Cameron v Woollahra Municipal Council

) 190 CLR 1; [1997] HCA 27 Lesnewski v Mosman Municipal Council [2005] NSWCA 99 Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; [2023] FCAFC 126 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 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 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Sader v Elgammal [2022] NSWLEC 107 Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13 Smith v Wyong Shire Council [2003] NSWCA 322 The Hills Shire Council v Drenovac [2022] NSWLEC 139 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Texts Cited: J Kirk SC, 'The Concept of Jurisdictional Error' in Key Issues in Judicial Review (Neil Williams SC ed, Federation Press, 2014) M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) Category: Principal judgment Parties: Andrew Cameron (first appellant) Vanessa Green (second appellant) Woollahra Municipal Council (first respondent) Paul Aramini (second respondent) Representation: Counsel:

I Hemmings SC / J Farrell (appellants) J Lazarus SC / M Harker (first respondent)

Mills Oakley (appellants) Rosemary Bullmore (first respondent) HBA Legal (second respondent) File Number(s): 2024/151110 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2024] NSWLEC 27 Date of Decision: 28 March 2024 Before: Pritchard J File Number(s): 2023/68853

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] On 13 April 2021, Woollahra Municipal Council ("the Council") granted development consent for a proposed development in Bellevue Hill, which involved demolishing a pre-existing dwelling and replacing it with a three-storey house. Mr Cameron and Ms Green ("the appellants") are the registered proprietors of the property. On 11 April 2022, the appellants lodged a modification application under s 4.55 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"), which sought to modify the development consent in various ways, including by adding a cellar level to the proposed development, with access to the cellar and associated storage area to be provided by a lift and access stairs. On 16 June 2022, the Council issued an assessment report responding to the appellants' modification application. The report recommended "the deletion of the new cellar level and associated excavation" and that the proposed modifications otherwise be accepted. The Local Planning Panel modified the development consent and added condition C.1(d), which deleted the cellar level and provided that the area must remain unexcavated. The modified development consent approved three construction plans in each case with the notation "Cellar Level Deleted". On 31 August 2022, the second respondent, an accredited certifier, issued a construction certificate for the site, listing the development consent, the second development consent and the modified development consent as the relevant consents. Structural plans showed works in the area of the former cellar including an apparent lower floor level for a construction void with a concrete slab and precast concrete walls, stairs leading into the construction void, a lift, and a crane base. Thus, an issue arose from the inconsistency between condition C.1(d) of the development consent, which deleted the cellar level from the proposed consent, and the construction certificate, which permitted excavation of the area where the cellar level had been proposed for the purposes of building a crane base and installing a crane. The primary judge held that the Court should extend time under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") for the Council to commence proceedings for judicial review of the certifier's decision to issue the construction certificate. The modified development consent, properly construed, prohibited excavation within the area previously identified as the cellar level for all purposes. The plans, specifications and standards of building work specified in the construction certificate were not consistent with the modified development consent. The primary judge found it was legally unreasonable for the certifier to determine that the construction certificate was consistent with the modified development consent. The primary judge made a declaration of invalidity in respect of part of the construction certificate. There were three issues on appeal: (i) Was there error in the exercise of the primary judge's discretion to extend time to commence judicial review proceedings pursuant to UCPR r 59.10? (ii) Was the decision of the private certifier to issue a construction certificate in the form it took legally unreasonable? (iii) Was the consequence of a finding of legal unreasonableness the invalidity of part of the construction certificate? The Court (Payne JA, White JA and Price AJA agreeing at [183] and [184] respectively) held, dismissing the appeal: On issue (i): (1) The primary judge did not err in extending time pursuant to UCPR r 59.10: at [75]. In general, a tight rein should be kept on applications to extend time in the statutory context of residential building pursuant to a construction certificate issued after an extensive development application process. The absence of any evidence of prejudice to the appellants by the extension of time in the present case was striking: at [74]. Bankstown City Council v Ramahi [2015] NSWLEC 74 considered. Clancy v Director of Public Prosecutions [2018] NSWCA 102; Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 applied. On issue (ii): (2) The construction certificate was inconsistent with the development consent. The task in determining "inconsistency" is to make findings about the nature and extent of the variations to the approval plans and specifications. It is necessary to make an evaluative judgment as to whether the variations were or were not inconsistent, in the relevant sense, with the plans and specifications approved in the development consent: at [105]-[108]. Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 applied. (3) Inconsistency between a development consent and a construction certificate does not, in itself, establish that the decision of the certifier to issue a construction certificate was legally unreasonable. The issues are to be resolved by proper construction of the development consent, read as a whole, and the construction certificate, and the application of well-known principles to establish unreasonableness. It is necessary to analyse the reasons of the certifier and the nature and extent of the inconsistency. The question is whether a certifier acting rationally, and having regard to the development consent as a whole, could have taken the view that the construction certificate plans were consistent with that development consent: at [109]-[125]. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121 applied. (4) There was no evidence of a recommendation of the Geotechnical/Hydrogeological Monitoring Program or direction of the supervising professional engineer to excavate the former cellar level. There is no indication in the voluminous materials that the construction of the crane in the former cellar area, the precast panels, or the construction void were necessary to permit the ongoing construction of structural elements of the new house: at [126]-[136]. In the face of such a clear condition, the certifier's decision to issue a construction certificate which set condition C.1(d) at naught was legally unreasonable: at [138]. On issue (iii): (5) A decision involving jurisdictional error, although it remains a decision in fact, is properly to be regarded as no decision at all: at [153]-[161]. The consequence of a finding of jurisdictional error is a question of statutory construction: at [159]. The appellants accepted that the decision to issue the construction certificate was amenable to judicial review for jurisdictional error. Jurisdictional error having been found, the impugned decision was void, at least in part. Nothing in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 mandates a different conclusion: at [160]-[180]. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11; New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 applied. Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 considered.

