NSW Self Insurance Corporation v CN1 Pty Limited

NCAT Appeal Panel|2024-09-06

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Smith v Commissioner of Taxation (Cth) (1987) 164 CLR 513 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 The Owners - Strata Plan No 79707 v Trilogy Capital Services Pty Ltd [2014] NSWCATCD 205 The Owners - Strata Plan No 79707 v Trilogy Services Pty Ltd [2015] NSWCATAP 171 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Travelex Ltd v Commissioner of Taxation (2009) 178 FCR 434 Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 Trek Consulting Services Pty Ltd v Campbelltown City Council [2004] NSWLEC 627 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Texts Cited: Nil Category: Principal judgment Parties: NSW Self Insurance Corporation (Applicant) CN1 Pty Limited (Respondent) Representation: Counsel: S Ahmed (Appellant) T Smartt (Respondent)

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") against a decision made in the Consumer and Commercial Division of the Tribunal on 19 March 2024. The appeal is about the proper construction of an insurance policy and in particular, the words "developer" and "residential development" in that policy as reflected in the Home Building Act 1989 (NSW) ("HBA").
The appellant ("SiCorp") is the insurer under a policy of insurance ("the Policy") with Willoughby Homes Pty Ltd ("the builder"). The respondent ("CN1") made a claim for indemnity under the Policy in respect of defective and incomplete home building work done by Willoughby Homes in Welford Circuit in Kellyville ("Lot 544").
The indemnity clause is set out in cl 3.4(a) of the Policy as follows: "The policy does not cover a claim by any person who is, in relation to the work: (a) A developer; …"
The word "developer" is defined in the Policy as having the same meaning as the HBA.
The Tribunal below held that properties owned by CN1 were not in the same "residential development" and that as the connection required between "residential building work" and the "residential development" in s 3A of the HBA must be limited or close, CN1 was not a "developer" for the purposes of s 3A of the HBA or cl 3.4(a) of the Policy. Consequently, the Tribunal found CN1 was entitled to indemnity in the sum of $340,000.
We have allowed the appeal for the reasons set out below.

