Woollahra Municipal Council v Cameron

[2024] NSWLEC 27

Land and Environment Court

New South Wales

Medium Neutral Citation:

Woollahra Municipal Council v Cameron [2024] NSWLEC 27

Hearing dates:

10 and 11 October 2023

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1) Pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the date for the commencement of the proceedings is extended to 1 March 2023, being the date of filing of the summons.

(2) Costs reserved.

(3) The matter is listed for further mention before me at a time and date to be fixed in order to hear from the parties in relation to an appropriate form of declaration and injunction in light of these reasons for decision, and in relation to the question of costs.

Catchwords:

CIVIL PROCEDURE — time — extension of time to commence proceedings — r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW)

ENVIRONMENT AND PLANNING — consent — conditions — construction — whether condition C.1(d) of the modified development consent prohibits excavation within the area previously identified as the ‘cellar’ level

ENVIRONMENT AND PLANNING — consent — conditions — s 19(1)(b) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) — whether the relevant building work plans and specifications in the construction certificate are consistent with the modified development consent

ADMINISTRATIVE LAW — ground of review other than procedural fairness — unreasonableness — jurisdictional error — whether it was legally unreasonable for the certifier to determine the relevant building work plans and specifications were consistent with the modified development consent — whether legal unreasonableness leads to invalidity of all or part of the construction certificate

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) ss 4.16, 4.17, 4.31, 4.55, 6.32, 6.8, 9.34, 9.35, 9.36, 9.46

Interpretation Act 1987 (NSW) ss 34, 35, sch 4

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 cl 18

Environmental Planning and Assessment Regulation (Development Certification and Fire Safety) Regulation 2021 (NSW) ss 7, 8, 13, 19, 20

Environmental Planning and Assessment Regulation 2000 (NSW) (repealed) cll 139, 145

Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Woollahra Development Control Plan 2015 (as in force on 30 August 2021) (repealed)

Cases Cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Bankstown City Council v Ramahi [2015] NSWLEC 74

Bankstown City Council v Ramahi (No 2) (2016) 216 LGERA 385; [2016] NSWLEC 34

Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200

Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172

Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; (2017) 226 LGERA 54; [2017] NSWCA 263

Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404

Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92

Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459

Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164

Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 214 LGERA 133; [2019] NSWLEC 171

Cohen v Double Bay Bowling Club [2019] NSWSC 1625

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1; [2014] NSWCA 364

Director, Consumer Affairs Victoria v Vic Solar Pty Ltd (No 3) [2021] FCA 171

Dyason v Butterworth [2015] NSWCA 52

Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332; [1993] HCA 5

Gough and Gilmour Holdings Pty Limited v The Council of the City of Holroyd [2002] NSWLEC 108

Hitchcock v Reed [2022] NSWLEC 81

Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; 359 ALR 1; [2018] HCA 34

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; (2019) 241 LGERA 321; [2019] NSWCA 147

J.K. Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23

Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265

Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220

Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; [2005] NSWCA 99

Lu v Walding (No 2) (2021) 249 LGERA 1; [2021] NSWLEC 21

May v Northern Beaches Council [2023] NSWCA 205

Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; (2014) 308 ALR 280; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110

Nader v Sutherland Shire Council [2008] NSWCA 265

North Sydney Council v Harris Farm Markets Pty Limited [2017] NSWLEC 67

Parramatta City Council v Pestell (1972) 128 CLR 305; (1972) 27 LGRA 27

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518; [1986] 1 All ER 467

Randwick City Council v Belle Living Pty Ltd (No 2) [2023] NSWLEC 100

Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75

Ryde City Council v Echt & Anor (2000) 107 LGERA 317; [2000] NSWCA 108

Sader v Elgammal [2022] NSWLEC 107

Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60

Syncept Chatham Pty Ltd v Council of the City of Ryde (No 2) [2019] NSWLEC 128

Taylor v The Owners – Strata Plan No 11564 and Others (2014) 253 CLR 531; [2014] HCA 9

The Hills Shire Council v Drenovac [2022] NSWLEC 139

Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

Trives v Hornsby Shire Council (2015) 89 NSWLR 268; (2015) 208 LGERA 361; [2015] NSWCA 158

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

Wingecarribee Shire Council v Uri Turgemantrading as Uri T Design [2018] NSWLEC 146

Winn v Director-General of National Parks and Wildlife and Ors (2001) 130 LGERA 508; [2001] NSWCA 17

Wollondilly Shire Council v Kennedy [2023] NSWLEC 53

Yves Deyris v Elizabeth Jones [2017] NSWLEC 165

Texts Cited:

B Preston, Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia (2006) 28 ABR 17

Category:

Principal judgment

Parties:

Woollahra Municipal Council (Applicant)
Andrew Cameron (First Respondent)
Vanessa Green (Second Respondent)
Paul Aramini (Third Respondent)

Representation:

Counsel:
J Lazarus SC with M Harker (Applicant)
I Hemmings SC with J Farrell (First and Second Respondents)
Solicitors:
Legal, Woollahra Municipal Council (Applicant)
Mills Oakley (First and Second Respondents)
HBA Legal (Third Respondent)

File Number(s):

2023/68853

Publication restriction:

Nil

JUDGMENT

Introduction

Issues

Outcome

Factual background

The assessment report

Approval of the construction management plan

The modified development consent

The construction certificate, the architectural plans, and the structural plans

Proposed ‘cellar’ level and associated excavation

Construction void level approved by the construction certificate

Uploading of the construction certificate

Enforcement action in relation to the site

Discussions between Council and the first respondent

Current state of excavation at the site

Commencement of proceedings

Relevant legislation and legislative history

(1) Whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent’s decision of 31 August 2022 to issue the construction certificate

Council’s submissions in relation to an extension of time

First and second respondents’ submissions in relation to an extension of time

Council’s reply in relation to an extension of time

Conclusion in relation to whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent’s decision of 31 August 2022 to issue the construction certificate

(2) Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the ‘cellar’ level for all purposes

Council’s submissions

First and second respondents’ submissions

Council’s reply

Conclusion in relation to whether the modified development consent, properly construed, prohibits excavation within the area identified as the ‘cellar’ level for all purposes

(3) Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

Council’s submissions

First and second respondents’ submissions

Council’s reply

Conclusion in relation to whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

(4) If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

Council’s submissions

First and second respondents’ submissions

Conclusion in relation to whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

(5) If the answer to (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

Council’s submissions on validity and discretion

First and second respondents’ submissions on validity and discretion

Council’s reply on validity and discretion

Conclusion in relation to whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration

Costs

Conclusion and orders

JUDGMENT

Introduction

1. These Class 4 proceedings were commenced by summons filed 1 March 2023. By amended summons filed 1 May 2023 (the amended summons), Woollahra Municipal Council (Council) seeks judicial review of the decision of Mr Paul Aramini (the third respondent) on 31 August 2022 to issue construction certificate 21/345 (the construction certificate) as principal certifying authority for the development of 35 Suttie Road, Bellevue Hill, Lot 5 DP13285 (the site), in accordance with development consent DA 475/2020/1 (the development consent) as modified by the Woollahra Local Planning Panel (the Local Planning Panel) in DA 475/2020/3 on 16 June 2022 (the modified development consent).

2. The development consent was the subject of a modification application lodged 11 April 2022 which was recommended for approval by and subsequently approved by the Local Planning Panel on 16 June 2022, subject to condition C.1(d) requiring, inter alia, the “Deletion of the ‘cellar’ level and the associated excavation (imposed under DA 457/2020/3)” (the area previously identified as the ‘cellar’ level).

3. The matter was heard before me on 10 and 11 October 2023.

4. On 11 October 2023 at 9:13am, Council provided chambers with amended proposed orders it seeks in the proceedings (the amended proposed orders):

1 Pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005, the time for the commencement of the proceedings is extended to 1 March 2023, being the date of filing of the summons.

2 Declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect.

3 Alternatively, declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 (CC) for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect in so far as it approves below RL 18.28 in the area hatched in red on the attached plan:

a. excavation;

b. structures including lift, lift shafts, stairs, walls, floor, and crane base;    and

c. other works in that area.

4 Order that the First and Second Respondents, by themselves, their servants and agents, are restrained from carrying out any development in reliance on the CC, or alternatively on that part of the CC referred to in prayer 3 above.

5 Order that the Respondents are to pay the Council’s costs of the proceedings.

5. The “attached plan”, including the area hatched in red, referred to in prayer 3 of the amended proposed orders is reproduced below. The “attached plan” is from the Construction Void Marking Plan Dwg 1100 Rev C with added red hatching, which is referred to at [31(2)] below.

6. The first respondent, Mr Andrew Cameron (the first respondent) and the second respondent, Ms Vanessa Green (the second respondent), have the benefit of a development consent to demolish an existing building and construct a three-storey dwelling on the site.

7. On 31 May 2023, the third respondent filed points of defence in response to the amended summons and an affidavit of Mr Aramini, sworn 29 September 2023. The third respondent filed a submitting appearance on 6 October 2023 and did not participate in the hearing on 10 and 11 October 2023.