Judgment

1. PAYNE JA: Mr Cameron and Ms Green ("the appellants") are the registered proprietors of a property in Bellevue Hill. The first respondent, Woollahra Municipal Council ("the Council") is the consent authority for residential building development in Bellevue Hill. The second respondent, Mr Paul Aramini, ("the certifier"), is a private certifier who issued a construction certificate for the appellants' property. Mr Aramini entered submitting appearances in this Court and in the Land and Environment Court.
2. On 13 April 2021, the Council granted development consent DA 457/2020 for a proposed development in Bellevue Hill, which involves demolishing a pre-existing dwelling and replacing it with a three-storey house. A second development consent was later granted, which is irrelevant to the present appeal.
3. On 11 April 2022, the appellants lodged modification application DA 457/2020/3 under s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act"), which sought to modify the development consent in various ways, including by adding a cellar level to the proposed development, with access to the cellar and associated storage area to be provided by a lift and access stairs.
4. On 16 June 2022, the Council issued an assessment report responding to the appellants' modification application. The report recommended that the Woollahra Local Planning Panel accept the proposed modifications except for the proposed new cellar level. Instead, the report recommended "the deletion of the new cellar level and associated excavation". The report gave the following reason: ... 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.
5. Also on 16 June 2022, the Local Planning Panel modified the development consent "for the reasons set out in the assessment report". Relevantly, the Panel included the following new sub-paragraph (d) to condition C.1: 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. (emphasis added).

The primary judgment

1. There were five issues identified by the primary judge. Only issues 1, 4 and 5 remain controversial on appeal. Those issues and the answers given by the primary judge were: 1. Whether the Court should extend time by approximately three months under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") for the Council to commence proceedings for judicial review of the certifier's decision of 31 August 2022 to issue the construction certificate. The three month period under r 59.10 for commencing the proceedings expired on 30 November 2022. The proceedings were commenced on 1 March 2023. Answer: Yes. 2. Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the cellar level for all purposes. Answer: Yes. 3. Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent. Answer: No. 4. If the answer to question (3) is no, whether it was legally unreasonable for the second respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent. Answer: Yes. 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. Answer: Declaration of invalidity in respect of part of the modified development consent, being part of the construction certificate.
2. On 26 April 2024, the primary judge made the following orders: 1 The Court declares that construction certificate 21/345, issued by Paul Aramini, on 31 August 2022 (CC) for the demolition of the existing dwelling and the construction of a new dwelling at [XX] Suttie Road, Bellevue Hill, is invalid and of no effect in so far as it purports to approve 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. 2 Order that the First and Second Respondents, by themselves, their servants and agents, are restrained from carrying out any development in reliance on that part of the CC referred to in Order 1 above.
3. The attached plan referred to in the primary judge's orders provided:

(1) Extension of time under UCPR r 59.10

1. The primary judge was satisfied that the Land and Environment Court had jurisdiction to extend time to commence the proceedings under UCPR r 59.10: Bankstown City Council v Ramahi [2015] NSWLEC 74 ("Ramahi").
2. Her Honour was persuaded by the Council's responsibility to enforce the EPA Act and the lack of significant prejudice to the appellants from the delay. Her Honour accepted the 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 the Council in commencing the proceedings. The primary judge accepted that 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.
3. The primary judge accepted the Council's submission that any prejudice to the appellants needed to be considered in the context that the appellants knew that the Local Planning Panel "had essentially refused consent to a cellar level" and nonetheless submitted plans to the principal certifying authority that showed a cellar level.
4. The primary judge was satisfied that the Council's delay was not undue. The Council, having 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.
5. The primary judge held that neither The Hills Shire Council v Drenovac [2022] NSWLEC 139 nor Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171 is authority for the proposition that the Council's role is to proactively monitor certificates issued by private certifiers. The rejection of that submission in Drenovac turned on the inadequacies of the Council's evidence at [180], and in Gindurra Road at [234], Pain J emphasised that the Council had delayed for over one year.
6. The primary judge accepted that the Council was entitled to presume that the construction certificate had been issued in compliance with the EPA Act, the Certification Regulation and the applicable environmental planning instrument and development standards.

(2) Construing the development consent

1. Secondly, the primary judge held that the modified development consent, properly construed, prohibited excavation and works within the area previously identified in condition C.1(d) as the 'cellar' level for all purposes, including critically, to build a crane base. The primary judge concluded that there was nothing ambiguous in the language of condition C.1(d). As I have said this is no longer an issue on appeal.

(3) Inconsistency

1. Thirdly, the primary judge held that the plans, specifications, and standards of building work specified in the construction certificate were not consistent with the development consent for several reasons: 1. The development consent did not permit excavation for a crane base in the "cellar" level area. The development consent explicitly prohibited excavation in the spatial area previously occupied by the "cellar" level. The construction certificate permitted excavation in that area. 2. The structural plans approved by the certifier indicated far more extensive excavation than what was allowed for a crane base. The "Cellar Level Plan", deleted by the modified consent, still appeared in the construction plans, showing lifts and stairs inconsistent with the consent. 3. The structural plans suggested the creation of a broader accessible space, not just the crane base and shoring. The inclusion of permanent structures like a lift and stairs indicated that the excavation was intended to be permanent, contradicting the requirement for the area to remain unexcavated.

(4) Legal unreasonableness

1. The primary judge concluded that the certifier's decision to issue the construction certificate was legally unreasonable. Her Honour found that there was no evident or intelligible basis for the certifier to determine that the building design and construction shown in the construction certificate was consistent with the development consent.
2. The primary judge held that a certifier must act according to the law and must be rational and not unreasonable. In Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [14], Basten JA noted that even if a certificate's validity depends on the certifier's state of satisfaction, the certifier must act within legal and rational bounds. This means that unreasonableness must be inferred objectively from the matters before the certifier and the actual decision reached.
3. The primary judge explained that while the threshold for proving a certifier's decision is legally unreasonable is high, it has been met in other cases, such as Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34 ("Ramahi (No 2)"). The certifier, in the present case, had to ensure that the building design and construction plans incorporated in the construction certificate were consistent with the modified development consent per cl 19(1)(b) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) ("Certification Regulation").
4. The primary judge also relied on Sader v Elgammal [2022] NSWLEC 107, where there was a successful legal unreasonableness challenge to a construction certificate because the development consent did not authorise the demolition of a wall. 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".
5. Applying these principles, the primary judge held that only one conclusion was open to the certifier given the architectural and structural plans provided. These plans indicated the installation of a concrete crane base, which presupposed excavation, and described the area above it as a "void". Her Honour held that a comparison of the modified development consent plans and the stamped construction plans clearly shows that the construction void overlaps with the "cellar" level.

