Dyldam Developments Pty Ltd v The Owners - Strata Plan 85305 - [2020] NSWCA 327 - NSWCA 2020 case summary

Court of Appeal (NSW)|2020-06-02|Before: White JA

ed Federation Press Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, 2017 Ulpiani Fragmenta in The Institutes of Gaius and Rules of Ulpian, James Muirhead (ed) (1880, T & T Clark) Category: Principal judgment Parties: Dyldam Developments Pty Ltd (Appellant) Strata Plan 85305 (Respondent) Representation: Counsel: F Hicks SC (Appellant) C J Birch SC with D Hand (Respondent)

Solicitors: Paramonte Legal (Appellant) Chambers Russell (Respondent) File Number(s): 2019/335260 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2019] NSWCATAP 229 Date of Decision: 16 September 2019 Before: Armstrong J President, L Pearson Principal Member File Number(s): AP19/16163

[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] The applicant sought leave to appeal from orders of an Appeal Panel of the NSW Civil and Administrative Tribunal that affirmed a decision of the Tribunal dismissing an application for an order that a claim for breach of statutory warranties brought by the respondent was commenced out of time. The proceedings related to works performed in the erection of a residential building containing 18 units. At the relevant time s 18E of the Home Building Act 1989 (NSW) provided that proceedings for breach of a statutory warranty must be commenced within 7 years after the completion of the work to which it related. Section 3C relevantly provides that the completion of residential building work occurs on the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building. There were three documents purporting to be occupation certificates for the building. Two were described as "interim" and were issued on 5 September 2011 and 9 September 2011 respectively. Both certificates purported to authorise the use of the whole of the building and were issued on the basis that certain development conditions were excluded. Section 109H(2) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA") provided that an occupation certificate "must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent … have been met." The third certificate was issued on or about 12 October 2011 and was described as a 'final' occupation certificate. It contained no "excluded development conditions". Proceedings were commenced on 4 October 2018 within seven years of the issue of the final certificate, but more than seven years after the issue of the certificates described as interim. It was common ground that the building works were completed by 5 September 2011. What was outstanding at that time was compliance with certain conditions of the development consent regarding, inter alia, certification and registration of works outside the building. Section 109H(1) provided that an interim occupation certificate authorised the use of a "partially completed new building" or the new use of a part of a building resulting from a change of building use. The issue before the Court concerned whether either of the "interim" occupation certificates, which were issued in contravention of the EPA, authorised the occupation and use of the whole of the building for the purpose of the running of the limitation period in the Home Building Act.

The Court of Appeal (White JA, Emmett and Simpson AJJA), dismissed the appeal, holding:

White JA (Emmett AJA and Simpson AJA agreeing at [110] and [111] respectively) The question as to whether the purported occupation certificates were either interim or final occupational certificates and what was their effect for the purpose of the Home Building Act fell within the Tribunal's jurisdiction to decide: [57], [74], [92]. The legislative scheme governing the review of occupation certificates does not prohibit this inquiry being undertaken by the Tribunal in the exercise of its jurisdiction under the Home Building Act: [48]-[56].

Bathurst City Council v Saben (1985) 2 NSWLR 704; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278: considered. The challenge to the validity of the occupation certificates was not a collateral challenge. The combined effect of ss 48K and 48L of the Home Building Act 1989 (NSW) is to make the Tribunal the primary body for resolving building claims within its jurisdiction. The Tribunal's authority to decide is dependent on whether the occupation certificates authorised occupation and use of the whole of the building. It was both obliged and authorised to assess the status of the certificates in determining its jurisdiction to entertain the claim: [45]-[47], [57]-[60], [74]. Should the challenge be properly characterised as collateral, the Tribunal was not precluded from reviewing the certificates where the invalidity arose on the face of the certificates: [63]-[66], [71], [72].

Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49; Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588; Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32; Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213; 383 ALR 175: considered.

Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266: distinguished. The building was neither a partially completed building nor undergoing a change of building use at the time the interim occupation certificates were issued: [34], [91]. The purported interim occupation certificates did not satisfy the definition in s 109H(1)(a) and therefore did not authorise the use and occupation of the whole of the building for the purpose of the running of the limitation period under the Home Building Act: [90], [92], [93]. The interim occupation certificates were also issued in contravention of s 109H(2). It is not necessary to decide whether Parliament intended that a contravention of s 109H(2) would render the certificates invalid and thereby not authorise the use and occupation of the whole of the building: [89].

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40; Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206; considered.

