Mosman Municipal Council v IPM Pty Ltd

-Western Regional Council [2008] NSWLEC 113 Olsson v Goulburn Mulwaree Council & Minister Administering the Crown Land Act 1989, Olsson v Minister Administering the Crown Land Act 1989 [2010] NSWLEC 169; 176 LGERA 71 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Ying v Song [2009] NSWSC 1344 Category: Principal judgment Parties: Mosman Municipal Council (Applicant) IPM Pty Ltd (First Respondent) Mosman Bay Trading Pty Limited (Second Respondent) Dean Morton (Third Respondent) Mondan Management Pty Ltd t/as Vic Lilli & Partners (Fourth Respondent) Representation: Counsel: T Roberston SC with J Johnson (Applicant) C McEwen SC with S Free (First and Second Respondents) Submitting Appearance (Third and Fourth Respondents)

Solicitors: Pikes & Verekers Lawyers (Applicant) Addisons (First and Second Respondents) Colin Biggers & Paisley (Third and Fourth Respondents) File Number(s): 40817 of 2014

The Council Seeks to Set Aside a Complying Development Certificate Issued to IPM

1. On 10 March 2014, the third respondent, Mr Dean Morton ("the certifier"), of Mondan Management Pty Ltd trading as Vic Lilli & Partners (the fourth respondent), issued complying development certificate J140110 ("CDC") to the first respondent, IPM Pty Ltd ("IPM"), for internal alterations to the existing ground floor tenancies of 718-728 Military Road, Mosman, to create two shops, one for use as a liquor store, and the other for general retailing use ("the premises").
2. According to the applicant, Mosman Municipal Council ("the council"), there is an irreconcilable conflict between the conditions of the CDC and the conditions of the most recent development consent for the premises ("the consent"). Condition 24(2)(b) of the CDC requires that car spaces be used solely for vehicular access and for the parking of vehicles associated with the use of the premises, whereas conditions of the consent required a total of 89 car spaces, of which 40 are to be used as shop and public carparking spaces.
3. These proceedings concern the interaction between the development standards and conditions of the Commercial and Industrial Alteration Code, which are contained in Pt 5 and Sch 8 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP"), on the one hand, and the consent, on the other.
4. In summary, the council submits that, on its proper construction, the Codes SEPP requires compliance with the consent conditions relating to parking but that this is impossible due to a conflict with the conditions of the CDC. The conflict should have been identified by the certifier, Mr Morton, who was bound to refuse to issue the CDC. He failed to do so because he failed to consider the consent when determining whether or not to issue the CDC. Furthermore, because the CDC cannot be implemented without breaching the consent, any activity undertaken pursuant to it ought to be restrained.
5. In response, the first respondent, IPM, and the second respondent, Mosman Bay Trading Pty Limited (a related company) (together, "the respondents"), argue that, as a matter of construction, there is no conflict between the two instruments.
6. The third and fourth respondents (the certifier and Vic Lilli & Partners) filed submitting appearances, save as to costs.

