, without first obtaining development consent:

(a) installation of a grease trap and arrester with associated piping;

(b) installation of utility services, including gas, electricity, water and waste water drainage with associated pipes, conduits and wires;

(c) installation of a compressor and associated pipes, wires, conduits and structural supports (the common property works).

(3) Orders Pamir Dehsabzi and Anita Dehsabzi to refrain from using Lot 12 in Strata Plan 83556 for the purpose of food and drink premises, including as a pizza shop, unless and until development consent is obtained to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop, and a building information certificate is obtained with respect to the works carried out in Lot 12 in reliance on the complying development certificate and the common property works.

(4) Orders Pamir Dehsabzi and Anita Dehsabzi to remove the works carried out in Lot 12 in reliance on the complying development certificate and the common property works and to reinstate Lot 12 and the common property to the condition or state that Lot 12 and the common property were in immediately before the carrying out of the works in Lot 12 and the common property works.

(5) Suspends order (4) for 12 months from the date of the order to allow Pamir Dehsabzi and Anita Dehsabzi to make:

(a) a development application seeking development consent to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop; and

(b) an application for a building information certificate with respect to the works carried out in Lot 12 in reliance upon the complying development certificate and the common property works.

(6) Grants all parties liberty to apply to vary orders (4) or (5), including to extend the period of suspension of order (4).

(7) Orders the respondents to pay the applicant’s costs of the proceedings.

Catchwords:

JUDICIAL REVIEW – complying development certificate (CDC) – tenancy fitout as a pizza shop – shop in strata-titled building – works required in common property to make pizza shop functional – land on which development to be carried out – whether lot only or also common property – whether owner’s consent of Owners Corporation needed for application – whether sham application if no works proposed in common property – type of complying development – internal building alteration and/or change of use of premises – construction of application as to development proposed – if change of use, whether complied with criteria for specified complying development and development standards – need for notice from water utility before CDC issued – notice not obtained – need for food and drink premises to comply with AS 4674-200 – works on lot will not comply – if internal building alteration, whether complied with criteria for specified complying development – need for building to have consent for use – CDC will give consent for use – need for inspection of site of development before CDC issued – inspection and record of inspection non-compliant with regulatory requirements – works on common property without consent – relief – declarations and injunctions granted

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 1.4, 4.2, 4.26, 4.27, 4.28

Environmental Planning and Assessment Regulation 2000 cll 129B, 129C

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.17, 5.1, 5.2, 5.3, 5.4

Land and Environment Court Act 1979 s 25B

Willoughby Local Environmental Plan 2012

Cases Cited:

ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67

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

Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61

Cooper and Wilton v Maitland City Council (1992) 130 LGERA 217

Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300

F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306

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

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

King v Great Lakes Shire Council (1986) 58 LGRA 366

Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216

North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470

People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485

Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50

Woollahra Municipal Council v Carr (1982) 47 LGRA 105

Category:Principal judgment
Parties: Strata Plan 83556 trading as Aspect Apartments (Applicant)
Pamir Dehsabzi (First Respondent)
Anita Dehsabzi (Second Respondent)
Ben Smith (Third Respondent)
Representation:

Counsel:
Mr M Astill (Applicant)
Mr R White (First and Second Respondent)
Mr R de Meyrick (Third Respondent)

Solicitors:
Kanjian & Company (Applicant)
Garry Pickering Solicitor (First and Second Respondent)
Lovegrove & Cotton Pty Ltd (Third Respondent)
File Number(s): 2020/213228
Publication restriction: Nil

Judgment

The pursuit of a pizza shop

  1. Mr and Mrs Dehsabzi own a ground floor shop, Lot 12, in a strata titled, mixed use building at 154-156 Sailors Bay Road, Northbridge. On the ground floor are four commercial lots. On the three higher floors are residential apartments. The Dehsabzis want to use Lot 12 as a pizza shop. To do so, they need to change the use from the currently approved use of an office for a real estate agent to a use for a food and drink premises and carry out building alterations to fitout the lot as a pizza shop. The fitout involves carrying out building work not only within Lot 12 but also within the common property, including in one of the basements, basement B1, such as connecting utility services to the lot.

  2. The Owners Corporation of the strata scheme for the building is opposed to the Dehsabzis’ proposed use of Lot 12 as a pizza shop. The Owners Corporation has refused to give consent as owner to the carrying out of any building work on the common property. There has been litigation between the Owners Corporation and the Dehsabzis in the NSW Civil and Administrative Appeals Tribunal (NCAT) and the Supreme Court.

  3. Feeling stymied by the Owners Corporations’ opposition to the pizza shop, the Dehsabzis have resorted to self help in two ways. First, they sought and obtained a complying development certificate (CDC) from a private certifier, Mr Ben Smith, who works for the Professional Certification Group. There is an issue as to the nature and scope of the development that the CDC purports to authorise, but at the least it authorises internal building alterations to Lot 12 in order to fit it out as a pizza shop. The Dehsabzis have carried out these works in Lot 12 in reliance on the CDC. Second, they undertook building works in basement B1, which is part of the common property, to install a grease trap and arrester with associated piping; utility services, including gas, electricity, water and waste water drainage; and a compressor and associated pipes, wires, conduits and structural supports for the coldroom installed in Lot 12.

The legal challenge to the pizza shop

  1. The Owners Corporation has brought proceedings in the Court challenging the validity of the CDC and claiming the building works carried out in the common property are in breach of the Environmental Planning and Assessment Act 1979 (EPA Act). The challenge to the validity of the CDC involved numerous grounds, some expressed in the alternative:

  1. Ground 1 contends that the application for the CDC required the consent of the Owners Corporation as the owner of the common property because the development involved undertaking building works in the common property (the owner’s consent ground);

  2. Ground 2 is in the alternative to ground 1. If the application for the CDC did not include the building works in the common property, ground 2 contends that the application for the CDC is a sham, in that it does not include all work necessary to facilitate the use of Lot 12 as a pizza shop, or a contrivance in that it purports to divide into parts building works of an intrinsically indivisible nature, such as gas pipes, water pipes and sewer connections, along the title boundary between Lot 12 and the common property (the sham application ground);

  3. Ground 2A contends that the development that the CDC purports to certify is not complying development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying Development Codes SEPP) in three ways:

  1. if the CDC purported to authorise the change of use of Lot 12 from the current use of office premises to the new use of food and drink premises, in order for the development to be complying development:

  1. a notice or other form of written advice that specifies the works or other requirements to be completed as part of the development needed to be obtained from the relevant water utility, Sydney Water, before the issue of the CDC, under cl 5.3(2) of the Exempt and Complying Development Codes SEPP (the absence of notice ground); and

  2. the development needed to comply with the development standards for that development in cl 5.4(1) of the Exempt and Complying Development Codes SEPP, but the development did not comply with cl 5.4(1)(f) in that the facilities approved by the CDC in Lot 12 would not cause Lot 12 to comply with Australian Standard AS4674-2004 Construction and fitout of food premises due to the facilities not being connected to the applicable utility services such as water and sewer (the noncompliance with the Australian Standard ground); or

  1. if the CDC only approved internal building alterations and not a change of use, in order for the development to be the specified complying development in cl 5.1 of the Exempt and Complying Development Codes SEPP, it needed to satisfy the jurisdictional factual prerequisite in cl 5.1, but the development did not do so as it did not involve an internal alteration to a building that is used, or is the subject of a development consent for use, for the purpose of a pizza shop or other food and drink premises (the not the specified complying development ground);

  1. Ground 2B concerns the requirement in cl 129B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) that a certifier must not issue a complying development certificate unless the certifier has carried out an inspection of the site of the development. The ground contends that Mr Smith issued the CDC without himself carrying out an inspection of the development and instead relied on an inspection by another certifier, Mr O’Neil, working in the same organisation as Mr Smith, but the record of site inspection completed by Mr O’Neil did not comply with the requirements of cl 129C of the EPA Regulation, so that Mr Smith did not have information on and could not consider the matters in cl 129C. As a consequence, the CDC issued by Mr Smith is invalid (the inadequate record of site inspection ground);

  2. Ground 4 is in the alternative to the preceding grounds and only arises if the CDC is held to be valid. The ground contends that, by reason of the decision of NCAT in proceedings between the Dehsabzis and Owners Corporation, the Dehsabzis are estopped from:

  1. seeking consent under the EPA Act for the use of the pizza shop and works necessary to facilitate it by making separately an application for a complying development certificate for development in Lot 12 and a development application for works in the common property; and

  2. relying on the CDC to carry out the works approved under it (the estoppel ground).

  1. The claim of breach of the EPA Act concerns the building works carried out in the common property. The building works include the installation of the grease trap and arrester, utility services and compressor for the coldroom. The Dehsabzis contended that these building works are an indivisible part of the development carried out in Lot 12 and are for the same purpose of food and drink premises (here, a pizza shop). Development consent is required to carry out development for the purpose of food and drink premises on land in the relevant B2 Local Centre zone under Willoughby Local Environmental Plan 2012 (WLEP). No development consent or complying development certificate has been obtained for the works in the common property. The works in the common property have been carried out in breach of s 4.2 of the EPA Act (development without consent ground).

  2. I find that the CDC is invalid, for the reasons I give in addressing the absence of notice ground, the noncompliance with the Australian Standard ground and the inadequate record of site inspection ground. I also find that the building works in the common property were carried out in breach of s 4.2 of the EPA Act. Declarations of invalidity of the CDC and breach of the EPA Act should be made.

  3. A prohibitory injunction should be issued restraining use of Lot 12 as a pizza shop unless and until all necessary development consents and building information certificates have been obtained authorising the use. Although a mandatory injunction ordering the removal of the building works in Lot 12 and in the common property should be made, it should be suspended for 12 months to allow time for the Dehsabzis to attempt to regularise the use of Lot 12 as a pizza shop.

The scheme for complying development

  1. The EPA Act classifies development in three categories: development that does not need consent, development that needs consent, and development that is prohibited: see ss 4.1-4.3. Environmental planning instruments classify development as being within one or other of these categories depending on the type of development and the land on which the development is to be carried out. The environmental planning instrument provides that specified development may be carried out on specified land without the need for development consent or only with development consent or that specified development is prohibited and may not be carried out on specified land.