Background

CN1 had two building contracts with Willoughby Homes: one dated 17 February 2021 for Lot 544 in Welford Circuit, Kellyville, with a price of $515,742.25 (including GST) and signed by David Kavanagh on behalf of CN1; the second dated 17 February 2021 for property in Cocoparra Circuit, Kellyville (Lot 547), with a price of $465,002.25 and signed by CN1 as owner. Both building contracts were for dual occupancies on each property being a two-storey house plus a studio/granny flat (that is, two dwellings on each Lot).
Lot 544 and Lot 547 were lots of land in Deposited Plan 1204342.
The issues in dispute in this appeal make it necessary to consider the background to the registration of Deposited Plan 1204342 and planning relevant to that land.
The following Environmental Planning Instruments under the Environment Planning and Assessment Act 1979 (NSW) ("EP & A Act") apply to all of the land in Deposited Plan 1204342: State Environmental Planning Policy (Sydney Region Growth Centres) 2006 ("SEPP 2006"); and the North Kellyville Precinct Development Control Plan 2008 ("North Kellyville DCP").
In November 2014, Kavshan Pty Ltd, lodged a Development Application and Statement of Environmental Effects submission to the Hills Shire Council ("DA and Submission") proposing the subdivision of 10 existing lots (Lots 512, 513, 514, 517, 518, 519, 523, 524, 525 and 526 in DP 1201133 as created under Development Application 7/2015) to create 17 "residential allotments". Those 17 residential allotments were Lots 531, 532, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546 and 547 ("the land"). CN1 was the registered proprietor of those parts of the land which were proposed to be Lots 536, 537, 543, 544, 545, 546 and 547.
As noted in the DA and Submission, based on the area (2.48ha) of the site resulting from the earlier DA 7/2015 (for which approval had been granted for 30 lots), the subdivision would include the introduction of new lots meeting the residential density targets of the North Kellyville DCP of 10-20 dwellings.
The DA and the Submission set out the details of the proposed development and some of the relevant provisions in SEPP 2006 and North Kellyville DCP, as follows (our emphasis is added): "3. Description of Proposal 3.1 Proposed Development The proposed development involves the subdivision of 10 existing lots to create 17 residential allotments… 3.3 Net Residential Density Based on the area (2.48HA) of the site resulting from earlier DA 7/2015 the yield achieved is 14.5/Ha. This subdivision will include the introduction of 37 new lots created from lots 14, 15, and 18. The Residential Density Targets set out in 2.4 of the North Kellyville DCP 2008 (NKDCP 2008) of 10 to 20 dwellings per Ha are therefore met. 3.10 Visual Impacts The site is located in what is a development site, known as stage 5 Blue Horizons currently being developed in 4 stages into 96 lots. The rural character is being transformed by the development works currently taking place surrounding the site. 3.11 Social and Economic Considerations Approval of the proposed subdivision will provide an additional 7 lots. Whilst there are a significant number of typically 450m2 lots coming on to the market in the Precinct this proposal offers the opportunity for prospective residents to purchase a smaller more cost effective lot. Approval of the application will provide increased land supply and competition in the market place and provide additional and alternative lifestyle opportunities for existing and future residents. The proposed subdivision is consistent with the strategic and statutory planning principles (Zone R2 Low Density Residential and North Kellyville Precinct Development Control Plan). … 4. Statutory and Policy Planning 4.1 Environment Planning Instruments (EPIs). This section identifies and provides comment on the EPIs and EP & A 1979 provisions that are of relevance to the proposed development. State Environmental Planning Policies (SEPPs) 4.1.1. SEPP (Sydney Region Growth Centres) 2006 (Amendment No 3). This SEPP applies to the subject land, the relevant provisions of which are addressed below… Part 4. Principal Development Standards 4.1 Minimum subdivision lot size. Both proposed lots in the subdivision are at the minimum size of 360m2. 4.1B. Residential Density - North Kellyville Precinct. The target density stated in the NKPDCP 2008 for the R2 Zone is 10 to 20 dwellings to the Ha and this application provides a revised yield of 14.5dwellings/Ha over the entire stage 5 development that originally contained 30 lots in an area of 2.48HA but will now contain 37 lots. … 4.3 Development Control Plans 4.3.1 North Kellyville Precinct Development Control Plan 2008 This DCP applies to this land, the relevant provisions of which are addressed below: … 2.0 Vision and Character 2.1 Vision and Development Objectives The proposed subdivision fulfills the vision for the Precinct by providing a mixture of lot sizes. The road, footpath and cycleway networks that are provided as part of the broader development also provide linkage to the parks, recreational facilities, local and regional centres. The Objectives are addressed as follows: 1. The additional lot produced by the subdivision will allow a variety of housing sizes and types. 2. The development provides roads largely in accordance with the DCP as well as pedestrian paths and cycleways all of which link into the broader precinct and provide a diverse range of access opportunities to local and regional facilities. 3. The lots within the development range in size from 360m2 to 686m2 with a vast arrange of shapes and frontages. 4. Whilst the densities within the development are not at the high end of the scale of the Precinct this is largely due to the topography of some of the lands. 5. The demand in the area for lots currently exhibited at the prices being achieved demonstrates the economic viability of the development. 6. The layout plan has been derived by the broader development in terms of road configuration. 7. The pedestrian paths and cycleways currently being constructed as part of the development DA 7/2015 will provide access to 3 local centres. 2.2 Indicative Layout Plan The Objectives are addressed as follows: 1.The layout of the development is largely been set under DA 7/2015… 2.4. Residential Density Targets The Objectives are addressed as follows: The density targets set out in table 4 stipulate 10 to 20 dwellings to the Ha for the R2 Zone which applies to the subject site. The revised density achieved allow for 37 lots within stage 5 is now 14.5dwellings/Ha so the proposal complies with this target… 3.0 Land Development 3.1 Street Network and Design The Objectives are addressed as follows: 1.All the roads and street network have been set under the previous DA 7/2015. 3.2 Sub Precincts 1. The precinct has been set under the previous DA 7/2015. … 4.6 Residential Subdivisions The Objectives are addressed as follows: 1. The density targets set for the R2 Zone which applies to this land are met therefore this development will help achieve the target for the Precinct. 2. Larger lots with wider frontages are proposed as the land slopes increase. 3. The mixture of larger and medium sized proposed lots coupled with the wider frontages will allow dwellings to be sited to maximize solar access and provide good separation from adjoining lots thus limiting any potential overshadowing. 4. The inclusion of larger lots with wider frontages. … 7. All the local roads have Bio-swales which along with the Raingardens which are to be provided for each dwelling help to improve water quality prior to discharge into the local basins. The Controls are addressed as follows: Subdivisions in R1 and R2 Zones 1. The minimum lot width is 12.5m. 2. Proposed Lots 531, 532, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546 and 547 have areas ranging from 360m2 to 686m2. … 4.7 Integrated Housing Development The Objectives are addressed as follows: 1. This subdivision is no longer considered to be integrated housing as the lots are within the minimum size of 360m2. … 5 Conclusion Development consent is sought for a nine (10) lot subdivision to create 17 new lots. The proposed development is permissible with consent and is consistent with the objectives of the R2 - Low Density Residential zone under the provisions of SEPP (Sydney Regional Growth Centres) 2006 Amendment No 3 as well as under the provisions of The North Kellyville Development Control Plan 2008…
On 14 May 2015, the Council issued a Notice of Determination approving the DA for the creation of 17 lots subject to conditions. Those conditions included: 1. With respect to the concept plans submitted relating to proposed filling and associated retaining walls, the walls along Welford Circuit fronting lots 541, 542, 543, 544, 545 as well as lots 521 and 522 in DA 7/2015/ZB, must be setback 0.5m (minimum) from the front boundary and landscaping provided in front of the wall to screen it from the street. Details of the proposed landscaping must be included with the detailed design. 2. Each of the 17 lots must provide a rain garden with storage volume of 0.961 cubic metres and a surface area of 6.531 square metres; which would derive the same total volume/area as that provided under the figures provided with DA 7/2015/ZB for the 10 lots being re-subdivided under this application. 3. Each of the 17 lots must provide for a 3000 litre (minimum) rainwater reuse tank that must be plumbed specifically for washing machine use. External use is also permitted however the recycled water system supplied by Sydney Water must be connected to all toilets for flushing purposes, and at least one external tap as per Section 6.1 of the North Kellyville DCP. 4. a contribution of $510,000 to be paid (pursuant to s 94 of the Environmental Planning and Assessment Act 1979) "to provide for the increased demand for public amenities and services resulting from the development". That contribution was calculated by reference to the 17 lots less a credit for the contribution already paid in respect of 10 lots.
On 4 January 2016, Deposited Plan 1204342 was registered.
Deposited Plan 1204342 shows the location of each of the newly created lots. Lot 544 and Lot 547 were separated by two other lots: Lot 545 and Lot 546 in the same deposited plan (also owned by CN1).
The Section 88 Instrument for DP 104342 sets out various easements which burden certain parcels in "the development": a restriction on the use of land and positive covenant applied to lots 531 to 547 in respect of a rain garden construction and installed on the lots. There is also a positive covenant burdening lots 536 and 537 to present their garbage bins to Welford Circuit for collection.
On 17 October 2019, Willoughby Homes tendered for the building work on Lot 544. That tender was addressed to David Kavanagh on behalf of CN1. Post tender variation no 5 states: "Additional cost to engage AED Group (fire engineering consultancy services) to evaluate 6 x North Kellyville Projects and address the PCA noncompliance regarding the internal fire rating and fire separation, Quote provided is for per lot. Owner to refer to quote attached nominating scope of works and specific exclusions."
Willoughby Homes was insured under the Policy dated 23 December 2020.
CN1 was the registered proprietor of five other lots in that Deposited Plan - lots 536, 537, 543, 545 and 546.
A similar tender addressed to David Kavanagh on behalf of CN1 and post tender variation in respect of Lot 547 also issued.
On 25 February 2020, Council issued a Notice of Determination of a Development Application in respect of Lot 547 for a "two storey dwelling, studio, retaining walls and strata subdivision". The Owner was noted as CN1.
Willoughby Homes had a separate insurance policy in respect of Lot 547.
CN1 transferred ownership of Lot 546 in September 2020; Lot 543 in January 2021; and Lots 537 and 547 in December 2021.
On 29 July 2022, Willoughby Homes became insolvent. Although the build at Lot 544 was almost complete, CN1 discovered defective and incomplete building work.
On 2 August 2022, CN1 sought indemnity under the Policy from SiCorp (formerly known as Insurance & Care NSW or Icare).
On 31 October 2022, Icare refused CN1's claim. CN1 sought a review.
The insurer's agent, Gallagher Bassett Services Pty Limited, advised CN1 Pty Ltd that indemnity under the Policy was declined because: 1. CN1 was a "developer" within the meaning of the Home Building Act 1989 (NSW), s 3A ("HBA"); and therefore 2. entitlement to indemnity was excluded by reason of cl 3.4A of the Policy.
On 1 December 2022, on review, the Internal Dispute Resolution Committee confirmed the decision. A further review was conducted by the Home Building Compensation Fund Claims Committee, which also maintained the decision ("HBCF decision").
CN1 Pty Ltd lodged a home building application in the Tribunal on 23 February 2023 against SiCorp as an appeal against the HBCF decision.

