Baulkham Hills Shire Council v Dix and Another

Land and Environment Court (NSW)|2004-06-30|Before: Talbot J, Mrs J, Mr P, Pain J

Introduction 1 HIS HONOUR: The development consent relevant to the issues that arise in these proceedings is in respect of the construction of a multi-unit apartment dwelling at 19-29 Sherwin Avenue, Castle Hill. It bears an endorsed date of consent of 14 August 2001 pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). One of the conditions relating to landscaping was subsequently modified on 27 May 2003. 2 The first respondent was engaged by the second respondent as a private certifier to provide a construction certificate pursuant to Part 4A of the EP&A Act. A certificate was issued by the certifier on 13 August 2003. The project is almost complete. 3 The argument before Pain J in interlocutory proceedings heard on 4 and 5 May 2004 and the argument as it remains now is, broadly, that the construction certificate was issued in respect of building work that is not consistent with the design and construction approved by the modified development consent. Without requiring an undertaking as to damages, Pain J granted an interlocutory injunction restraining work on the on-site detention structure and associated masonry walls until further orders. 4 A number of the conditions of consent are important. In particular, condition 1, condition 2, condition 14(3), condition 15 and condition 22. 5 As a matter of construction, it is obvious that Baulkham Hills Shire Council ("the council") did not approve of the concept plan developed by BLH Consulting in April 2001 for dealing with stormwater on and off the site developed ("the BLH concept plan"). The BLH concept plan was not referred to as an approved plan pursuant to condition 1. Condition 2 anticipates that the certifier would, in due course, deal with any amendments necessary to incorporate the conditions of consent. 6 Condition 15 requires that the stormwater drainage be in accordance with the approved BLH concept plan. The condition is curious given that the BLH Consulting concept plan was not expressly incorporated in the consent itself pursuant to conditions. Presumably, it was intended to convey an approval of the concept without necessarily approving the details of the way in which the concept could be implemented. The condition makes it abundantly clear that details relating to the location of a storage tank and its relationship to the requirement for the provision of landscaping along the eastern boundary need to be submitted and approved prior to the issue of a construction certificate. In particular, the condition requires "amendment of the storage tank location to allow for a two-metre wide landscaping strip along the southeastern boundary". 7 Condition 22 requires a landscaping plan to be submitted and approved by the council, or a suitably qualified landscape architect, or an experienced horticulturalist prior to the issue of the construction certificate. The storage tank location is also qualified by condition 22 as follows:- … details of dense landscape screening to be provided along the rear and side boundaries. In this regard it is noted that the location of the OSD tank is to be modified to provide for a minimum two-metre wide landscape strip for dense planting to address privacy concerns of number 17 Sherwin Avenue.

8 Plans were prepared for the purposes of the construction certificate ("the construction plans"). Details of the on-site drainage system were more fully addressed. The construction plans deleted any reference to the on-site drainage tank previously shown between the eastern elevation of the buildings and the eastern boundary. 9 In lieu of a design that contemplated an underground tank to collect stormwater run-off in the worst storm event, the construction plans provided for four basins constructed at intervals along the street frontage between the buildings and the street. The first respondent issued a construction certificate on the basis of the on-site drainage basin concept in the construction plans. 10 The certifier not only had the detailed engineering plans in relation to the on-site drainage basins but also a landscape plan that made no reference to a tank and contemplated that there would be at least one basin in front of the buildings. I am satisfied that the landscape plan anticipated there would be other basins (having regard to the finished ground levels shown along that frontage). 11 There is evidence of a meeting between representatives of the second respondent and the council in relation to the proposal to change the on-site drainage concept. There is a suggestion (I do not think it gets much higher than a suggestion) the BLH concept plan was approved. At its highest, the evidence shows there was an indication that something along the lines, still being developed at that time, might be satisfactory. There was no formal approval. 12 Condition 14 requires that, in order to provide satisfactory servicing of the development, engineering, design and construction works are to be provided in accordance with certain design guidelines and nominated work specifications. It stipulates that such work should include the following:- (3) on-site stormwater detention is to be provided in accordance with council's policy for the Hawkesbury River catchment and council's design guidelines, subdivision/developments June 1997.