  2. A local environmental plan, a form of environmental planning instrument, does this by allocating land to particular zones and specifying in the Land Use Table for each zone, the types of development that can be carried out without consent or only with consent or that is prohibited on land in the zone. WLEP, for example, zones the land on which the building in this case is erected as being within Zone B2 Local Centre and the Land Use Table for this zone specifies that development for the purposes of commercial premises is permitted with development consent. Commercial premises include retail premises, which in turn include food and drink premises: see Dictionary to WLEP.

  3. For development that an environmental planning instrument provides may not be carried out except with development consent, development consent may be obtained in two ways:

“(a) by the making of a determination by a consent authority to grant consent, or

(b) in the case of complying development, by the issue of a complying development certificate”: s 4.2(2) of the EPA Act.

  1. “Complying development” is defined in s 1.4(1) of the EPA Act as “development for which provision is made as referred to in section 4.2(5).” Section 4.2(5) provides:

“An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.”

  1. The main environmental planning instrument providing for complying development is the Exempt and Complying Development Codes SEPP. This Policy specifies the requirements that need to be satisfied in order for development to be complying development. Clause 1.17(1) provides that:

“Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy.”

  1. This provision specifies two sources of requirements in order for development to be complying development. The first is a complying development code and the second is Division 2 of Part 1 of the Policy.

  2. As to the first source of requirements, a “complying development code” is defined in cl 1.5(1) to mean any of the codes specified in the definition, including the Commercial and Industrial Alterations Code.

  3. The Commercial and Industrial Alterations Code is the relevant code in this case. Division 1 of Part 5 specifies the various types of development and the development standards for those developments that are complying developments under the code. Two types of development are relevant in this case, building alterations (internal) in subdivision 1 and change of use of premises in subdivision 2. Each subdivision specifies the development that is complying development (in cl 5.1 and cl 5.3 respectively) and the development standards specified for that development (in cl 5.2 and cl 5.4 respectively).

  4. For subdivision 1, the complying development specified by cl 5.1 is:

“An internal alteration to a building that is used, or is the subject of a development consent for use, for any purpose (other than for the purpose of residential accommodation, artisan food and drink industry, heavy industry, local distribution premises, sex services premises or restricted premises) is development specified for this code.”

  1. The standards specified for that development in cl 5.2 include the specific standards in cl 5.2(1) and the requirements of the Building Code of Australia specified in cl 5.2(2). Of relevance to this case, one of the specific standards in cl 5.2(1) is:

“(f)  if the alteration involves food and drink premises, the alteration must be carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises”.

  1. For subdivision 2, the complying development specified by cl 5.3(1) is:

“A change of use from a current use specified in a category in Column 1 of the Table to this clause to a use specified in the corresponding category in Column 2 of that Table is development specified for this code.”

  1. Of relevance to this case, in Category 2, Column 1 of the Table specifies as a current use “office premises” and Column 2 of the Table specifies as a new use “food and drink premises”. Accordingly, a change of use from office premises to food and drink premises is development specified for the code.

  2. Clause 5.3(1) is subject to subclause (2). Although a change of use from a current use to a new use might be specified to be complying development under subclause (1), in order to be complying development, there needs also to be compliance with subcl (2). Subclause (2) provides:

“If development specified in subclause (1) is to be provided with water supply or sewerage services (or both) by a water utility, to be complying development the applicant must obtain a notice or other form of written advice that specifies the works or other requirements to be completed as part of the development from the relevant water utility or an entity authorised to provide such a notice or advice by the utility.”

  1. The second source of requirements in order for development to be complying development is in Division 2 of Part 1 of the Policy. These requirements include the particular negative requirements in cl 1.17A, such as that the development not be on certain types of land, and the general requirements in cl 1.18. Clause 1.18(1) provides, so far as is relevant to the present case, that:

“(1)  To be complying development for the purposes of this Policy, the development must:

(a)  not be exempt development under this Policy, and

(b)  be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and

(c) meet the relevant provisions of the Building Code of Australia,…”.

  1. In this case, the development is a use for the purpose of food and drink premises, which use is permissible with consent on land in the relevant Zone B2 Local Centre under WLEP.

  2. If development is complying development, a person may carry out the complying development on land only if:

“(a) the person has been issued with a complying development certificate for the development, and

(b) the development is carried out in accordance with:

(i) the complying development certificate, and

(ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.”: s 4.26(1) of the EPA Act.

  1. As this provision states, complying development must be carried out not only in accordance with the complying development certificate but also with the provisions of an environmental planning instrument, such as the Exempt and Complying Development Codes SEPP, a development control plan or the EPA Regulation that applied to the carrying out of the complying development at the time the complying development certificate was issued. These provisions include all development standards applicable to the complying development.

  2. Most of the applicable development standards are specified in the environmental planning instrument that specifies development to be complying development, such as the Exempt and Complying Development Codes SEPP, but some are also specified in the EPA Regulation. For example, cl 131 of the EPA Regulation specifies development standards for a change of building use of an existing building. Clause 131(2) of the EPA Regulation provides:

“The development standards applicable to such development include the following requirements:

(a1) that, whether or not any building work is carried out, the building will contain measures that are adequate, in the event of fire, to facilitate the safe egress of persons from the part of the building affected by the change of building use,

(a) that, on completion of any building work, the fire protection and structural capacity of the building will be appropriate to the proposed use,

(b) that, whether or not any building work is carried out, the building will comply with such of the Category 1 fire safety provisions as are applicable to the proposed use,

assuming that any building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.”

  1. The terms of a complying development certificate are described in s 4.27(1):

“A complying development certificate is a certificate:

(a)  that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and

(b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.”

  1. A complying development certificate for development involving the erection of a building can authorise the subsequent use of that building. Section 4.27(3) of the EPA Act provides:

“A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9.”

  1. Section 6.9 of the EPA Act requires an occupation certificate for either the commencement of the occupation or use of the whole or any part of a new building or the commencement of the change of building use for the whole or any part of an existing building.

  2. The process for obtaining a complying development certificate involves a person making an application to a council or accredited certifier for a complying development certificate: s 4.28(1) of the EPA Act. 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.”: s 4.26(2) of the EPA Act.

  1. The EPA Regulation prescribes the procedures for making an application for a complying development certificate: see s 4.26(3) of the EPA Act and Division 1 of Part 7 of the EPA Regulation. Amongst other requirements, an application for a complying development certificate must contain the information and be accompanied by the documents specified in Part 2 of Schedule 1 to the EPA Regulation: cl 126(1)(a) of the EPA Regulation.

  2. Clause 3, in Part 2 of Schedule 1, used to require an application for a complying development certificate to contain the information specified in the clause. The clause has since been repealed.

  3. Clause 4 requires an application for a complying development certificate to be accompanied by the documents specified in the clause, including:

“(a) a site plan of the land,

(b) a sketch of the development,

(c) if the development involves a change of use of a building (other than a dwelling-house or a building or structure that is ancillary to a dwelling-house and other than a temporary structure)—

(i) a list of the Category 1 fire safety provisions that currently apply to the existing building,

(ii) a list of the Category 1 fire safety provisions that are to apply to the building following its change of use,

(d) if the development involves building work (including work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house)—

(i) a detailed description of the development, and

(ii) appropriate building work plans and specifications,

(e) if the development involves building work (other than work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house)—

(i) a list of any existing fire safety measures provided in relation to the land or any existing building on the land, and

(ii) a list of the proposed fire safety measures to be provided in relation to the land and any building on the land as a consequence of the building work,”.

  1. The site plan referred to in cl 4(1)(a) must indicate the matters specified in cl 4(2). The sketch plan referred to in cl 4(1)(b) must indicate the matters in cl 4(3). The detailed description of the development referred to in cl 4(1)(d)(i) must indicate the matters in cl 4(4). The appropriate building work plans and specifications referred to in cl 4(1)(d)(ii) must include the plans and specifications specified in cl 4(5), including:

“(a)  detailed plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show:

(i)  a plan of each floor section, and

(ii)  a plan of each elevation of the building, and

(iii)  the levels of the lowest floor and of any yard or unbuilt on area belonging to that floor and the levels of the adjacent ground, and

(iv)  the height, design, construction and provision for fire safety and fire resistance (if any),

(b)  specifications for the development:

(i)  that describe the construction and materials of which the building is to be built and the method of drainage, sewerage and water supply, and

(ii)  that state whether the materials to be used are new or second-hand and (in the case of second-hand materials) give particulars of the materials to be used”.

  1. The council or accredited certifier to whom application for a complying development certificate is made must consider and determine the application. Consideration of the application involves determining whether or not the development is complying development and complies with the relevant development standards. Section 4.28(3) of the EPA Act provides:

“The council or registered certifier must consider the application and determine:

(a) whether or not the proposed development is complying development, and

(b) whether or not the proposed development complies with the relevant development standards, and

(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.”

  1. As earlier noted, the development standards include those specified in an environmental planning instrument, such as the Exempt and Complying Development Codes SEPP, and in the EPA Regulation, such as in cl 131.

  2. Determination of the application involves issuing or refusing to issue the complying development certificate. Section 4.28(6) of the EPA Act provides:

“The council or a registered certifier may determine an application—

(a)  by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or

(b)  by refusing to issue a complying development certificate.”

  1. The council or accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the EPA Regulation relating to the issue of a complying development certificate: s 4.28(7) of the EPA Act.

  2. Although a complying development certificate can be issued subject to conditions, the EPA Act, the EPA Regulation and an environmental planning instrument, such as the Exempt and Complying Development Codes SEPP, regulate the conditions that must or can be imposed. Section 4.28(6) of the EPA Act itself empowers the council or accredited certifier to issue a complying development certificate subject to conditions only “to the extent required by the regulations, an environmental planning instrument or a development control plan”. Section 4.28(9) requires the council or accredited certifier to impose a condition that is required to be imposed by Division 7.1 in relation to the complying development. Division 7.1 of the EPA Act concerns development contributions. Section 4.28(9A) of the EPA Act permits the imposition of a deferred commencement condition.