(5) Invalidity

1. The fifth issue was 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 considerations.
2. The primary judge concluded that the modified development consent does not permit excavation in the "cellar" level area and that the construction plans are inconsistent with the consent. The primary judge found that a declaration of invalidity was warranted due to jurisdictional error, but it would only apply to the excavation in the "cellar" level to minimise disruption and costs for the appellants. Her Honour found: 1. Jurisdictional error generally leads to a declaration of invalidity, as such decisions lack a legal foundation. The declaration of invalidity was limited to the "cellar" level excavation to avoid broader impacts on the construction of the new dwelling. 2. The appellants failed to show that the crane base could not be relocated to a higher level. The proposed excavation was not justified and was contrary to the development control plan's objectives. 3. Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404, which was relied upon by the appellants, dealt with different legal issues and did not preclude the current declaration of invalidity.

Grounds of Appeal

1. The notice of appeal provided: 1 In deciding to extend the time under rule 59.10 of the Uniform Civil Procedure Rules 2005 for the First Respondent to commence proceedings for judicial review of the Second Respondent's decision of 31 August 2022 to issue construction certificate 21 /345 (Construction Certificate), the learned primary judge erred in the exercise of her discretion at J[107] in that her Honour: a. treated as irrelevant and failed to take into account (or alternatively gave insufficient weight) to material considerations, namely: i. that the First Respondent was in a position to commence the proceedings within time, having in its possession a copy of the Construction Certificate and having attended the development site on 27 October 2022 for enforcement purposes on that date; and/or ii. the public interest in the certainty and finality of decisions made by certifiers in relation to construction certificates; b. gave material weight to (or alternatively gave undue weight) to irrelevant considerations, namely: i. the resources of the First Respondent and 'the number of construction certificates and complying development certificates issued in the Woollahra Local Government Area each year' at J107; and/or ii. that 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" at J107. 2 The learned primary judge erred in finding that it was 'legally unreasonable' for the Second Respondent to determine that the plans, specifications and standards of building work specified in the Construction Certificate were consistent with the modified development consent, in that, on the evidence before the Court, there was an evident and intelligible justification for the inconsistency between the relevant architectural plans and the structural plans contrary to J179 and J179-(6) and J179. 3 The learned primary judge erred in finding that the consequence of a finding of legal unreasonableness was the invalidity of the Construction Certificate at J[195] - [197].
2. This appeal is brought under s 58 of the Land and Environment Court Act 1979 (NSW) and is an appeal by way of rehearing.

Relevant legal framework

1. Before descending into the detail of the issues on the appeal it is necessary first to set out the relevant statutory background.
2. Section 4.16(12) of the EPA Act (then numbered differently) is a provision at the heart of the decision in Ralan, a case which I will analyse in detail below. Section 4.16 (12) provides: 4.16 Determination (cf previous s 80) … (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).
3. Section 6.1 of the EPA Act contains definitions, relevantly building work means any physical activity involved in the erection of a building. Certifier means a council or a registered certifier. … Note - Section 1.4 (Definitions) includes a complying development certificate in the definition of development consent for the purposes of this Act.
4. Division 6.2 of the EPA Act deals with certificates required under the certification part of the Act, and s 6.3 provides, relevantly: 6.3 Work or activity that requires certificate under this Part (cf previous s 109C) (1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity - (a) building work, … (2) A person must not, in carrying out any such work or activity, contravene a certificate under this Part that applies to the carrying out of the work or activity. … Maximum penalty - Tier 1 monetary penalty. …
5. Section 6.4 identifies the kinds of certificates to which the Part applies, being relevantly: 6.4 Kinds of certificates under this Part (cf previous s 109C) There are the following kinds of certificates under this Part - (a) construction certificate - a certificate to the effect that building work completed in accordance with specified plans and specifications or standards will comply with the requirements of the regulations. …
6. Section 6.5 of the EPA Act sets out the functions of certifiers and provides, relevantly: 6.5 Functions of certifiers (including principal certifiers) (cf previous s 109E) (1) A certifier has the following functions in relation to building work - (a) issuing construction certificates for building work, …. (4) A certifier also has any other functions conferred or imposed on the certifier under this or any other Act. …. (5) A certifier must not issue a certificate under this Part - (a) in any case in which this part or Part 7 provides that the certificate is not to be issued, or (b) in any case in which the function of issuing the certificate is not conferred on the certifier by this Part. Maximum penalty - Tier 3 monetary penalty. …

Submissions on ground 1

1. Although the appellants' written submissions stated that because the appeal is brought pursuant to s 58 of the Land and Environment Court Act 1979 (NSW), it is not necessary to demonstrate a House v The King (1936) 55 CLR 499 error to establish ground 1, it was conceded by Mr Hemmings SC, Senior Counsel for the appellants at the hearing, that House v The King error needed to be shown.
2. The appellants submitted that the House v The King error arose from the primary judge's failure properly to recognise the statutory scheme which provides for a three month limitation to commence cases seeking orders of invalidity of a construction certificate under s 6.32 of the EPA Act.
3. The appellants submitted that there were two main reasons tending against the extension of time to commence judicial review proceedings here. First, it was submitted that the Council was in a position to commence proceedings within time. Secondly, it was submitted that there was public interest in the certainty and finality of decisions made by certifiers in relation to construction certificates.
4. The appellants submitted that the primary judge failed properly to take into account a material consideration being the time at which the Council became aware or, by exercising reasonable diligence, should have become aware that the construction certificate was issued. The appellants highlighted the mandatory notification provisions in the Certification Regulation which are triggered by the decision-making process. Clause 13(2) of the Certification Regulation requires that within 2 days after determining the application, the certifier use the NSW planning portal to give a copy of the determination and the construction certificate to the Council as well as other materials necessary to scrutinise the construction certificate to determine whether there is a departure from the development consent or a risk to public safety that might warrant intervention: Ralan at [184]. Such scrutiny may occur within a three month window: s 6.32 of the EPA Act. While the Council was not actually aware of the inconsistency between the construction certificate and the development consent until it received a complaint on 31 January 2023, the appellants submitted that this was because the Council had elected to take a reactive approach.
5. The appellants submitted that the argument that the Council has limited resources is unpersuasive given specific legislation limiting challenges to relevant time periods citing Drenovac [2022] at [180] and Gindurra at [233] and [234]. It was argued that a contrary finding would mean that the statutory time limit in s 6.32 of the EPA Act serves no purpose.