The Certifier Issues the CDC

1. To resolve the legal issues raised by the council's challenge, it is necessary to set out some of the factual background prior to the issuing of the CDC.
2. On 23 February 2012, the council granted development consent to IPM for the demolition of above ground structures, the retention of existing basement carparking, the erection of a five storey mixed use shop/multiple dwelling building comprising three shops on the ground floor and 32 dwellings on the upper floors, with associated carparking and landscaping. Consent was also granted for the use of the car spaces allocated for the retail use, as a public carpark. In total, 40 retail carparking spaces were to be devoted to the dual use. The council was to manage the public carpark.
3. The consent was modified on 20 March 2013. As modified, the consent relevantly contained conditions 89, 90, 109 and 116: 89. All public parking spaces (49) shall be managed by Council in accordance with other conditions of this consent (8.2011.232.2) 90. To satisfy user demand, a minimum of 89 car spaces shall be provided on site. Of these spaces, 40 shall be resident spaces, 9 shall be resident visitor spaces and shall also be utilised as public carparking spaces, and 40 shall be shop/public carparking spaces (8.2011.232.2) … 109. Parking and manoeuvring areas shall be used solely for such purposes. … 116. Basement levels 1, 2, 3, 4 and 5, excluding the forty (40) resident car spaces, as shown on Drawings DA09B-DA11B inclusive[,] dated September 2012 prepared by Nettleton Tribe Architects ("the carpark"), shall be controlled and managed as follows: a. The registered proprietor of the property shall grant Council and its authorised servants and agents a licence to enter upon the carpark for the purpose of implementing the terms of this consent ('the licence"). b. Council shall be permitted to erect appropriate signage, police the use of the carpark as a free carpark and ensure the right of ingress to and egress from the carpark for all members of the public. c. The licence: i. shall be personal and exclusive to Council and not be capable of assignment or transfer. ii. confer on Council the exclusive control and management of the carpark and the means of access thereto and exits there from at all times. d. Council shall not be required by the registered proprietor of the property to pay a licence fee during the continuance of the licence. The licence shall not be terminated without the consent of Council. e. The Council shall be permitted to employ such staff as may be reasonably necessary for the proper policing of the carpark in accordance with any resolution of Council regulating the use thereof by the public for the accommodation of vehicles. f. Council shall not make or permit to be made, without the consent of the registered proprietor, any structural alterations or additions to the carpark excepting the erection of devices necessary for parking control. g. The registered proprietor, at its own expense, shall mark by means of painted lines or stud pads or plates to the satisfaction of Council's Director of Environment and Planning, parking spaces in which a vehicle may stand or wait in the carpark and to keep and maintain the marking of such spaces at all times. h. The registered proprietor shall pay or otherwise discharge all liability for Council rates, water rates, gas, electric power and light in respect of the carpark. i. The registered proprietor shall, at all times during the term of the licence, keep effected a public risk insurance policy in the names of Council and the registered proprietor in respect of the carpark and all improvements thereon in such sum as Council may require but not less than 10 million. The registered proprietor shall produce a copy of the policy prior to the issue of an Occupation Certificate and to produce the policy, and evidence of its currency, to Council at any time Council may reasonably require. j. The registered proprietor shall maintain the carpark, including the provision and repair of mechanical ventilation and keep clean the carpark. k. The registered proprietor shall permit Council to, by notice exhibited in the carpark or by other such means as it considers appropriate, fix the maximum period or periods for which a vehicle may stand or wait in the carpark or any portion thereof provided that the limit on free parking in the parking area shall not be less than 3 hours during the hours of 9.00am and 5.00pm daily. l. The registered proprietor shall use all reasonable endeavours to ensure that staff and servants of the registered proprietor comply with Council's requirements relating to the use of the carpark.

Statutory Framework Governing the CDC Under the EPAA

1. "Complying development" is defined in s 4(1) of the EPAA as "development for which provision is made as referred to in section 76A(5)" of the EPAA.
2. The term "premises" is defined to mean in s 4(1) of the EPAA: premises means any of the following: (a) a building of any description or any part of it and the appurtenances to it, (b) a manufactured home, moveable dwelling and associated structure, (c) land, whether built on or not, (d) a tent, (e) a swimming pool, (f) a ship or vessel of any description (including a houseboat).
3. Section 76A(5) states that: 76A Development that needs consent (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
4. The term "complying development certificate" is defined in s 4(1) of the EPAA to mean "a complying development certificate referred to in section 85" of the EPAA.
5. Thus, s 85(1) provides that: 85 What is a "complying development certificate"? Terms of complying development certificate (1) A complying development certificate is a certificate: (a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and (b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.
6. The process for obtaining a CDC is governed by s 85A of the EPAA. Relevantly, s 85A(1)-(9) state: 85A Process for obtaining complying development certificates Application (1) An applicant may, in accordance with the regulations, apply to: (a) the council, or (b) an accredited certifier, for a complying development certificate. (2) (Repealed) Evaluation (3) The council or accredited certifier must consider the application and determine: (a) whether or not the proposed development is complying development, and (b) whether or not the proposed development complies with the relevant development standards, and (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions. (4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. (5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4). Determination (6) The council or an accredited certifier may determine an application: (a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or (b) by refusing to issue a complying development certificate. (7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate. (8) The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application (9) In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development.