  3. Division 2A of Part 7 of the EPA Regulation specifies the conditions that must be imposed on a complying development certificate. Clause 136A(1)(a) provides for one of these conditions:

“A complying development certificate for development that involves any building work must be issued subject to the following conditions:

(a) that the work must be carried out in accordance with the requirements of the Building Code of Australia.”

  1. Clause 1.18(3) of the Exempt and Complying Development Codes SEPP requires a complying development certificate for complying development under the Policy to be subject to the conditions specified in the Policy in respect of that development. For complying development specified under the Commercial and Industrial Alterations Code, the complying development certificate must be issued subject to the conditions specified in Schedule 8: cl 5.25. Schedule 8 specifies the conditions applying to complying development certificates under three codes, one of which is the Commercial and Industrial Alterations Code. The conditions fall into four categories: Part 1 – Conditions applying before works commence; Part 2 – Conditions applying during the works; Part 3 – Conditions applying before the issue of an occupation certificate; and Part 4 – Operational Requirements.

  2. The EPA Act, EPA Regulation and Exempt and Complying Development Codes SEPP impose restrictions on the issue of complying development certificates. At the outset, there is the jurisdictional criterion in the EPA Act that a complying development certificate can only be issued for development that is complying development: see definition of “complying development”, s 4.2(5), s 4.26, s 4.27 and s 4.28 of the EPA Act. This is a condition of engagement of the power of the certifying authority to issue a complying development certificate (or a jurisdictional fact). In order to be complying development, the development must not only meet the description of the specified complying development but also comply with the development standards for that development. In the case of development that is specified to be complying development under the Exempt and Complying Development Codes SEPP, a development will only be complying development if it is development specified as complying development in a complying development code, such as the Commercial and Industrial Alterations Code; meets the standards specified for that development; and complies with the requirements of Division 2 of Part 2 of the Exempt and Complying Development Codes SEPP: cl 1.17(1) and see also cl 1.18 and cl 1.19.

  3. One of the restrictions on the issue of a complying development certificate imposed by the EPA Regulation concerns inspection of the site of the complying development. Clause 129B(1) of the EPA Regulation restricts the issue of a complying development certificate unless an inspection of the site of the development has been carried out:

“A certifier must not issue a complying development certificate for development unless a council or a registered certifier has carried out an inspection of the site of the development.”

  1. This too sets a condition of engagement of the power of a certifier to issue a complying development certificate.

  2. If the development affects an existing building that is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, an inspection of the site of the development must include an inspection of:

“(a) the parts of the building affected by the development, and

(b) the egress routes from those parts of the building.”: cl 129B(1A) of the EPA Regulation.

  1. The development in this case affects a building that is a class 6 building. A class 6 building is a shop or other building for the sale of goods by retail or the supply of services direct to the public.

  2. Clause 129C of the EPA Regulation regulates the carrying out of the site inspection and the making of a record of the site inspection:

“(1)  A council or registered certifier must make a record of each inspection carried out by the council or registered certifier for the purposes of clause 129B.

(2)  Any council or registered certifier who is required to make such a record but is not the certifier in relation to the issue of the complying development certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifier, by means of the NSW planning portal.

(3)  The record must include the following:

(a)  the date of the application for the complying development certificate,

(b)  the address of the property at which the inspection was carried out,

(c)  the type of inspection,

(d)  the date on which the inspection was carried out,

(e)  if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,

(f)  if the inspection was carried out by a registered certifier, the identity of the registered certifier, including, in a case where the registered certifier is a registered body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,

(g)  if the inspection was carried out by a registered certifier, the registration number of the registered certifier, including, in a case where the registered certifier is a registered body corporate, the registration number of the individual who carried out the inspection on behalf of the body corporate,

(h)  details of the current fire safety measures in the existing buildings on the site that will be affected by the proposed development concerned,

(i)  details as to whether or not the plans and specifications accompanying the application for the complying development certificate adequately and accurately depict the existing site conditions,

(j)  details of any features of the site, or of any building on the site, that would result in the proposed development the subject of the application for the complying development certificate—

(i)  not being complying development, or

(ii) not complying with the Building Code of Australia.”

  1. Another restriction on the issue of a complying development certificate concerns compliance with the relevant requirements of the Building Code of Australia. Clause 130(1) of the EPA Regulation provides:

“A certifier must not issue a complying development certificate for building work unless the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the certificate was made).”

  1. Other provisions of cl 130 restrict the circumstances in which a complying development certificate can be issued for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement or for internal alterations to or a change of use of an existing building that is subject to an alternative solution relating to a fire safety requirement under the Building Code of Australia: cl 130(2A) and (2E) of the EPA Regulation.

  2. The council or accredited certifier must determine the application for a complying development certificate within the time period prescribed by the EPA Regulation, or such longer period as may be agreed to by the applicant, after lodgment of the application: s 4.28(8) of the EPA Act. Clause 130AA of the EPA Regulation prescribes a period of 20 days for development that requires a notice to be given under cl 130AB or 10 days in any other case. The latter period is applicable in this case.

  3. The complying development certificate must be issued in a particular form. Clause 134 of the EPA Regulation specifies the matters that a complying development certificate must contain. Clause 134(1) specifies the matters that all complying development certificates must contain:

“(1)  A complying development certificate must contain the following:

(a)  the identity of the certifier that issued it, including, in a case where the certifier is a registered body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,

(b)  if the certifier is a registered certifier, the registration number of the certifier, including, in a case where the certifier is a registered body corporate, the registration number of the individual who issued the certificate on behalf of the body corporate,

(b1)  if the certifier is a registered certifier who is an individual, the signature of the registered certifier,

(b2)  if an individual issued the certificate on behalf of the certifier, the signature of the individual who issued the certificate,

(c)  the date of the certificate,

(d)  the date on which the certificate lapses,

(e)  a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with such other requirements prescribed by this regulation concerning the issue of the certificate,

(f)  if the development involves the erection of a building, the class of the building under the Building Code of Australia,

(f1)  the following details of a performance solution report about the building work that is required to be obtained or provided under clause 130(2A):

(i)  the title of the report,

(ii)  the date on which the report was made,

(iii)  the reference number and version number of the report,

(iv)  the name of the accredited practitioner (fire safety) who prepared the report or on whose behalf the report was prepared,

(v)  if the accredited practitioner (fire safety) who prepared the report or on whose behalf the report was prepared is a registered certifier—the registration number of that practitioner,

(f2)  if any of the building work is exempt from compliance with the Building Code of Australia because of clause 164B—the details of that exemption,

(g)  any conditions imposed on the development under this Regulation.”

  1. Clause 134(1A) of the EPA Regulation specifies the matters that a complying development certificate for development that is complying development under the Exempt and Complying Development Codes SEPP must contain:

“A complying development certificate for development that is complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must also specify:

(a)  the land use zone within which the land is situated, and

(b)  if the land is not zoned under an environmental planning instrument made as provided by section 3.20(2) of the Act, the equivalent named land use zone applicable to the land for the purposes of that Policy, and

(c)  if the development is carried out under a complying development code under that Policy, the name of the code.”

  1. The complying development certificate for any development must include a copy of any relevant plans endorsed by the certifying authority, except for certain types of buildings or a temporary structure: s 134(2A) and (3) of the EPA Regulations.

  2. On the determination of an application for the issue of a complying development certificate, the council or an accredited certifier is to notify the applicant of the determination, the accredited certifier is to notify the council of the determination, and the council or accredited certifier is to notify any other person if required by the EPA Regulation to do so: s 4.28(11) of the EPA Act.

The application for an issue of the CDC

  1. The Dehsabzis applied for a complying development certificate for the development on a form provided by the Professional Certification Group for whom Mr Smith worked. The application form stated it was for “new Class 1 and 10 buildings/structures only”, but in the description of development there was a field for “building classification”. The Dehsabzis specified that the building was a Class 6 building.

  2. There is some confusion as to the date on which the application was made. The date of 18 September 2019 was inserted in the field in the form for “Date of Receipt of Application”. The plans that were approved in issuing the CDC, which presumably at some point in time accompanied the application for the CDC, are dated 16 April 2020. A stamp on the top of the application form identifies the date of 4 May 2020 as the date on which receipt No 2138292 was issued for a payment of $36. This date of 4 May 2020 might be the date on which Willoughby City Council (the Council) received and recorded the CDC in its record system. There is other evidence suggesting that the CDC was received and recorded by the Council on 4 May 2020. The evidence does not establish, however, whether the stamp on the top of the application form was affixed by the Council or whether the fee of $36 was paid to the Council. Lower on the application form another stamped date of “5 May ’20 8:31” appears and there are initials (which appear to be “BS”, presumably Ben Smith who was the certifying authority who determined the application for the CDC) and a date of “5/5/20”. These dates of 4 and 5 May 2020 post-date the date of issue of the CDC on 22 April 2020.

  3. In the “description of development” section on the application form, the proposed building work was stated to be “tenancy fitout of pizza shop”, the site address was stated to be “154-158 Sailors Bay Road, Northbridge, NSW 2063” and the lot and plan were stated to be “Lot CP SP 83556.” In the “environmental planning instrument” section, the Dehsabzis ticked as the relevant environmental planning instrument “SEPP (Exempt and Complying Codes) 2008”.

  4. In the section identifying “documents accompanying application”, the Dehsabzis nominated “Site Plan, Elevations and Sections” and “Long Service Levy Payment”. These plans are not identified in the application form. The only plans that were tendered were the plans that were approved in issuing the earlier CDC. As earlier noted, these plans are dated 16 April 2020. These approved plans are by Jason Wright Design, Client: Dominos Pizza, Address: 154-156 Sailor’s Bay Road, Northbridge, NSW, Drawing Nos A100 Revision D to A116 Revision D dated 16.4.2020. In drawing number order these plans are as follows: A100 cover; A101 existing condition plan; A102 site plan; A103 floor plan; A104 set out plan; A105 floor finishing plan; A106 reflected ceiling plan; A107 electrical plan; A108 elevations; A109 3D plan perspective; A110 front counter detail; A111 sauce bench detail; A112 sections and details; A113 sections and details; A114 coldroom details; A115 coldroom details; and A116 coldroom door detail.