Judgment

WHITE JA: This is an application for leave to appeal from orders of the Appeal Panel of the Civil and Administrative Tribunal (Armstrong J President, L Pearson Principal Member) of 16 September 2019 (Dyldam Developments Pty Ltd v The Owners - Strata Plan No. 85305 [2019] NSWCATAP 229). The Appeal Panel dismissed an internal appeal from a decision of the Tribunal (D Goldstein Senior Member) dismissing an application by the present applicant (Dyldam) for an order that the claim brought by the Owners - Strata Plan 85305 under s 48K of the Home Building Act 1989 (NSW) ("the Home Building Act") was commenced out of time.
An appeal from the Appeal Panel lies to the Supreme Court with leave on a question of law (Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)). The questions of law raised by the amended summons are important. Leave to appeal should be granted.
On 4 October 2018 the respondent filed a home building application in the Tribunal in respect of building works said to have been carried out by Dyldam in 2010-2011 for a property comprising a three-storey residential apartment building in Bangor Street, Guildford. It alleges that Dyldam carried out residential building work under a contract with the developer. The respondent claims to be entitled to the benefit of statutory warranties under the Home Building Act and complains of various breaches of those warranties.
Dyldam contended that the application was brought out of time. Prior to 1 February 2012 s 18E of the Home Building Act provided: "18E Proceedings for breach of warranties (1) Proceedings for a breach of a statutory warranty must be commenced within 7 years after: (a) the completion of the work to which it relates, or (b) if the work is not completed: (i) the date for completion of the work specified or determined in accordance with the contract, or (ii) if there is no such date, the date of the contract. (2) The fact that a person entitled to the benefit of a statutory warranty specified in paragraph (a), (b), (c), (e) or (f) of section 18B has enforced the warranty in relation to a particular deficiency in the work does not prevent the person from enforcing the same warranty for a deficiency of a different kind in the work (the other deficiency) if: (a) the other deficiency was in existence when the work to which the warranty relates was completed, and (b) the person did not know, and could not reasonably be expected to have known, of the existence of the other deficiency when the warranty was previously enforced, and (c) the proceedings to enforce the warranty in relation to the other deficiency are brought within the period referred to in subsection (1)."
Section 18E(1) was amended with effect from 1 February 2012 by the Home Building Amendment Act 2011. However, the amendment does not apply in respect of a contract for residential building work entered into before its commencement (Home Building Act, Sch 4, Pt 19, cl 109).
Section 3C was introduced to the Home Building Act by the Home Building Amendment Act 2014 (NSW). It relevantly provides: "3C Date of completion of new buildings in strata schemes (1) This section applies to residential building work comprising the construction of a new building in a strata scheme (within the meaning of the Strata Schemes Management Act 2015) where the issue of an occupation certificate is required to authorise commencement of the use or occupation of the building. Note. Section 3B provides for the date of completion of other residential building work. (2) The completion of residential building work to which this section applies occurs on - (a) the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building, unless paragraph (b) applies, or (b) the occurrence of some other event that is prescribed by the regulations as constituting completion of the work. ... (4) This section applies for the purpose of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under Part 6. (5) In this section - building means any structure that, as a new building, requires the issue of an occupation certificate to authorise its use and occupation. occupation certificate means an occupation certificate under the Environmental Planning and Assessment Act 1979. Note. A swimming pool, tennis court or detached garage can be a building for the purposes of this section if an occupation certificate is required to authorise its use and occupation. If a structure in a strata scheme does not require an occupation certificate, section 3B will apply to it instead of section 3C."
It is common ground that s 3C applies (Home Building Act, Sch 4, Pt 20, cl 121).
Dyldam contended that the proceedings were commenced more than seven years after the issue of occupation certificates that authorised the occupation and use of the whole of the building (s 3C(2)(a)).
In 2011 the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act") contained the following relevant provisions concerning the issue of an occupation certificate. Part 4A of the EPA Act (headed "Certification of development") included s 109C that defined an "occupation certificate" as follows: "109C Part 4A certificates (1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part: ... (c) an occupation certificate, being a certificate that authorises: (i) the occupation and use of a new building, or (ii) a change of building use for an existing building. ... (2) An occupation certificate: (a) may be an interim certificate or a final certificate, and (b) may be issued for the whole or any part of a building."
Section 109D(1)(c) provided: "(c) an occupation certificate may be issued by a consent authority, the council or an accredited certifier".
Section 109E provided: "109E Principal certifying authorities (1) The person having the benefit of a development consent or complying development certificate for development: (a) is to appoint a principal certifying authority in respect of building work involved in the development and a principal certifying authority in respect of subdivision work involved in the development. ..."
Section 109H provided: "109H Restrictions on issue of occupation certificates (1) There are two kinds of occupation certificates, as follows: (a) an interim occupation certificate that authorises a person to commence occupation or use of a partially completed new building, or to commence a new use of part of a building resulting from a change of building use for an existing building, (b) a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building. It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building. (2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met. (3) An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless: (a) a development consent or complying development certificate is in force with respect to the building, and (b) in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and (c) the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (d) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with. (4) An interim occupation certificate must not be issued to authorise a person to commence a new use of part of a building resulting from a change of building use for an existing building unless: (a) a development consent or complying development certificate is in force with respect to the change of building use, and (b) the part of the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (c) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with. (5) A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless: (a) a development consent or complying development certificate is in force with respect to the building, and (b) in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and (c) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (d) such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with. (6) A final occupation certificate must not be issued to authorise a person to commence a new use of a building resulting from a change of building use for an existing building unless: (a) a development consent or complying development certificate is in force with respect to the change of building use, and (b) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (c) such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with. (7) In this section: new building includes an altered portion of, or an extension to, an existing building."
Subsection 109I(1) provided: "(1) A final occupation certificate for the whole of a building revokes any earlier occupation certificate for that building."
Section 109M provided: "109M Occupation and use of new building requires occupation certificate (1) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part."