8. In the amended summons, Council contends that the decision of the third respondent to issue the construction certificate “was invalid because it was not reasonably open, and/or without any evident or intelligible justification for the third respondent to conclude that the design and construction of the [site], as depicted in the plans and specifications given to the [third respondent], were consistent with the [modified development consent]”.

Issues

9. The issues which arise for determination are as follows:

1. Whether the Court should extend time under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for Council to commence proceedings for judicial review of the third respondent’s decision of 31 August 2022 to issue the construction certificate.

2. Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the ‘cellar’ level for all purposes.

3. Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent.

4. If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent.

5. If the answer to question (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

Outcome

10. I have determined the issues for determination as follows:

1. Pursuant to r 59.10(2) of the UCPR, time for Council to commence proceedings for judicial review of the decision of the third respondent, Mr Paul Aramini, dated 31 August 2022 to issue construction certificate 21/345 is extended to 1 March 2023.

2. The modified development consent, properly construed, prohibits excavation within the area previously identified as the ‘cellar’ level for all purposes.

3. The plans, specifications and standards of building work specified in the construction certificate issued 31 August 2022 are not consistent with the modified development consent to the extent that they permit excavation in the area previously identified as the ‘cellar’ level.

4. It was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent.

5. I will make a declaration that the construction certificate is invalid to the extent that it permits excavation in the area previously identified as the ‘cellar’ level.

Factual background

11. The following factual background is derived in part from the agreed statement of facts and agreed chronology tendered by the parties, and in part from the Court’s consideration of the documents in evidence.

12. On 13 April 2021, pursuant to ss 4.16 and 4.17 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), Council granted development consent DA 457/2020 subject to conditions for the “[d]emolition of the existing building and construction of a new dwelling” at the site.

13. On 10 March 2022, Council determined modification application DA 457/2020/2 (the second modification to the development consent) lodged by the first and second respondents’ architect Mr John Jell pursuant to s 4.55 of the EPA Act. The DA 457/2020/2 modifications are not relevant to these proceedings.

14. On 11 April 2022, Mr Jell lodged modification application DA 457/2020/3 pursuant to s 4.55 of the EPA Act (the modification application), seeking to modify the development consent by:

1. providing a basement wine cellar, store, lift, and access stairs;

2. a minor reconfiguring of the layout of the lower level media, gym, and powder rooms; and

3. deleting a window from an upper level living room.

The assessment report

15. The assessment report prepared by Council dated 16 June 2022 (the assessment report) recommended that the Local Planning Panel modify the development consent “for demolition of the existing building and construction of a new dwelling [at the site]” subject to the “deletion of the new cellar level and associated excavation”. The assessment report concluded in relation to excavation as follows:

... given the amount of excavation is in excess of the volumetric control, the short-term amenity effects are not reasonable as they are likely to be greater due to the extended period of time required to excavate more material than when compared to a compliant development.

Conclusion

The approved development already exceeded the maximum excavation volume. The extent of variation sought under this modification is not justified.

The proposal is therefore unacceptable with regard to the excavation controls in Part B3.4 of the [Woollahra Development Control Plan 2015]. Condition C.1(d) has been recommended which requires deletion of the proposed new cellar level and the associated excavation.

16. The assessment report recorded that the Local Planning Panel was the designated consent authority for the modification application because the application was a “contentious development” that was “the subject of 10 or more unique submissions by way of objection”.

Approval of the construction management plan

17. On 26 May 2022, Mr Mark Smigliani, project manager/site supervisor acting on behalf of the first and second respondents, submitted documents to Council in support of the proposed construction management plan. Included in those documents was a proposed excavation plan which did not show any excavation in the area the subject of condition C.1(d) of the modified development consent.

17. On 9 June 2022, Council approved the construction management plan.

The modified development consent

19. On 16 June 2022, the Local Planning Panel approved the modification application “for the reasons set out in the assessment report”.

20. The Local Planning Panel modified the development consent by:

1. including a new sub-paragraph (d) to condition C.1; and

2. approving plan DA07 (approved plan DA07), plan DA08 (approved plan DA08) and plan DA10 (approved plan DA10) that show a ‘cellar’ level and a notation “Cellar Level Deleted” (per condition A.8 extracted below).

21. Condition C.1(d) in the modified development consent provides as follows (emphasis added):

C.1 Modification of Details of the Development (section 4.17(1)(g) of the Act)

The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments:

…

(d) Deletion of the ‘cellar’ level and the associated excavation (imposed under DA 475/2020/3)

To minimise excavation, the ‘cellar’ level including the mechanical ventilation, wine cellar, store, lift and access stairs must be deleted; and the area must remain unexcavated.

22. Other relevant conditions of the modified development consent are the following:

A4 Approved Plans and Supporting Documents

Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with both the architectural plans to which is affixed a Council stamp “Approved” and supporting documents listed below … [including Architectural Plans and the Geotechnical & Hydrological Report by AssetGeoEnviro dated 18 September 2020 [(the 2020 geotechnical report)]

A.8 Approved Amended (section 4.55) Plans and Supporting Documents

Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the approved plans and supporting documents listed in the original consent, as amended by the amended architectural approved plans to which is affixed a Council stamp “Approved” and supporting documents as submitted by the Applicant listed below otherwise than modified by further condition(s).

Where the plans relate to amendments, alterations or additions only those works shown in colour or highlighted are approved.

Reference	Description	Author/Drawn	Date(s)
Job No. 1903 DA06, Issue F DA07, Issue E DA08, Issue E DA10, Issue E DA12, Issue D DA13, Issue E	Architectural Plans	All by AC + VG	09.05.2022 25.03.2022 25.03.2022 25.03.2022 09.05.2022 25.03.2022

D.4 Construction Management Plan

As a result of the site constraints, limited space and access a Construction Management Plan (CMP) is to be submitted to Council …

The CMP must … include the following information …

(f) If a crane/s are to be accommodated on site, detail how the crane/s will be erected and removed, including the location, number and size of vehicles involved in the erection/removal of the crane/s, the duration of the operation and the proposed day and times, any full or partial road closures required to erect or remove the crane/s and appropriate Traffic Control Plans …

E.8 Compliance with Geotechnical/ Hydrogeological Monitoring Program

Excavation must be undertaken in accordance with the recommendations of the Geotechnical/Hydrogeological Monitoring Program and any oral or written direction of the supervising professional engineer …

E.9 Support of Adjoining Land and Buildings

A person must not do anything on or in relation to the site (the supporting land) that removes the support provided by the supporting land to any other land (the supported land) or building (the supported building) …

E.13 Site Cranes

Site crane(s) and hoist(s) may be erected within the boundary of the land being developed subject to compliance with Australian Standards AS 1418, AS 2549 and AS 2550 and all relevant parts to these standards …

23. The notations ‘stair’ and ‘cellar’ and “Cellar Level Deleted. Refer to Condition C.1(d)” on approved plan DA07 (Section A) are shown below:

24. The notations ‘store’ and ‘cellar’ and “Cellar Level Deleted. Refer to Condition C.1(d)” on approved plan DA08 (Section B) are shown below:

25. The notations ‘cellar’ and ‘store’ and “Cellar Level Deleted. Refer to Condition C.1(d)” on approved plan DA10 (Section E) are shown below:

26. The minutes of the public meeting of the Local Planning Panel held 16 June 2022 at 1:00pm provide the following reasons for the decision to approve the modification application:

Reason for Decision

The Panel has independently viewed the site, from the street and surrounding area and/or electronically, considered the submissions, and reviewed the assessment report prepared by Council officers that addresses the relevant matters detailed in Section 4.15 of the [EPA Act].

For the reasons in the assessment report, the Panel is satisfied that the application can be modified subject to the deletion of drawing reference no. DA06.5E within Condition No. A.8.

27. DA06.5E is the Cellar Level Plan dated 25 March 2022 that was submitted as part of the modification application and to which the Local Planning Panel deleted reference in Condition A.8 “Approved Amended (section 4.55) Plans and Supporting Documents” when it approved the modification application.

The construction certificate, the architectural plans, and the structural plans

28. On 14 June 2022, the first respondent lodged an application for a construction certificate into the certifier’s system. The construction certificate application was initially lodged before the modified development consent was approved on 16 June 2022.

29. On 31 August 2022, the third respondent issued the construction certificate (number 21/345) for the site, listing the development consent, the second development consent and the modified development consent as the relevant consents, pursuant to Part 6 of the EPA Act. In determining the application for the construction certificate the documents provided to the third respondent included relevant building work, plans and specifications. These included architectural plans (the architectural plans) which are “stamped” approved by the third respondent, and structural plans to which have the third respondents’ stamp was also affixed (the structural plans) (together, the construction certificate plans).

30. The architectural plans “stamped” by the third respondent and dated 7 June 2022 included:

1. WD2.05A Issue A, Proposed Section A (drawing 1 of 2) (architectural plan WD2.05.A) which provides for a concrete structure in the location of the formerly proposed cellar (the concrete structure) without any notations.

2. WD2.05B Issue A, Proposed Section A (drawing 2 of 2) (architectural plan WD2.05.B) which provides for:

1. the concrete structure with the notation ‘CRANE BASE, REFER STRUCT ENG’S DOCS FOR DETAILS’; and

2. a further vertical structure into the ground with the notation ‘CONTINUOUS PILES REFER STRUCT ENG’.