  5. The plans only show building works proposed to be carried out on Lot 12 and not on the common property. The floor plan A103, for example, shows the furniture, fixtures and equipment to be installed in Lot 12, which are listed in a schedule on the plan. None of the utility services or equipment that were later installed in basement B1 are listed as furniture, fixtures or equipment in the schedule on the plan. The elevations, 3D plan perspective and sections also only depict the building works on Lot 12.

  6. The plans depicting the coldroom only show the coldroom in Lot 12 and not the compressor for the coldroom that was later installed in basement B1. A note on the coldroom details plan A114 refers to the need to “install refrigeration equipment on a suitable metal frame located externally at the rear of the tenancy, roof of the tenancy or in the ceiling as a last resort only”. The plans do not show the refrigeration equipment installed in any of these locations.

  7. On 22 April 2020, Mr Smith’s employer, Professional Certification Group, issued the CDC for the development. Professional Certificate Group was identified as the certifying authority and Mr Smith was identified as the certifier.

  8. In the “description of development” section, the development was described as “tenancy fitout of pizza shop”; the site address as “Shop 1, 154-156 Sailors Bay Road, Northbridge NSW 2063”; and the site description (lot/plan) as “Lot CP SP 83556.”

  9. In the “certification” section, Mr Smith stated:

“I certify that the proposed development is complying development, and if carried out as specified in this certificate will comply with all development standards applicable to the development and with the requirements prescribed by the Environmental Planning and Assessment Regulation 2000 concerning the issue of this certificate.”

  1. The text continued to say “the code applicable to this CDC is…” and then listed all of the codes in the Exempt and Complying Development Codes SEPP without identifying the Commercial and Industrial Alterations Code as being the applicable code; the State Environmental Planning Policy (Affordable Rental Housing) 2009; “Environmental Planning Instrument” without identifying which instrument was applicable; and “Development Control Plan” without identifying which development control plan was applicable.

  2. The CDC identified, next to a heading “Architectural”, “Stamped Approved Plans – Jason Wright Design Job No – Dominos Northbridge – Drawing sheets 1 – 17 Rev D Dated 16/04/2020.” These are the plans by Jason Wright Design dated 16 April 2020 drawing numbers A100 Rev D to A116 Rev D earlier referred to as presumably accompanying the application for the CDC. Each of the plans was endorsed by Mr Smith with a certification that:

“I hereby certify that the work completed in accordance with these plans and specifications will comply with the requirements of the Environmental Planning & Assessment Act 1979 s 85(3) subject to the attached schedule of conditions listed with the Complying Development Certificate”.

  1. The CDC was issued subject to conditions. A note states that they are “Conditions of Complying Development Certificate as required by the Environmental Planning & Assessment Regulation (EP&A Regulation) and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008”. The conditions are unnumbered and many are unrelated to the development the subject of the CDC. They seem to have been imposed as a formality, presumably in the belief that the EPA Regulation and Exempt and Complying Development Codes SEPP required the imposition of each and every one of the conditions regardless of their relevance to the development the subject of the CDC.

  2. One of the conditions concerns utility services:

“Utility services – (1) if the work requires alteration to, or the relocation of, utility services on, or adjacent to, the lot on which the work is carried out, the work is not complete until all such works are carried out. (2) If the work will be the subject of a notice of requirements, for water supply or sewerage services (or both) by a water utility or an entity authorised by the utility, the work must be satisfactorily completed before the occupation certificate is issued. (3) If the work will be the subject of a compliance certificate under section 73 of the Sydney Water Act 1994, the work must be satisfactorily completed before the occupation certificate is issued.”

  1. Also on 22 April 2020, Professional Certificate Group notified Willoughby City Council of its appointment as the certifying authority for the development of “tenancy fitout of pizza shop” at 154-156 Sailors Bay Road, Northbridge, with a commencement date of 25 April 2020. The notification of appointment recorded that Professional Certification Group had issued a CDC on 22 April 2020.

The owner’s consent ground

  1. The Owners Corporation contended that the development the subject of the application for a complying development certificate, and the CDC itself, includes building work on common property, including basement B1, and hence the consent of the owner of the common property, the Owners Corporation, was necessary. Section 4.26(2)(b) of the EPA Act permits an application for a complying development certificate to be made by any person other than the owner of the land on which the development is proposed to be carried out but only with the consent of the owner of that land. In this case, the consent of the Owners Corporation was not obtained for the carrying out of development on the common property.

  2. The Owners Corporation relied on two indications in the application and plans in support of its contention that development was proposed to be carried out on the common property. First, in the application form, the “lot and plan” were stated to be “Lot CP SP 83556”. The reference to “CP” is a reference to the “common property” in the specified strata plan “SP 83556”. Second, a note on the coldroom details plan A114 refers to the installation of refrigeration equipment outside of Lot 12, which would necessarily be in the common property. The note states: “Install refrigeration equipment on a suitable metal frame located externally, at the rear of the tenancy, roof of the tenancy or in the ceiling as a last resort only.”

  3. The Dehsabzis contested that the application for the CDC proposed carrying out any of the development on the common property, but rather limited the carrying out of the development to Lot 12 only. The Dehsabzis submitted that the owner of a lot in a registered strata plan who applies for a development consent or a complying development certificate to carry out development wholly within the boundary of the lot is not obliged to obtain the consent of the Owners Corporation of the strata scheme to the lodging of that application: Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5; (2003) 1 STR (NSW) 154, at [163].

  4. Mr Smith agreed with the Dehsabzis, submitting that both the application for the CDC and the CDC that was issued only concerned development on Lot 12 and not on the common property. Mr Smith had made that plain to the Dehsabzis after he had issued the CDC, saying “we cannot approve any construction outside of your tenancy, eg common property”.

  5. I find that “the land on which the development is proposed to be carried out” is limited to Lot 12 and does not extend to the common property. First, the proposed development is described as a “tenancy fitout of a pizza shop” this refers to the tenancy of Lot 12, as only that lot was proposed to be fitted out as a pizza shop. No fitout as a pizza shop was proposed for the basement or other common property in the building.

  6. Secondly, the plans and specifications only show a fitout of Lot 12. All of the furniture, fixtures and equipment specified in the plans are shown to be installed in Lot 12 only. There is no plan specifying any fitout of any other part of the building, including basement B1 or other common property.

  7. Thirdly, the description of the lot and plan in the application form is equivocal. The application did state the street address of the building (in this case 154-156 Sailors Bay Road, Northbridge) and the formal particulars of title of the building (in this case strata plan “SP 83556”). What the application form did not do was to identify the particular lot in that strata plan in which the development described as “tenancy fitout of pizza shop” was proposed to be carried out. The reference to the strata plan SP 38556 was preceded by first “Lot” and secondly “CP”. It is possible that the first reference to “Lot” might identify that the proposed development would be carried out in a lot, but the precise lot is not identified here. Equally, it is possible that the second reference to “CP” might identify that the proposed development might be carried out on common property. But these references to “Lot” and “CP” need to be read in the context of the description of the development, “tenancy fitout of pizza shop”, which refers to the lot and not to the common property, and the plans accompanying the application, which identify only the lot and not the common property as the land on which the development is proposed to be carried out.

  8. That the land on which the development is proposed to be carried out was limited to Lot 12 that was proposed to be fitted out as a pizza shop is corroborated by the determination of the application by the issue of the CDC. The CDC identified the site address at which the development of “tenancy fitout of pizza shop” was to be carried out as “Shop 1, 154-156 Sailors Bay Road, Northbridge”. This limits the land on which the development can be carried out to “Shop 1”, which is Lot 12.

  9. Fourthly, the note on the coldroom details plan is also equivocal. The note does not approve the installation of unspecified refrigeration equipment at any specified location in the building. The note merely provides hortatory guidance for selecting where and how any refrigeration equipment can be safely installed. It certainly does not approve the installation of unspecified refrigeration equipment in common property. This conclusion is corroborated by the absence of reference to the refrigeration equipment in the schedule of furniture, fittings and equipment on the floor plan A103. Every other piece of furniture, fixture and equipment approved for the tenancy fitout of pizza shop is listed in the schedule. The absence of reference to the refrigeration equipment in the note to the coldroom details plan supports this conclusion that such equipment was not approved.

  10. For these reasons, the application for the CDC did not propose to carry out development on the common property. The consent of the owner of the common property, the Owners Corporation, was therefore not required to be obtained for the application. I reject the owner’s consent ground.

The sham application ground

  1. The Owners Corporation contended, in the alternative to the previous ground, that if the application for the CDC did not include the carrying out of building works in the common property, the application was a sham or a contrivance. The Owners Corporation contended that the proposed fitout of Lot 12 as a pizza shop necessarily required the installation of the grease trap and arrester, utility services, such as gas, electricity, water and waste water drainage, and the compressor for the coldroom. The pizza shop cannot function as a pizza shop without these facilities and utility services being installed.

  2. The Owners Corporation contended that application needed to be made not only for the fitout of Lot 12 as a pizza shop but also for installation of these needed facilities and utility services in the common property. The Owners Corporation submitted that application needed to be made for the whole of the development, and not only for the part of the development in Lot 12, for two reasons.

  3. First, it was not permissible to divide development of an intrinsically indivisible nature into parts and apply for a complying development certificate for only a part of the development: Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 500, 502, 510, 514.

  4. Secondly, characterisation of the purpose of the development can only be done by reference to the whole development. It is not permissible to single out for the purpose of characterisation but one part of the whole development: People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 at [139]-[143].

  5. The Dehsabzis contested that the application for the CDC was a sham or a contrivance. A sham is a disguise concealing reality. In Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454, Lockhart J found:

“A ‘sham’ is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.” And see at 468 per Beaumont J.

  1. Hence, in order for the application for the CDC for the development in Lot 12 to be a sham, it needed to be an application that was intended to be mistaken for something else or was not really the application it purported to be.