Legislation

The HBA is legislation which makes provisions concerning the residential building industry and its focus is on dwellings (see definitions of "dwelling" in Sch 1 cl 3 and "residential building work").
Relevantly for the purposes of this appeal, statutory warranties by the holder of a contractor licence or person required to hold a contractor licence as to residential building work are implied into every contract to do residential building work (see s 18B HBA). A breach of a statutory warranty implied into a contract constitutes a breach of the contract (s 18BA HBA). Successors in title have the benefit of statutory warranties in the manner set out in s 18C and s 18D HBA.
Divisions 2 and 3 of the HBA set out the insurance requirements for residential building work. There are provisions governing where that residential building work occurs under a contract (s 92 and s 99) and where there is not a contract (s 96, s 100); where the work is conducted by an owner-builder (s 95) as opposed to a licensed contractor; definitions of owner and non-contracting owner; and provisions dealing with developers (s 96A).
Schedule 1 of the HBA sets out definitions and other interpretative provisions. However, the Schedule does not provide a definition for "developer" and instead simply states "see s 3A".
Section 3A of the HBA provides: 3A Application of provisions to developers (1) For the purposes of this Act, an individual, a partnership or a corporation on whose behalf residential building work is done in the circumstances set out in subsection (2) is a developer in relation to that residential building work. (1A) Residential building work done on land in the circumstances set out in subsection (2) is, for the purpose of determining who is a developer in relation to the work, deemed to have been done on behalf of the owner of the land (in addition to any person on whose behalf the work was actually done). Note - This makes the owner of the land a developer even if the work is actually done on behalf of another person (for example, on behalf of a party to a joint venture agreement with the owner for the development of the land). The other person on whose behalf the work is actually done is also a developer in relation to the work. (2) The circumstances are - (a) the residential building work is done in connection with an existing or proposed dwelling in a building or residential development where 4 or more of the existing or proposed dwellings are or will be owned by the individual, partnership or corporation, or (b) the residential building work is done in connection with an existing or proposed retirement village or accommodation specially designed for the disabled where all of the residential units are or will be owned by the individual, partnership or corporation. (3) A company that owns a building under a company title scheme is not a developer for the purposes of this Act.
"Residential building work" is defined in Sch 1 to the HBA as follows: 2 Definition of "residential building work" (1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in - (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. …
There was no dispute between the parties that the work done by Willoughby Homes was "residential building work".
By a combination of cl 7 and the HBA, the Policy defines key terms. Relevantly, "developer" and "residential building work" in the Policy have the same meaning as under the HBA. The word "work" is defined in cl 7 of the Policy as "the residential building work which is done or is to be done by the builder to the dwelling under the contract."
There is no definition of "residential development" in the HBA which is central to the meaning of "developer".