3. WD2.06 Issue A (architectural plan WD2.06.A), Proposed Section which shows continuous piles in the location of the deleted cellar.

4. WD2.09 Issue A, Proposed Section which shows:

1. a concrete structure and vertical structures; and

2. the notation ‘CONTINUOUS PILED & CAVITY TO WATERPROOF BASEMENT WALLS’.

31. The structural plans “stamped” by the third respondent and dated 14 July 2022 included:

1. Dwg 1051 Rev D, Shoring Elevations Sheet 1 (Shoring Elevations Sheet 1) which shows in the area of the former cellar:

1. an apparent floor level for a construction void;

2. stairs leading into the construction void; and

3. a crane base with a notation “CRANE BASE BY OTHERS. MAXIMUM 5mx5mx1.35m DEEP”;

2. Dwg 1100 Rev C, Construction Void Marking Plan (the Construction Void Marking Plan) which shows in the area of the former cellar:

1. a concrete slab at the level of the construction void; and

2. precast concrete walls.

Part of the Construction Void Marking Plan is reproduced below:

3. Dwg 1104 Rev C, Construction Void Sections Sheet 1 (the Construction Void Sections Sheet 1) which shows:

1. a crane base; and

2. a construction void.

Part of the Construction Void Sections Sheet 1 is reproduced below:

4. Dwg 1200 Rev C, Lower Level Marking Plan which shows in the area of the former cellar:

1. stairs; and

2. a concrete slab with 200mm thickness;

5. Dwg 1204 Rev C, Lower Level Sections Sheet 1 which includes a marking for a construction void; and

6. Dwg 7502 Rev C, Wall Elevations - Precast Sheet 2, which shows:

1. a lift;

2. stairs; and

access to the construction void.

32. The agreed statement of facts also referred to the Geotechnical & Hydrogeological Investigation produced by AssetGeoEnviro dated 30 April 2022 (the 2022 geotechnical report) which was “stamped” by the third respondent and refers to:

1. excavation up to 7.5 metres in depth for the cellar and store level finished floor level;

2. contiguous piles proposed to support the cut for the cellar and store level; and

3. there being no completed soil investigation at the crane location.

Proposed ‘cellar’ level and associated excavation

33. It was an agreed fact that the ‘cellar’ level is the area located beneath the lower level as depicted in approved plan DA07.

34. After the hearing on 11 October 2023, the Court requested that the parties provide an agreed position in relation to the RLs of the proposed ‘cellar’ level and associated excavation which were the subject of the modification assessment by reference to drawings and plans in evidence.

35. In the agreed note subsequently provided to the Court (the agreed note), the parties agreed that the plans approved by the modification application and which record the deletion of the ‘cellar’ level depict the ‘cellar’ level at RL 15.75. Those plans are approved plans DA07, DA08 and DA10.

36. In the agreed note, Council identified as an additional matter that the plans approved by the modification show the ‘cellar’ level (RL 15.75) as being at the same level as the base of the structure of the “existing pool” in approved plan DA07.

Construction void level approved by the construction certificate

37. After the hearing on 11 October 2023, the Court also requested that the parties provide an agreed position in relation to RLs for the construction void approved by the construction certificate.

38. The agreed note states that the structural plans do not expressly identify a precise level for the top of the slab in the construction void or on any of the relevant plans or elevations.

39. The agreed note refers to the following notes in Construction Notes Sheet 1 in relation to the structural plans:

GENERAL

G1. THESE DRAWINGS SHALL BE READ IN CONJUNCTION WITH ALL ARCHITECTURAL AND OTHER CONSULTANTS DRAWINGS …

G2. DIMENSIONS SHALL NOT BE OBTAINED BY SCALING THE STRUCTURAL DRAWINGS. FIGURED DIMENSIONS ONLY SHALL BE USED. SETTING OUT DIMENSIONS SHOWN ON THE DRAWINGS SHALL BE VERIFIED BY THE BUILDER FROM ARCHITECTURAL DRAWINGS …

40. Nonetheless, it was agreed that an approximate level for the construction void of between RL 15.6 and RL 15.8 could be extrapolated from the architectural plans and structural plans:

1. the architectural plans depicting the lower level of the dwelling (being the level above the cellar or construction void level) with a finished floor level of RL 18.50;

2. the same architectural plans showing a crane base, but not depicting the level of the crane base; and

3. the structural plans showing a 2900mm socket extending:

1. from the finished floor level of the lower level of the dwelling (shown on the architectural plans as at RL 18.50);

2. to below the finished floor level of the construction void, but within the width of the floor slab above the crane base.

An extract from the Shoring Elevations Sheet 1 structural plan is as follows:

4. the slab above the crane base being shown to continue beyond the crane base to the adjoining area and being variously:

1. 100mm thick; and

2. 200mm thick,

depending on its location within the floor plan of the construction void.

41. The agreed effect is that the finished floor level of the top of the slab (being the construction void level) is depicted as:

1. greater than the base of the socket at RL 15.6 (18.5-2.9m); and

2. less than RL 15.8 (given that the slab is up to 200mm thick and the base of the socket sits within the width of the slab).

42. In relation to additional matters identified by the parties in the agreed note, Council said that the plans approved by the construction certificate show the level of the construction void to be the same level as the base of the structure of the “existing pool”. Therefore, as the external structure of the “existing pool” is unchanged, that level remains RL 15.75.

43. The first and second respondents said that any extrapolated levels are also subject to the various requirements of the structural plans including:

1. the note in the Construction Notes Sheet 1 which provides:

FOUNDATIONS

F1. FOUNDATION DESIGN HAS BEEN BASED ON GEOTECHNICAL ENGINEERS REPORT No. 6211-G1 DATED 18/09/2020 BY ASSETGEOENVIRO

2. the note in the general arrangement legend of the Footing Marking Plan which provides:

ALL FOOTING MATERIAL TO BE INSPECTED BY GEOTECHNICAL ENGINEER AND BEARING PRESSURE TO BE CONFIRMED

3. Note 2 in the Footing Marking Plan which provides:

UNLESS NOTED OTHERWISE ALL FOUNDATIONS TO BE ON SANDSTONE WITH ALLOWABLE BEARING CAPACITY OF 1000 kPa

Uploading of the construction certificate

44. On 1 September 2022, the construction certificate was uploaded to the NSW Planning Portal (the Planning Portal).

45. On 8 September 2022, administrative staff at Council downloaded the construction certificate from the Planning Portal and uploaded the construction certificate to Council’s digital records management system.

Enforcement action in relation to the site

46. On 16 January 2023, excavation works for the construction void commenced.

47. On 31 January 2023, Council received a complaint about the depth of excavation at the site.

48. On 1 February 2023, Mr Lyndal James, building and compliance officer, Council, attended the site.

49. On 6 February 2023, Mr Craig Jenner, team leader compliance, Council, issued a development control order (the development control order) to the first and second respondents pursuant to ss 9.34 to 9.36 of the EPA Act. The development control order provided as follows:

Order to cease unauthorised excavation 35 Suttie Road BELLEVUE HILL 2023 LOT: 5 SEC: 3 DP: 13285

…

The terms of the Development Control Order are:

1. Cease all excavation beyond the extent granted development consent under DA475/2020. Excavation for the construction of the lowest floor level of the approved dwelling at 35 Suttie Road Bellevue Hill is to be no lower than RL 18.30.

50. On 6 February 2023, Mr Jenner issued a notice of intention to give an order to the first and second respondents pursuant to ss 9.34 to 9.36 of the EPA Act:

Notice of Intention to Give an Order 35 Suttie Road BELLEVUE HILL 2023 LOT: 5 SEC: 3 DP: 13285

…

The terms of the Order are:

1. Comply with Condition C.1(d) of Development Consent DA2020/475/3 by backfilling the excavated area located in the middle of the subject site which was proposed in application DA2020/475/3 to be a cellar level to the subject development.

51. On 7 February 2023, the first respondent ceased excavation at the site.

Discussions between Council and the first respondent

52. On 6 February 2023, the first respondent sent an email to Mr Jenner at Council as follows:

Dear Craig

Thank you for your time today.

To clarify the our position. A crane pad of 5 x 5 x1.35 m was required to be footed in rock. Mark Rust of Overhead Engineering determined this required the top of the pad to be at RL 15.5 based on the Geo Tech survey carried out by AssetGeoEnvrio.

This requirement gave rise to the 4.55 application.

We are excavating to that level.

We propose to place a 22.5 Kl tank in the void, along with three smaller tanks to meet a condition of consent and avoid a similar amount of excavation adjacent to the pool to meet this condition. We have not challenged this condition, which was increased from 20 Kl in the initial approval despite our engineers concern that we would not fill such a volume, given normal usage, from our roof area even with last year's 2,000+mm of rain. This will avoid further excavation.

We currently have plant in the construction void that can now only be removed by crane. We will not be able to install the crane unless we provide a suitable pad at RL 15.5.

We had expected to have completed excavation by now, however we hit harder rock that expected. I believe we have another two to three days of excavation.