  2. In this case, the Dehsabzis submitted, the application sought a complying development certificate for the development described in the application and the plans, being a tenancy fitout of a pizza shop, which development was proposed to be carried out only on Lot 12. Even if other building works needed to be carried out on other land, the common property, in order to enable the development of the pizza shop on Lot 12 to function, this did not cause the application that was made for a complying development certificate for the development on Lot 12 to be a sham. The application was not a disguise, façade, sham or a false front to conceal what in reality was being applied for. The application did not in reality seek a complying development certificate for development other than or in addition to the development on Lot 12 that the application described or seek a complying development certificate for development on land other than or in addition to Lot 12, being the land on which the application stated the development was proposed to be carried out.

  1. The Dehsabzis submitted that there is little scope in the legislative scheme of the EPA Act for the concept of a valid application. People are entitled to make application for whatever development they want: Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 at [35].

  2. The Dehsabzis submitted that the High Court’s decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council turned on the particular wording of the Queensland planning law there considered and is distinguishable. Whilst development on adjoining land that is related to the proposed development may require consent to be obtained before being carried out, any necessary consent for the proposed development is to be sought by a development application or application for a complying development certificate that relates only to the land on which the proposed development is to be carried out and not to the adjoining land: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 477.

  3. Under the EPA Act, an application for development consent or complying development certificate is not defective because it does not include in it land the use of which is necessarily involved in the use the subject of the application: King v Great Lakes Shire Council (1986) 58 LGRA 366 at 380; Cooper and Wilton v Maitland City Council (1992) 130 LGERA 217 at 221.

  4. The Dehsabzis contended that it is not unlawful to apply for a complying development certificate for part of a development and not for the whole of the development. In this case, it might be accepted that, in order for the pizza shop in Lot 12 to function and be operational, certain facilities and utility services needed to be installed in the basement, which is common property. But this did not prevent application being made for a complying development certificate only for the building works of fitting out Lot 12 as a pizza shop. The development to be carried out on Lot 12 is capable of being the subject of an application for a complying development certificate or development consent; it is sufficiently identifiable and divisible from whatever other facilities or utility services might need to be installed in the common property in order to service the development carried out on Lot 12.

  5. As a matter of fact, the Dehsabzis have applied for a complying development certificate for the tenancy fitout of a pizza shop on Lot 12 and for development consent to extend the trading hours from those approved for the real estate office to be longer for the pizza shop and to install a mechanical ventilation system for the pizza shop. The certifier issued the CDC but the Council has refused consent to the development application. The Dehsabzis say they will appeal the Council’s refusal of the development application to the Court.

  6. The Dehsabzis contended that this approach of applying for a complying development certificate for some development (the fitout of the pizza shop) and development consent for other development (the change in trading hours for the pizza shop and installation of the mechanical ventilation system) is legitimate. If both a complying development certificate and a development consent were to be obtained, they would need to be read together to understand all of the developments that have been approved: Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [3]-[4].

  7. The Dehsabzis also distinguished the Court of Appeal’s decision in People for the Plains Inc v Santos NSW (Eastern) Pty Ltd. The issue there concerned the characterisation of the purpose of the development, the Court of Appeal holding that the characterisation of purpose should be done by looking at the development as a whole, not at the component parts of the development. Here, no question of characterisation of the purpose of the development arises, regardless of whether part of the development is to be carried out on Lot 12 and another part is to be carried out on the common property.

  8. Mr Smith adopted the Dehsabzis’ submissions.

  9. I find the sham application ground has not been made out by the Owners Corporation, for the reasons advanced by the Dehsabzis.

  10. First, as a matter of fact, the application for a complying development certificate for the development described in the application was not a sham or a contrivance. The application did not in reality apply for a complying development certificate for development or relate to land other than the development and the land it purported to apply for or relate to: see Sharrment Pty Ltd v Official Trustee in Bankruptcy at 454, 468. On a proper construction of the application, it only sought a complying development certificate for the development of the fitout of Lot 12 as a pizza shop and did not seek a complying development certificate for any building works to be carried out in basement B1 or other common property.

  11. Secondly, as a matter of law, it is the application that defines and confines the complying development certificate or development consent that can be granted. The application selects the development for which a complying development certificate or development consent is sought: “A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought”: Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 at [14]. For this reason, a complying development certificate or development consent cannot be granted to development wider than the development sought in the application: Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480 at [46] and see Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [57], [296]-[298].

  12. In this case, on a proper construction of the application for the CDC, the application sought a complying development certificate only for development on Lot 12, being the tenancy fitout of Lot 12 as a pizza shop. The development to which the complying development certificate could be given needed to accord with the development for which application had been made: GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [44]; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council at [296].

  13. This is what occurred in this case. On a proper construction of the CDC, it authorises only the development of the tenancy fitout as a pizza shop of Lot 12. Hence, both the application for and the grant of the CDC only concern the development of the tenancy fitout of Lot 12 as a pizza shop.

  14. This conclusion about the development the subject of the application for the CDC necessarily means the land to which the application relates is only Lot 12, as that is the only land on which the development the subject of the application is to be carried out: North Sydney Council v Ligon 302 Pty Ltd at 476-477; Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [89]. The application did not relate to the common property, as the application did not propose carrying out development on the common property.

  15. Thirdly, there was no requirement under the EPA Act to apply, in the application for a complying development certificate for the tenancy fitout of Lot 12 as a pizza shop, for a complying development certificate for the building works in the common property, irrespective of whether those works could be described as related development to the fitout of Lot 12 as a pizza shop because they were necessary in order to make the pizza shop functional. An applicant for a complying development certificate, like an applicant for development consent, can apply for whatever development that needs consent as the applicant chooses: Currey v Sutherland Shire Council at [35]: “Citizens are entitled to apply to authorities for whatever they like.”

  16. Where the applicant proposes development on different parcels of land, the applicant can include every development on every parcel of land in the one application, but the applicant is not bound to do so, and can instead make separate applications for each development on each parcel of land. In this circumstance, the land to which each application relates is the land on which the specified development is proposed to be carried out: North Sydney Council v Ligon 302 Pty Ltd at 476. The application for the specified development does not need to seek a complying development certificate or a development consent for any related development on adjoining land: at 477 and see King v Great Lakes Shire Council at 380 and Cooper and Wilton v Maitland City Council at 221.

  17. Accordingly, the fact that the building works on the common property might need to be carried out in order to make the use of Lot 12 as a pizza shop functional or operational does not necessitate inclusion of those building works in the application for the complying development certificate for the tenancy fitout of Lot 12 as a pizza shop. It only means that those building works on the common property will need to be carried out and, unless they are exempt development that can be carried out without consent, development consent will need to be obtained before carrying out the works. But such consent can be obtained by a separate application for a complying development certificate or a development consent.

  18. For these reasons, I reject the sham application ground.

The absence of notice ground

  1. The Owners Corporation contended that the applicant for the CDC sought and the CDC granted approval for a change of use of Lot 12 from office premises to food and drink premises (being a pizza shop). Both the application and the CDC described the development as being “tenancy fitout of pizza shop”. The reference to “pizza shop” describes the purpose of the use of the premises once the fitout is undertaken. This is what s 4.27(3) of the EPA Act requires in order to authorise the use of the premises. Section 4.27(3) provides:

“A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9.”

  1. The application for the CDC specified the purpose of the use of Lot 12 as pizza shop, a type of food and drink premises under the Act. The CDC granted to that application enabled the erection of a building (in the wide sense given in s 1.4(1) of the EPA Act) by the fitout of Lot 12. Hence, the CDC was sufficient to authorise the use of Lot 12 when the fitout was completed for the purpose specified in the application for the purpose of a pizza shop.

  2. Clause 5.3(1) of the Exempt and Complying Development Codes SEPP specifies as complying development a change of use from a current use of office premises to a new use of food and drink premises. However, in order for development specified in cl 5.3(1) “to be complying development”, cl 5.3(2) requires that “the applicant must obtain a notice or other form of written advice that specifies the works and other requirements to be completed as part of the development from the relevant water utility”. Section 4.28(3) of the EPA Act requires the council or accredited certifier to consider the application for a complying development certificate and determine three things, the first of which is “whether or not the proposed development is complying development”: s 4.28(3)(a).

  3. The Owners Corporation submitted that cl 5.3(2) specifies that, “to be complying development” specified in cl 5.3(1), there must be compliance with the condition for obtaining the notice or other form of written advice from the relevant water utility specified in cl 5.3(2).

  4. In this case, the Dehsabzis did not obtain such a notice or other form of written advice from Sydney Water, the relevant water utility, before the CDC was issued. The certifier, Mr Smith, gave evidence that his understanding was that Sydney Water’s practice was not to issue any approval for connection to water supply services or give any notice specifying the works to be completed in order to be able to connect to the water supply or sewerage services until after a complying development certificate has been issued. Based on this understanding, Mr Smith did not request the applicant for the CDC, the Dehsabzis, for a notice or other form of written advice specifying the works or other requirements to be completed as part of the development from Sydney Water. Instead, Mr Smith imposed as a condition of the CDC that any works the subject of a notice from Sydney Water be completed before the occupation certificate is issued:

“If the work will be the subject of a notice of requirements for water supply or sewerage services (or both) by a water utility or an entity authorised by the utility, the work must be satisfactorily completed before the occupation certificate is issued.”

  1. The Owners Corporation submitted that this approach of the certifier inverted the requirement of cl 5.3(2). The certifier was required by cl 4.28(3)(a) of the EPA Act to consider the application for a complying development certificate and determine whether or not the proposed development is complying development. Clause 5.3(2) makes the obtaining of a notice or other form of written advice that specifies the works or other requirements to be completed as part of the development from Sydney Water a condition precedent to the development being the complying development specified in cl 5.3(1).

  2. The certifier failed to satisfy himself that this condition precedent to the development being the specified complying development in cl 5.3(1) had been complied with. Instead, the certifier, by imposing the condition on the CDC, made carrying out of any works or other requirements the subject of a notice from Sydney Water a condition precedent to the issue of the occupation certificate. This is a different condition precedent to that imposed by cl 5.3(2). It is a condition precedent to the issue of the occupation certificate rather than the complying development certificate and it requires the carrying out of the works specified in any notice from Sydney Water rather than obtaining the notice specifying the works from Sydney Water. The certifier could not be satisfied that the development was the complying development specified in cl 5.3(1) by imposing that condition on the CDC.