Tribunal's decision

The Tribunal determined that it had jurisdiction to hear and determine the building claim by way of a rehearing of CN1's claim in so far as it related to the HBCF decision to decline indemnity under the Policy.
The relevant legislation was identified and in particular, the interaction between s 3A of the HBA and the Policy.
In setting out the facts, there was nothing controversial raised, although it appears a focus was on the correspondence between the parties about the decision to decline the indemnity.
The Tribunal recorded SiCorp's submissions including that: 1. Given the absence of a definition for "developer" or "residential development" in the HBA, a "purposive" approach to the analysis of whether CN1 is a developer within the meaning of s 3A of the HBA should be adopted and the history of the provision should be taken into account; 2. CN1 owned seven lots in DP 1204342 which was contended to be part of a residential development comprising 37 lots; 3. As CN1 had entered into two building contracts for two dwellings on two of those lots (Lots 544 and 547) in the residential development, it was a developer within the meaning of s3A of the HBA and the Policy.
CN1's primary arguments were also set out at length including what appeared to be the main contention - that Lots 544 and 547 were not part of a single residential development as required under s 3A of the HBA including for the reason that they were on different lots of land; there were significant differences between the two building contracts for each lot; and the building work was insured under separate contracts.
Having identified the correct issue, namely the construction of the word "developer" and the meaning of the words "residential development", the Tribunal focused on the facts in ACE Woollahra Pty Ltd v the Owners - Strata Plan 61424 (2010) 77 NSWLR 613; [2010] NSWCA 101 ("Ace Woollahra") which resulted in the introduction of s 3A of the HBA, and that in that particular case, the construction of the HBA was in the context of a strata development; there was a joint venture agreement; and the owner of the land and the builder did not contract directly.
The Tribunal then proceeded to express concerns about the "breadth and scope" of SiCorp's submissions about the proper construction of "developer" which the Tribunal determined went "beyond the narrow parameters and circumstances defined in s 3A(2) of the HBA".
In construing the expression, the Tribunal undertook its own research of case law to identify where the expression "residential development" had been considered. The Tribunal relied on the fact that the few decided cases on s 3A of the HBA (Dieter v NSW Self Insurance Corporation [2022] NSWCATAP 52; The Owners - Strata Plan No 79707 v Trilogy Capital Services Pty Ltd [2014] NSWCATCD 205; The Owners - Strata Plan No 79707 v Trilogy Services Pty Ltd [2015] NSWCATAP 171) concerned four or more dwellings contained in a single strata scheme or a single parcel of land. In particular, the Tribunal noted that "residential development" in those cases related to a single property or parcel of land.
The Tribunal also undertook research and sought assistance from the website of the Land and Environment Court of NSW ("LEC"). It was noted that the under the heading "Residential Development" on that website the following appears: "A person may wish to construct a detached single dwelling or dual occupancy (including subdividing the two dwellings), or to alter or add to such a dwelling or dual occupancy."
While noting that the website acknowledged that these are not the only types of residential developments, the Tribunal then stated "there is an inference that they are the predominant types of residential development with which local councils must deal".
The Tribunal then relied on Trek Consulting Services Pty Ltd v Campbelltown City Council [2004] NSWLEC 627 at [1] concerning a single development application to demolish existing houses on four adjoining but separate lots of land in Campbelltown to construct a residential development. In noting that in that case the Court formed the view that "the area [in which the development would occur] was a mix of residential development including single story detached houses, town houses and residential flat buildings," the Tribunal then concluded: "[66] The use of 'residential development' in this manner is consistent with where a single property, single development application and single development is considered by a local council. [67] In its submissions, the Respondent has gone beyond such a definition of residential development to include in its definition of suburban subdivision of approximately 25,000m2 of land in North Kellyville into approximately 40 building lots… [70] There are no reported cases in [SiCorp's] submissions or that the Tribunal has been able to locate where the expression 'residential development' has been accepted as referring to more than a single property or parcel of land, a single development application or a single development consent. This is consistent with [CN1's] submissions. [71] In its submissions, the Respondent appears to consider the term 'residential subdivision' as interchangeable with 'residential development' for the purposes of s 3A(2) of the HBA . The Tribunal rejects that submission."
Once the Tribunal determined that the indicia of "residential development" required a single parcel of land, with a single development application or development consent, it also accepted CN1's contention that the Tribunal would require evidence about each of the individual 37 (or 17) lots such as the building contracts, identification of builder and owner and insurance policies for each to make a determination that they were one "residential development" - something SiCorp had not done.
The Tribunal then also rejected SiCorp's submissions (and reliance on the High Court in R v Khazaal (2012) 246 CLR 601; [2012] HCA 26) about the construction of s 3A(2) of the HBA to the effect that the use of the words "in connection with" operate broadly and can include different companies, different parcels of land (even if not adjoining) and different contracts. The Tribunal distinguished that case on the basis that it was a different context to the HBA.
Ultimately the Tribunal stated: "[77] The Tribunal finds that the words 'in connection with a residential development' should be suitably limited and restrained. In this instance, the Applicant's claim has been made in respect of … Welford Circuit and it was rejected as a result of the apparent residential development at … Cocoparra Circuit of which it was considered a part. [78] The Tribunal finds that on the simple and everyday meaning of the words involved, each of dual occupancy dwellings at … Welford Circuit and … Cocoparra Circuit are separate instances of residential development because: (1) They had separate development applications; (2) They had separate building contracts; (3) They relate to separate parcels of land; (4) The building contracts have significant and material differences … (5) Separate contracts of insurance were taken out with HBCF in respect of each of the two residential developments."
Effectively, as the Tribunal accepted CN1's construction of s 3A(2) of the HBA and in particular the purported indicia required to demonstrate a "residential development", it concluded that the developments on Lots 544 and Lot 547 (being four dwellings) were not part of one "residential development" but were separate instances of "residential development". It followed from this conclusion that "residential building work" on the residential development on Lot 544 (of only two dwellings) was not done in connection with the separate "residential development" at Lot 547. Consequently, the Tribunal found that CN1 was not a "developer" within the meaning of s 3A(2) of the HBA and the Policy.