I will be seeking advice on next steps from here, …

53. On 8 February 2023, the first respondent met with Mr Jenner and Ms Rosemary Bullmore, manager legal, compliance and enforcement, at Council.

54. On 8 February 2023, the first and second respondents lodged a Class 1 appeal against Council’s development control order (proceeding number 2023/42616) (the Class 1 proceedings).

55. On 9 February 2023, the first respondent lodged modification application DA457/2020/4 seeking approval for the work in the area subject to condition C.1(d).

56. On 14 February 2023, the Class 1 proceedings were served on Council.

57. On 15 February 2023, the first respondent withdrew modification application DA457/2020/4.

58. On 15 February 2023, Council received a letter from Mills Oakley, solicitors for the first and second respondents, in which Mills Oakley:

1. sought the “immediate revocation of the development control order”; and

2. claimed that if the development control order was not revoked, the first and second respondent would have a claim for compensation “in the vicinity of $500,000”.

59. On 15 February 2023, Council sought legal advice regarding the letter it received from Mills Oakley on 15 February 2023.

60. As at 11 October 2023, the development control order was still in place.

Current state of excavation at the site

61. On 20 February 2023, Mr Farshid, construction contractor representing the first respondent, provided Council with a diagram showing the extent of the excavation as at 7 February 2023, being at an approximate RL of 15.7.

62. On 20 February 2023, the solicitors for the first and second respondents wrote to Council, stating that a “total of 168m³ was required to complete the remaining excavation”, comprising:

1. 83m³ for the [construction] void;

2. 45m³ for the crane base; and

3. 40m³ for the “detention bank”.

63. As at the date of hearing, the development control order prevented those works from being carried out.

Commencement of proceedings

64. On 24 February 2023, Council received legal advice and instructed counsel to prepare the summons and grounds of appeal.

65. On 1 March 2023, Council filed the summons commencing these Class 4 proceedings and a notice of motion seeking expedition.

66. On 2 March 2023, Council filed an affidavit of Mr Jenner, team leader, compliance at Council, affirmed 2 March 2023, and on 8 March 2023, an affidavit of Ms Bullmore, affirmed 8 March 2023 (which was not read).

67. On 28 March 2023, the first and second respondents filed an affidavit of the first respondent, Mr Cameron affirmed 28 March 2023.

68. On 1 May 2023, Council filed an amended summons.

Relevant legislation and legislative history

69. Rule 59.10 of the UCPR provides as follows in relation to the extension of time for commencing proceedings for judicial review (emphasis added):

59.10 Time for commencing proceedings

(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

70. Section 4.16(12) of the EPA Act provides as follows in relation to the effect of issuing a construction certificate:

4.16 Determination

(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

71. Section 6.32 of the EPA Act provides as follows in relation to the validity of certificates under Part 6 “Building and subdivision certification” (emphasis added):

6.32   Validity of certificates under this Part

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if—

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

(b) the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.

72. Section 6.32 of the EPA Act replaced cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (NSW) (the former EPA Regulation 2000) which provided as follows (emphasis added):

145 Compliance with development consent and Building Code of Australia

(1)  A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

…

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent…

73. Section 6.32 of the EPA Act came into effect on 1 December 2019 under cl 18(2) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW).

74. Section 6.8(1) of the EPA Act relevantly provides that:

(1) A construction certificate must not be issued with respect to the plans and specifications for any building work unless-

(a) the requirements of the regulations have been complied with …

75. The relevant requirements of the regulations are contained in Part 3 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) (the Certification Regulation). This regulation commenced on 1 January 2022.

76. Section 7 of the Certification Regulation provides as follows:

7   Application for construction certificate

(1)  An application for a construction certificate must—

(a)  be in the approved form, and

(b)  include all the information and documents specified in the approved form or required by the Act or this Regulation, and

(c)  be lodged on the NSW planning portal. …

77. Section 8 of the Certification Regulation provides as follows:

8   Documents to accompany application for construction certificate

(1)  This section applies to an application for a construction certificate for development that involves building work.

(2)  The application must be accompanied by—

(a)  a detailed description of the development, and

(b)  appropriate building work plans and specifications (referred to in this Part as relevant building work plans and specifications).

(3)  The detailed description of the development must indicate the following matters—

…

(4)  The appropriate building work plans and specifications must include the following—

(a)  detailed building work plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show the following—

(i)  a plan of each floor section,

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

(iii)  the levels of the lowest floor, an unbuilt yard or area that belongs to the lowest floor and the adjacent ground,

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

(b)  building work specifications that—

(i)  describe the construction and the materials to be used to construct the building, and …

78. Section 12 of the Certification Regulation provides as follows:

12   Certifier may require additional information

(1)  A certifier may require the applicant for a construction certificate to give the certifier information about the building work or a planning agreement that the certifier considers necessary to properly consider the application. …

79. Section 13 of the Certification Regulation provides in relation to giving reasons for refusing an application for a construction certificate:

13   Determination of application for construction certificate

(1)  A certifier must ensure the certifier’s determination of an application for a construction certificate contains the following information—

(a)  the date on which the application was determined,

(b)  whether the application is approved or refused,

(c)  if the application is refused—

(i)  the reasons for the refusal …

80. Section 19(1) of the Certification Regulation requires relevantly as follows (emphasis added):

19 Compliance with development consent and Building Code of Australia

(1) A certifier must not issue a construction certificate for building work unless-

(a)  the relevant building work plans and specifications include the matters required by a relevant BASIX certificate, if any, and

(b) the design and construction of the building, as described in the relevant building work plans and specifications and in other information given to the certifier under section 12, is consistent with the development consent, and

(c) the building will comply with the relevant requirements of the Building Code of Australia as in force on the relevant date …

81. Section 20 of the Certification Regulation provides as follows:

20   Compliance with conditions of development consent

A certifier must not issue a construction certificate for building work under a development consent unless the following have been complied with—

(a) a condition of the development consent or an agreement referred to in the Act, section 4.17(6) requiring the provision of security before building work is carried out,

(b)  a condition of the development consent, referred to in the Act, section 7.11 or 7.12, requiring the payment of a monetary contribution or levy before building work is carried out,

(c)  a condition of the development consent that must be complied with before a construction certificate may be issued.

82. Condition C.1 of the modified development consent refers to cl 139 of the former EPA Regulation 2000 (the application for the development consent having been determined on 13 April 2021 when the former regulation was in force). Clause 139 provided as follows in relation to application for construction certificates:

139   Applications for construction certificates

(1)  An application for a construction certificate must—

(a)  be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b)  contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by documents that are specified in Part 3 of Schedule 1 or required by the Act and this Regulation, and

(d)  be lodged on the NSW planning portal.

(1A)  The application may only be made by a person who is eligible to appoint a principal certifier for the relevant development.

(2)  The applicant must be notified, by means of the NSW planning portal, that the application for a construction certificate has been lodged.

83. The first and second respondents placed particular emphasis on ss 34 and 35 of the Interpretation Act 1987 (NSW) (Interpretation Act) in relation to the use of extrinsic material in the interpretation of Acts and in relation to headings. These provide:

34   Use of extrinsic material in the interpretation of Acts and statutory rules

(1)  In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

(a)  to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)  to determine the meaning of the provision—

(i)  if the provision is ambiguous or obscure, or

(ii)  if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2)  Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes—

…

(e)  any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f)  the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g)  any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

…

35   Headings etc

(1)  Headings to provisions of an Act or instrument, being headings to—

(a)  Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or

(b)  Schedules to the Act or instrument,

shall be taken to be part of the Act or instrument.

(2)  Except as provided by subsections (3) and (4)—

(a)  a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)),

(b)  matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or

(c)  a marginal note, footnote or endnote in an Act or instrument,

shall be taken not to be part of the Act or instrument.

…

(5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates.

(1) Whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent’s decision of 31 August 2022 to issue the construction certificate

84. The first issue is whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent’s decision of 31 August 2022 to issue the construction certificate.

Council’s submissions in relation to an extension of time

85. Council submitted that in considering whether to allow an extension of time under r 59.10, the Court may consider the matters under r 59.10(3) as well as other relevant matters, including the length of delay, the reasons for the delay and whether an applicant has a fairly arguable case. ^[1]

    1. Bankstown City Council v Ramahi [2015] NSWLEC 74 (Ramahi) at [74] (Preston CJ of LEC) citing Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA) and Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA) (Barrett and Gleeson JJA agreeing). See also Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34] (Pepper J).

86. In relation to “any relevant public interest” (r 59.10(3)(d)), Council submitted that “Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act”, citing Bankstown City Council v Ramahi (Ramahi) at [75] (Preston CJ of LEC). That includes ensuring that development is carried out in accordance with the terms of any development consent granted by a local planning panel.

87. Council accepted that limitation periods such as that in r 59.10 benefit the public by providing finality in decisions, citing Katter v Melhem ^[2] at [123]. There is also, however, Council submitted, a strong public interest in the enforcement of planning law, citing Warringah Shire Council v Sedevcic ^[3] (Sedevcic) at 339-340. That includes ensuring that construction certificates are issued within power. Council submitted that its interest closely aligns with the public interest and is not diminished by any delay in commencing the proceedings.