Contravention of s 109M was an offence.
The development consent for the work was granted by Holroyd City Council on 23 June 2004. The development consent included a term that either the Council or a private certifier was to be appointed as the principal certifying authority for the development in accordance with s 109E of the Act.
The development consent included the following terms: "PRIOR TO ISSUE OF OCCUPATION CERTIFICATE The following conditions are to be complied with prior to the issue of an interim/final occupation certificate:- Principal Certifying Authority 87. An Occupation Certificate is to be issued by the Principal Certifying Authority prior to the occupation of the building. ... Playground Equipment Certification 94. Certification is to be provided to the Principal Certifying Authority (PCA) from the installer of the playground equipment that the equipment has been constructed and installed in accordance with the relevant Australian Standards. If Council is not the PCA, a copy of this certification is to be provided to Council with the Occupation Certificate. ... On-Site Detention Certification and Covenant ... 107. Documents giving effect to the creation of a Positive Covenant and Restriction on Use over the on-site stormwater detention system shall be registered on the title of the property. The wording of the terms of the Positive Covenant and Restriction as to User shall be in accordance with Council's standards and specifications for stormwater drainage and on-site stormwater detention. The documents prepared shall be submitted to Council for approval prior to registration with Land and Property Information NSW. ... Road Works 109. A full width medium duty vehicular crossing shall be provided opposite the vehicular entrance to the site, with a maximum width of 6 metres and a minimum width of 5 metres at the boundary line. These works shall be carried out by a licensed construction contractor at the applicant's expense and shall be in accordance with Council's issued drawings and level sheets. 110. The construction or reconstruction of kerb and gutter and associated works along all areas of the site fronting Bangor Street. These works shall be carried out by a licensed construction contractor at the applicant's expense and shall be in accordance with Council's standard drawing SD-8100 and issued level sheets. 111. The construction or reconstruction of concrete footpath paving and associated works along areas of the site fronting Bangor Street. These works shall be carried out by a licensed construction contractor at the applicant's expense and shall be in accordance with the Council's standard drawing SD-8100 and issued level sheets. 112. Removal of all redundant vehicular crossings and laybacks along the full road frontage and replacement with kerb and gutter. These works shall be carried out by a licensed construction contractor at the applicant's expense and shall be in accordance with Council's standard drawing number SD-8100. 113. A compliance certificate for the construction of driveways, footpath paving, kerb and guttering and roadworks shall be obtained from Council and be submitted to the Principal Certifying Authority. 114. Dedication and construction of 1.5 metres of road and footpath widening along Bangor Street. Documents relative to the creation of the road and footpath widening shall be lodged with the Land and Property Information NSW with Registration being effected prior to issue of the Occupation Certificate. All costs associated with the construction, creation and dedication of the road and footpath widening are to be borne by the applicant. ... Design Verification Statement 116. In accordance with Environmental Planning and Assessment Regulation 2000 and State Environmental Planning Policy (SEPP) 65 'Design Quality of Residential Flat Development', the subject development must be undertaken or directed by a 'qualified designer' (i.e., a 'registered architect' under the Architects Act). In this regard, a design verification statement shall be submitted to the Principal Certifying Authority (PCA) assessing the development, upon completion of all works subject of this consent and its accompanying construction certificate. The PCA shall ensure that the statement prepared by the qualified designer provides the following:- (i) A valid and current chartered architect's certificate number (as issued by the Board of Architects of NSW); (ii) That the completed development achieves the design quality of the development as shown in the plans and specifications submitted and approved with the Construction Certificate, having regard to the design quality principles set out in Part 2 SEPP 65."
Regulation 155 of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the EPA Regulation") provided: "155 Form of occupation certificate (cf clause 79P of EP&A Regulation 1994) (1) An occupation certificate must contain the following: (a) the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate, (b) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate, (b1) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier, (b2) if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate, (c) the date of the certificate, (d) indicate the type of certificate being issued (that is, interim or final), (e) a statement to the effect that: (i) the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and (ii) a current development consent or complying development certificate is in force for the building, and (iii) if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and (iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (v) a fire safety certificate has been issued for the building, and (vi) a report from the Fire Commissioner has been considered (if required). (2) Except as provided by subclause (3) or (4), the certificate must be accompanied by a fire safety certificate and fire safety schedule for the building. (3) If the need for the occupation certificate arises solely from fire link conversion, the certificate need only be accompanied by a fire safety certificate of the kind referred to in section 153 (1A) and the relevant fire link conversion schedule or fire safety schedule issued under clause 168A. (4) If the building is a temporary structure, subclauses (1) (e) (v) and (2) do not apply. Note - The only circumstance in which the occupation or use of a temporary structure requires an occupation certificate is when the temporary structure is to be used as an entertainment venue."
Dyldam appointed DixGardner Pty Ltd ("DixGardner") as the principal certifying authority.
On 5 September 2011 Mr Lyall Dix of DixGardner issued a document styled an occupation certificate. The type of certificate was identified as "interim". The certificate was said to include attachments, including a Final Fire Safety Certificate. The certificate included the following: "Type of Certificate: Interim ... Whole/Part of building works: Whole Description of part (if applicable): Excludes Conditions #94, #107, #109 to #114 & #116."
The certificate included the following: "I certify that: • The health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and • A current development consent or complying development certificate is in force for the building, and • If any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and • The building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and • A fire safety certificate has been issued for the building, and • A report from the Fire Commissioner has been considered (if required)."
The certificate also included a schedule entitled "Fire Safety Schedule - Amended". It stated: "The following essential fire safety measures shall be implemented in the whole of the building premises and each of the fire safety measures must satisfy the standard of performance listed in the schedule which, for the purposes of Clause 168 of the Environmental Planning and Assessment Regulation 2000, is deemed to be the current fire safety schedule for the building. SCHEDULE Essential Fire and other Safety Measures Standard of Performance Existing Proposed Automatic Fire Detection and Alarm System BCA Spec. E2.2a and AS 1670-2004 � Emergency Lighting BCA Clauses E4.2/E4.4 & AS/NZS 2293.1-2005 � Exit Signs BCA Clauses E4.5/NSW E4.6/E4.7/E4.8 and AS/NZS 2293.1-2005 � Fire Doors BCA Spec. 3.4, C2.12, C2.13, C3.4, C3.5, C3.6, C3.7, C3.8, C3.10, C3.11, D2.8 � Spec E1.8 and AC 1905.1-2005 Fire Seals BCA Clause C3.15 � Hose Reel System BCA Clause E1.4 & AS 2441-2005 � Smoke Detectors BCA Spec. E2.2 and AS 3786-1993 �"