Grounds of appeal on questions of law

A party is entitled to appeal "as of right" on a "question of law": NCAT Act, s 80(1)(b).
The ground of appeal identified by SiCorp was the proper construction of the Policy and, in context, s 3A of the HBA, in particular the phrases "residential development" and "developer" in s 3A of the HBA.
The parties agreed that this raised a question of law.
However, in its submissions and throughout the hearing, CN1 complained that "many" of the arguments made by SiCorp were really an attack on factual findings or a "hodgepodge of allege factual errors in the primary decision, all seemingly directed to the conclusion that the Tribunal should have found Cocoparra and Welford were part of the same residential development" and so, it was contended, SiCorp required leave to appeal. CN1 submitted that what constitutes a "residential development" is a mixed question of fact and law which again, is not a question of law and so requires leave.

Grounds of appeal on questions other than questions of law

A party needs to obtain the Appeal Panel's "leave" or permission to appeal on a ground other than a question of law: NCAT Act s 80(2)(b).
A question of fact or a mixed question of law and fact would require leave to appeal: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60] ("Orr v Cobar Management"); Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39; Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 ("Unique Commercial Group").
To the extent the issues raised by SiCorp did not constitute a question of law, in the Notice of Appeal, it sought leave to appeal in the alternative. The argument concerning leave was articulated in written and oral submissions. SiCorp essentially sought leave to appeal on the same basis as the primary ground of appeal with the contended result that there was a substantial miscarriage of justice because the decision was not fair and equitable and against the weight of evidence.

Is this an appeal on a question of law?

Numerous decisions of the Court of Appeal, Supreme Court and the Appeal Panel have recently confirmed that a question of law in the context of s 80(2)(b) of the NCAT Act should be interpreted similarly to "a question of law alone" or a "pure question of law". It excludes questions of mixed fact and law and, of course, questions of fact: see for example Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223; Orr v Cobar Management; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40; Wollondilly Shire Council v Styles [2024] NSWCATAP 104; Unique Commercial Group.
There is no doubt that whether the Tribunal's construction of words in a statute or contract (such as an insurance policy) was wrong in some way raises a question of law: Bianco Walling Pty Ltd v Construction, Forestry Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66]; Unique Commercial Group at [32(2)].
CN1 persistently contended throughout the appeal that the Tribunal's finding as to what constituted the "residential development" was a factual issue and/or a mixed question of fact and law. We disagree. A necessary step in the construction of s 3A is determining what "residential development" means and then undertaking the task of characterisation on the facts of this case to determine whether residential building work was done in connection with that "residential development". For reasons set out further below, the Tribunal's finding that Lots 544 and 547 were separate "residential developments" proceeded from a misconstruction of what that phrase meant, which consequently infected the task of characterisation. These were necessary foundational steps in reaching a conclusion as to whether CN1 was a "developer". There is no doubt (as the parties agreed at the start of the appeal) that the proper construction of "residential development" in s 3A (and by integration in the Policy) is a question of law.
Consequently, leave to appeal is not required and this question of law is the subject matter of this appeal: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd.