Consideration of ground 1

1. UCPR r 59.10 provides: 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.
2. In Ramahi, Preston CJ of LEC dealt with a case involving a complying development certificate issued by a private certifier. Despite the apparent similarity of the issues involved here, Ramahi is quite different to the present case. Ramahi was a case where there was no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or accredited certifier (then s 85A(10) of the EPA Act, now repealed, see s 4.28 EPA Act). However, as Preston CJ of LEC recognised, there was still available the right conferred by s 20(2) of the Land and Environment Court Act to bring proceedings for judicial review of a determination of, or a failure or refusal to determine, an application for a complying development certificate.
3. There was a privative provision, then numbered s 101 of the EPA Act, now s 4.59 of the EPA Act, which forbade judicial review of a determination of an application for a complying development certificate save where proceedings were commenced within three months after the occurrence of identified procedural steps. Section 101 provided: If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

Appellants' submissions

1. By ground 2, the appellants argued that the primary judge erred in finding that it was legally unreasonable for the certifier to determine that the plans, specifications and standards of building work in the certificate were consistent with the development consent.
2. The appellants argued that the text and context of the EPA Act support a high bar of legal unreasonableness which mere inconsistency between the development consent and construction certificate would not ordinarily suffice. They gave the following reasons: 1. The starting point is section 4.16(12) of the EPA Act, extracted above at [37]. 2. Section 6.32 expands the scope of merits review but limits it to a three month period, recognising public interest in the finality of certificates. After this period, a challenge based solely on inconsistency is not enough. 3. The prohibition in s 6.8 of the EPA Act targets the authority issuing a construction certificate, such as a council or an accredited certifier, rather than the person benefiting from the development consent. But the developer may suffer adverse consequences if they rely in good faith on a certificate that is later deemed invalid due to inconsistency with the development consent.
3. The appellants observed that this high bar has "led the Courts to remark that judicial review on the basis of manifest unreasonableness is rare".
4. The appellants argued that the inquiry into whether a decision is legally unreasonable is "outcome-focused", "asking whether the decision ultimately reached by the decision-maker can be supported by a hypothetical decision-maker undertaking logical analysis on the evidence available": Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (Crennan and Bell JJ at [130]) and Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; [2023] FCAFC 126 at [51]. The appellants argued that the "outcome-focused" approach is the appropriate approach in this case because the certifier did not give reasons for the issue of the certificate.
5. As to the standard of unreasonableness, the appellants said that "[a] decision may be unreasonable if it lacks an evident and intelligible justification or is so devoid of plausible justification that no reasonable person could have taken that course".
6. In particular, the appellants argued that a certifier may issue a construction certificate that breaches a consent condition, making it inconsistent but not necessarily irrational or manifestly unreasonable, especially if there is a clear justification for the decision. Whether issuing the certificate was irrational or "manifestly unreasonable" depends on the specific facts in the consent conditions.

The Council's submissions

1. The Council submitted that any inference of unreasonableness is drawn from an objective consideration of the matters in issue before the certifier and the outcome. In other words, "[i]t is not incumbent upon an applicant for judicial review, nor the Court, to identify a particular error to ground a conclusion of unreasonableness. That would negate the results-focussed lens for assessing unreasonableness".
2. The Council submitted that the certifier had no jurisdiction to misconstrue the law. That is, the area of discretion given to the certifier was premised upon a single correct construction of the development consent. The question of how the development consent is construed is one for the Court. The Council said that the appellants approach attempted to speculate that the certifier may have made a different legal error, most likely a jurisdictional error, by misconstruing the consent. Thus, the relevant question is not whether another construction of the development consent was reasonably open to the certifier, but, given the Courts finding about the legal meaning of a legislative instrument such as a development consent - a question of law with only one correct answer - whether there was an evident and intelligible justification for the certifier's conclusion that the plans and specifications shown in the plans were consistent with the consent (properly construed).
3. The Council also argued that the appellants "mischaracterise[d] the primary judge's approach" by saying that the primary judge erroneously equated her finding that the development consent had one meaning with a finding that anything different to that single meaning was manifestly unreasonable. The Council submitted that the primary judge was correct to find that the question of consistency with the consent (after it was properly and objectively construed and given its one legal meaning) was not one on which reasonable minds could differ.
4. The Council argued that the primary judge's approach was correct, that is, "any inference of unreasonableness is drawn from an objective consideration of the matters in issue before the certifier and the outcome". Applying these considerations, the Council argued that that the certifier's decision was unreasonable for several reasons.
5. First, as the primary judge found, the language of condition C.1(d) is clear. It is not expressed in generic language, but gave a specific direction as to what must occur with the plans (deletion of the cellar level), and what must not occur on the site (the area must remain unexcavated). The Council submitted that there was no contestable evaluative element in this case. Condition C.1(d) is unambiguous. Secondly, the Council argued that none of the conditions pointed to by the appellants required excavation or the installation of a crane, let alone in the area of the cellar level. General conditions, such as that any excavation required a monitoring program (condition E.8) or that cranes may be erected (condition E.13), yield to the more specific condition that there be no excavation in the cellar level (condition C.1(d)).

Consideration of ground 2

1. The unreasonableness ground of judicial review is no longer limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable no reasonable person could have arrived at it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68] (Hayne, Kiefel and Bell JJ). In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) it is suggested at [6.450], that Li "invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness".
2. In Li French CJ said: "[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence". As Professor Galligan wrote [DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford University Press, 1986) at 140]: "The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed." A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions." (Footnotes omitted.)