How a fire safety certificate could have been issued for the building if the essential fire safety measures referred to in the fire safety schedule were still proposed and were yet to be implemented can only be guessed at.
On 5 September 2011 DixGardner wrote to the general manager of the Holroyd City Council as follows: "Please find attached a copy of an Interim Occupation Certificate for the above development that has been granted by the Principal Certifying Authority, Lyall Dix. The certificate relates to the erection of a three-storey residential flat building containing 18 units over basement parking at the above address, and has been issued for all building works excluding Consent Conditions #94, #107, #109 to #114 and #116. Together with the Certificate, we have enclosed the following for Council's record: 1. Occupation Certificate Application Form 2. Final Fire Safety Certificate 3. Amended Fire Safety Schedule 4. Other documents relied upon."
On 9 September 2011 Mr Dix for DixGardner issued a further occupation certificate, again described as an "interim" certificate. It relevantly stated: "Type of Certificate: Interim Determination: Approved Date of Determination: 9/09/2011 Attachments: 1. Other certificates relied upon 2. Final Fire Safety Certificate Whole/Part of building works: Whole Description of part (if applicable): Excludes Conditions #107 & #109 to #114."
It included the same six dot point certification as did the certificate of 5 September 2011 quoted at [21] above.
In its letter to the Council of 9 September 2011 DixGardner stated that: "The certificate relates to the erection of a three-storey residential flat building containing 18 units over basement parking at the above address, and has been issued for all building works excluding Consent Conditions #107 and #109 to #114."
It was an agreed fact that on 28 September 2011 a road work certification was received in respect of the development and was provided to DixGardner on 5 October 2011.
It was common ground on appeal that by 5 September 2011 the building work had been completed. What was outstanding was compliance with conditions of the development consent regarding certification of playground equipment (condition 94), the registration of a positive covenant and restrictions on use of an on-site stormwater detention (condition 107), roadworks (conditions 109-114), and a design verification statement (condition 116). When the second "interim" certificate was issued, the conditions remaining to be satisfied were conditions 107 and 109-114.
On or about 12 October 2011 DixGardner issued a final occupation certificate. It contained no "excluded development conditions".
The proceedings were commenced within seven years of the issue of the final certificate, but more than seven years after the issue of the certificates described as interim certificates.
The certificates issued by DixGardner dated 5 and 9 September 2011 contained internal contradictions. They both stated that they related to the whole of the building works, but then under the heading "Description of part (if applicable)" included a notation that the specified conditions of the development consent were excluded. But the "description of part" was not applicable.
Section 109H(2) of the EPA provided that an occupation certificate must not be issued unless any preconditions to the issue of the certificate specified in a development consent had been met. The conditions referred to in the certificates which were "excluded" were preconditions to the issue of an occupation certificate, whether interim or final.
Moreover, under s 109H(1) in the circumstances of the present case, an interim occupation certificate would be one authorising a person to commence occupation or use of a "partially completed new building". The building was not partially completed.
Nonetheless, Dyldam submitted before Senior Member Goldstein that the certificates of 5 and 9 September 2011 authorised the occupation and use of the whole of the building and therefore the application had been brought out of time (Reasons of D Goldstein at [12]). The Senior Member found that because the certificates had been issued in breach of s 109H(2) of the EPA Act, those certificates were not validly issued and did not authorise the occupation and use of the whole of the building. He found that the certificates were invalid (at [22]-[25]).
Dyldam contended before the Appeal Panel that the Senior Member erred in law on the following grounds: "1. The Senior Member made an error lf law in paragraph [24] of the reasons in finding that the reference to an 'occupation certificate' in section 3C(2) of the Home Building Act 1989 should only apply to an occupation certification which has validity under the EPA. 2. The Senior Member made an error of law in paragraph [25] of the reasons by finding that the first and second occupation certificates were not validly issued or should not have been issued in circumstances where the tribunal did not have jurisdiction to: a. consider or determine that issue; b. make a finding to that effect; or c. grant relief to give effect to such a finding."
Dyldam relied upon the certificates as authorising the occupation and use of the whole of the building, but denied the Tribunal's authority to decide whether the certificates had that effect. It contended that the Tribunal had to take the certificates as having the effect stated on their face.
Dyldam did not dispute that the certificates had been issued in breach of s 109H(2). It denied that the breach of that provision invalidated the certificates.
The Appeal Panel considered authorities relevant to whether the Tribunal had power collaterally to review the validity of the occupation certificates, including Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 and Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32. It concluded: "116 Determination by the Tribunal of the question of whether the builder could rely on the interim occupation certificates to establish the date of completion did not require any evidence beyond what was recorded on the face of the documents, and the terms of the development consent specifying that conditions 87 to 116 had to be complied with before an occupation certificate could be issued. It did not require the Tribunal to consider whether in fact compliance with any or all of those conditions was required in order for the building to be habitable. It did not require, as [Burwood Council v Ralan Burwood Pty Ltd & Ors (No 3) [2014] NSWCA 404; 206 LGERA 40] would have required, detailed examination and comparison of the plans and specifications in the consent and in the construction certificate. It did not require the Tribunal to 'go behind' the occupation certificates to consider whether they should have been issued. The Tribunal's consideration of validity limited to what was evident on the face of the documents is consistent with the limitations to collateral challenge discussed in [Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49]. 117 While its determination could not be conclusive as to the validity of the certificates, as acknowledged by the Tribunal at [25] of the reasons, in order to satisfy itself that the application had been lodged within time, and that the Tribunal had jurisdiction to determine the building claim, the Tribunal was entitled to consider whether either of the documents was 'an occupation certificate' for the purposes of s 3C(2) of the HB Act."
Having concluded that the Tribunal had jurisdiction to consider whether the certificates relied upon by Dyldam authorised occupation of the whole of the building, the Appeal Panel answered that question in the negative. It found: "123 ... The Tribunal did not err in finding that neither certificate had been validly issued, and that, as a consequence, the reference to an 'occupation certificate' in s 3C(2) of the HB Act did not apply to those documents. There was no error in the Tribunal's conclusion that the claim was not barred by s 48K(7) of the HB Act, and the appeal should be dismissed."