SiCorp's submissions

SiCorp submitted that the approach to the interpretation of s 3A of the HBA requires consideration of the text of the HBA, construed as a whole and the text of s 3A within the whole of the HBA and that a purposive approach should be taken including having regard to the relevant extrinsic materials. It was also contended that the HBA is beneficial legislation or one which gives some benefit to a person or remedies an injustice (Re McComb [1999] 3 VR 485 at 490) and that it should be interpreted liberally.
SiCorp also contended that the use of the words "in connection with" in s 3A(2) are to be read broadly and consistent with the meaning given to that expression in R v Khazaal. This was the same submission made to the Tribunal below and rejected. Instead, so it was contended by SiCorp, the Tribunal failed to engage with the proper statutory interpretation process or have regard to these principles and simply baldly stated, without reasoning, that it used "the simple and everyday meaning of the words" to find the Lots 544 and 547 are separate residential developments.
As SiCorp submitted, the cases relied upon by the Tribunal below were "unilluminating to the question of whether, in these proceedings, there exists a residential development in the way contended by SiCorp." Simply because it was unable to find reported cases in which the expression "residential development" has been accepted to be more than a single property or parcel of land or a single development application or a single development consent does not mean that it is not so.
We agree. We also note that in the land tax context there have been several cases where the Supreme Court has treated numerous parcels of land as a constituting a "residential development" even though those parcels had not been physically developed into dwellings in the new residential estate but were merely in the preliminary stages of subdivision or development planning: see for example Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue (2010) 79 NSWLR 724; [2010] NSWSC 867 at [54]; Metricon QLD Pty Ltd v Chief Commissioner of State Revenue (No 2) [2016] NSWSC 332; and Leppington Pastoral Co Pty Ltd v Chief Commissioner of State Revenue [2017] NSWSC 9. However, we do not consider that how the expression might be used in other legislation or land characterised in other contexts is necessarily determinative of how "residential development" in HBA, s3A should be interpreted. The Tribunal's approach to the task of construing the phrase "residential development" in the HBA by looking for guidance in other contexts or from the Land and Environment Court website was not the correct approach to adopt for the reasons we explain below.

General principles of statutory interpretation

In this case the process of statutory construction is intertwined with the construction of the Policy.
The starting point for ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ); Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at 519 at [39]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] ("SZTAL") (Kiefel CJ, Nettle and Gordon JJ); SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55.
In SZTAL, the majority stated: "[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (footnotes omitted)
In that same case, Gageler J stated: "[35] Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd: 'Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.' [36] Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd: '[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.'" (citations omitted)
A construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object: Interpretation Act 1987 (NSW), s 33.

Purpose

We note that s 3A was introduced by the Home Building Amendment Bill 2011 (NSW) ("HBA Bill") following the decision of the Court of Appeal in Ace Woollahra. The use of extrinsic materials in the interpretation of an Act is permitted under s 34 of the Interpretation Act.
In the second reading speech to the HBA Bill, Mr Roberts stated: "One of the most important requirements in the Act for developers is that they assume the same level of responsibility for the statutory warranties as the builder. This gives a home owner the greatest chance of recovering any losses from defective or incomplete work. However, in May 2010, the Court of Appeal [in Ace Woollahra] took a narrow view of the Act's definition of 'developer' in its decision. It effectively found that in order for the work to be done on behalf of the developer, the developer must have been in contract with the builder. This does not recognise that, in many arrangements entered into by developers, the party that owns the land - and on whose behalf the work is done - is not necessarily the party who enters into the contract with the builder. The most common example of where this happens is in joint venture arrangements where one organisation or person own the land and the other enters into the building contract. Under these circumstances, if the owner of the land has to also enter into the building contract in order to be considered a developer, many home owners risk not being able to pursue the developer for breach of statutory warranties. This would severely reduce the chances of home owners being able to recover the losses for defective or incomplete work. Accordingly, the Government is moving swiftly to rectify this issue for affected home owners by amending the definition of 'developer' in the Act. The revised definition of 'developer' will ensure that the owner of the land who also owns, or will own, four or more of the units in the development, is considered to be a developer, regardless of whether they entered into the contract with the builder."
Mr Greg Pearce stated as follows: "The Act's statutory warranty provisions are the linchpin of its consumer protection framework. These provisions provide implied warranties against incomplete or defective work into all contracts for residential building work. The Act also establishes the home warranty insurance scheme. The scheme provides a safety net that homeowners can access in specified circumstances where they cannot recover losses arising from incomplete or defective work from their builder or developer. The bill does not attempt to rectify all the anomalies and concerns with the operation of these schemes; nor does it address all the current issues homeowners and industry are experiencing with the regulation of residential building work in New South Wales."
Mr Michael Veitch stated: "The Government is today introducing the Home Building Amendment (Warranties and Insurance Bill) 2010. The bill is being introduced urgently to overcome the effect of a recent Court of Appeal decision in the case of Ace Woollahra v The Owners - Strata Plan 61424 and Building Insurers' Guarantee Corporation. That decision has created considerable uncertainty in relation to the statutory warranty and home warranty insurance schemes, and has cast significant doubt on whether the scheme protects all home owners as intended. The bill will amend the Home Building Act to clarify the entitlements of home owners to statutory warranties and home warranty insurance, where loss is suffered due to defective residential building work. The bill will change the Act to protect home owners who have building work done, as well as subsequent purchasers of homes and apartments in circumstances where it now appears no benefits are available. The Home Building Act provides two forms of protection against defective residential building work to home owners who engage builders to carry out building work and those who buy a home from such persons. First, it gives home owners a statutory warranty against defective building work undertaken by the builder. These warranties are implied into contracts to carry out residential building work. The home owner can pursue legal action against the builder for the work required to fix the defect. Secondly, the Act is intended to allow the home owner to claim under insurance for rectification of the work or monetary compensation. These benefits were always intended to be available to the person who owned the land on which the building work was done, as usually that person would suffer any relevant loss. As it was expected that only the landowner would be the person entering into the contract with the builder, the Act did not specify or identify the person contracting with the builder. The intended beneficiary of the schemes was merely referred to as 'the person obtaining the benefit of the statutory warranties' or, for insurance, 'the person on whose behalf the work was done'. These benefits are also extended to any person who is a subsequent purchaser or 'successor in title' for a period of up to a possible maximum of seven years. So, in these cases, the home owner and any subsequent purchaser will get the benefits of the Act. However, in some instances the contract with the builder might be entered into by a person who is not in fact the landowner. For example, a husband might enter into a contract with a builder to undertake residential building work on land owned not by him but by his wife. Similarly, a company that owns land might be developing it into a residential complex, but the contract to do the building work or to have the work done by a builder is entered into by a subsidiary of the company. It was always thought that the benefits of the Act would still flow to a landowner even if someone else was the contracting party. I seek leave to incorporate the remainder of the second reading speech in Hansard."
In Gardez Nominees Pty Ltd v NSW Self Insurance Corporation [2016] NSWSC 532, after recording the second reading speeches, Hammerschlag J noted that: "[99] Section 3A, before the amendment, and as construed in accordance with Ace Woollahra, applied to work done under or pursuant to an existing contractual relationship. This meant that there was a lacuna. … [101] The amendment was intended to close this lacuna by deeming (for the purpose of determining who is a developer in relation to the work) the work to be done on behalf of the owner of the land in addition to any person on whose behalf it was actually done."
Clearly, the purpose of the amendments to s 3A were to give maximum protection to successors in title by expanding the class of persons that would fall within the definition of "developer".