    2. (2015) 90 NSWLR 164; [2015] NSWCA 213 (JC Campbell AJA) (McColl and Leeming JJA agreeing).

    3. (1987) 10 NSWLR 335; (1987) 63 LGRA 361 (Kirby P, Mahoney and Clarke JJA).

88. In relation to “possible prejudice” (r 59.10(3)(b)), Council submitted that the relevant prejudice, being expenses on building work incurred up to the expiry of the three month period to commence the proceedings, is not connected to any delay: citing Ramahi at [86]-[87] (Preston CJ of LEC).

89. The three month period for commencing the proceedings expired on 1 December 2022, and a development control order ordering the cessation of unauthorised excavation below RL 18.30 was issued on 6 February 2023. At some time during that two month period, the first and second respondents carried out excavation in the area of the ‘cellar’ level.

90. Council submitted that there was no evidence as to what other works (if any) were carried out, nor the potential costs in order to quantify any prejudice. The first and second respondents chose not to put on any evidence as to prejudice. Mr Lazarus SC for Council submitted as follows in relation to the first and second respondents’ failure to call any evidence directed to prejudice:

… we submit, a powerful Ferrcom [Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332] inference that arises from the failure of the respondents to call any evidence in chief specifically directed to the question of prejudice. The only evidence in chief that they've put on are uncontroversial matters that have all been agreed as part of the agreed statement of facts. …

What those authorities establish, quite clearly, is that the failure to call evidence on a particular topic where one would expect such evidence to be called - so, if the respondent in this case wishes to submit that there's prejudice, it's obvious what the source of that evidence ought to be. That an inference arises that the evidence that could have been given would not be favourable to the respondent's case. That is an extension of the principle in Jones v Dunkel [(1959) 101 CLR 298].

91. Further, Council submitted that potential prejudice to the first and second respondents needs to be considered in the context that they (at least the first respondent), knowing that the Local Planning Panel “had essentially refused consent to a cellar level, submitted plans to the principal certifying authority that showed a cellar level.”

92. In similar circumstances, in relation to a complying development certificate, the chief judge said in Ramahi at [85]:

I am not satisfied that any prejudice that Ms Ramahi might suffer is sufficient to not extend the time for commencing the Council's proceedings. First, Ms Ramahi and her builder, UBA, bear primary responsibility for proposing and applying for the issue of a complying development certificate for development that was not complying development. Ms Ramahi, by her agent, UBA, proposed a secondary dwelling for the land that substantially breaches the development standards for floor area and side and rear setbacks under the applicable ARH SEPP. Ms Ramahi, by her agent, UBA, applied to a private certifier to have development that did not comply with these development standards certified as complying development. It is true that Mr Kayellou, on no less than three occasions, did issue [complying development certificates] for development that was not complying development. However, that conduct does not absolve Ms Ramahi of responsibility for proposing and then carrying out development that was not and could not be complying development.

93. That is, Council said that it was not aware of the inconsistency between the plans, specifications and standards of building work specified in the construction certificate, and the modified development consent, nor did it have cause to examine one of many construction certificates posted on the Planning Portal for its local government area, until it received a complaint on 31 January 2023.

94. In relation to the reasons for delay (r 59.10(3)(a)), Council referred to the following chronology: Council first attended the site on 27 October 2022 to investigate a complaint about a lack of sediment control measures. At that time, excavation work for the construction void had not commenced. Therefore, there were no physical indications which would cause Council to examine the construction certificate. Those indications first emerged when excavation work for the construction void was carried out in January 2023, and Council received a complaint on 31 January 2023. Council reviewed the construction certificate, attended the site the following day, and on 6 February 2023 issued a development control order requiring the cessation of all excavation works below RL 18.30. Council sought advice, attempted to resolve the issue with the first and second respondents, and commenced the proceedings within the month.

95. This was submitted not to be unreasonable. For 2022 alone, 514 construction certificates, and 200 complying development certificates were issued in the Woollahra local government area. Council does not have the resources, it was submitted, nor is it required to review every one of those certificates to ensure that the relevant certifier has complied with their obligations.

96. Mr Lazarus SC for Council said as follows:

LAZARUS SC: In terms of the delay of three months, there is no obligation on a council, statutory or otherwise, to review construction certificates for any purpose and certainly not for the purpose of ascertaining consistency with--

HER HONOUR: Or to undertake site inspections in order to ascertain compliance.

LAZARUS: That's so. There's no obligation … upon a council to ensure compliance with the law [referring to Ryde City Council v Echt (2000) 107 LGERA 317; [2000] NSWCA 108] …

Mr Jenner's … unchallenged evidence, is that the council receives hundreds of construction certificates a year and that there are simply no resources to carry out the time consuming activity that would be required to assess each and every one of those for consistency with the consent, and every condition that has been imposed as part of the consent. That evidence remains unchallenged, and your Honour should accept it.

97. And in Ramahi, the chief judge said at [95] in relation to complying development certificates:

I do not accept Ms Ramahi's submission that the Council acted unreasonably in not checking the complying development certificates at the time it received them. The statutory scheme regulating complying development certificates requires the accredited certifier to ensure and to certify that the development is complying development under the EPA Act and that it will comply with all relevant development standards. There are criminal sanctions if the certifier incorrectly certifies. The Council is entitled to presume that the complying development certificates have been issued in compliance with the EPA Act, the EPA Regulation and the applicable environmental planning instrument and development standards.

98. Council submitted that the situation is no different in relation to construction certificates.

99. The length of the delay, that is, three months, Council submitted was not “undue”. It was less than that in Ramahi (9 months and 6.5 months), Yves Deyris v Elizabeth Jones ^[4] (8 months), Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd ^[5] (6 months), and the same as that in Syncept Chatham Pty Ltd v Council of the City of Ryde (No 2) ^[6] (3 months). All were cases in which the delay was found not to be undue, and an extension of time for commencing the proceedings was granted.

First and second respondents’ submissions in relation to an extension of time

4. [2017] NSWLEC 165 (Robson J).

5. [2017] NSWLEC 97 (Molesworth AJ).

6. [2019] NSWLEC 128 (Robson J).

100. The first and second respondents submitted that the Court would find “underwhelming” the evidence relied upon by Council to justify an extension of time to commence the proceedings, referring to the following matters:

1. The proceedings were not commenced until 1 March 2023.

2. The construction certificate was issued on 31 August 2022, and the expiry date of the three month period to commence proceedings was said by the first and second respondents to be 31 November 2022. (However, as there is no 31^st day of November, I proceed on the basis that the expiry date was 30 November 2022 pursuant to the definition of “calendar month” in Schedule 4 Dictionary to the Interpretation Act).

3. By 30 November 2022, the construction certificate had been uploaded to the Planning Portal and downloaded by Council, and been on Council’s digital records management system for over ten weeks.

4. Mr Jenner attended the site on 27 October 2022 to respond to a complaint about materials being placed on adjoining land and sediment controls (although no further enforcement action was taken). Mr Jenner did not say whether he was aware of the construction certificate by that date, or explain why he did not have regard to the construction certificate in investigating that issue.

5. In any event, by that date, 27 October 2022, Council was in possession of the construction certificate and could have, as part of the “due diligence” contemplated by r 59.10(3)(c), reviewed it as part of responding to the complaint.

101. The first and second respondents submitted that it was “otherwise problematic for Council to rely on subjective and self serving matters of resourcing, discrete staff responsibilities”, and merely to take a “reactive approach” to enforcement activities before checking a construction certificate. Apart from being difficult evidence to test, such approach ignored the statutory provisions and the prejudice to those carrying out development in accordance with a construction certificate after the expiry of the three month period for commencing proceedings. In this case, the excavation works continued beyond the 30 November 2022 expiry date up until 6 February 2023 when the development control order was issued. Although the first and second respondents had not quantified how much work was carried out in the period after 30 November 2022, the evidence relied upon by Council allows the Court to infer that the work carried out during this period was “continuous and substantial”.

102. Even accepting Council’s evidence in relation to its limited resources at its highest, the first and second respondents submitted that Council’s argument for an extension of time was “unpersuasive” citing Drenovac at [180], and Gindurra Road at [233]-[234]. ^[7] Further, Ramahi must be considered in context. It was a decision made in 2015 in which the Court did not consider s 4.31 of the EPA Act which was introduced on 1 March 2018 to provide for a three month period within which to challenge a complying development certificate on the basis that it was not authorised to be issued. The first and second respondents submitted that the time period specified in s 4.31 “must have some work to do”.

     7. The Hills Shire Council v Drenovac [2022] NSWLEC 139 (Drenovac) at [180] (Duggan J); Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171 (Gindurra Road) at [233]-[234] (Pain J).

103. In oral submissions, Mr Hemmings SC for the first and second respondents said as follows:

Preston CJ’s approach in Ramahi … is to be contrasted with the approach … in two proceedings that post date the introduction of either [s] 4.31 and [s] 6.32. The first of those is the decision of Pain J in Gindurra. Her Honour, ultimately in that case, did allow a partial setting aside of orders that were reflective of partial invalidity… in part … because of her dissatisfaction with the timely manner or the untimely manner in which the proceedings were commenced.