The meaning of "consistent"

1. Before addressing unreasonableness in the context of a decision to issue a construction certificate, it is first necessary to address the meaning of "consistent" in cl 19 of the Certification Regulation and s 6.32 of the EPA Act.
2. In Ralan, Sackville AJA explained: "[147] The ordinary meaning of "inconsistent" includes "lacking in harmony between different parts or elements" or "self-contradictory" (Macquarie Dictionary); "discrepancy" or "incongruity" (Shorter Oxford English Dictionary). There is no reason to think that the expression "not inconsistent" is used in anything other than its ordinary meaning: see Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 331 (Kirby P) (construing s 36 of the EPA Act which concerns "inconsistency" between environmental planning instruments). On this basis, his Honour should have directed attention to whether the two sets of specifications were inconsistent, in the sense of lacking harmony between different elements or lacking congruity. [148] No doubt this is not a straightforward task. Not every difference between the DA and the plans and specifications furnished to the certifying authority and approved in the CCs amounts to an inconsistency in the relevant sense. As Lloyd J observed in El Cheikh v Hurstville City Council [2001] NSWLEC 175; 115 LGERA 425 at [74], albeit in another context, a difference does not necessarily constitute an inconsistency. Some adjustment to approved plans and specifications, as the primary Judge suggested, may be inevitable in a large and complex project. (See also the observations of Sperling J (Sully and Simpson JJ agreeing) in Moy v Warringah Council [2004] NSWCCA 77; 133 LGERA 49 at [59]-[82]). [149] But the question of inconsistency was not to be resolved by asking whether Mr Bowers had, or thought he had, aesthetic or other reasons for changing the approved plans and specifications (see Primary Judgment at [326]). Nor was it a matter of whether the variations could reasonably be regarded as improving the external appearance of the building. It was also not to the point that, as his Honour found (at [325]), Mr Bowers had not "deliberately ignored the question of whether his changes might, in some cases, warrant the making of a modification application". To address the Council's contention, it was necessary to make findings as to the nature and extent of the variations to the approval plans and specifications. It was then necessary to make a judgment as to whether the variations were or were not inconsistent, in the relevant sense, with the plans and specifications approved in the DA. The primary Judge did not undertake these tasks."

What does unreasonableness provide in the context of a decision to issue a construction certificate?

1. Although Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121 was decided when cl 145 of the Environmental Planning and Assessment Regulation 2000 (NSW) required the satisfaction of the certifier [2] and before Ralan established that inconsistency with a development consent did not render a construction certificate invalid, Jagot J, when her Honour was a judge of the Land and Environment Court, usefully summarised the correct approach to a claim of manifest unreasonableness in relation to the issue of a construction certificate: "[92] Construction certificates are regulated by Pt 4A of the EPA Act. The statutory provisions have not materially altered since the Council issued the construction certificate (8 March 2006). Section 109C(1)(b) provides that a construction certificate is 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 s 81A(5). Section 81A(5) enables the regulations to make provision concerning the issue of certificates for the erection of buildings and the subdivision of land. Section 80(12) provides that a construction certificate and any approved plans and specifications issued with respect to it are taken to form part of the relevant development consent (other than for the purposes of s 96). Clause 145(2) provides that a certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under cl 140) are not inconsistent with the development consent. The question "whether or not there is a breach of a provision of the Act will depend in part on the proper construction of the provision in question" (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [82]). The relevant pre-condition to the issue of the construction certificate was the state of satisfaction of the certifying authority (in this case, the Council) that the design and construction of the work depicted in the construction certificate documents was not inconsistent with the development consent. Accordingly, an allegation of inconsistency, of itself, cannot found breach (see Lesnewski at [82]). It follows that the only claim capable of founding breach in this case was that the Council's state of satisfaction was manifestly unreasonable. [93] The resolution of that claim requires comparison between the construction certificate and the development consent before the construction certificate was granted (given the effect of s 80(12)). Mr Corowa's essential complaint is that the development consent required the development to be completed in accordance with the statement of environmental effects and figure 1.0 prepared by Blueland engineers dated August 2004, except where varied by the conditions of consent (see condition 1). The text of the statement of environmental effects apparently represented that most trees and vegetation on lot 121 would be retained. Yet many trees and vegetation on lot 121 have been removed. In these circumstances, it is not difficult to understand a sense of grievance about the development application process in this case. Nevertheless, the Court "has no jurisdiction to cure administrative injustice or error" (Quin at 36). The issues are to be resolved by proper construction of the development consent and construction certificate, and application of the well-known principles applying to claims of manifest unreasonableness…"(emphasis added)

Inconsistency and unreasonableness

1. It was common ground that the statutory powers exercised by the certifier under the EPA Act and the Certification Regulation to issue a construction certificate are subject to the implied statutory condition that they are to be exercised within the bounds of reasonableness: Li at 351-2 (French CJ), 370-1 (Gageler J). That is, it was common ground that the decision of the certifier was amenable to judicial review for legal unreasonableness.
2. No decision of this Court has considered the scope of judicial review for legal unreasonableness of a certifier's decision to issue a construction certificate under the current statutory regime. None of the prior authorities in the Land and Environment Court have addressed this issue under the current provisions. As I noted, Geographe Point was decided under legislation which required the satisfaction of the certifier of the relevant state of affairs.
3. It is of course correct that cl 19(1) of the Certification Regulation imposes a positive requirement that the design and construction of the building, as described in the relevant building work plans and specifications and other information given to the certifier, is "consistent with" the modified development consent. That is the first step in the analysis.
4. But inconsistency between a development consent and a construction certificate does not, in itself, establish that the decision of the certifier to issue a construction certificate was legally unreasonable. It is a mistake to move too readily from the conclusion that, correctly construed, a construction certificate is inconsistent with a development consent to the conclusion that the making of the construction certificate was legally unreasonable in the sense I have explained. To do so would replace the judicial review jurisdiction with merits review, which is strictly time limited by s 6.32 of the EPA Act.
5. I accept the appellants' submission that the text and context of the EPA Act establish a high bar for a finding of legal unreasonableness. Many of the Council's submissions in this Court elided the distinction between establishing inconsistency and establishing legal unreasonableness. This is an error in approach. The fact that on its proper construction the construction certificate was inconsistent with the development consent is only the beginning of the analysis.