Proper construction of undefined ordinary words

Words of a statute should be given their "natural and ordinary meaning": Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' Case) (1920) 28 CLR 129 at 148-149 (Knox CJ, Isaacs, Rich and Starke JJ), at 161-162 (Higgins J); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 ("Cooper Brookes") at 305 (Gibbs CJ), at 320-321 (Mason and Wilson JJ); Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551 at [52] (Kiefel CJ, Keane, Nettle and Edelman JJ).
In other words, the "ordinary" meaning of a word is the "ordinary usage of society" (Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 (CA) at 560 (Mahoney JA), citing: Shore v Wilson (1842) 9 Cl & Fin 355 at 527; 8 ER 450 at 518 (Coleridge J); R v Peters (1886) LR 16 QBD 636 at 641) and its "natural" meaning is its grammatical meaning in the context in which it appears: Cooper Brookes at 305. As stated by Isaacs J in Australasian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 302-303, context in this sense is directed to the "subject matter in connection with which [the word] is used an … its collocation" or the surrounding words of the provision. Further, the ordinary and natural meaning of words must be read as having ordinary meaning as applied to the subject matter being dealt with: Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 2 All ER 495 at 502.
Unlike the defined expression "residential building work", the undefined expression "residential development" is not used anywhere else in the HBA. However, the expression is contextually consistent with an Act focused on work done for a proposed or existing dwelling (as defined in Sch 1 cl 3 to the HBA).
The Tribunal below did not apply the principles of statutory construction we have set out above or correctly approach the question of the construction of s 3A HBA as to the meaning to be given to the expression "residential development". Instead, the Tribunal impermissibly undertook a search (including of the Internet) for substitute words or expressions and imposed non-statutory checklists not imposed by Parliament (based on the limited cases that had previously deal with the expression under the HBA).
The HBA deals with the regulation of building work undertaken for residential purposes. In this context, the phrase "residential development" should be construed in its ordinary sense as development for residential purposes.
We see no statutory support in s 3A or the HBA or the HBA as a whole, for limiting the scope of the expression "residential development" to development for residential purposes that occurs only on a single parcel of land; under a single development application or consent; under a single building contract and/or insurance policy by a single builder or owner. This is particularly so where other provisions (such as those referred to in [33] above) extend the scope of the HBA to residential building done other than under a single contract or any contract at all, as well as on behalf of persons other than owners.
The extrinsic materials to the amendments in s 3A confirm our view that there is no statutory warrant for narrowing the scope of the expression "residential development" in the manner articulated by the Tribunal and to do so would be contrary to the purpose of the amendments.
Further, the Tribunal's construction has the effect of being at odds with the commonly understood meaning of a developer of residential estates or suburbs that spring up all over NSW as part of government controlled urban expansion such as the one in this case in North Kellyville under the SEPP 2006 and the North Kellyville DCP.
Consequently, when the Tribunal misconstrued the expression "residential development" in s 3A by confining it to a narrow category of development, this then resulted in a mischaracterisation of the development on Lot 544 the subject of this dispute. The Tribunal ultimately reached an erroneous conclusion in the application of s 3A based on its misconstruction of "residential development".
The appeal should therefore be allowed.