…

your Honour will see that the council [in Gindurra Road] submitted that it didn't delay, but it clearly has. Her Honour, ultimately, was not satisfied that the resources excused the delay and so it resulted in the only partial relief that her Honour granted. An approach to the resources dispute that was made after the relevant change, we say, to the statutory scheme.

…

[In Drenovac] [a]t 179 … they had not been restrained and there had not been an order issued, and they carried out the works. "Had the proceedings...commenced the work", and talks about the significant sum. "The oral evidence of Mr Woods", who was the relevant council officer, … said that they don't have the resources, "who could explain these matters". And ultimately, her Honour therefore was unwilling to extend time.

In our submission, to the extent there is apparently conflicting authority about this consideration of resources of councils, firstly, considered at large, the Court would prefer those that have addressed the question after the change to the legislative scheme that, in our submission, has highlighted the importance of the three month period. So, that is the more recent of Pain and Duggan JJ.

104. The first and second respondents submitted that any public interest in enforcing planning laws must be balanced against the public interest in certainty and finality of decisions and, in the circumstances of this case, the Court would not extend time for commencing proceedings under r 59.10 of the UCPR. Mr Hemmings said as follows in relation to r 59.10:

… The [Council] staff do not review construction certificates for consistency with any development consent. And that’s a fact, but not, in our submission, an excuse.

… It used to be that only councils could be the certifier … but as we would understand the reason for that separation, it was not to alleviate the burden on council of having to determine the construction certificates, it was because of dissatisfaction in the marketplace with the only person one could go to to get the construction certificate was the council, rather than some private process.

… it is apparent that the council has made a decision based upon a lack of resources to not avail itself of the … [s] 6.32 route, and also appears to have deliberately embarked upon a course where the only way … it will … respond to the 59.10 limitation is if they actually become aware of a breach of inconsistency … It has the effect … [of] setting the limitation in 59.10 at nought.

Council’s reply in relation to an extension of time

105. In reply, Council submitted that insofar as the first and second respondents rely on the decisions of Pain J in Gindurra Road and Duggan J in Drenovac, in neither case was the Court referred to the decision of the chief judge in Ramahi. In both cases, Council submitted, the Court “did not reject outright that Council’s role was not to proactively monitor certificates issued by private certifiers.” The rejection of that submission in Drenovac turned on the inadequacies of Council’s evidence: [180]. In Gindurra Road, Pain J emphasised that Council had delayed for over one year: [234].

106. Council submitted that it is entitled to presume that certificates are issued by certifiers in compliance with the law: Ramahi at [85]. Council again emphasised that it was not aware of the discrepancies between the construction certificate and the modified development consent until after the excavation works for the construction road “commence[d]” on 16 January 2023. Council commenced the proceedings within one month of becoming aware of that excavation and identifying the inconsistency. There was no undue delay.

Conclusion in relation to whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent’s decision of 31 August 2022 to issue the construction certificate

107. I have determined to extend time under r 59.10 of the UCPR for Council to commence the proceedings. My reasons are as follows:

1. Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act: Ramahi at [75]. That includes ensuring that development is carried out in accordance with the terms of any development consent granted by a local planning panel.

2. As held by Kirby P in Sedevcic at 339-340:

in exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment.

3. In relation to prejudice, I accept Council’s submission that any relevant prejudice, being expenses on building work incurred up to the expiry of the three month period for commencing the proceedings, is not connected to any delay on the part of Council in commencing the proceedings: Ramahi at [86]-[87]. The three month period for commencing the proceedings expired on 30 November 2022, and the development control order ordering the cessation of unauthorised excavation below RL 18.30 was issued on 6 February 2023. While not entirely clear from the evidence, I infer that during that two month period, the first and second respondents carried out some excavation in the area of the ‘cellar’ level.

4. There was no evidence as to what other works (if any) were carried out during that period, nor the potential costs of any such works, to enable a quantification of prejudice. The first and second respondents elected not to put on any evidence as to prejudice.

5. Further, I accept Council’s submission that any prejudice to the first and second respondents needs to be considered in the context that they (at least the first respondent), knew that the Local Planning Panel “had essentially refused consent to a cellar level, submitted plans to the principal certifying authority that showed a cellar level”. As the chief judge held in Ramahi at [85] in the context of a complying development certificate, the respondents applied to a private certifier to have certified a development that did not comply with the development consent. That conduct does not absolve the first and second respondents of responsibility for proposing and then carrying out development that was not consistent with the modified development consent.

6. As to the reasons for Council’s delay, I accept Council’s submission, based on the evidence, that it was not aware of the inconsistency between the modified development consent and the plans, specifications and standards of building work specified in the construction certificate until it received a complaint on 31 January 2023. There was no cause for Council to examine the construction certificate until work for the construction void was commenced in January 2023, and Council received the complaint on 31 January 2023. Council, having reviewed the construction certificate, attended the site the following day and on 6 February 2023 issued the development control order requiring the cessation of all excavation works below RL 18.30. Having sought advice, and attempting to resolve the issue with the first and second respondents, Council commenced proceedings within one month. Council submitted, and I accept, that such delay was not “undue”. Council referred to numerous cases, including Ramahi, in which the delay was found not to be undue and an extension of time for commencing the proceedings was granted.

7. There was unchallenged evidence in relation to the number of construction certificates and complying development certificates issued in the Woollahra local government area each year. I accept, as submitted by Council and deposed to by Mr Jenner, that Council does not have the resources, nor is it obliged to review every one of those certificates to ensure that the relevant certifier has complied with their obligations. As the chief judge said in Ramahi at [95], albeit in the context of a complying development certificate, a Council is entitled to presume that certificates have been issued in compliance with the EPA Act, the relevant regulations, and the applicable environmental planning instrument and development standards. As a matter of principle, I do not consider there to be any relevant difference in relation to the statutory obligations of Council in relation to the issuing of construction certificates, and the issuing of complying development certificates by certifiers.

8. It is correct, as submitted by the first and second respondents, that the proceedings were not commenced until 1 March 2023, the construction certificate having been issued on 31 August 2022 and the three month period within which to commence proceedings having expired on 30 November 2022. However, I do not accept the first and second respondents’ submission that the evidence relied upon Council to justify an extension of time to commence the proceedings was “underwhelming”. I have accepted Council’s evidence in relation to delay.

9. Neither Drenovac nor Gindurra Road is authority for the proposition that Council’s role is to proactively monitor certificates issued by private certifiers. The rejection of that submission in Drenovac turned on the inadequacies of Council’s evidence ([180]), and in Gindurra Road, Pain J emphasised that Council had delayed for over one year ([234]).

10. Nor do I accept the first and second respondents’ submission that Council’s approach has the effect of setting the limitation in r 59.10 of the UCPR to nought. As the chief judge said in Ramahi at [95] in rejecting Ms Ramahi’s submission that Bankstown City Council acted unreasonably in not checking the complying development certificates at the time it received them:

The statutory scheme regulating complying development certificates requires the accredited certifier to ensure and to certify that the development is complying development under the EPA Act and that it will comply with all relevant development standards. There are criminal sanctions if the certifier incorrectly certifies. The Council is entitled to presume that the complying development certificates have been issued in compliance with the EPA Act, the EPA Regulation and the applicable environmental planning instrument and development standards.

108. In all the circumstances, I do not consider there to have been undue delay on the part of Council in commencing the proceedings. Accordingly, I extend time under r 59(10) of the UCPR for Council to commence proceedings for judicial review of the third respondent’s decision of 31 August 2022 to issue the construction certificate to 1 March 2023.

(2) Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the ‘cellar’ level for all purposes

109. The second issue is whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the ‘cellar’ level for all purposes.

Council’s submissions

110. In relation to the construction of the modified development consent, Council referred to J.K. Williams Staff Pty Ltd v Sydney Water Corporation (J.K. Williams Staff), ^[8] where the chief judge at [59]-[62] summarised the principles relating to the construction of development consents. Council identified for present purposes the following (uncontroversial) propositions emerging from the authorities as of present relevance:

     8. (2021) 249 LGERA 109; [2021] NSWLEC 23 (Preston CJ of LEC).

1. The meaning of the language used in a development consent is to be determined objectively having regard to the context in which the development consent was issued and taking into account the fact that, unlike a contract between parties, the development consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant.

2. It is permissible to look at the application seeking consent or approval and the documents and plans accompanying the application in order to determine the scope and operation of the consent or approval and the development or activity for which consent or approval was sought.

3. The meaning of a consent or approval is to be determined in accordance with the same principles of statutory interpretation that are applicable to interpretation of other legal documents, and there is no general principle requiring laxity or flexibility in construing development consents or approvals. Nor do practical considerations permit a rewriting of delegated legislation or statutory instruments to meet what the Court thinks is a permissible and practical outcome.

4. A condition of consent or approval is to be interpreted by asking “what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole”. That is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the modified development consent, any other conditions which cast light on the purpose of the relevant words, and common sense.

111. Council submitted that the question for the Court here is not whether a particular construction of the development consent is open; rather, “it is whether it was open for the certifier to conclude that the plans and specifications shown in the plans were consistent with the development consent as properly construed”.