The Codes SEPP

1. Clause 1.17 of the Codes SEPP sets out when development will constitute complying development: 1.17 What development is complying development? (1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
2. The general requirements for complying development are set out in cl 1.18 and relevantly include that: (3) A complying development certificate for complying development under this Policy is subject to the conditions specified in this Policy in respect of that development.
3. Division 1 of the Commercial and Industrial Alterations Code located in Pt 5 of the Codes SEPP concerns "Specified development and development standards under this code". Subdivision 1 deals with internal building alterations and specifies, in cl 5.1, that: 5.1 Specified complying development An internal alteration to a building that is used, or is the subject of a development consent for use, for any purpose (other than for the purpose of residential accommodation, heavy industry, sex services premises or restricted premises) is development specified for this code.
4. Clause 5.2 specifies the standards for developments. In relation to carparking, cl 5.2(1)(i) provides that: 5.2 Development standards (1) The standards specified for that development are as follows: … (i) carparking must be provided: (i) in accordance with any existing condition relating to carparking that applies to the land, or (ii) if there is no existing condition relating to carparking - in accordance with any relevant requirements contained in an environmental planning instrument or development control plan applying to the land, unless a contribution has been made in relation to carparking in compliance with a contributions plan under Division 6 of Part 4 of the Act.
5. The development standards concerning the first use of premises is set out in cl 5.6 of Subdiv 3. It relevantly states that: 5.6 Development standards (1) The standards specified for that development are that the development: (a) must not result in an increase to the gross floor area of the building, and (b) must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, carparking, loading, vehicular movement, traffic generation, waste management or landscaping, and (c) if there is no existing condition relating to hours of operation in that development consent, must be operated only during the following periods: (i) if the new use is as bulky goods premises or other commercial premises - 7.00 am to 10.00 pm Monday to Saturday and 7.00 am to 8.00 pm on a Sunday or a public holiday, (ii) for a new use (other than a use referred to in subparagraph (i)) carried out on premises that adjoin or are opposite a residential lot - 7.00 am to 7.00 pm Monday to Saturday and 9.00 am to 6.00 pm on a Sunday and not at any time on a public holiday, (iii) in any other case not referred to in subparagraph (i) or (ii) - 7.00 am to 7.00 pm Monday to Saturday and 9.00 am to 6.00 pm on a Sunday or public holiday.

Issues for Determination

1. The following issues for determination were agreed to by the parties: 1. In forming his opinion under s.85A(3) of the Act that the application was for complying development because it met the standard specified for that development in cl.5.2(1)(i)(i) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the SEPP"), did the certifier consider the existing conditions relating to carparking that applied to the land? 2. In forming his opinion under s.85A(3) of the Act that the application was for complying development because it met the standard specified for that development in cl.5.6(1)(b) of the SEPP, did the certifier consider the conditions for the most recent development consent ("the Consent") that applied to the premises relating to carparking? 3. Is it the consequence of a negative answer to (1) or (2) above that there was a jurisdictional error in making the decision? 4. Is there an irreconcilable conflict between the mandatory parking condition 24 in Schedule 8 to the SEPP and the parking conditions of the Consent? 5. If so, was the certifier bound to refrain from issuing the complying development certificate ("the Certificate")? 6. Did the Certificate relate to the premises as a whole including the basement carparking levels, or only to the ground level retail premises? 7. Is there a threatened or apprehended breach of s.84A(1)(b)(ii) by the Respondents proposing to carry out complying development if it is in breach of the development standards 5.2(1)(i)(i) and 5.6(1)(b) of the SEPP? 8. Was the notice relied upon by the First and Second Respondents ("the Notice") published in accordance with clause 137(1) of the EP&A Regulation 2000, given that it omitted to state the times which were the ordinary office hours of the Council or the location of the Council offices? 9. If so, given that the summons was filed more than 3 months after the Notice, does section 101 of the EP&A Act prevent the Applicant from questioning the validity of the Certificate for jurisdictional error, or is s.101 ineffective in preventing the Land and Environment Court from reviewing the certifier's decision for jurisdictional error? 10. If the Notice was not published in accordance with the Regulation, should the Court exercise its discretion to extend time for commencing proceedings under Rule 59.10?
2. In substance, issues 1-7 raise two related grounds of review. First, whether or not the certifier was required, and therefore failed, to have regard to the most recent development consent (the modified consent) for the premises. Second, whether the certifier fell into jurisdictional error by determining that the proposed development complied with the relevant development standards, one of which was that the development must not cause the contravention of any existing condition of the consent that applied to the premises relating to, relevantly in this instance, carparking (cl 5.6(1)(b) of the Codes SEPP).

