Finding on grounds 1, 2, 3, 4, 6, parts of 7
- A construction certificate was defined under the EPA Act as in force 13 October 2017 to 14 December 2017 as: "…a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5)" (s 109C(1)(b)). A certifying authority is defined as, relevantly, "a person who ... is authorised by or under section 109D to issue Part 4A certificates" (EPA Act s 4). This includes, in relation to construction certificates, a local council as a consent authority or in its own right (s 109C(1)(b)). In this case, Baron requested the Council to be the certifying authority for their construction certificate. Consequently the Court was the certifying authority in the Class 1 appeal.
- Clause 139 of the Regulation required that the application be in any form approved by the certifying authority and had to include specified information, set out in Pt 3, Sch 1 to the Regulation. Clause 5 of Pt 3, Sch 1 sets out the information to be included in the application for a construction certificate and cl 6 sets out the documents that must accompany the application. Relevantly, these include "[a]ppropriate subdivision work plans and specifications". Additional requirements are specified in cll 145 and 146 of the Regulation set out in the Commissioner's judgment at par [28]. The Commissioner correctly identified the relevant planning framework in her judgment.
- There is no dispute that the plans proposed under the construction certificate for internal works were compatible with the development consent as the Commissioner recorded at par [43]. That reflects the requirement in s 81A(4)(a) of the EPA Act and cl 145(2) of the Regulation. Clauses 145(2) and 146(c) of the Regulation made pursuant to s 81A(5) of the EPA Act must also be complied with. Clause 146 requires compliance with each condition of a development consent which must be complied with before a construction certificate may be issued for building or subdivision work.
- In her findings from [54]-[80] the Commissioner identified the issue in [54] as being "consistency with the stormwater drainage design proposed for the southern catchment from the site along Farnborough Drive" and identifies that consistency with the development consent was required by cll 145(2) and 146. The Commissioner concluded at [67] that the construction certificate application was not consistent with the DA contrary to cl 145. Turning to cl 146 in [68] the Commissioner found Baron had not satisfied the requirement in Condition 22(a)(i) of demonstrating a legal right to release surcharge into the Council Reserve. At [73] the Commissioner found that the development consent had not been complied with as the peak discharge from the Site would be greater than the pre-developed peak discharge. While 86.5 percent did not reflect the agreed position of the expert's opinion accurately as I discuss below at [77], the Commissioner's conclusion that the post development peak discharge would exceed the pre-development peak discharge was correct as I find at [79].
- Under s 56A an appeal can be made in relation to a question of law not of merit (see above at [20]). Leaving to one side for the moment whether all the grounds of appeal identify questions of law, the key issue which determines the success or failure of many of the grounds of this appeal namely 1, 2, 3, 4, 6 and parts of 7 is whether Condition 22 of Baron's development consent was complied with as necessary precondition to the issuing of the construction certificate.
- As I found in Gosford Waterfront Alliance Inc v TO Gosford Pty Ltd (No 2) (2016) 220 LGERA 253; [2016] NSWLEC 162 at [47] and the authorities cited therein "... a development consent must be construed in order to give it practical effect and to avoid uncertainty…" and must be a "standalone document". Condition 22 (a)(i) and (ii) are set out above at [19]. They require the provision of adequate stormwater drainage for the conveyance of stormwater passing through the Site and for adequate future provision of stormwater infrastructure to ensure that the peak discharge from the Site is no greater than the pre-developed discharge. The point of discharge of stormwater is to be identified and the legal right to discharge at that point to be justified.
- As the Council submitted whether stormwater drainage requirements as specified in Condition 22(a)(i) and (ii) were met was a precondition to the approval of the construction certificate. This was expressly identified in the judgment at [23] where the Commissioner recorded the Council's new contention that the Court lacked jurisdiction as the construction certificate application was not consistent with the development consent as the stormwater drainage plans for the southern catchment in the construction certificate application did not have the same design outcome as the approved DA. In particular, the proposed discharge as surcharge to the Council Reserve was not approved in the DA. This new contention, I infer, was a response to the change in Baron's case at the Class 1 hearing to amend its application to refer only to internal drainage works, to remove plans for external stormwater works and to rely on obtaining the s 138 approval in accordance with Condition 22(b)(vi) as covering all external stormwater works for the subdivision.