  3. The Owners Corporation submitted that the applicant’s failure to obtain the notice required by cl 5.3(2) meant that the development the subject of the complying development certificate was not complying development specified in cl 5.3(1) and, as a consequence, the CDC purporting to authorise such complying development was invalid.

  4. The Dehsabzis took issue at the outset with the Owners Corporation’s submission that the application for the CDC sought and the CDC granted approval for a change of use. The Dehsabzis submitted that the application did not seek a complying development certificate for the specified complying development of a change of use of the premises in cl 5.3(1) of the Exempt and Complying Development Codes SEPP. Rather, the application sought and the CDC granted approval only for the fitout of Lot 12 as a pizza shop. This was the specified complying development of internal building alterations in cl 5.1 of the Exempt and Complying Development Codes SEPP. The fact that the building alterations were described as being “tenancy fitout of pizza shop” does not necessarily convey that a change of use of the premises was being proposed. Premises can be fitted out as a pizza shop without being used as a pizza shop. Use of the premises as a pizza shop is a separate and subsequent step to fitting out the premises as a pizza shop.

  5. The Dehsabzis also submitted that the internal building alterations of fitting out Lot 12 as a pizza shop did not involve the erection of a building, within the meaning of that phrase in s 1.4(1) of the EPA Act. Hence, s 4.27(3) did not operate to cause the CDC that enabled the fitout of Lot 12 as a pizza shop to also authorise the use of Lot 12 as a pizza shop.

  6. The consequence was that cl 5.3 of the Exempt and Complying Development Codes SEPP was not engaged and there was no need for the Dehsabzis to obtain a notice from Sydney Water under cl 5.3(2).

  7. If, however, the CDC did authorise not only internal building alterations to fitout Lot 12 as a pizza shop but also a change of use of Lot 12 to a pizza shop, the Dehsabzis accepted that no notice or other form of written advice from Sydney Water required by cl 5.3(2) had been obtained. However, they submitted that this would not lead to invalidity of the CDC. Not all failures to comply with requirements governing the exercise of a statutory power will result in invalidity of an exercise of that power. In the case of cl 5.3(2), the Dehsabzis submitted that there are at least four indicators that a failure to comply with cl 5.3(2) will not result in the invalidity of a complying development certificate issued for complying development specified in cl 5.3(1).

  8. First, there is no requirement in cl 5.3(2) or elsewhere that the notice or other form of written approval required to be obtained by the applicant be given to the certifier or for the certifier to make enquiries as to whether such notice or other form of written advice has been obtained by the applicant.

  9. Second, there is no statement in cl 5.3(2) or elsewhere as to when the notice or other form of written advice is to be obtained. Clause 5.3(2) does not say in terms that such notice or other form of written advice has to be obtained and seen by the certifier in order for the certifier to be satisfied that the development is complying development. On one reading of the subclause, the applicant could obtain the notice at any time, and, so long as notice was obtained at some point in time, the development could be said to be complying development. If the legislative draftsperson intended that the notice had to be provided prior to the issue of the complying development certificate in order for the certifier to be satisfied that the development was complying development, then cl 5.3(2) would at least require that the notice that has been obtained by the applicant be sent to the certifier, or that the certifier make enquiries of the applicant as to whether that notice has been given, but there are no such requirements in cl 5.3(2).

  10. Third, the requirement in cl 5.3(2) that the applicant obtain “a notice or other form of written advice that specifies the works or other requirements to be completed as part of the development from the relevant water utility” is expressed in general terms. The Dehsabzis submitted that if the legislative draftsperson intended that failure to comply with the subclause would invalidate the complying development certificate, the subclause would have advised of more specific requirements as to the contents of the notice or other form of written advice that has to be provided. The lack of prescription in the subclause as to what the notice must contain or what the notice must do is an indicator that the legislative draftsperson did not intend that a failure to comply with the subclause necessarily leads to invalidity of a complying development certificate.

  11. Fourth, the applicant may not be able to obtain the notice or other form of written advice required by cl 5.3(2) from the relevant water utility. The water utility may not, for whatever reason, provide the required notice or other form of written advice to the applicant. If obtaining the notice or other form of written advice from the water utility is a precondition to the applicant being able to obtain a complying development certificate, an applicant in these circumstances would never be able to obtain a complying development certificate. Where an applicant is reliant on the water utility to obtain the required notice or other form of written advice, the legislative draftsperson cannot have intended that a failure to obtain a notice from the relevant water utility will result in invalidity.

  1. The decision in Conomos v Chryssochoides is irrelevant. It matters not that in that case the piping was external to the dwelling house, rather than internal. This is not a relevant distinction in the present case. All of the works in the common property and in Lot 12 are internal. But this does not mean that the works cannot be development as defined in s 1.5 of the EPA Act. What is important is the nature and extent of the works, not whether the works are external or internal to the building.

  2. I next deal with the argument that the compressor and the grease trap and arrester are exempt development. I find that neither the compressor or the grease trap and arrester fall within the exempt development specified in cl 2.5 or 2.51 of the General Exempt Development Code.

  3. An air conditioner is “an apparatus for air-conditioning a room, house, car, etc”. Air conditioning as a noun is “a system of treating air in buildings or vehicles to assure temperature, humidity, dustlessness, and movement at levels most conducive to personal comfort, manufacturing processes, or preservation of items stored, as books etc” and as an adjective is “denoting or pertaining to such a system”: Macquarie Dictionary. Both of the words air conditioner and air conditioning, stand in contrast to refrigerator and refrigeration. A refrigerator is “a box, room or cabinet in which food, drinks, etc are kept cool, as by means of ice or mechanical refrigeration” and “the element of the refrigeration system consisting of the space or medium to be cooled”. Refrigeration is “the process of producing low temperatures, usually throughout an appreciable volume” and “the resulting state”: Macquarie Dictionary.

  4. The mechanical equipment or unit by which the air is cooled will bear a different name depending on the purpose of the cooling. If the purpose is air conditioning, the mechanical equipment or unit will be termed an air conditioning unit, but if the purpose is refrigeration, it will be a component of the refrigeration system.

  5. In this case, the coldroom is a refrigerator, being the element of the refrigeration system consisting of the space to be cooled. The compressor is the mechanical equipment in the refrigeration system by which that space – the coldroom – is cooled. The compressor is not an air-conditioning unit.

  6. The new grease trap and arrester, whilst they might be sanitary fixtures, are not a replacement or renovation of the existing grease trap in the building. They are an additional sanitary fixture to the existing sanitary fixture. The existing sanitary fixture of the grease trap will continue to be used by the other commercial units in the building. Only the pizza shop in Lot 12 will use the additional grease trap and arrester. They are not a replacement or renovation of the existing grease trap as the existing grease trap will continue to be used. There will now be two grease traps, not a replacement of the existing grease trap by a new grease trap. Accordingly, the new grease trap and arrester is not the exempt development specified in cl 2.51.

  7. I uphold the development without consent ground. The carrying out of the building works in the common property was in breach of s 4.2 of the EPA Act.

The relief that should be granted

  1. The Owners Corporation submitted that, if the Court were to find that the CDC has been issued in breach of the EPA Act, EPA Regulation and Exempt and Complying Development Code SEPP, the Court should declare the CDC to be invalid. The Owners Corporation contested the Dehsabzis’ submission that a declaration of invalidity of the CDC is not appropriate in the circumstances of this case.

  2. The Owners Corporation submitted that the Court should make injunctive orders. The first type of orders concerns the works carried out in Lot 12 in reliance on the CDC. There should be a prohibitory injunction to restrain the Dehsabzis from carrying out any works the subject of the CDC (insofar as there are still any works to be undertaken) and otherwise relying on the CDC for any purpose (such as using Lot 12 for a pizza shop). There should be a mandatory injunction to rectify the works carried out in Lot 12 in reliance on the CDC. The second type of order concerns the works carried out in the common property. There should be a mandatory injunction to rectify the works carried out in the common property.

  3. The Owners Corporation submitted that the Court should make these injunctive orders to remedy the past breaches and to restrain the future breaches of the EPA Act. It would not be appropriate to decline injunctive relief, as the Dehsabzis urge, as that would leave the Dehsabzis’ breaches of the EPA Act unremedied and allow them to benefit from their blatant disregard of the law.

  4. With regard to the works in the common property, the Owners Corporation referred to the Dehsabzis’ knowledge of the need for the Owners Corporation’s consent as owner of the common property before carrying out works in the common property, by reason of the prior litigation between the parties in NCAT and the Supreme Court, and the correspondence between the parties’ solicitors. The Dehsabzis carried out the works in the common property knowing that the Owners Corporation did not consent to the works in the common property.

  5. With respect to the works carried out in Lot 12, the Owners Corporation submitted that the Dehsabzis went ahead with carrying out the works after the issue of the CDC with the knowledge that the Owners Corporation considered the CDC to have been invalidly issued. In these circumstances, the Dehsabzis took the risk that if the Court were to find that the CDC had been invalidly issued, the Dehsabzis may be ordered to rectify the works that they had undertaken and they would thereby suffer wasted expenditure in carrying out the original works and incur further expenditure in rectifying the works.

  6. The Owners Corporation referred to the evidence of members of the Strata Committee of the Owners Corporation warning Mr Dehsabzi not to carry out works in the common property or Lot 12, and his decision to carry out the works despite these warnings.

  7. On 7 May 2020, after receiving a copy of the CDC from the Dehsabzis, the Owners Corporation’s solicitor wrote to the certifier, Mr Smith, asserting that the CDC was issued invalidly, giving reasons for the invalidity, and requesting the CDC be cancelled, otherwise judicial review proceedings would be commenced in the Land and Environment Court challenging the validity of the CDC.