13 It is agreed that the reference to the Hawkesbury River Catchment and the council's design guidelines should be regarded properly as the current guidelines adopted by the council, namely Upper Parramatta River Catchment Trust On-site Stormwater Detention Handbook ("the handbook"). The guidelines in the handbook are clear. Not only are on-site detention basins a satisfactory method of providing for the collection of stormwater, but many of the provisions indicate that, for reasons such as flexibility, maintenance and cost, above ground storage is desirable. It is not disputed, as I understand it and even if it is, I do not think it can be disputed, that what is approved by the construction certificate is not inconsistent with the policy in the handbook. 14 The two-metre wide strip for landscaping referred to in conditions 15 and 22 could not, as a fact of dimension, be provided whilever the in-ground tank remained of the same size, in particular the width depicted on the development consent plans. There is no evidence to establish one way or the other whether or not the tank could have been accommodated along with a two-metre strip for landscaping adjacent to the side boundary. 15 Clauses 145, 146 and 161 of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation") are relevant to the issues raised by the council. Clause 161(2) effectively places the certifier in the position of the council in relation to the approval of any matters that are required to be approved pursuant to development consent conditions. 16 The evidence from the council's witness has been the same in both the interlocutory hearing before Pain J and in the present hearing, that is, the provision of the basins along the frontage caused the development to be such that the certifier, insofar as on-site drainage is concerned, could not have been in a position to certify that the stormwater construction works were consistent with the development consent. To put it another way, the design and construction of those works are not consistent with the development consent. 17 It is not appropriate to construe a development consent in a way that one would construe a statute or other statutory provision. It is not a document drawn by lawyers. One has to look at the objectives of the consent and its conditions. The overall construction needs to be rationalised in a practical and effective way where there are conflicting provisions. 18 What the council effectively did was to leave the ultimate design and detail of the stormwater drainage system for later consideration. In particular the final design was required prior to the issue of the construction certificate, after the more detailed plans required at that stage of the approval process have been developed. The council did have before it a concept plan. 19 The principal arguments on behalf of the council are as follows:- (a) The accredited certifier had no jurisdiction to issue a construction certificate because:-

(i) the design and construction of the building was inconsistent with the development consent contrary to cl 145 of the EP&A Regulation; and

(ii) condition 15 of the development consent had not been satisfied, contrary to cl 146 of the EP&A Regulation. (b) No accredited certifier acting reasonably could have formed the opinion that:-

(i) the design and construction of the building works was not inconsistent with the development consent as required by cl 146; and (ii) condition 15 had been complied with contrary to cl 146, in the Associated Provincial Picture Houses v Wednesbury Corporation 1948 1 KB sense.

(c) The accredited certifier gave no real consideration to the inconsistency between the development consent and the construction plans (Parramatta City Council v Hale (1982) 47 LGRA 319); (d) The accredited certifier gave no real consideration to the requirements of condition 15 (Parrramatta v Hale); or (e) The findings of the accredited certifier were based on findings or inferences of fact which were not supported by some probative material or logical grounds (Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611).

20 The Court of Appeal observed in Moy v Warringah [2004] NSWCCA 77 that it is entirely possible that some variation might be seen as resulting in "substantially the same development" within the meaning of s 96 of the EP&A Act and yet as being incapable of accommodating the requirement that the certified development be "not inconsistent with" the development consent within the meaning of cl 145 of the EP&A Regulation. That distinction is noted and adopted for present purposes. 21 The following is an explanation of principle by the Chief Judge in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63-64:- The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcast Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 409 at 515-517. "Objectivity" and "essentiality" are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of "essentiality" will often suggest "objectivity". Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult. 22 In Eshetu Gummow J said the following in relation to the mental state of the decision maker at 651:- A determination that the decision-maker is not "satisfied" that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable… 23 His Honour continued as follows:- ... where the criterion of which authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. Where the issue whether a statutory power was enlivened turns upon the further decision of whether the requisite satisfaction of the decision-maker was arrived at reasonably…(it) would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.