- Condition 22(b)(vi) appears to be essentially a re-statement of what the Roads Act requires, namely approval before work in a road reserve can be carried out. That condition does not deal expressly with stormwater which is the subject of Condition 22(a). It is an approval necessary for those wishing to carry out work in a public road as the section states. It exists separately from any obligation to comply with a condition of development consent under the EPA Act. Further there is nothing in Condition 22(a) which suggests that the s 138 approval sought under Condition 22(b)(vi) is sufficient for the purposes of Condition 22(a)(i) and (ii) in relation to stormwater inter alia. That Baron asserted that it was does not make it so. That Baron chose to rely on the s 138 approval in this manner did not act as some kind of estoppel on the Council's expert Mr Ashe having the opinion that the s 138 approval did not comply with the development consent and the Commissioner accepting that opinion in considering the adequacy of off-site stormwater disposal as Condition 22(a)(i) and (ii) required.
- I agree with Baron that whether the s 138 approval was validly issued could not arise before the Commissioner as a matter of law given that s 39(2) of the LEC Act had not been invoked by either party, assuming that it could have been. As the Council submitted whether the Court could have considered the merits of the s 138 approval under s 39(2) is not clear. I do not agree with Baron that it was not open to Mr Ashe to contradict the efficacy of that approval as a matter of law. That Mr Ashe considered the s 138 approval had been issued in error as recorded by the Commissioner was not irrelevant to the question of whether it was consistent with the DA. Baron's reliance in reply submissions on Ryde Municipal Council v The Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 (Royal Ryde Homes) at 324 and Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (Allandale) at [43] (Meagher JA) concerning the construction of such an approval can be accepted but that does not address the issue of how a s 138 Roads Act approval interacts, or not, with the EPA Act.
- That opinion was not central to Mr Ashe's conclusions or the Commissioner's in any event. The judgment deals clearly with the substantive issues of stormwater disposal of the southern catchment off site at [64]-[67].
- Baron submitted several times that the s 138 approval provided a legal right of discharge from the Site, a matter that must be addressed under Condition 22(a)(i). That does not appear to be legally correct. Nothing in ss 138 or 139 of the Roads Act suggests that is within the legal scope of such an approval. A consent under Pt 9 Div 3 of the Roads Act enables specified work to be carried out in a road reserve. No other legal entitlement arises from the terms of the section. An approval under s 68 of the LG Act allows connection of a private drain to a public drain. The words "legal right to discharge" do not appear in the section but that appears a correct description of what is intended by s 68.
- Baron submitted that the point of discharge for the purposes of Condition 22(a)(i) was the point where the drainage pipes went from the Site to the public road, not the discharge point into the Council Reserve. That narrow reading of Condition 22(a)(i) would result in the disjunction identified by the Commissioner at [75] potentially giving rise to a stormwater system overall that does not function effectively. I do not accept that construction of Condition 22(a)(i) as it is too narrow given the purposes of the condition is to ensure effective stormwater disposal.
- It follows that I do not agree with Baron's submission that the Commissioner was incorrect in stating the issue in [54] or her finding that the appeal related to the consistency with the stormwater drainage design proposed for the southern catchment from the Site along Farnborough Drive. Nor do I accept Baron's submission that the appeal was only considering no more than whether the plans and supporting documents were inconsistent with the development consent.
- Numerous paragraphs in the judgment were criticised as disclosing an error of law namely [7],[18],[36], [64] and [65] because the Commissioner referred to external stormwater drainage works for the southern catchment extended from the Site along Farnborough Drive as if these were part of the construction certificate application. As Baron submitted the only plans for which approval was sought in the construction certificate application was for internal works within the Site. While the Baron submission is literally correct when the judgment is read as a whole the Commissioner was clearing using a shorthand way to refer to the s 138 approval. That was part of the package presented to the Commissioner by Baron at the Class 1 hearing and did arise for consideration given the terms of Condition 22(a).
- Given the legal framework under the EPA Act it was appropriate that the experts address whether the proposed off-site discharge of stormwater in the s 138 approval relied on by Baron was consistent with the DA. The Commissioner records the experts' agreements at [38]-[43] and their contrasting opinions and reasoning at [44]-[51]. The Commissioner recorded at [44] that Mr Ashe did not consider that the s 138 approval was consistent with the DA. As identified at [51] the issue was whether the s 138 approval was sufficient to effectively manage the required stormwater discharge from the site.