It is logical to deal first with Dyldam's contention that the Tribunal had no authority to determine whether an interim occupation certificate was issued in breach of the EPA, or to grant relief to give effect to such a determination. By its grounds of appeal, Dyldam contends: "1 An Occupation Certificate issued under the Environmental Planning and Assessment Act 1979 (NSW) is valid, unless and until determined to be invalid by the Land and Environment Court. 2 The issue of a valid Occupation Certificate which authorises the occupation and use of the whole of the building determines completion of residential building work pursuant to section 3C and for the purposes of section 18E(1) of the Home Building Act 1989 (NSW). 3 The NSW Civil and Administrative Tribunal had no authority or jurisdiction to determine whether an Interim Occupation Certificate was issued in breach of the Environmental Planning and Assessment Act 1979 (NSW) or grant relief to give effect to such a determination."
These grounds of appeal assume that the certificates relied upon were interim occupation certificates within the meaning of the EPA. It can be taken that Dyldam contends that the Tribunal also did not have jurisdiction to determine that question.
The starting point is the jurisdiction conferred on the Tribunal by the Home Building Act.
Section 48K of the Home Building Act relevantly provides: "48K Jurisdiction of Tribunal in relation to building claims (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations). (2) The Tribunal has jurisdiction to hear and determine any building claim whether or not the matter to which the claim relates arose before or after the commencement of this Division, except as provided by this section. ... (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E). ... (9) This section has effect despite clause 5 (Relationship between Tribunal and courts and other bodies in connection with Division functions) of Schedule 4 to the Civil and Administrative Tribunal Act 2013."
The Tribunal does not have jurisdiction to determine a building claim that is brought outside the limitation period for the bringing of a claim (s 48K(7)), but does have jurisdiction in respect of a building claim brought within the limitation period (s 48K(1) and (2)). The first obligation of a court is to be satisfied that it has jurisdiction to decide the claim brought before it (M J Leeming "Authority to Decide: The Law of Jurisdiction in Australia" 2nd ed Federation Press pp 37ff). That is also the obligation of a tribunal. Because the Tribunal's jurisdiction depends upon whether or not the claim has been brought within time, the Tribunal has jurisdiction to determine that question (Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213; 383 ALR 175 at [12]-[15], [72], [74]).
Section 48L of the Home Building Act provides: "48L Tribunal to be chiefly responsible for resolving building claims (1) This section applies if a person starts any proceedings in or before any court in respect of a building claim and the building claim is one that could be heard by the Tribunal under this Division. (2) If a defendant in proceedings to which this section applies makes an application for the proceedings to be transferred, the proceedings must be transferred to the Tribunal in accordance with the regulations and are to continue before the Tribunal as if they had been instituted there. (3) This section does not apply to matters arising under sections 15, 16 or 25 of the Building and Construction Industry Security of Payment Act 1999. (4) This section has effect despite clause 6 (Transfer of proceedings to courts or to other tribunals) of Schedule 4 to the Civil and Administrative Tribunal Act 2013."
The heading to s 48L accurately summarises the effect of the provision that the Tribunal is to be the forum chiefly responsible for resolving building claims. This tells against a construction of s 48K that would require a separate proceeding to be commenced in the Land and Environment Court to determine the validity of the certificates on which Dyldam relies.
The Land and Environment Court may have jurisdiction to consider the validity of an occupation certificate in a variety of circumstances, including under s 124 of the EPA Act when asked to make orders to remedy breaches of that Act (Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206 at [9] (Pain J)). But there is nothing that would confer exclusive jurisdiction on the Land and Environment Court to determine the validity of an occupation certificate unless it be by implication from s 71 of the Land and Environment Court Act 1979 (NSW) ("the LEC Act").
The Appeal Panel observed (at [96]) that: "It is common ground that the jurisdiction to determine whether an occupation certificate issued under the EPA Act is valid is conferred on the Land and Environment Court, formerly by ss 123 and 124 of the EPA Act and now ss 9.45 and 9.46, and that no such jurisdiction is conferred on the Tribunal by that Act. The issue is whether the Tribunal can consider the validity of an occupation certificate in determining a building claim in proceedings under the HB Act."
Although this was common ground, it is not obviously correct. The former ss 123 and 124 of the EPA Act (now ss 9.45 and 9.46) confer jurisdiction on the Land and Environment Court to make orders to remedy or restrain a breach of the EPA Act. No question arises as between Dyldam and the respondent as to whether a breach of the EPA Act should be remedied or restrained.
Section 20 of the LEC Act provides: "20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following - ... (e) proceedings referred to in subsection (2). (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract."
Section 71 of the LEC Act provides: "71 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."
Through s 20(2) of the LEC Act the Land and Environment Court would have jurisdiction to determine the validity of an occupation certificate, at least a final occupation certificate, and to do so to the exclusion of the Supreme Court (subject to the constraints of Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1).
It may be taken that pursuant to s 20(2)(b) of the LEC Act the Land and Environment Court would have jurisdiction as the Supreme Court would otherwise have had to "review ... the exercise of a function conferred or imposed by a planning or environmental law ...", including determining the validity of the certificates purportedly given by DixGardner pursuant to the EPA Act. It is well settled that s 71 of the LEC Act does not preclude the Supreme Court from deciding issues that would fall within the jurisdiction of the Land and Environment Court under s 20 of the LEC Act if those issues arise before the Supreme Court collaterally in proceedings of a different kind, such as proceedings for damages or injunction for breach of a common law duty (Bathurst City Council v Saben (1985) 2 NSWLR 704 at 709; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 583; Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [40]-[47]).
A fortiori, s 71 of the LEC Act (which does not apply to the Tribunal) could not give jurisdiction to the Land and Environment Court, exclusive of the jurisdiction of the Tribunal to determine the issue as to the validity of the purported occupation certificates on which Dyldam relies before the Tribunal.
The fact that the Land and Environment Court does not have exclusive jurisdiction to determine the validity of those certificates does not of itself mean that the Tribunal has jurisdiction to do so. Dyldam characterised the Tribunal's decision as involving a "collateral review" or "collateral challenge" to the validity of the certificates. It submitted that the authorities relied upon by the Appeal Panel with respect to collateral review or collateral challenge did not support the Appeal Panel's conclusion. It relied in particular on Director of Housing v Sudi.
In my view, the issue as to the validity of the certificates was not collateral at all to the proceeding before the Tribunal. It was central to the Tribunal's decision which the Tribunal was both obliged and authorised to make as to its jurisdiction to entertain the claim. As the authority of the Tribunal to decide the issue depends upon the proper construction of the Tribunal's jurisdiction conferred by s 48 of the Home Building Act (Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 at 602), I find it impossible to understand how that legislation does not confer jurisdiction on the Tribunal to decide whether the effect of the documents relied upon by Dyldam was to authorise the occupation and use of the whole of the building. The facts of this case are, in that respect, quite different from the authorities on the jurisdiction of courts and tribunals to entertain a collateral challenge to the validity of administrative or legislative acts considered by the Appeal Panel and by the Victorian Court of Appeal in Director of Housing v Sudi.