Threshold of unreasonableness

1. In addressing the question of legal unreasonableness, Jagot J's analysis in Geographe Point, although under a different regime, provides useful guidance: the "issues are to be resolved by proper construction of the development consent and construction certificate, and application of the well-known principles applying to claims of manifest unreasonableness". The well known principles of applying to claims of manifest unreasonableness are those I have set out at [99]-[103] above.
2. Shortly put, in judicial review for legal unreasonableness the Court is required to undertake a qualitative assessment of the impugned decision. The fact the construction certificate is inconsistent with the development consent does not necessarily mean that a certifier, acting reasonably, could not have come to another conclusion. The label "legal unreasonableness" will attach to the certifier's decision if the nature and extent of the inconsistency and the reasons for which the certifier came to conclude that the construction certificate and the development consent were "consistent" lead to the conclusion that the decision was unreasonable in the sense explained in Li,.
3. As Sackville AJA explained in Ralan, a case which proceeded on a common assumption that the construction certificate issued there was inconsistent with the development consent, despite the mandatory language used in the then s 109F(1) of the EPA Act (which is now s 6.8(1)) and cl 145(1) of the Environmental Planning and Assessment Regulation 2000 (which is now cl 19 of the Certification Regulation), the defaults in the issue of a construction certificate in a particular case may be "major or minor, deliberate or inadvertent, fundamental or marginal": Ralan at [173] citing Smith v Wyong Shire Council [2003] NSWCA 322.
4. To establish legal unreasonableness in the present context, it must be shown that the certifier's decision that the construction certificate was consistent with the development consent was unreasonable in the sense explained in Li. Useful guidance about this question is provided by Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245, albeit the case involved a Land and Environment Court Commissioner's decision to grant consent to development application for residential flat building which was inconsistent and unclear. The issue was whether the decision to grant development consent was legally unreasonable. This Court held that it was not. Preston CJ of LEC said: "[213] Although I agree that the further amended plans describing the internal access and circulation within the basement carpark are inconsistent and unclear, I do not consider that these deficiencies in the plans caused the development application not to be a development application for the purposes of the EPA Act and the [Certification Regulation] or cause the development consent granted to that application not to be valid, by lacking certainty or being legally unreasonable. The issue is one of construction of the provisions of the EPA Act and the [Certification Regulation] regulating the making of a development application and the grant of consent to a development application as well as the application of those provisions to the circumstances of the case: Winn v Director General of National Parks and Wildlife at [12]. [214] I do not consider that the deficiencies in the further amended plans for the basement carpark are of such magnitude as to cause the development application not to comply with the essential statutory prescriptions for a development application. The development application still describes the development to be carried out, being the erection of a building and the subsequent use of the building, which is development that may not be carried out except with development consent. The fact that, if development is carried out in accordance with the further amended plans, the internal access and circulation in the basement will be significantly constrained does not cause the development described in the plans not to be "development" for the purposes of the EPA Act or the development application seeking consent for that development not to be a development application for the purposes of the EPA Act. As I noted earlier, Spigelman CJ held in Currey v Sutherland Shire Council at [35] that people are entitled to apply to a consent authority for whatever development they like, provided that it answers the description of being development that may not be carried out except with consent, and that "there is no relevant prohibition, express or implied, which impinges upon the application making process". [215] Only if the deficiencies in the description of the development in the development application, such as in the plans accompanying the development application, cause the development application to fail to meet some essential statutory prescription for making a development application, will the deficiencies cause the development application not to be a development application for the purposes of the EPA Act and [Certification Regulation]."

Assessing reasonableness in this case

1. As earlier explained, the appellants adduced no evidence from themselves, their builder, architect or structural engineer, nor from the certifier. As no reasons were given by the certifier for the making of the construction certificate, in addressing the question of legal unreasonableness it is necessary to engage in a process of inferential reasoning. Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 explained a decision may be reviewable for jurisdictional error even though the decision-maker has not given reasons, Dixon J stated at 360: "If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition."
2. The starting point remains that there is no challenge to the determination of the primary judge that the construction certificate was not consistent with the development consent. In determining whether the certifier, acting reasonably, could nevertheless have come to the conclusion that the construction certificate was consistent with the development consent, inferences must be drawn.
3. I accept the appellants' submission that in addressing the question of legal unreasonableness, the development consent must be read as a whole. In doing so, I note that the development consent permits the ongoing construction of structural elements of the new house that were approved prior to the removal of the cellar level. Condition C.1(d) was however emphatic that "the 'cellar' level including the mechanical ventilation, wine cellar, store, lift and access stairs must be deleted; and the area must remain unexcavated". The primary judge found that: "[137] … there is nothing ambiguous in the language of condition C.1(d) and that, properly construed, the modified development consent prohibits excavation in the area identified in condition C.1(d) by the descriptor 'cellar' level; that is, excavation below RL 18.28 in the area hatched red on the Construction Void Marking Plan (Dwg No. 1100 Rev C) attached to Council's amended proposed orders. That includes excavation and works in that area for all purposes, including for structures such as a lift, lift shaft, stairs, walls, floors and a crane base."

Conclusion on unreasonableness

1. The starting point of the analysis is that the construction certificate was not consistent with the development consent. Condition C.1(d) had two clear elements. The question is whether a certifier acting rationally, and having regard to the development consent as a whole, could have taken the view that the construction certificate plans were consistent with that development consent.
2. Although there is a high hurdle for an applicant who seeks to demonstrate legal unreasonableness in the making of a construction certificate, this was a case in which there was a very clear condition of development consent. On its proper construction the development consent does not permit excavation of the area formerly described as the cellar. Inferences I draw from the available material provide support for a conclusion that the engineer believed that an appropriate way of building the house was to excavate the area where the deleted cellar was to be located and put a crane in the void. That however is not enough. In the face of such a clear condition no reasonable certifier could have issued a construction certificate which set condition C.1(d) at naught unless there was some basis to think that the excavation of the former cellar level was necessary in order properly to build the house.
3. In all the circumstances of this case, I have concluded that the primary judge did not err in concluding that the decision of the private certifier to issue a construction certificate in the form it took was legally unreasonable.
4. Ground 2 should be dismissed.