  8. The Owners Corporation’s solicitor wrote again on 2 July 2020 to Mr Smith’s employer, Professional Certification Group, noting that the Dehsabzis have commenced the fitout of Lot 12 as a pizza shop, again asserting that the CDC was invalidly issued, and requesting the CDC be cancelled, otherwise the foreshadowed judicial review proceedings would be commenced. On the same day, the Owners Corporation’s solicitor wrote to Willoughby City Council, with a copy to the Professional Certification Group and the Dehsabzis’ solicitor, asserting that the CDC was invalidly issued and giving reasons for the invalidity.

  9. Mr Smith emailed Mr Dehsabzi on 3 July 2020, attaching the Owners Corporation’s solicitor’s letters of 7 May and 2 July 2020, and saying that the CDC did not approve “any construction outside of your tenancy eg common property”.

  10. Mr Fowler, the Chairman of the Strata Committee of the Owners Corporation, gave evidence that he observed work had commenced on Lot 12 on 16 July 2020.

  11. On 21 July 2020, the Owners Corporation’s solicitor served on the Dehsabzis’ solicitor the summons for judicial review of the CDC, seeking both interlocutory and final relief. The solicitor advised that if the Dehsabzis were to give an undertaking that no further work will be done at the premises, the application for interlocutory relief would not be pressed.

  12. On 23 July 2020, the Dehsabzis’ solicitor advised that Mr Dehsabzi has assured him that no further work will be done at this time. The Owners Corporation’s solicitor responded the same day saying, “with the undertaking, which is given on behalf of your clients, there is no longer need for interlocutory application to the Court” and that further directions could be made on return of the summons on 19 August 2020.

  13. Ms Cave, the Secretary of the Strata Committee of the Owners Corporation give evidence that on 8 August 2020, Mr Dehsabzi told her that he was going to undertake works through the concrete floor of Lot 12 down to the B1 carparking area below. She observed Mr Dehsabzi and workmen sectioning off with tape two areas of common property in basement in B1 and undertaking work in the basement, including plumbing works. Ms Cave asserted to Mr Dehsabzi that the CDC was invalid and that the work in the common property would be illegal.

  14. Ms Pearson, a member of the Strata Committee of the Owners Corporation, also observed Mr Dehsabzi and workmen undertaking work in basement B1 on 8 August 2020. She said to Mr Dehsabzi that she was under the impression, from what his solicitor had said, that Mr Dehsabzi had undertaken not to do any more work at this time. Mr Dehsabzi replied that that “was only valid for 7 days. That has passed now. So I can now do the work”.

  15. On 10 August 2020, the Owners Corporation’s solicitor wrote to the Dehsabzis’ solicitor referring to the “confrontation” on 8 August 2020 where Mr Dehsabzi had resiled from the undertaking not to do any further work, saying that it had only been given for 7 days and, as this period had passed, he was going to go ahead with the work. The Owners Corporation’s solicitor asked for an unconditional undertaking that no further work of any kind would be carried out on the property, otherwise application would be made for an urgent interlocutory injunction to restrain further work and maintain the status quo.

  16. On 13 August 2020, Ms Pearson observed tradesmen welding frames in basement B1 which they said were to be used to install the compressor for the refrigeration unit in Lot 12. On 18 August 2020, Mr Cave observed Mr Dehsabzi and workmen continuing to carry out work in the common property. Ms Cave took photographs of the compressor unit for Mr Dehsabzi’s refrigeration system that had been affixed to common property in basement B1 and PVC piping that had been fixed into place on the underside of the ceiling to basement B1.

  17. On 1 September 2020, Ms Pearson observed a tradesman working in basement B1. The tradesman advised that he was Mr Dehsabzi’s plumber and he was installing a gas line. He also said he needed to access the grease trap in basement B2 and he later did so, notwithstanding Mr Pearson’s advice that basement B2 was reserved for residents only. Ms Pearson observed Mr Dehsabzi’s workmen carrying out other work in basement B1 on 2 and 4 September 2020 in the fire hydrant room. On 14 September 2020, Ms Pearson observed Mr Dehsabzi’s plumber attaching additional fittings to the ceiling of basement B1.

  18. The Owners Corporation submitted that this evidence clearly reveals that Mr Dehsabzi went ahead and carried out work in the common property in the clear knowledge that the Owners Corporation asserted that such work was illegal. In these circumstances, Mr Dehsabzi took the risk and should not now be given the benefit of the Court declining to grant injunctive relief requiring him to remove the works in the common property that he had installed illegally.

  19. The Owners Corporation rebutted the Dehsabzis’ suggestion that the Court would defer granting injunctive relief to allow the Dehsabzis an opportunity to apply for a development consent or a building information certificate for the works in Lot 12 and the common property. The Owners Corporation submitted that a development consent could not be granted for the works that have already been carried out in Lot 12 and the common property as development consent could not be granted to retrospectively approve such work. The Dehsabzis would also need to obtain the consent of the Owners Corporation as owner of the common property for any application, whether for development consent or a building information certificate, with respect to the works in the common property. The Owners Corporation is not willing to give its consent to any such application.

  20. The Dehsabzis contested that the Court should grant either declaratory or injunctive relief if the Court were to find that the CDC had been invalidly issued.

  21. In relation to declaratory relief, the Dehsabzis submitted that the Court should not make any declaration that the works carried out in the common property required development consent but were carried out without obtaining such consent. Amongst other reasons, the Dehsabzis advanced three reasons in particular. Such a declaration would not have any constitutive effect and would not bring about any change in the rights or duties of the parties: Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 at [20]. Such a declaration is unnecessary for the Court to have jurisdiction to make injunctive orders: Great Lakes Council v Lani at [21]. The declaration would not remedy any past breach and would not restrain any future breach of the EPA Act: Great Lakes Council v Lani at [22].

  22. In relation to the owner’s consent ground, the Dehsabzis submitted that the Court would, instead of declaring the CDC invalid, make an order under s 25B(1)(b) of the Court Act specifying terms compliance with which will validate the consent, citing Adams v Great Lakes Council (No 2) [2010] NSWLEC 37. The Dehsabzis noted that development consent is defined in s 1.4(1) to include a complying development certificate. This submission was only made in relation to the lack of owner’s consent ground. As I have not upheld the challenge to the validity of the CDC on the lack of owner’s consent ground, I do not need to address this submission that the Court should make an order under s 25B of the Court Act.

  23. In relation to the absence of notice ground, the Dehsabzis submitted that if the Court were to find that a failure to comply with cl 5.3(2) does give rise to invalidity of the CDC, the Court as a matter of discretion would not declare the CDC to be invalid. There is evidence from Mr Dehsabzi that works for connection to the existing water meter for the commercial lots have been carried out and that Sydney Water has issued a permit for the trade waste discharge from the premises. The Dehsabzis submitted that, notwithstanding no notice or other form of written advice was obtained from Sydney Water as to the works or other requirements that should be completed as a part of the development, some of these works have in fact been undertaken. In these circumstances, the Dehsabzis submitted there would be little utility in declaring invalid the CDC for a failure to obtain the required notice or other form of written advice from Sydney Water.

  24. In relation to injunctive relief, the Dehsabzis submitted that the Court, in its discretion, would not make mandatory orders for the rectification of works carried out in Lot 12 in reliance on the CDC or in the common property, relying on the principles outlined in F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 at 311, 313; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341; ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 at 82.

  25. The Dehsabzis relied on three factors:

  1. Lack of environmental harm: The works are internal to the building and cause no impacts on the exterior of the building or the streetscape. Indeed, the Dehsabzis submitted, “the Domino’s rather smart looking fitout with modern features and up to date furniture etc would look rather better than an empty shell with ‘To Let’ signs across the window.” The internal building works do not cause any impact on the residents of the building. The works in Lot 12, until use as a pizza shop is commenced, will not cause any ongoing amenity impacts, such as noise or smell. So too, the static works in basement B1 do not impact on the amenity of the residents. The works are confined to basement B1 which is reserved for carparking for the commercial owners and is not used by the residential owners, who use basement B2 for carparking. The Dehsabzis submitted that no health and safety fire hazards have been identified as a result of the works, so that removal of the works would not be required on that basis.

  2. Financial impact of reinstatement: Mr Dehsabzi’s evidence is that the total cost of carrying out the works in Lot 12 and the common property is approximately $477,000. To require the Dehsabzis to reinstate Lot 12 and the common property would be a disproportionate response to the breaches of the EPA Act by the Dehsabzis.

  3. Conduct of the parties: In relation to the lack of owner’s consent ground, the Dehsabzis noted that the Owners Corporation has been obdurate in its attempts to frustrate the Dehsabzis using Lot 12, which is a commercial lot, as a pizza shop, by withholding owner’s consent to any application that the Dehsabzis might make.

  1. In the alternative, if the Court is minded to grant injunctive relief, the Dehsabzis submitted that the Court should suspend the operation of any injunctive orders for a period of 12 months to allow the Dehsabzis to regularise the use of the lot and the common property: Woollahra Municipal Council v Carr (1982) 47 LGRA 105 at 110. The Dehsabzis submitted that, although development consent cannot be granted to approve retrospectively the building works that have already been carried out on Lot 12 and the common property, development consent can be granted for the prospective use of the parts of the building in which the works have been carried out for the purpose of food and drink premises (as a pizza shop). The Dehsabzis could also apply for a building information certificate with respect to the building works in Lot 12 and in the common property.

  2. Whilst the development application and building information certificate application can be made by the Dehsabzis with respect to Lot 12, as Mrs Dehsabzi is the owner of Lot 12, the consent of the owner of the common property, the Owners Corporation, is needed for the development application and the building information certificate application with respect to the common property. The Owners Corporation has said it will not grant that consent as owner, so the Dehsabzis will need to bring fresh proceedings in NCAT to secure the consent of the Owners Corporation to the making of these applications. This may take some time, hence the period of 12 months suggested by the Dehsabzis should be allowed to enable the Dehsabzis to bring the proceedings in NCAT and secure the Owners Corporation’s consent.