Are the Proceedings Time Barred?

1. The respondents contend that the proceedings are time barred because they were not commenced within three months of public notice being given in accordance with s 101 of the EPAA. Hence, the council is precluded from challenging the validity of the CDC.
2. In the alternative, the respondents argue that the proceedings are time barred by reason of r 59 of the Uniform Civil Procedure Rules 2005 ("UCPR"), and that no extension of time ought to be granted.
3. It was not in dispute that the three month time period expired on 10 July 2014, whereas the proceedings were commenced on 30 September 2014, approximately two months later.
4. Section 101 of the EPAA provides as follows: 101 Validity of development consents and complying development certificates 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.
5. Clause 137(1) of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations") relevantly provides: 137 What are the public notification procedures for the purposes of section 101 of the Act (1) The determination of an application for a complying development certificate is publicly notified for the purposes of section 101 of the Act: (a) if public notice in a local newspaper is given by the council or an accredited certifier, and (b) if the notice describes the land and the development the subject of the complying development certificate, and (c) if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council's offices.
6. Part 59 of the UCPR applies to proceedings commenced in Class 4 of the Court's jurisdiction (r 59.1(b)). Specifically, r 59.10 states that: 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.

Was the Notice Given in Accordance With the Regulations?

1. The first submission contains, at its core, a question as to the proper construction of cl 137 of the EPA Regulations. As was pithily summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116, a case concerning the validity of subordinate legislation, the modern approach to statutory interpretation, including delegated legislation, is as follows (at [44]-[46]): 44. Principles governing the construction of delegated legislation, such as the regulation in the present case, are those applicable to Acts of Parliament generally: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398; King Gee Clothing Company Pty Ltd v The Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 195. 45. The relevant principles have been stated on a number of recent occasions by the High Court. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, the plurality emphasised (at [47]) that construction must begin with a consideration of the text itself and while the language employed is the surest guide to legislative intention, the meaning of the text may require consideration of the context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy: See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at [41]; Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167) [2012] HCA 55; (2012) 87 ALJR 98 at [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]. 46. Determination of the purpose of the statute or a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate by reference to extrinsic material. However, the process does not involve a search for what those who presented and passed the legislation had in mind: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Certain Lloyd's Underwriters v Cross supra at [23]-[26].
2. In Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638, Basten JA opined as to the importance of provisions such as cl 137 in the planning scheme governed by the EPAA and the EPA Regulations. His Honour said (at [28]): 28. The right to challenge the validity of a development consent is an empty promise if the existence of the consent is unknown. The effect of the right is not triggered by the actual knowledge of the applicant of the existence of the consent; rather, it is triggered by the giving of public notice, which is deemed sufficient to allow interested parties to acquire the relevant information. The content of appropriate public notice has not been left in the hands of the local council, even though it should be treated as a knowledgeable and responsible authority. Rather, the legislature, through delegated legislation, has prescribed that which is required for giving effective notice. No authority is conferred on the courts to determine that a non-complying notice will be effective in some cases, but perhaps not in others. Nor does the EP&A Act or the Regulation provide any criterion by which such an exercise could be undertaken. The only rational way to give effect to the expressed purpose of the EP&A Act, is to give effect to a notice given in accordance with the Regulation, but not one which fails to comply. This approach will have no consequence for a developer relying upon a valid consent, other than the incidental effect of permitting late challenges. Further, whilst the developer is not the party responsible for giving notice, in protecting its own interest, it might well consider for itself the validity of any notice given and invite the council to publish a further notice if it or its financier is concerned about that issue. There is no time limit on the giving of a valid notice.