Submissions on ground 3

1. The appellants argued that the finding made by the primary judge of jurisdictional error for legal unreasonableness does not necessarily result in invalidity of the construction certificate. The appellants accepted that Ralan is not determinative of whether a finding of jurisdictional error was invalidity of the certificate as a whole.
2. The appellants accepted that Ralan concerned an alleged breach of the EPA Act and not judicial review. The appellants argued, nevertheless, that the reasoning in Ralan should be extended to judicial review cases.
3. First, the appellants argued that "there is no rule that jurisdictional error necessarily results in a finding of invalidity. Rather it is merely the usual outcome and ultimately the intention of the Parliament which is the guiding principle". They submitted that "[i]t is rare for a Parliament to indicate in clear terms that if a decision maker errs on a particular topic, then the decision in question will be invalid". In assessing Parliament's intention, the appellants argued that "[i]t is not a matter of identifying whether there has been jurisdictional error and then asking if such error was intended to lead to invalidity … Rather, one asks if there has been an error or non compliance with the express or implied requirements of the statute".
4. Secondly, the appellants submitted that, based on the statutory scheme under the EPA Act and the intention of Parliament, this Court in Ralan concluded emphatically that a jurisdictional error did not result in invalidity. The appellants submitted: 1. In both Ralan and in these proceedings, the core of the Council's complaint is one of "inconsistency" for the purposes of the relevant regulation. The rationale in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 applies where there is a failure to comply with a condition regulating the exercise of a power. Compliance with the provisions of the regulations, and a requirement to act reasonably, were both such requirements 2. There is nothing about the scheme of the EPA Act that requires the ultimate conclusion in Ralan not to apply in a legal unreasonableness case. The appellants argued that Sackville AJA's reasoning in Ralan (as follows) is "directly applicable": 1. Adverse consequences. The requirements in s 6.8 are not directed to the person who has the benefit of a consent. They are directed to the person who is empowered to issue a construction certificate namely a Council or a certifier. A developer may suffer adverse consequences by relying in good faith on a construction certificate that has apparently been lawfully issued if it is held invalid for inconsistency with the consent. 2. Text of s 6.8(2). Section 6.8(2) of the EPA Act strongly suggests that a construction certificate issued in breach of s 6.8(1) is not invalid. Section 6.8(2) states that a construction certificate "has no effect" if it is issued after the building work to which it relates is physically commenced. This provision demonstrates that if Parliament intends that a construction certificate issued in breach of statutory requirements is to be held invalid, it says so explicitly. 3. Administration of a power only. In Project Blue Sky, the High Court observed (at [95]) that if the relevant requirement does not have a "rule-like quality which can be easily identified and applied", the better conclusion is that the requirement goes to the administration of a power, rather than to its validity. In the EPA statutory scheme, a requirement of consistency is an "inherently contestable" judgment. 4. Other provisions. The EPA Act provides that construction certificates will be invalid in certain specific instances such as when the certificate is issued after the commencement of construction: s 6.8(2) EPA Act. The statutory scheme suggests that "if the Parliament intends that a construction certificate issued in breach of statutory requirements is to be held invalid, it says so explicitly" Another example of the issue with an invalid construction certificate is that a person cannot start using or occupying a new building until an occupation certificate is issued. This restriction in the statutory scheme, the appellants argued, suggests that "Parliament has chosen to guard against the risk of accredited certifiers failing to comply with their statutory obligations by an accreditation and disciplinary regime, rather than by the blunt mechanism of rendering a construction certificate void".

Jurisdictional error

1. As Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [23], "[j]urisdiction, in the most generic sense in which it has come to be used … refers to the scope of the authority that is conferred on a repository". In its application to judicial review of administrative action the taking of which is authorised by statute, jurisdiction refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have "such force and effect as is given to it by the law pursuant to which it was made": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [46].
2. In the same case their Honours (at [24]) explained that jurisdictional error describes an error in a statutory decision-making process, being a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction: Bhardwaj at [17].
3. Their Honours emphasised that a decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law: Bhardwaj at [46]; Hossain at [24]; Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2 at [49]-[50]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21; [2021] HCA 19; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; [2003] FCAFC 288 at [42]. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all": Bhardwaj at [51].

Establishing jurisdictional error vs the consequences of jurisdictional error

1. It is important at the outset to delineate two quite different things. The first is whether an administrative decision is amenable to being set aside for jurisdictional error. Not all errors are jurisdictional. Some errors of law are errors within jurisdiction. Jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. The unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately "a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised. Thus, whether an error is jurisdictional or not is a question of statutory construction: Hossain at [25].
2. The second is that a decision affected by jurisdictional error is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. In New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Gageler J speaking of an invalid law said: "[52] Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a "nullity" in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself."
3. It will also be a question of statutory construction to determine the consequences of a finding of jurisdictional error. A fairly recent example is provided by s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW), which has the effect that only those parts of a payment determination found to be affected by jurisdictional error are set aside - that is, the determination is not a nullity: see Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215.

