Carriage v Stockland Development Pty Ltd & Ors

The Applicant's Arguments 9 The Applicant's counsel seeks the following orders and declarations which he argued flowed from the findings in my judgment of 28 September 2004: 1. A declaration that Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on, or about 8 February 2002, are a nullity. 2. A declaration that the First Respondent by itself, its servants, agents and contractors has carried out development requiring development consent on Lot 235 without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979. 3. An order that the First Respondent, its servants, agents and contractors be restrained from carrying out development requiring development consent on Lot 235 without first obtaining a valid development consent under section 80 of the Environmental Planning & Assessment Act 1979. 4. An order that the First Respondent, its servants, agents and contractors be restrained from carrying out activities likely to move or damage Aboriginal objects on Lot 235 without first obtaining a consent to destroy Aboriginal objects pursuant to section 90 of the National Parks & Wildlife Act 1974.

10 The Applicant argued that, as a consequence of the findings made in my judgment of 28 September 2004, the Fifth Respondent lacked power to issue the relevant construction certificates. In this regard the Applicant relied on the following obiter comments made by the Court of Criminal Appeal in Moy v Warringah Council [2004] NSWCCA 77 at [80]: …Clause 145 is proscriptive. It prohibits the issue of a construction certificate unless the certifier is satisfied of the matter specified.