Section 101 of the EPAA

1. Strictly speaking, it follows that the question of whether or not the time limit in s 101 should be upheld as effective to preclude review for jurisdictional error in proceedings commenced outside the three month time limit, or whether or not the constitutional principles in Kirk require a contrary conclusion, need not be determined (s 78B notices were issued and the responses from the various Attorneys-General declining intervention were tendered before the Court). In this regard, the long-standing principle that courts should not decide constitutional questions unless necessary for the decision in the case, should be observed (Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [252]-[253] per Gummow and Hayne JJ and the earlier authorities cited thereat, ICM Agriculture Pty Ltd v Commonwealth of Australia [2009] HCA 51; (2009) 240 CLR 140 at [141] per Hayne, Kiefel and Bell JJ and Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [148] per Crennan, Bell and Gageler JJ).
2. But having said this, were I required to determine the issue, I would have followed, as a matter of comity, the decision of Preston J in Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382, where his Honour held (at [37]-[39]): 37. Secondly, even if proper public notice had been given, it would not protect the development consent from jurisdictional error. Before the High Court's decision in Kirk , a privative clause such as s 101 did not protect the development consent from judicial review for certain types of jurisdictional error. These were the three errors identified in R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598, the decision not being a bona fide attempt to exercise power, not relating to the subject matter of the legislation and not being reasonably capable of reference to the power given to the decision-maker, as well as a breach of a requirement "of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as 'essential', 'indispensable', 'imperative' or 'inviolable'": Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [76]. 38. In this case, the ground of challenge that the Council had no power to make the November determination to grant consent to the application, having already made the September determination to refuse consent to the application, is an error of the third kind in Hickman. The ground of challenge of failure to provide notice may fall into the inviolable restraint category of error. 39. After the High Court's decision in Kirk , the full range of jurisdictional error remains subject to judicial review, notwithstanding a privative clause. A privative clause in State legislation cannot validly compromise the capacity of a State Supreme Court to exercise its supervisory jurisdiction (which is constitutionally entrenched) for review for jurisdictional error. The supervisory jurisdiction of the State of New South Wales' Supreme Court is divided between the Supreme Court and the Land and Environment Court, depending on the statute under which powers and functions have been exercised and are subject to review. A privative clause, such as s 101, may remain valid but it will be read down so as to preserve the supervisory jurisdiction to review for jurisdictional error.

Rule 59.10 of the UCPR

1. But what of the time limit contained in r 59.10 of the UCPR?
2. Rule 59.10 also imposes a three month limitation period from the date of the relevant decision within which to commence judicial review proceedings. But, the provision does not apply to proceedings in which there is a "statutory limitation period", such as s 101 of the EPAA (r 59.10(4)). However, the application of r 59.10(4) is predicated on the "statutory limitation period" being operative, which in this instance, for the reasons given above, s 101 of the EPAA is not.
3. In other words, whereas the rule contained in r 59.10(4) of the UCPR excluding the operation of r 59 does not apply, the time limitation contained in r 59.10(1) does (Bankstown City Council v Ramahi [2015] NSWLEC 74 at [73]).
4. The Court may, however, extend the time for commencing judicial review proceedings under r 59.10(2) of the UCPR. The factors to be considered in determining whether or not to extend time include the four factors set out in r 59.10(3), together with the reasons for the delay in commencing proceedings, the length of the delay, and whether the applicant seeking the extension of time has a reasonably arguable case (Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9], Dyason v Butterworth [2015] NSWCA 52 at [65] and Ramahi at [74]).

The Council's Interest in Challenging the Decision

1. In Ramahi Preston J stated that (at [75]-[76]): 75. The Council has an interest in challenging the decisions to issue the complying development certificates. The Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act. If an environmental planning instrument provides that development is complying development only if it complies with predetermined development standards, and may only be carried out in accordance with a complying development certificate, the Council has a responsibility to ensure that any development within its local government area complies with the applicable development standards and is carried out in accordance with a valid complying development certificate. 76. The Council has an interest in challenging decisions of accredited certifiers who issue complying development certificates to developments that are not in fact complying developments.
2. The council argued that the importance of this interest was highlighted here because the very development that the CDC purported to authorise was first proposed in a development application refused by the council, and refused again by the Court in Class 1 proceedings (IPM Pty Ltd v Mosman Municipal Council [2014] NSWLEC 1141). The Court dismissed the appeal from the council's refusal because of the high volume of traffic generated by the proposal and the resultant noise impacts, especially truck noise, neither of which were reasonable (at [37], [42], [58] and [95] per Tuor C). Moreover, the council had an interest in ensuring that it would not lose the benefit of public carparking which it asserted was provided for in the consent.
3. Although the respondents submitted that there was no particular public interest in the challenge to the CDC by the council, the reasons given by the council above are sufficiently specific to engage this factor.