The effect of the finding of jurisdictional error in this case

1. As to the second issue, on the assumption that grounds 1-3 were otherwise dismissed, both parties were content with the orders made by the primary judge to set aside the construction certificate in part. The Council submitted that the power to set aside part of the construction certificate was contained in former s 124 (now 9.46) of the EPA Act. I have extracted s 9.46 at [53] above,
2. The Council submitted that s 9.46(1) supported the making of the order by the primary judge, and cited Tanlane in support. In Tanlane, the Court was faced with a submission that "these proceedings have been and are, we contend … judicial review proceedings" and not "civil enforcement in which [the appellant] can contend there has been a breach and that breach should be remedied pursuant to s 124". Importantly, for present purposes, this Court rejected that submission and decided that both judicial review and civil enforcement for breach had been pleaded and litigated (see my judgment at [78]-[82]).
3. My judgment in Tanlane, which was cited by the Council in support, is diametrically opposed to the submission that s 9.46 orders may be made in judicial review proceedings. My conclusion in Tanlane at [78]-[82] was that the pleading by the appellant in that case of s 9.46 (then numbered s 124) made clear that the case was not limited to judicial review proceedings commenced under s 20(2) of the Land and Environment Court Act; that is, that the breach or apprehended breach of the EPA Act case advanced by the appellant in Tanlane had been pleaded. The fact that both types of case were engaged also explains the passage in Tanlane relied upon by the Council here where Basten JA explained that in proceedings referable to the EPA Act (relating to powers now found in 9.45 and 9.46 of the EPA Act) and the Land and Environment Court Act (which engaged an equivalent jurisdiction to that reflected in s 69 of the Supreme Court Act 1970 (NSW)), "the powers will be exercised by reference to both the statutory scheme and general law principles relevant to the validity of the exercise of statutory functions". His Honour said: "[35] It is not necessary for present purposes to determine whether the relief available pursuant to ss 123 and 124 is broader than the powers of the Supreme Court in exercising its judicial review jurisdiction to make quashing orders, direct the carrying out of a duty or grant injunctive relief. It is sufficient to note that, in general terms, similar forms of relief will be available in proceedings brought by way of judicial review under s 20(2)(b) of the Land and Environment Court Act. In proceedings referable to the jurisdiction conferred by the Planning Act and the Land and Environment Court Act, the powers will be exercised by reference to both the statutory scheme and general law principles relevant to the validity of the exercise of statutory functions."

The effect of Ralan

1. Ralan is an important case about statutory construction. The facts were that by the time Class 4 proceedings were commenced, the strata development was complete. The development comprised three towers on a retail/commercial podium. It incorporated 268 residential units and 62 retail and commercial suites, together with parking and other ancillary facilities. Two of the towers had 19 levels and the third had 16 levels.
2. Critically, the proceedings were pursuant to s 123 of the EPA Act (now 9.45) and relief was sought pursuant to s 124 of the EPA Act (now s 9.46 which I have set out above at [53]).
3. The Council's case in the Land and Environment Court was that the façade of the building bore little relationship to the plans and specifications incorporated in the development consent. The Council accepted that the façade conformed with the plans and specifications provided by the private certifiers, who issued the construction certificates. This Court proceeded on the basis that the construction certificates wrongly stated that the plans and specifications provided to the certifiers were consistent with the development consent. It followed, the Council said, that the construction certificates were void and provided no protection to Ralan against the relief sought by the Council. This is said to be so even though the building was complete and the vast majority of units in the Strata Plan had been sold and the new owners (or their tenants) had taken possession.
4. Clause 145(1) of the Environmental Planning and Assessment Regulation 2000 (which is now cl 19 of the Certification Regulation) relevantly provided as follows: (1) A certifying authority must not issue a construction certificate for building work unless: ... (a) 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, and (emphasis added)
5. The Court of Appeal found that the primary judge had erred in determining that the construction certificates were not inconsistent with the development consent. The Court proceeded to address the question of breach on the assumption that the construction certificates were inconsistent with the development consent at [124].
6. Sackville AJA provided five reasons (at [167]-[184]) for his conclusion in Ralan that the scope and object of the legislation, construed as a whole, does not require a construction certificate issued in breach of the EPA Act to be held invalid. In particular, the scope and object of the legislation do not require a construction certificate issued in breach of cl 145(1) of the Environmental Planning and Assessment Regulation 2000 to be held invalid. None of his Honour's reasons addressed the availability of judicial review of the decision to issue a construction certificate for jurisdictional error.

Conclusion on ground 3

1. Ground 3 in this appeal proceeds on a misconception about the effect of Ralan. Ralan simply does not address the availability of judicial review for jurisdictional error under s 20(2) of the Land and Environment Court Act, nor the consequences of a finding of jurisdictional error.
2. I agree with the Council's submission that the appellants' argument on ground 3 conflates a finding of jurisdictional error with its consequences. A finding of jurisdictional error has the effect that the decision is properly to be regarded as no decision at all which, usually, will result in a declaration of invalidity. As it happens, the parties are here agreed that in this statutory scheme a finding of jurisdictional error permits the setting aside of the construction certificate in part rather than in whole. As Kirk JA, writing extra-judicially has explained (J Kirk SC, 'The Concept of Jurisdictional Error' in Key Issues in Judicial Review (Neil Williams SC ed, Federation Press, 2014)): "It is not a matter of identifying whether there is jurisdictional error and then asking if such error was intended to lead to invalidity, for they are two sides of the same coin. One could ask if there has been error or non-compliance with the express or implied requirements of the statute. If there has been, the question then is whether it was intended that such error lead to invalidity. If it was, then any error is jurisdictional. If it was not then, at least in general, any error will not be jurisdictional."
3. The present case involves constitutionally entrenched judicial review for jurisdictional error. Ralan, expressly, says nothing about that subject. Ralan commences by describing, uncontroversially, the test in Project Blue Sky. The test for determining whether an act done in breach of a statutory provision is invalid is: "[93] to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." (citations omitted)
4. Sackville AJA regarded it as significant that the amendments introduced in 2006 did not expressly state that a construction certificate issued in breach of then s 109F(1)(a) was invalid and of no effect. The omission was significant since at the time s 109F(1A) (which had been inserted in 2005) expressly provided that a construction certificate issued after building work had physically commenced "ha[d] no effect". His Honour stated that had Parliament intended that a construction certificate issued in breach of s 109F(1)(a) should be invalid, it might have been expected to say so. His Honour also found that the legislative history was 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, breached cl 145(1) of the Environmental Planning and Assessment Regulation 2000 and s 109F(1)(a) of the EPA Act.

Conclusion and proposed orders

1. For the foregoing reasons I propose the following orders: 1. Appeal dismissed. 2. Appellants to pay the first respondent's costs of the appeal.
2. WHITE JA: I agree with Payne JA.
3. PRICE AJA: I agree with Payne JA.

Endnotes

1. Section 71 is not presently relevant. It provides: Proceedings in Supreme Court (1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court. (2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.
2. See Lesnewski v Mosman Municipal Council [2005] NSWCA 99. 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. Decision last updated: 03 September 2024