  3. The Dehsabzis noted that their earlier development application for installation of the mechanical ventilation system and extended trading hours had been refused by the Council, but the Dehsabzis said that they intended to appeal that refusal to this Court. They would also need to obtain the consent of the Owners Corporation as owner to this application as part of the mechanical ventilation system will need to be installed on common property. The Dehsabzis noted that they will also need to apply to NCAT to obtain Owners Consent for this application.

  4. The Dehsabzis submitted that these prospective applications to NCAT to secure the Owners Corporations’ consent to the various development applications and building information certificate application are not without prospects of success.

  5. Mr Smith did not address on the orders the Court should make if it found the CDC had been invalidly issued, instead relying on the Dehsabzis’ submissions.

  6. I find that it is appropriate to make declarations that the CDC is invalid and that the building works carried out in the common property were carried out in breach of s 4.2 of the EPA Act.

  7. Starting with the CDC, I have found that it was issued with respect to development that is not specified complying development and that did not meet the development standards for that development, in breach of ss 4.26, 4.27 and 4.28 of the EPA Act and cll 1.17, 5.1, 5.2 and 5.4 of the Exempt and Complying Development Code SEPP, and was also issued in breach of cll 129B and 129C of the EPA Regulation. The CDC, issued in breach of the statutory provisions, is invalid and should be declared so.

  1. As to exercising the power under s 25B of the Court Act, the Dehsabzis only submitted that this would be appropriate if the owner’s consent ground were to be upheld. The Dehsabzis did not submit, and having regard to the statutory breaches involved, it would not be appropriate, that the Court should make orders under s 25B of the Court Act instead of declaring the CDC invalid for the other grounds. There are no terms compliance with which could validate the CDC. The development on Lot 12 the subject of the CDC was not a relevant specified complying development and did not meet the development standards specified for that development. There are no steps that can now be carried out or other acts, matters or things that can now be done that would make the development on Lot 12 the subject of the CDC become the specified complying development or meet the development standards specified for that development.

  2. In relation to the absence of notice ground, there is utility in declaring invalid the CDC, notwithstanding that the Dehsabzis would seem to have already connected to the water supply and obtained a trade waste discharge permit from Sydney Water. The evidence does not establish that all of the requirements of Sydney Water have been met. There still may be utility in obtaining the notice or other form of written advice required by cl 5.3(2) of the Exempt and Complying Development Codes SEPP to ensure that all requirements of Sydney Water are met. Furthermore, this is but one of the grounds on which the CDC is invalid. Declining to declare invalid the CDC on this ground does not affect the need to declare invalid the CDC on other grounds.

  3. As to the works carried out in the common property, there is utility in declaring that the works carried out in the common property were development that needed development consent, but such consent was not obtained. This was a principal contested issue in these proceedings. The Dehsabzis submitted that the works in the common property were not development at all, or, if they were, they were exempt development and could be carried out without development consent. I have rejected these arguments. A declaration makes this finding plain, and is particularly useful having regard to the ongoing dispute between the parties. The Dehsabzis will now need to apply for development consent to use the works that they have carried out in the common property and for a building information certificate with respect to the works in the common property. The consent of the Owners Corporation as owner of the common property will be needed. Given the Owners Corporation’s withholding of owner’s consent, the Dehsabzis will need to apply to NCAT to obtain this consent. The Court’s declaration will explain to the consent authority the reason for the Dehsabzis making the development application and building information certificate application and to NCAT the reason for the Dehsabzis applying for owner’s consent to these applications.

  4. As to injunctive relief, I consider that an injunction should be issued to restrain the Dehsabzis from using Lot 12 as a pizza shop unless and until development consent is obtained to use Lot 12 and the parts of the common property in which the works have been carried out for the purposes of food and drink premises (as a pizza shop). Although upon the Court’s declaring invalid the CDC, it will become unlawful to use the premises as a pizza shop, in the current climate of disputation between the parties, there is utility in making this plain. The evidence of members of the strata committee of the Owners Corporation earlier referred to makes clear that the Dehsabzis are prepared to carry out development notwithstanding the risk that doing so might be unlawful. In these circumstances, there is a need to enjoin the Dehsabzis from carrying out development that would be unlawful.

  5. The principles for declining injunctive relief, referred to by the Dehsabzis, do not apply with any force to the grant of a prohibitory injunction restraining the future unlawful use as a pizza shop. Different considerations apply to granting a mandatory injunction to remove the works from and to rectify Lot 12 and the common property. I consider that while there is some prospect for the Dehsabzis to regularise the use of Lot 12 and the parts of the common property in which works have been carried out by making a development application and a building information certificate application, the Dehsabzis should be given that opportunity for a limited period of time. As the Dehsabzis submitted, leaving the works in Lot 12 and the common property that have already been carried out for this limited period of time will not, in any material way, cause environmental harm or impact the amenity of the neighbourhood or of the residents of the building. The period of 12 months suggested by the Dehsabzis is a reasonable period of time. The Dehsabzis will need to obtain the consent of the Owners Corporation to the making of the application with respect to the works in the common property. This will require application being made to NCAT. The process of making, hearing and adjudicating the application to NCAT to obtain owner’s consent, followed by the process of making and determining a development application and building information certificate application, are unlikely to be concluded in less than 12 months.

  6. The appropriate course is, therefore, to issue an injunction ordering the removal of works from and the rectification of Lot 12 and the common property, but to stay the operation of the order for 12 months. Liberty to apply for an extension of the stay should be granted on sufficient cause being shown.

Costs

  1. The Owners Corporation has been successful in establishing that the CDC was invalidly issued and in obtaining declaratory and injunctive relief. In these Class 4 proceedings, costs follow the event.

  2. The Dehsabzis did not contest that, in the event the Owners Corporation was successful, it was entitled to an order of costs in its favour.

  3. Mr Smith also did not contest that the Owners Corporation should be entitled to an order for costs in its favour, if it is successful. He submitted, however, that the Dehsabzis should be ordered to pay the Owners Corporation’s costs but that Mr Smith should not. Mr Smith submitted that the invalidity found by the Court might not reflect on any default or shortcoming by Mr Smith as the certifying authority who issued the CDC.

  4. I find that an order for costs should be made in favour of the Owners Corporation. It has been successful in establishing numerous grounds of invalidity of the CDC and a breach of the EPA Act in the Dehsabzis carrying out works in the common property without first obtaining development consent, and also in securing appropriate declaratory and injunctive relief to remedy and restrain these breaches.

  5. The Dehsabzis certainly should be ordered to pay the Owners Corporation’s costs. The question is, should Mr Smith also be ordered to pay the Owners Corporation’s costs?

  6. Mr Smith, as the certifying authority who exercised statutory power under the EPA Act to issue the CDC, could have entered a submitting appearance in the proceedings. That is often appropriate. The role of a certifying authority whose decision to issue a complying development certificate is under challenge is not that of a protagonist but is limited to providing assistance to the Court as to relevant statutory powers and procedures and, where appropriate, and not readily ascertainable without the certifying authority’s assistance, facts as to what occurred in the exercise of the power to issue the complying development certificate: see, for example, Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 at [64]-[67].

  7. Mr Smith did not enter a submitting appearance. He joined with the Dehsabzis in acting as an adversary to the Owners Corporation in defending the validity of the CDC that he had issued. At the hearing, Mr Smith’s participation was still active, giving evidence himself and tendering documents, and making his own submissions in addition to adopting the submissions of the Dehsabzis. The grounds upon which the Owners Corporation have succeeded in establishing that the CDC was issued invalidly do involve matters reflecting on the default of Mr Smith. The inadequate record of inspection ground is an obvious one, but equally the absence of notice ground and the noncompliance with the Australian Standard ground also involve shortcomings in Mr Smith’s conduct in issuing the CDC in circumstances where he had no power to do so.

  8. In these circumstances, I consider there is no good reason for excluding Mr Smith, as one of the unsuccessful respondents who actively defended the Owners Corporation’s challenge to the CDC that Mr Smith had issued, from also having to pay the Owners Corporation’s costs. Mr Smith and the Dehsabzis can decide between themselves as to how they should apportion the liability to pay the Owners Corporation’s costs.

Orders

  1. The Court:

  1. Declares that complying development certificate number 00064397 issued by Professional Certification Group on 22 April 2020 for tenancy fitout of pizza shop at Shop 1, 154-156 Sailors Bay Road, Northbridge NSW 2063 (the site) is invalid.

  2. Declares that Pamir Dehsabzi and Anita Dehsabzi have breached s 4.2 of the Environmental Planning and Assessment Act 1979 in carrying out the following works in basement B1 of the building on the site, being part of the common property in Strata Plan 83556, without first obtaining development consent:

  1. installation of a grease trap and arrester with associated piping;

  2. installation of utility services, including gas, electricity, water and waste water drainage with associated pipes, conduits and wires;

  3. installation of a compressor and associated pipes, wires, conduits and structural supports (the common property works).

  1. Orders Pamir Dehsabzi and Anita Dehsabzi to refrain from using Lot 12 in Strata Plan 83556 for the purpose of food and drink premises, including as a pizza shop, unless and until development consent is obtained to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop, and a building information certificate is obtained with respect to the works carried out in Lot 12 in reliance on the complying development certificate and the common property works.

  2. Orders Pamir Dehsabzi and Anita Dehsabzi to remove the works carried out in Lot 12 in reliance on the complying development certificate and the common property works and to reinstate Lot 12 and the common property to the condition or state that Lot 12 and the common property were in immediately before the carrying out of the works in Lot 12 and the common property works.

  3. Suspends order (4) for 12 months from the date of the order to allow Pamir Dehsabzi and Anita Dehsabzi to make:

  1. a development application seeking development consent to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop; and

  2. an application for a building information certificate with respect to the works carried out in Lot 12 in reliance upon the complying development certificate and the common property works.

  1. Grants all parties liberty to apply to vary orders (4) or (5), including to extend the period of suspension of order (4).

  2. Orders the respondents to pay the applicant’s costs of the proceedings.

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Decision last updated: 15 December 2020

Most Recent Citation
Cases Citing This Decision

1

The Council of the City of Sydney v Emag Apartments Pty Limited [2023] NSWLEC 23
Cases Cited

19

Statutory Material Cited

5

Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308
Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245