Possible Prejudice Caused by the Delay

1. The respondents accept that they have not carried out work in reliance on the CDC, but submitted that it was a "form of prejudice" to suffer a delayed challenge to the CDC on the grounds of finality.
2. The council noted in response that, first, the respondents were aware at all times that the council contested the validity of the CDC; and second, that the proceedings had already been adjourned for a significant length of time to enable negotiations to take place, negotiations that were ultimately unsuccessful.
3. In my opinion, the prejudice, if any, to the respondents caused by the delay in commencing proceedings to challenge the CDC was minimal.

Reasons for the Delay

1. It was accepted by the parties that the delay was caused by the time period being overlooked by reason of the Class 1 appeal (referred to above). Subsequently, counsel was initially briefed to advise and settle a summons if appropriate, but new counsel had to be briefed when the original counsel was unable to complete the work in a timely manner. In other words, the reason for the delay in commencing proceedings was that of oversight and not deliberate inaction on the part of the council.
2. Furthermore, the council was cognisant of the fact that if the Court had granted a development consent for the proposal pursuant to the Class 1 proceedings, then the respondents would not have had to rely on the CDC, and any proceedings commenced challenging its validity would have been otiose, with concomitant time and money being thrown away by the parties, and by the Court.
3. In these circumstances, the council's actions, while somewhat wanting, were not wholly unreasonable.

Length of the Delay

1. As for the length of the delay, contrary to the submissions of the respondents, I do not consider a delay of just over two months to be "reasonably substantial". I note that in Ramahi the delay was approximately 9 months for the original CDC and 6.5 months for the amended CDC but the Court nevertheless permitted an extension of time within which to commence proceedings.

The Public Interest

1. As noted above, it is in the public interest that the council be permitted to bring these proceedings in order to challenge the validity of the CDC. I am not, as I explained above, persuaded that the public interest in certainty and finality of a decision to issue a CDC outweighs, in the circumstances of this case, the public interest in upholding and enforcing the statutory scheme for issuing CDCs.

The Strength of the Council's Case

1. As can be seen from the discussion below, the council's case may be described as fairly arguable.

Time Ought to be Extended

1. I consider that the council has demonstrated a case for extending the time for commencing proceedings to challenge the validity of the CDC issued by the certifier on 10 March 2014. The date is therefore extended to the date that the council filed its summons commencing the proceedings on 30 September 2014.

Did the Certifier Fail to Have Regard to the Consent?

1. The council asserts that the certifier failed to have regard to the consent prior to determining to issue the CDC. The council bears the onus of proving on the balance of probabilities that the certifier did not turn his mind to the terms of the consent, or that he failed to form the requisite mental state of satisfaction for the purposes of s 85A of the EPAA (Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWLEC 1; (2010) 172 LGERA 25 at [58] and [66]-[67] per Preston J; affirmed by Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411).
2. The argument is founded upon the obligation imposed on the certifier contained in s 85A(3)(b) of the EPAA to consider whether the proposed development complied with the relevant development standards set out in cl 5.6 of the Codes SEPP. These standards include the standard contained in cl 5.6(1), namely, that the development must not cause the contravention of any existing condition of the consent that applies to the premises and relates to the matters set out therein, including carparking.
3. As can be seen above, the certifier appeared to state in the CDC that the determination had been made only on the documentation contained in the annexure to the certificate, such documentation not expressly including the consent.
4. Therefore, the council argued, the consent was not considered in the determination process, and the certifier could not have been satisfied that the development as proposed to be certified did not cause the contravention of any conditions of the consent, which, according to the council, occurred in relation to carparking.
5. I agree with the council that consideration of the consent by the certifier was an essential part of the determination process to issue the CDC. Put another way, it was a mandatory relevant matter that the certifier was required to take into account.
6. The physical alterations to the ground floor retail shops involved the construction of a tenancy wall and toilets which was specified development under Subdiv 1 of Pt 5 of the Codes SEPP. Consideration of the consent was essential in order to determine whether the complying development complied with the development standard in cl 5.1. Any carparking associated with the development had to be provided in accordance with any existing development condition relating to carparking that applied to the land (cl 5.2(1)(i)(i)). In addition, it is arguable (the question turning, in part, on the construction of the term "premises" in cl 5.6(1)(b) for the purposes of cl 5.5(1) of the Codes SEPP) that the first use of the major tenancy as a liquor store and the minor tenancy for general retailing required consideration of the consent to determine whether or not there was compliance with the development standard proscribed in cl 5.6(1)(b) in respect of carparking.