112. Council submitted that the words in condition C.1(d) are clear (emphasis added):

1. the plans and specifications given to the certifier were to include the “deletion of the ‘cellar’ level and the associated excavation”; and

2. “[t]o minimise excavation, the ‘cellar level’ including the mechanical ventilation[,] wine cellar, store, lift and access stairs must be deleted; and the area must remain unexcavated”.

113. Prefacing “area” with “the” in condition C.1(d), it was submitted, calls up the area previously identified in the condition; that is, the ‘cellar’ level. The condition was imposed in the context of a development application that sought approval for excavation below the ground level, and the installation of a cellar and storeroom (as shown in approved plan DA08). The condition, expressed in clear terms, and considered in the context of the application itself (regard to which is permissible), ^[9] could only have one meaning: there was to be no excavation in the area that was proposed to be the ‘cellar’ level. Further, consideration of conditions D4, E8, E9, or E13 “should not produce a different conclusion”. None of those conditions requires excavation. Nor does any of them require the installation of a crane, “let alone in the precise location of the ‘cellar’ level”. Each is a general condition which must yield to the more specific condition that there be no excavation, that is, condition C.1(d). ^[10]

     9. Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; (2019) 241 LGERA 321; [2019] NSWCA 147 at [62] (Basten JA) and [311] (Preston CJ of LEC).

     10. Nader v Sutherland Shire Council [2008] NSWCA 265 [35]-[36] (Young CJ in Eq) (Beazley JA and Sackville AJA agreeing); Smith v The Queen (1994) 181 CLR 338 at 348; [1994] HCA 60 (Mason CJ, Dawson, Gaudron and McHugh JJ).

7. It is true that in only one case since the Court of Appeal’s decision in Ralan and the introduction of s 6.32 of the EPA Act which came into effect on 1 December 2019, Sader v Elgammal, has there been a successful legal unreasonableness challenge to a construction certificate. In Sader v Elgammal (decided in 2022), Duggan J at [51] observed that to the extent that the construction certificate permitted demolition of a wall, it was inconsistent with the development consent as the relevant provisions in the development consent and the construction certificate “could not be undertaken harmoniously”. In Sader v Elgammal, the development consent did not authorise the demolition of the wall, and in fact expressly required its retention. At [79], her Honour concluded that the construction certificate was inconsistent with the development consent, and that the two instruments could not operate consistently with each other. With respect, her Honour’s reasons for concluding that the construction certificate was not consistent with the development consent were compelling. And no persuasive submission was made on behalf of the first and second respondents as to why I would not follow her Honour’s approach here.

8. As to Council’s list of cases where the Court has found decisions of certifiers to be legally unreasonable – Trives (No 3), Ramahi(No 2), North Sydney Council v Harris Farm, Gindurra Road, Wollondilly Shire CouncilvKennedy – it is true that each of those cases is an example of Li unreasonableness in issuing a complying development certificate: Trives (No 3) at [57]-[59]; Ramahi (No 2) at [154]; North Sydney Council v Harris Farm at [194]; Gindurra Road at [151]; and Wollondilly Shire Council v Kennedy at [83]-[84]). However, I do not consider that anything turns on the fact that none of those cases was concerned with a challenge to a construction certificate. The reasoning in each case is apposite to the resolution of the question of consistency between a development consent and a construction certificate which arises here.

180. Accordingly, the answer in relation to issue 4 is yes. The decision of the third respondent to issue the construction certificate was legally unreasonable.

(5) If the answer to (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

181. Having decided that the answer to issue 4 is in the affirmative, the fifth issue is whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

Council’s submissions on validity and discretion

182. Council submitted that a declaration of invalidity usually flows from a finding of jurisdictional error: May v Northern Beaches Council. ^[52] That is because a decision that involves jurisdictional error is a decision that “lacks legal foundation and is properly regarded, in law, as no decision at all”, citing Minister for Immigration and Multicultural Affairs v Bhardwaj ^[53] and Hossain v Minister for Immigration and Border Protection. ^[54] Council said that the first and second respondents had adduced no evidence as to detriment or otherwise that could justify a refusal of relief.

     52. [2023] NSWCA 205 at [23] (Meagher and Payne JJA).

     53. (2002) 209 CLR 597; [2002] HCA 11 at [51] (Gaudron and Gummow JJ).

     54. (2018) 264 CLR 123; 359 ALR 1; [2018] HCA 34 at [24] (Kiefel CJ, Gageler and Keane JJ).

183. Alternatively, Council submitted, any prejudice to the first and second respondents from the carrying out of works (other than excavation) in reliance upon the construction certificate could be addressed by a more limited declaration that the construction certificate is invalid only to the extent that it purports to approve excavation and works within the “space” previously proposed as the ‘cellar’ level.

First and second respondents’ submissions on validity and discretion

184. The first and second respondents submitted that if the Court finds that “the issue of the CC was affected by jurisdictional error”, the exercise of the Court’s discretion in s 9.46 of the EPA Act arises. ^[55] Section 9.46(1) provides that “where the Court is satisfied that a breach of the [EPA] Act has been committed or that a breach of the [EPA] Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach”. At its highest, the first and second respondents submitted, Council’s complaint is that a crane base (expressly contemplated by a condition of modified development consent) is proposed at a depth which does not minimise excavation in accordance with another condition of modified development consent.

     55. Sedevcic at 339-340 (Kirby P).

185. The first and second respondents submitted that the evidence before the Court was that:

1. any excavation was for construction purposes only; and

2. the depth of the crane base was dictated by the depth of RL 14.10 to provide for allowable bearing pressure for Class 5 sandstone, and that there was no evidence before the Court of environmental harm or amenity impacts associated with the excavation below the lower level. Nor would the Court make the more limited orders sought, there being no evidence that the crane base would be appropriately located at a higher level.

186. Overall, the first and second respondents submitted, at the completion of the development, there would be no perceivable difference in the development approved by the modified development consent when compared with the construction certificate. Any change in the development would be de minimus. Applying Ralan, the Court would find that even if the decision of the certifier was manifestly unreasonable, the consequence is not invalidity. In Ralan, the construction certificates issued by accredited certifiers involved substantial departures from the development consent such that the façade of a major residential and commercial development in Burwood bore little relationship to the plans and specifications the subject of the development consent. Burwood Council accepted that the façade conformed to plans and specifications provided by, or on behalf of, Ralan Burwood Pty Ltd to the accredited certifiers. However, Burwood Council contended that the construction certificates incorrectly stated that the plans and specifications provided to the certifiers were consistent with the development consent and, accordingly, that they were void. Council alleged that the construction certificate plans did not satisfy the requirement that they be “not inconsistent” with the development consent plans under cl 145(1)(a) of the former EPA Regulation 2000. Here, the first and second respondents said that this provision was in similar terms to s 19(1) of the Certification Regulation.

187. The first and second respondents submitted that on the assumption that the plans and specifications provided to the third respondent were inconsistent with the development consent (“in violation” of cl 145(1)(a) of the former EPA Regulation 2000), the Court of Appeal in Ralan determined (at [154]-[193]) that the construction certificate was valid, despite any breach of cl 145.

188. The first and second respondents also referred to Bunderra Holdings where the Court of Appeal at [77]-[78] confirmed “the application” of Ralan. The Court said that Ralan is not confined to cases where a construction certificate is “generally consistent” with a development consent. To the contrary, Ralan applies where a construction certificate is inconsistent with a consent: per McColl JA at [50] and per Leeming J at [78]. The first and second respondents submitted that there was a parliamentary response to Ralan which resulted in the enactment of s 6.32 of the EPA Act (extracted above at [71]), and which commenced on 1 December 2019.

Council’s reply on validity and discretion

189. In reply, Council submitted that Part B3.4 of the Woollahra Development Control Plan 2015 (dated 30 August 2021) (the DCP) adopts maximum volumes of excavation for sites of various sizes. For the subject site, the maximum volume of excavation is 190m³. In Part B3.4 of the DCP, objective O1 d) provides: “ensure noise, vibration, dust and other amenity impacts to surrounding properties during construction are reasonable”. The Local Planning Panel approved 509.6m³ as the maximum volume of excavation at the site. Excavation of the ‘cellar’ level requires an additional 281m³ of excavation.

190. Council submitted that the associated noise, vibration, dust, and other amenity impacts from jackhammering, rock breaking, and truck movements associated with that additional excavation was “the very reason” for the imposition of condition C.1(d) by the Local Planning Panel. And irrespective of those impacts, there is a strong public interest in ensuring compliance with the law and the maintenance of the integrity of the planning system: Sedevcic at 339-340 (Kirby P). That includes ensuring that certificates are issued by private certifiers within power: Randwick City Council v Belle Living Pty Ltd (No 2) ^[56] at [105].

     56. [2023] NSWLEC 100 (Pritchard J).