In Jacobs v Onesteel Manufacturing Pty Ltd v WorkCover Corporation of SA Debelle J (at [14]) noted that an issue is not truly "collateral" if it is the central issue to be decided. The Appeal Panel described a collateral challenge as one where (at [99]): "... the allegation of a jurisdictional flaw arises in a manner not designed specifically for handling it, nor necessarily focusing on that issue or involving the directly affected parties, and in a court or tribunal which may not have much administrative law experience" (quoting Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, 2017 at [10.280]).
What is meant by collateral challenge or collateral review will depend upon context. In the sense described by the Tribunal it can be accepted that the respondent makes a collateral challenge to the validity of the certificates. That does not deny the centrality of that challenge to the Tribunal's decision. This informs the construction of s 48K conferring jurisdiction on the Tribunal. The challenge is not collateral in the sense described by McHugh J in Ousley v The Queen (1997) 192 CLR 69 at 98-99; [1997] HCA 49 as being merely an incident in the determination of other issues.
The centrality of the issue to the Tribunal's jurisdiction distinguishes the present case from Director of Housing v Sudi. There, the Director of Housing brought proceedings in the Victorian Civil and Administrative Tribunal for possession of residential premises. The Tribunal dismissed the applications on the ground that the Director of Housing had breached the Director's obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in seeking to evict the respondents from their premises. The Victorian Court of Appeal held that the Tribunal did not have jurisdiction to make the finding that the Director had breached the respondents' human rights and to find that the Director's applications for orders for possession were invalid. It is true that the Tribunal found that it had no jurisdiction to hear and determine the applications because of the breach it found of the Director's obligations under the Charter of Human Rights and Responsibilities Act. In that sense, the finding of the Tribunal was central to its determination that it lacked jurisdiction to entertain the applications. But neither the Residential Tenancies Act 1997 (Vic) nor the Victorian Civil and Administrative Tribunal Act 1998 (Vic) expressly conditioned the Tribunal's jurisdiction on the application being brought in conformity with the applicant's obligations under the Charter of Human Rights and Responsibilities Act. By contrast in the present case, NCAT's jurisdiction is expressly dependent upon whether the occupation certificates relied upon by Dyldam authorised the occupation and use of the whole of the building.
Had the relevant Victorian legislation provided in substance that the Tribunal could make an order for possession only if the applicant, in seeking such an order, complied with the applicant's obligations under the Charter of Human Rights and Responsibilities Act in bringing the application, one may venture to think that the result would have been different.
In Director of Housing v Sudi, the issue undoubtedly involved a collateral review of the Director's decision to bring the application for a possession order. Moreover, as Warren CJ observed, that decision bore "no brand of invalidity upon its forehead" (at [23]). This was a further ground of distinction and was relied upon by the Appeal Panel because, in the present case, the certificates relied upon by Dyldam which purportedly excluded conditions of the development consent bore the suggested mark of invalidity on their face, having regard to s 109H(2) of the EPA Act.
In Ousley v The Queen the High Court held that the County Court of Victoria had jurisdiction to decide a challenge to the validity of a search warrant issued as an administrative act by a Supreme Court judge where the challenge was based upon the face of the warrant and its asserted non-conformity with requirements of the Act authorising the issue of the warrant (at 79-80 (Toohey J), 87 (Gaudron J), 102, 104-105 (McHugh J), 126-127 (Gummow J) and 144, 148 (Kirby J)). The issue arose in the context as to whether or not evidence from listening devices inserted pursuant to the warrant was obtained lawfully.
In Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28, in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, their Honours said (at 108 [36]): "...in the absence of legislative prescription to the contrary, [an administrative decision] would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the court was seised."
In Director of Housing v Sudi Warren CJ said (at [28]): "The general statements about collateral challenge in Ousley and Breckler are best understood as merely expressing the presumptive position on the question in relation to courts."
Whether the statements of the High Court in Ousley and Breckler are applicable to tribunals as well as courts will depend upon the legislation establishing the tribunal and conferring jurisdiction on it. Generalisations are dangerous. But in the case of NCAT in the exercise of the jurisdiction conferred on it under the Home Building Act, if the issue were properly characterised as one of merely collateral review of the administrative decision of DixGardner to issue the certificates, there is no reason that Ousley should not apply.
This, essentially, was the ground upon which the Appeal Panel decided that the Tribunal had jurisdiction to decide the issue. In so deciding, the Appeal Panel did not err.
In Director of Housing v Sudi, Warren CJ held that for VCAT to have a power to undertake collateral review of the validity of the Director's proceeding to bring the application for possession, would be inconsistent with the stated purpose for the establishment of VCAT as its being a forum for speedy and inexpensive resolution of specific kinds of disputes (at [34]). Both Maxwell P and Weinberg JA elaborated on the reasons why that was so. Warren CJ acknowledged the risk that this would lead to fragmentation of proceedings by requiring the respondent to the application for possession to bring a separate proceeding in the Supreme Court to challenge the Director's decision to bring the proceeding, but said that this was a necessary consequence of the setting up of a specialist forum of limited jurisdiction (at [37]-[39]). Under the Home Building Act NCAT is to be the forum chiefly responsible for resolving building claims and, as noted at [47] this tells against Dyldam's submission that the issue as to the validity of the certificates on which it relies can only be determined in the Land and Environment Court.
Maxwell P and Weinberg JA agreed that the Tribunal did not have jurisdiction to consider the legal validity of the Director's decision to make the application to the Tribunal. Maxwell P held (at [74]-[75]) that because the proceeding was conditioned not on the existence of a valid administrative act by a public official, but on the existence of a right of possession of land, there was no capacity for collateral review of the validity of the Director's decision under the Charter of Rights and Freedoms.
This conclusion was reinforced by a consideration of the text and structure of the Residential Tenancies Act (at [76]-[78]).
Weinberg JA said that VCAT may have some powers to engage in collateral review, but the extent of those powers was confined by Ousley v The Queen to challenges brought on the basis of "something akin to 'facial' or 'patent' invalidity" (at [261]). The collateral review made by the Tribunal in Director of Housing v Sudi was not of that character.
In the present case, the Tribunal's determination of the validity of the certificates as authorising occupation of the whole of the building was of that kind.
All of the cases on jurisdiction of a court or tribunal to engage in collateral review of the validity of administrative decision depend upon a close attention to the structure and text of the legislation in question.
It is clear that the Tribunal did have authority to decide whether it had jurisdiction, and therefore did have jurisdiction to determine whether the effect of the certificates relied upon by Dyldam was to authorise the occupation and use of the whole of the building (Home Building Act, s 3C(2)(a)). Director of Housing v Sudi does not provide to the contrary.