Is There an Irreconcilable Difference Between the CDC and the Consent Concerning Carparking Such That the Certifier Fell Into Jurisdictional Error in Issuing the CDC?

1. The council contends that it was not open for the certifier to reach an opinion that the carparking conditions in the consent were not contravened by the development certified as complying development in the CDC.
2. The council's argument is as follows. First, pursuant to s 84A(1)(b)(ii) of the EPAA, the Codes SEPP preserves the operation of the consent with respect to carparking. It is not, the council submits, possible to comply with both the Codes SEPP and the consent because: 1. condition 24 of Sch 8 of the Codes SEPP (which forms part of the CDC by reason of the application of cl 5.25 of the Codes SEPP) requires the sole use of carparking spaces for the parking of vehicles associated with the retail use of the premises; whereas, 2. the conditions of the consent require the use of carparking spaces for the dual use of carparking for vehicles associated with the retail use of the premises as well as carparking for vehicles associated with the general use of the premises by any member of the public.
3. Second, the development must be complying development before it can be carried out, and the development cannot be carried out in accordance with the specified predetermined development standards for internal alterations or for first use (see cl 5.6(1)(b) of the Codes SEPP).
4. Hence, the council submitted, there was a jurisdictional defect in the formation of the opinion concerning whether or not the development was complying development, a necessary precondition to the determination to issue the CDC. That is to say, it was not reasonably open to the certifier to determine that the development could comply with the relevant development standards because the duel use of the car spaces required by the consent was precluded if they were to be devoted solely for retail purposes. The error, being one of the construction of either the Sch 8 conditions, or those forming part of the consent, or both, is one that goes to the certifier's jurisdiction to issue the CDC.
5. In response, the respondents argued that, properly construed, the effect of condition 24 of Sch 8 of the Codes SEPP meant that the carrying out of the complying development would not involve a breach of the consent. I agree.

The CDC Was Validly Issued

1. I therefore find that, properly construed, condition 24(2) of the CDC does not cause the contravention of any existing condition of the most recent development consent that applies to the premises relating to carparking (cl 5.6(1)(b) of the Codes SEPP). The intended operation of the consent is preserved, enabling the issuing of the CDC with the obligatory inclusion of the Sch 8 conditions, including condition 24. So interpreted, there is no conflict between the CDC and the consent and the certifier was obliged to issue the CDC (s 85A(7) of the EPAA).
2. The respondents are therefore correct in their submission that even if the certifier failed to consider the specific conditions in the consent relating to carparking, this did not matter because he was prohibited from refusing the certificate in the absence of any conflict between the two instruments. In any event, in my view, the preferable conclusion is that the certifier did not expressly reference conditions 89, 90, 109 and 116 of the consent because he did not perceive there to be a conflict between the consent and the conditions of the CDC, especially those contained in Sch 8 of the Codes SEPP.

Relief Sought

1. Because I have determined that the CDC was validly issued, there is no need for me to consider the council's alternative argument that the carrying out of the development in accordance with the CDC can be restrained by injunction without the need for any order invalidating the certificate.

Costs

1. Having failed in its challenge to the validity of the CDC, and these proceedings having been instituted in Class 4 of the Court's jurisdiction, costs follow the event. It is therefore appropriate, in the absence of any reason to order otherwise, that the council pay the first and second respondents' costs.
2. One such reason could be, however, that the third respondent (the certifier) and the fourth respondent (Vic Lilli & Partners) may also wish to seek a costs order in their favour. Accordingly, if any party contemplates a different costs order being made they should be given the opportunity, in the absence of any argument on the question during the hearing, of making an appropriate application in this regard.

Orders

1. In conformity with the reasons given above, the formal orders of the Court are therefore as follows: 1. the time to commence these proceedings is extended to the date of the filing of the summons on 30 September 2015; 2. the amended summons is dismissed; 3. the applicant is to pay the first and second respondents' costs, unless within 14 days any party seeks, by notice of motion, an alternative costs order; and 4. the exhibits are to be returned.

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