24 Gummow J expressly approved the following passage extracted from the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119:- In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not have been reasonably reached. 25 The judgment of Gummow J in Eshetu is quoted by Gleeson CJ, Gummow, Kirby and Hayne JJ in their joint judgment in Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135 at [34] to support the proposition that where the jurisdictional fact relied upon turns upon the satisfaction or opinion of the relevant authority as to a state of affairs, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker. 26 Based on the latest line of authority in the High Court, the satisfaction of the certifying authority can, in my view, be scrutinised by a criterion of "reasonableness review", notwithstanding that it may require formulation of an opinion to reach the point where a construction certificate can be issued. The opinion can be reviewed on the ground of reasonableness where the satisfaction of the certifier as the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical ground (see Eshetu at p 657). 27 I have concluded that what was contained in the BLH concept plan was not, in terms, what was to be built. That was to be submitted concisely in the construction certificate plans. However, in the context of the purpose and objective of on-site detention and drainage design generally, the concept remains the same. Stormwater is directed around the outside of the buildings, the excess from a major event is to be stored on-site. The storage is relatively, at least for present purposes, at the same level of capacity. The difference is that when there is a major event (namely a one-in-one hundred-year storm event) rather than the water being stored underground at one location, it will be stored on a temporary basis in another location. Conceptually, therefore, the certified plans were not inconsistent with the development consent. 28 I do not accept the then uncontested evidence that Pain J was asked to rely upon in the interlocutory proceedings that there has been a conceptual change or even any marked detailed change to the presentation of the development along its southwest streetscape to Sherwin Avenue. There will still be a retaining wall. There has been much argument about the approved proposed height of the retaining wall and whether the plans depicted it accurately. I am not satisfied that the retaining wall was ever the subject of a clear specification and, if it was, it certainly escaped everybody who has either given evidence or made submissions. At least, that is, to the extent that they have been able to explain to me otherwise. 29 According to the construction plans, there will still be a fence behind the wall and set-back as indicated in the original development consent plan. It will be scalloped. There will be a pathway behind and there will be landscaping interposed. 30 The Court is in a privileged position because it has had three days of hearing, detailed analysis, scrutiny and explanation of how the plans are to be read and understood. I have formed the view that the first respondent, as the certifying authority, was entitled to issue a construction certificate pursuant to cl 145(1) of the EP&A Regulation on the basis that the design and construction of the buildings at large are not inconsistent with the development consent. I am not prepared to hold that the deletion of a tank at one location and the proposal to build basins at a different location to serve exactly the same purpose, in a manner which is consistent with at least condition 14 of the development consent and in accordance with plans which the condition 15 expressly provided for and fell to be approved by the certifier pursuant to cl 161, are conceptually different in a relevant sense so that they are to regarded as inconsistent with the development consent. 31 It is clear from the terms of condition 15, read in conjunction with condition 22(f), that the location of the on-site detention tank, and the provision of a two-metre wide landscaping strip along the southeastern boundary, are inextricably linked. The authority to deal with the location of the on-site detention facility arises directly out of the conditions of consent. 32 Furthermore, the concept for the stormwater drainage was not finally approved in a way that required the system to be constructed strictly in accordance with the original BLH Consulting drawings, (even though the effect of condition 15 is equivocal). It is clear from a proper understanding of the operation of the whole of condition 15, together with conditions 14(3) and 22(f), that further plans were required. 33 I do not propose to further analyse all of the arguments raised by Mrs Kelly, who appears on behalf of the council, as to whether or not there was a jurisdictional fact or whether there was Wednesbury unreasonableness or whether the decision by the certifier was such that it could not be supported by some probative material or logical grounds in detail because I am satisfied that, irrespective of the way in which the legal position is to be addressed, the certifier was acting reasonably within jurisdiction. He acted to approve and certify plans which were not inconsistent with the development consent. It is established by the evidence that he had before him all of the relevant plans and details that he was required to consider pursuant to the EP&A Regulations before making a decision pursuant to s 109O of the EP&A Act and the EP&A Regulation. The conditions of consent raised the expectation that there could be changes which the certifier would be expected to consider and approve standing in the shoes of the council.

34 I am not satisfied that there has been any relevant breach of the law that would justify the Court granting the relief that the council seeks. 35 If the council had been able to prove its case it is my present view, based on the evidence having regard to the alleged consequences of the alleged breaches, the Court would not have been justified in granting the relief sought by the council. There is no ongoing detrimental effect in relation to the effectiveness of the drainage system. Moreover, there is no adverse impact of the development on the street frontage. My view in that respect is not final because the issue of discretion has not been argued specifically and has been left to be determined as a separate issue. However, the limited observations that I do make reinforce the conclusion in respect of the changes adopted by the certifier. They were changes well within the jurisdiction of a certifier pursuant to the EP&A Act and the EP&A Regulation. 36 I therefore discharge the injunction imposed by Pain J on 4 May and the class 4 application is dismissed. A cross-application for damages by the second respondent against the applicant has not been argued. The cross-application is listed for callover before the Registrar on 6 July 2004. Costs

37 I will make an order that the applicant pay the costs of the first respondent and the second respondent and reserve the question of any special order for costs for the first respondent. If you wish to pursue it then you must do so within seven days by notice of motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Baulkham Hills Shire Council v Dix and Another [2004] NSWLEC 404 APPLICANT Baulkham Hills Shire Council

SECOND RESPONDENT Reham Developments Pty Limited FILE NUMBER(S) : 40514 of 2004 CORAM: Talbot J KEY ISSUES: :- Construction Certificate :- whether construction plans inconsistent with development consent - whether certified acted reasonably Jurisdictional Fact :- basis for challenge where cerifier required to be satisfied before making certificate LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96, Pt 4A, s 109O Environmental Planning and Assessment Regulation 2000 cl 145, cl 146, cl 161, cl 161(2) Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; Buck v Bavone (1976) 135 CLR 110; Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135; CASES CITED: Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611; Moy v Warringah [2004] NSWCCA 77, unreported; Parramatta City Council v Hale (1982) 47 LGRA 319; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 DATES OF HEARING: 28/06/2004, 29/06/2004, 30/06/2004 EX TEMPORE 06/30/2004 JUDGMENT DATE :

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