- Turning to the grounds of appeal ground 1 fails to acknowledge the obligations in cll 145(2) and 146(1) of the Regulation which require compliance with Condition 22(a)(i) and (ii) in particular, a matter the Commissioner had to consider. The finding that the plans for internal drainage works were consistent with the approved DA plans did not require the Commissioner to uphold the appeal as a matter of law. Section 81A(4)(a) of the EPA Act is not the sole criteria for approval of a construction certificate in light of s 109F(1)(a) and cll 145 and 146 of the Regulation. This ground fails because, as the Council submitted, it does not recognise the second reason given by the Commissioner for dismissing the appeal at [73]-[75] and as identified in the amended statement of facts and contentions. I agree with the Council that the Commissioner's approach to cl 146 and the requirements identified in Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 at [158]-[159] (Sackville AJA, McColl and Barrett JJA agreeing) and Moy v Warringah Council (2014) 133 LGERA 49; [2004] NSWCCA 77 at [62]-[63] (Sperling J, Sully and Simpson JJ agreeing) was correct. The Commissioner recorded what the Infrastructure Report prepared by Calibre Consulting as part of the DA had specified for discharge of stormwater off site at [55]. The Commissioner correctly identified that the discharge by surcharge into the Council Reserve was a fundamental component of the proposed off-site stormwater drainage system but was not the system approved in the development consent at [64]-[66].
- My finding above means that all the other grounds relying on this same issue must also fail.
- Ground 2 is difficult to understand. It appears to be raising the same issue as ground 1 expressed in a different way. The finding in [43] that the internal drainage works for which approval is sought in the construction certificate are consistent with the DA and the Commissioner's statement of the key issue in the appeal of consistency of the southern drainage of stormwater with the DA in [54] are said to result in errors of law in [58], [65] and [67] because the latter are unsupported by relevant evidence. Paragraph [58] is an agreed matter. Paragraph [65] is the finding that the DA supported by the Infrastructure Report did not provide for discharge in the form of surcharge into the Council Reserve in a five year ARI event. Paragraph [67] is the Commissioner's conclusion that cl 145 has not been satisfied. Baron's submission is essentially that these matters were irrelevant because they arose from a consideration of stormwater disposal off site. For reasons already stated this is not correct. No error of law is identified of ground 2.
- The same findings as in ground 1 apply to ground 3 which essentially restates the case in ground 1. Ground 3 fails.
- Ground 4 is difficult to understand. Assuming that the reference in the third line to Condition 22(b)(ii) "road upgrade" is to Condition 22(a)(ii) "control of peak discharge", it alleges that the refusal of the construction certificate because the s 138 approval applied for as required by Condition 22(b)(vi) was construed not to go past 41 Farnborough Drive rather than to the Council Reserve was an irrelevant consideration. Baron chose to rely on the s 138 approval at the Class 1 hearing. The Council did not as a matter of law have to accept that as the end of the matter. The Council and its experts were responding to Baron's case relying on the s 138 approval. If this ground is also about the Commissioner's construction of the s 138 approval, that is the issue raised in the alternative in ground 5. It otherwise fails.
- Ground 6 incorrectly attributes error to the Commissioner. As stated it asserts that the Commissioner incorrectly found that Condition 22(b)(iv) [sic] (22(b)(vi)) had not been complied with when it had. The Commissioner is simply recording early in the judgment at [8] that the s 138 approval had been obtained. No finding is made that Condition 22(b)(ii) had not been complied with.
- As already stated neither the Commissioner nor the Council were bound by the fact that the s 138 approval had been issued from considering whether the scheme Baron chose to rely on was in accordance with the development consent.
- That the Commissioner was not satisfied that measures to dispose of stormwater consistent with the development consent were proposed is the end of the matter. No question of law arises from the Commissioner's approach.
- The matters alleged to be irrelevant in ground 7 at (a), (b), (c) and (e) simply cannot be in light of my findings above. All concern aspects of stormwater discharge in the context of the development consent and the s 138 approval which were material to the decision before the Commissioner.
- As the Council submitted and as its expert Mr Ashe attested the necessary assessment of the construction certificate required a holistic consideration of stormwater disposal quite sensibly to ensure that what came off the Site could be dealt with satisfactorily in the public road reserve. No error of approach by the Commissioner has been demonstrated.
- No error of law as identified in State Super or El Boustani v Minister Administering the Environmental Planning & Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33 at [117]-[121] (Preston CJ of LEC, Beazley P and Gleeson JA agreeing) referred to by Baron arises from the Commissioner's decision.