Effect of the purported certificates

In Cessnock City Council v Laila Investments Pty Ltd Pain J of the Land and Environment Court held that an occupation certificate was invalid for failing to comply with s 109H(2) of the EPA Act. Her Honour said (at [9]): "I agree with the Council's submissions that s 109H(2) specifies a mandatory requirement that an occupation certificate must not be issued unless any preconditions to the issue of a certificate specified in the development consent are complied with. That did not occur in this case. That mandatory requirement is the same as the s 109J requirements considered in Northern Residential. The chapeau of s 109J and s 109H(2) is the same, '... must not be issued ...'. The issuing of the occupation certificate by the Third Respondent was therefore a breach of the EPA Act. In these circumstances there is a basis for the declaration of invalidity of the occupation certificate the Council seeks in prayer 1 of the amended summons filed in Court. Under the broad powers the Court has under s 124 of the EPA Act to remedy breaches of the EPA Act, I consider that it is also appropriate that I exercise my discretion to make the declaration as sought by the Council today given the substantial nature of the work required by the development consent conditions, particularly concerning traffic access to the New England Highway, not complied with before the issue of the occupation certificate."
Pain J did not specifically refer to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93]. However, her Honour's reasoning applied in substance the reasoning of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky that the relevant question was whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. Her Honour considered that s 109H(2) states a mandatory requirement that an occupation certificate not be issued unless the requirements of the development consent have been complied with.
Cessnock City Council v Laila Investments Pty Ltd was decided before Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40 ("Ralan").
Dyldam relied upon the decision of this Court in Ralan that concerned the effect of s 109F(1)(a) of the EPA Act and reg 145 of the EPA Regulation which regulated the issue of construction certificates.
Section 109F provided: "109F Restriction on issue of construction certificates (1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless: (a) the requirements of the regulations referred to in section 81A (5) have been complied with, and (b) any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid. (1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies."
Dyldam submitted that s 109F(1) used the same emphatic and mandatory language as s 109H(2) that the certificate "must not be issued" unless the prescribed conditions were complied with.
In Ralan the council sought declarations that the design and construction of a building were inconsistent with the development consent and that construction certificates issued by private certifiers were void and of no effect. The council sought orders requiring Ralan to undertake extensive rectification works. The issue was summarised by Sackville AJA (with whose reasons McColl and Barrett JJA agreed) at [6] as follows: "6 The Council's case in the L & E Court rested on what were said to be major inconsistencies between the DA and the [construction certificates], although the issues were considerable narrowed by the time the parties made their final submissions. In this Court, the Council has focussed specifically on claims that the façade of the building bears little relationship to the plans and specifications incorporated in the DA. The Council accepts that the façade conforms with the plans and specifications provided by or on behalf of Ralan to the accredited certifiers, who issued the [construction certificates. However, the Council says that the [construction certificates] wrongly state that the plans and specifications provided to the certifiers are consistent with the DA. It follows, so the Council argues, that the [construction certificates] are void and provide no protection to Ralan against the relief sought by the Council. This is said to be so even though the building is now complete and the vast majority of units in the Strata Plan have been sold and the new owners (or their tenants) have taken possession."
In Ralan this Court was prepared to assume that the construction certificates were issued in contravention of reg 145(1) of the EPA Regulation and s 109F(1)(a) of the EPA Act. Section 109F(1)(a) is set out at [79] above.
Regulation 145(1) of the EPA Regulation relevantly provided: "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 cl 140) are not inconsistent with the development consent, and (b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made)."
Because of insufficient factual findings in the court below, this Court was not in a position to determine whether differences between the plans and specifications the subject of the development consent and the plans and specifications the subject of the construction certificate meant that the design and construction of the building as depicted in the plans and specifications the subject of the construction certificates were inconsistent with the development consent. On the assumption that there was inconsistency, this Court held that, notwithstanding the mandatory language of s 109F(1)(a) ("a construction certificate must not be issued"), breach of the provision did not render the construction certificate invalid. That analysis required close consideration of the language of the relevant provisions and the scope and object of the whole statute (Project Blue Sky at [93]) having regard to the principle in Project Blue Sky at [91]: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." (Citations omitted)
One provision applicable to the issue before this Court in Ralan that is inapplicable to the construction of the provisions concerning the issue of occupation certificates was s 109F(1A). It is set out at [79] above.
Sackville AJA said: "164 It is significant that the amendments introduced by the Amending Act 2006 do not expressly state that a construction certificate issued in breach of s 109F(1)(a) is invalid and of no effect. The omission is particularly significant since at the time the Amending Act 2006 was enacted 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'. 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. ... 168 Secondly, s 109F(1A) of the EPA Act strongly suggests that a construction certificate issued in breach of s 109F(1)(a) is not invalid. Section 109F(1A) expressly 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. Section 109F contains no provision equivalent to subs (1A) specifying the consequences of a contravention by a certifying authority of s 109F(1)(a)."
Another distinguishing feature is that s 109H(2) requiring that an occupation certificate not be issued unless preconditions to its issue specified in the development consent etcetera have been met, is an additional requirement to s 109H(3)(d) and (5)(d) that the requirements of the Regulation be complied with before the certificate is issued.
On the other hand, a number of the features of the legislative provisions considered by this Court in Ralan are also applicable to the construction of s 109H. These include that Parliament has not said that an occupation certificate issued in breach of s 109H is invalid. Section 109H(2) can also arguably be seen as no more than a direction to the persons authorised to issue an occupation certificate, breach of which could lead to disciplinary sanctions under the former Building Professionals Act 2005 (NSW) or criminal sanctions under the former s 125 of the EPA Act. A finding that an occupation certificate is void for non-compliance with s 109H(2) would potentially expose occupiers of a building to criminal liability under s 109M. Further, although the breach of s 109H(2) was apparent on the face of the occupation certificates in question in the present appeal, that would not always be so.
If the effect of the certificates relied upon by Dyldam turned only on the question whether a certificate issued in breach of s 109H(2) rendered them invalid, I would regard the issue as being finely balanced.
But there is a more fundamental problem with the certificates. An occupation certificate could only authorise the occupation or use of the whole of the building within the meaning of s 3C(2) of the Home Building Act if it were either a final occupation certificate or an interim occupation certificate (Home Building Act s 3C(5) and the EPA Act ss 109C(1)(c) and 109H(1)).
The certificates relied upon by Dyldam were not final occupation certificates. That was made express on the face of the certificates. They purported to be interim occupation certificates. But an interim occupation certificate could only be issued in respect of a partially completed building, or for the commencement of a new use of part of a building resulting from the change of building use for an existing building (EPA Act s 109H(1)(a)). The building was completed, not partially completed. There was no change of building use.
Mr Dix, on behalf of DixGardner, was empowered to issue interim and final occupation certificates if he were of the view that the criteria provided for by the legislative scheme had been satisfied. However, he was not empowered to decide whether what he issued was in fact an interim or a final occupational certificate. That question was an objective one that depended upon whether the certificate satisfied the definition in s 109H(1)(a) or (b). The certificates were not interim occupation certificates, even though they so described themselves.
Irrespective of the effect of the breach of s 109H(2), the certificates did not authorise the use and occupation of the whole of the building.
For these reasons the Appeal Panel was correct to dismiss the appeal from Senior Member Goldstein.
I propose the following orders: 1. Grant the applicant leave to appeal. 2. Appeal dismissed. 3. Appellant pay the respondent's costs of the appeal and application for leave to appeal.
EMMETT AJA: The principal question in these proceedings is the construction of ss 109C and 109H of the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act). [1] The question arises in the context of the proceedings in the Civil and Administrative Tribunal of New South Wales (the Tribunal) against Dyldam Developments Pty Ltd (Dyldam) and a subsequent decision of the Appeal Panel. Dyldam contends that the proceedings are barred by the operation of s 18E of the Home Building Act 1989 (NSW) (the Building Act). Section 18E relevantly provides that proceedings for breach of a statutory warranty must be commenced within seven years from the completion of the relevant works. Under s 3C(2)(a) of the Building Act, the completion of residential building work occurs on the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building. An occupation certificate is defined as "an occupation certificate under the [Planning Act]".
Section 4 of the Planning Act relevantly provided that in the Planning Act, except in so far as the context or subject matter otherwise indicates or requires, "occupation certificate" means a certificate referred to in s 109C(1)(c). Section 109C(1)(c) relevantly provided that "an occupation certificate" may be issued for the purposes of Pt 4A of the Planning Act, being a certificate that authorises the occupation and use of a new building. Section 109H imposed restrictions on the issue of occupation certificates. Section 109H(1) provided that there are two kinds of occupation certificates being:

an interim occupation certificate that authorises a person to commence occupation or use of a partially completed building; and
a final occupation certificate that authorises a person to commence occupation or use of a new building. It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building.

Section 109H contained several prohibitions on the issuing of an occupation certificate. There were sanctions for contravening the prohibitions in s 109H. Relevantly, s 109H(2) provides that an occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent have been met.
On 23 June 2004, Holroyd City Council (the Council) granted development consent to Dyldam in respect of a property situated in Bangor Street, Guildford. The development consent relevantly provided that certain conditions were to be complied with "prior to the issue of an interim/final occupation certificate". On 5 September 2011, a private certifying authority (the Authority) issued an interim occupation certificate in relation to the development. The interim occupation certificate excluded certain of the conditions in the development consent. On 9 September 2011, the Authority issued an amended interim occupation certificate, which expressly excluded some only of the conditions specified in the first interim occupation certificate.
On 12 October 2011, the Authority issued a final occupation certificate which did not exclude any of the development conditions. Proceedings were commenced within seven years of the final occupation certificate, but not within seven years of the issue of either the first or second interim certificates.
The Tribunal determined that each of those purported interim occupation certificates was, in effect, a nullity because of the contravention of s 109H(2) of the Planning Act. The Tribunal concluded, therefore, that the proceedings before it were commenced within the period of seven years after the issue of the final occupation certificate by the Authority. The question is whether a purported interim occupation certificate issued in contravention of s 109H(2) was "an occupation certificate under" the Planning Act.
It is significant that s 109H does not strike down a certificate issued in contravention of s 109H. On the other hand, a penalty is imposed under the Planning Act for contravening s 109H. The penalty is imposed on the authority. That is to say, s 109H(2) appears to be what Ulpian characterised as a lex minus quam perfecta. [2]
Section 3C of the Building Act applies to residential building work comprising the construction of a new building in a strata scheme where the issue of an occupation certificate is required to authorise commencement of the use or occupation of the building. Under s 3C(2), the completion of residential building work to which s 3C applies occurs relevantly, on the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building . Under s 109C(1)(c) of the Planning Act, an occupation certificate authorises either the occupation and use of the new building or a change of building use for an existing building. Under s 109C(2), an occupation certificate may be an interim certificate or a final certificate and may be issued for the whole or any part of a building.

the identity of the certifying authority that issued it;
the date of the certificate;
indicate the type of certificate issued, (that is, interim or final);
a statement to the effect that a current development consent or complying development certificate is in force for the building, and if any building work has been carried out, a current construction certificate has been issued. An occupation certificate must also contain a statement to the effect that the building is suitable for occupation or use in accordance with its classification under the building code of Australia.

Section 109M of the Planning Act relevantly provided that a person must not commence occupation or use of the whole or any part of a new building unless an occupation certificate has been issued in relation to the building or part. However, the section did not apply to the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used.
Section 125(1) of the Planning Act relevantly provided that, where any matter or thing is by or under the Planning Act forbidden to be done and that matter or thing is done, a person offending against that direction or prohibition is guilty of an offence against the Act. Under s 126, a person guilty of an offence against the Planning Act is, for every such offence, to be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty points and to a further daily penalty not exceeding 1,000 penalty points. The occupation certificates of 5 September 2011 and 9 September 2011 are expressed to be "interim". Each certificate contains the following: "Whole/Part of building works: Whole Description of Part (if applicable): Excludes Conditions [various]." Each occupation certificate relevantly contains a certification by the Authority that:

a current development consent is in force for the building; and
the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia. Each occupation certificate is expressed to be: "Issued under the [Planning Act], ss 109C(1)(c) and 109H." Each certificate describes the "subject land" but does not describe the "building works" or the "building".

Clearly enough, the part quoted above is misconceived. Under s 109C(2) and s 109H, an interim occupation certificate is applicable to authorise commencement of occupation or use of a partially completed new building. A final occupation certificate authorises a person to commence occupation or use of a new building.
In so far as the occupation certificates issued by the Authority refer to "whole" of "building works" but purported to be "interim" certificates, they do not satisfy s 109H(1). It was common ground that the building work was completed by 5 September 2011.
I have had the advantage of reading in draft form the reasons of White JA. I agree with his Honour, for the reasons proposed by his Honour, that the certificates did not authorise the use and occupation of the whole of the building. I agree with the orders proposed by his Honour.
SIMPSON AJA: I agree with White JA.

Endnotes

As in force between September and October 2011, prior to the renumbering effected by the Environmental Planning and Assessment Amendment Act 2017 (NSW).
Ulp 1 and 2 (fragments of the Rules of Domitius Ulpianus): Ulpiani Fragmenta in The Institutes of Gaius and Rules of Ulpian, James Muirhead (ed) (1880, T & T Clark) at 359-360. 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: 15 December 2020

Building Professionals Act 2005(NSW)

Charter of Human Rights and Responsibilities Act 2006(Vic)

Environmental Planning and Assessment Amendment Act 2017(NSW)

Home Building Amendment Act 2014(NSW)

Environmental Planning and Assessment Regulation 2000(NSW)

(Civil and Administrative Tribunal Act 2013(NSW)

Dyldam Developments Pty Ltd v The Owners - Strata Plan 85305

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (21)

Cited By (13)