191. Mr Lazarus submitted that the maximum volume of excavation permitted by the DCP is “no greater than the volume shown in figure 14A” of the DCP “which involves a straight line calculation depending upon site area”, namely “190 cubic metres”. Figure 14A of the DCP is reproduced below:

192. Further, Mr Lazarus submitted:

An additional 281 cubic metres of excavation is proposed under the modification application to accommodate a new cellar and storage which is considered to be unnecessary in this instance, given that the approved dwelling already … has - ample storage space. The proposal does not concur with objective O2 with its intent to minimise excavation. And then objective O5: excavation works are considered to be temporary in nature, therefore minimising associated noise, vibration, dust, and other amenity impacts arising from jackhammering, rock-breaking, truck movements, and the like to the short-term.

However, given the amount of excavation is in excess of the volumetric control - and we would say substantially in excess of the volumetric control … the short-term amenity effects are not reasonable as they are likely to be greater due to the extended period of time required to excavate more material than when compared to a compliant development. … The extent of variation sought under this modification is not justified. The proposal is therefore unacceptable with regard to the excavation controls in part B(3.4) of the [DCP] and condition C(1)(d) as being recommended which requires deletion of et cetera.

193. Further, Council submitted, Ralan dealt with a different issue, being whether the breach of an express statutory requirement would result in invalidity. In Ralan, the Court of Appeal expressly eschewed dealing with “the constitutional entrenchment of the Supreme Court’s jurisdiction to intervene in cases of jurisdictional error”: at [171] (Sackville AJA). It is that jurisdiction to review for legal unreasonableness which was being invoked by Council in this case. Mr Lazarus submitted that the analysis in Ralan was:

… purely directed to a Project Blue Sky analysis, as to whether breach leads to invalidity. The Court was not dealing with a claim for jurisdictional error. The Court was not dealing with a claim for legal unreasonableness. So the ratio … is irrelevant to these proceedings.

194. Mr Lazarus submitted that “the consequence of [the first and second respondents’] submission is … that an irrational decision by a certifier, even one that meets the lunacy standard … can never be invalid”, and that “legal unreasonableness is a species of jurisdictional error, as the law is now understood since Li”. Accordingly, Council submitted that “[a] declaration of invalidity usually flows from a finding of jurisdictional error”.

Conclusion in relation to whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration

195. In relation to invalidity, I conclude as follows.

1. As Council submitted, a declaration of invalidity usually follows a finding of jurisdictional error. In May v Northern Beaches Council Meagher and Payne JJA said at [23]:

A declaration of invalidity usually flows from a finding of jurisdictional error. That is because a decision that involves jurisdictional error is a decision that “lacks legal foundation and is properly regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj … at [51]; Hossain v Minister for Immigration and Border Protection … at [24].

2. Here, the first and second respondents adduced no evidence in relation to the detriment or otherwise capable of justifying a refusal of declaratory relief.

3. However, as in Carriage v Stockland Development Pty Ltd & Ors [No 7] ^[57] and Sader v Elgammal, I do not propose to make a declaration that the construction certificate is invalid in its entirety, rather only to the extent that it purports to approve excavation works within the area previously identified as the ‘cellar’ level. Such a declaration would leave the balance of the construction certificate operational, and thereby minimise the cost and delay to the first and second respondents as a consequence of work undertaken other than in the ‘cellar’ level which does not comply with condition C.1(d) of the modified development consent.

   57. [2004] NSWLEC 148 (Pain J).

4. I do not consider it relevant in the exercise of my discretion to have regard to the submission of the first and second respondents as to “there being no evidence that the crane base would be appropriately located at a higher level”. The onus was on the first and second respondents to adduce any evidence that the crane base could not be appropriately located at a higher level. They adduced no such evidence.

5. The proposed excavation was significantly in excess of the volumetric control in the DCP: for the subject site the maximum volume of excavation being 190m³, the Local Planning Panel approving 509.6m³ as the maximum volume of excavation at the site, and excavation of the ‘cellar’ level requiring an additional 281m³ of excavation.

6. Excavation of the ‘cellar’ level requires an additional 281m³ of excavation beyond the 509.6m³ approved by the Local Planning Panel as the maximum volume of excavation at the site. Such excavation is contrary to objective O2 of the DCP, the intent of which is to minimise excavation, and objective O5 which seeks to minimise associated noise, vibration, dust and other amenity impacts arising from jack hammering, rock-breaking, truck movements, and the like in the short term. Accordingly, I accept Council’s submission that the extent of variation sought in the modification application was not justified.

7. As to the reliance placed by the first and second respondents on the Court of Appeal’s decision in Ralan, cl 145(1)(a) of the former EPA Regulation 2000 with which the Court was there concerned, was in different terms to s 19(1) of the Certification Regulation. Further, the Court in Ralan did not foreclose the possibility that a construction certificate issued by a certifier that is “in fact inconsistent with a development consent” might (emphasis added) require that the construction certificate be held void and of no effect. In Ralan, Sackville AJA (with whom Barrett and McColl JJA agreed) said at [165] (emphasis added):

The legislative history referred to at [157]-[164] above is consistent with Parliament simply intending to make it clear that an accredited certifier who issues a construction certificate which is in fact inconsistent with a development consent, breaches cl 145(1) of the EPA Regulation and s 109F(1)(a) of the EPA Act. The introduction of the objective standard means that disciplinary or even criminal sanctions might be imposed on an accredited certifier who issues a construction certificate which is inconsistent with a development consent, regardless of whether the certifier was satisfied in his or her own mind that there was no inconsistency. The purpose of ensuring that accredited certifiers adhere to minimum standards does not require that a construction certificate issued by a certifier who breaches those standards must be held void and of no effect.

At [202] Sackville AJA said as follows:

The legislation accommodates the possibility that an accredited certifier will issue a construction certificate in breach of cl 145(1) and s 109F(1) [Restriction on issue of construction certificates] by according paramountcy to the plans and specifications referred to in the construction certificate.

196. Moreover, as Council submitted, Ralan dealt with a different issue to that which arises here, being whether the breach of an express statutory requirement results in invalidity. In Ralan, the Court expressly eschewed dealing with the constitutional entrenchment of the Supreme Court’s jurisdiction to intervene in cases of jurisdictional error (at [171]). It is that jurisdiction to review for legal unreasonableness which is invoked by Council in this case, and an analysis of Sackville AJA’s reasons in Ralan at [171] makes clear that jurisdictional error played no part in the Court’s decision. There Sackville AJA said:

I leave to one side complications introduced by the constitutional entrenchment of the Supreme Court’s jurisdiction to intervene in cases of “jurisdictional error”: Kirk v Industrial Court (NSW).

197. Accordingly, I will make a declaration of invalidity, having found jurisdictional error: May v Northern Beaches Council at [23]. However, as previously indicated, I will make a declaration of invalidity only to the extent of excavation in the ‘cellar’ level.

198. In making a declaration, the Court should pay “[c]lose attention to the form of declarations proposed”: Rural Press Ltd v Australian Competition and Consumer Commission at [90]. ^[58] Further, “[d]eclarations need not be lengthy, nor seek to reproduce the reasons for judgment, but to have any utility they must explain the declared contravention of the law”: Director, Consumer Affairs Victoria v Vic Solar Pty Ltd (No 3) ^[59] at [5].

     58. (2003) 216 CLR 53; [2003] HCA 75 at [90] (Gummow, Hayne and Heydon JJ).

     59. [2021] FCA 171 at [5] (O’Bryan J).

199. An appropriate form of declaration may be prayer 3 of the amended proposed orders provided to chambers by Council on 11 October 2023 at 9:13am. Prayer 3 is in the following form:

Alternatively, declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 (CC) for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect in so far as it approves below RL 18.28 in the area hatched in red on the attached plan:

a. excavation;

b. structures including lift, lift shafts, stairs, walls, floor, and crane base; and

c. other works in that area.

The attached plan referred to in prayer 3 is extracted above at [4].

200. I will direct the parties to confer in light of these reasons for decision in relation to an appropriate form of declaration and injunction, and to provide chambers with a list of mutual dates so that I can list the matter for further mention.

Costs

201. At the hearing on 10 October 2023, Council foreshadowed an application for costs arising from the first and second respondents’ belated abandonment of reliance on expert evidence.

202. The question of costs thrown away by the first and second respondents’ abandonment of reliance on expert evidence, and costs in the proceedings generally, is reserved. I will hear from the parties in relation to a timetable for the filing of submissions in relation to costs.

Conclusion and orders

203. I will make a declaration that construction certificate 21/345 issued by the third respondent on 31 August 2022 is invalid and of no effect to the extent that it incorporates plans authorising excavation of any of the spatial area occupied by what was previously proposed as the ‘cellar’ level.

203. I will also order that the first and second respondents, by themselves, their servants and agents, be restrained from carrying out any development in reliance on the construction certificate in the spatial area occupied by what was previously proposed as the ‘cellar’ level.

204. I will list the matter for mention before me at a time and a date to be fixed in order to hear from the parties in relation to an appropriate form of declaration and injunction in light of these reasons for decision, and in relation to the question of costs.

205. The Court makes the following orders:

1. Pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the date for the commencement of the proceedings is extended to 1 March 2023, being the date of filing of the summons.

2. Costs reserved.

3. The matter is listed for further mention before me at a time and date to be fixed in order to hear from the parties in relation to an appropriate form of declaration and injunction in light of these reasons, for decision and in relation to the question of costs.

**********

Endnotes

Decision last updated: 28 March 2024