"In connection with"

Given the conclusion we have reached it makes it strictly unnecessary for us to consider the expression "in connection with". However, for completeness we also disagree with the Tribunal's conclusion that the words "in connection with" in s 3A must be narrowed and restrained.
The phrase "in connection with" has been held to be a 'prepositional phrase' of indefinite content: O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 376 (McHugh J) cited in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [24].
Like the words "in relation to" and in respect of" the expression "in connection with" signifies a relationship between two subject matters. Compound prepositions such as "in connection with" like "relates to" or "in respect of" are often deployed to describe a relationship between concepts in the widest possible terms. The extent of the relationship will depend upon the context in which they are used: Smith v Commissioner of Taxation (Cth) (1987) 164 CLR 513 at 533 (Toohey J).
In HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553 at 563, Hill J made apposite observations about the similar prepositional phrase "relates to" as follows: "It was common ground that the words 'relates to' are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found." See also: Travelex Ltd v Commissioner of Taxation (2009) 178 FCR 434 at [25] (Mansfield J), at [44] (Stone J), at [57] (Edmonds J); Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 at [25] (French CJ and Hayne J).
In our view, the use of the words "in connection with" in the context of s 3A and the HBA as a whole, are also to be construed broadly so as to give effect to one of the purposes of the amendments to s 3A, being greater protection to consumers by broadening the scope of "developers".

Disposition of the appeal

Section 81 of the NCAT Act states as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
As previously noted, we are satisfied that SiCorp has established that the Tribunal below misconstrued s 3A and the appeal is allowed.
At the hearing the CN1 submitted that if we allowed the appeal, the matter should be remitted to the Tribunal below for determination; SiCorp submitted that we should decide it.
Given the overriding objectives in s 3(d) of the NCAT Act, to "resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible", that we have all of the evidence before us and none of the facts are particularly controversial, we have decided to determine the matter ourselves rather than remit it to the Tribunal below or a reconstituted Tribunal. The issue in dispute is in substance the application of the facts to the law properly construed.

Factual context and analysis

Part of the context for identifying and/or characterising the "residential development" in this case is the framework for the development on Lot 544, that is, the relevant planning instruments in respect of the land as subject to and issued under the EP & A Act - notably SEPP 2006 and the North Kellyville DCP. These planning instruments provided a factual framework.
Section 4 of the EP & A Act contains a number of definitions that are contextually relevant to the DCP as follows: development means (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. … development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed. … residential building work has the same meaning as in the Home Building Act 1989.
Under the EP & A Act, a relevant planning authority may prepare a SEPP and DCP. The purpose of a DCP is to provide guidance to persons proposing to carry out development (s 74BA EP & A Act).
At the relevant time, s 74C of the EP & A Act provided: 74C Preparation of development control plans (1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable: (a) to provide the guidance referred to in section 74BA (1), or (b) to identify development as advertised development (so as to make additional but not inconsistent requirements to those imposed by the regulations in relation to development applications), or (c) to provide for (or exclude) public or particular advertising or notification of any of the following: (i) a development application for specified development (other than State significant development or designated development or advertised development), (ii) a request for the review of a determination of a development application where the applicant for review makes amendments to the development described in the original development application, (iii) an application for the modification of a development consent for specified development (including advertised development but not State significant development or designated development), or (iv) (Repealed) (d) in the case of a council - to specify criteria (in addition to but not inconsistent with any criteria prescribed by the regulations) that the council is to take into consideration in determining whether or not to give an order under Division 2A of Part 6, or (e) to make provision for anything permitted by this Act to be prescribed by a development control plan. Note - See for example section 26 (4) (a). (2) Only one development control plan made by the same relevant planning authority may apply in respect of the same land. This subsection does not apply to: (a) a plan prepared for the purposes of subsection (1) (d) or for any other purpose prescribed by the regulations, or (b) a plan prepared for the purpose of amending an existing plan. If this subsection is not complied with, all the development control plans concerned have no effect. Note - A planning authority may prepare one development control plan for the whole of its area or one plan for each precinct or locality in its area, or prepare one plan for a site (and exclude that site from the area to which other plans apply). (3) A development control plan may adopt by reference the provisions of another development control plan. (4) A development control plan may amend, substitute or revoke another development control plan. (5) A provision of a development control plan (whenever made) has no effect to the extent that: (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument.
Section 74D provided: 74D Development control plans required or authorised by environmental planning instruments (1) An environmental planning instrument may require or permit a development control plan to be prepared before any particular development or kind of development may be carried out (and make provision with respect to the preparation and content of any such plan). (2) Any such development control plan may outline the development of all the land to which it applies. (3) Any such development control plan may be prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies or by such percentage of those owners as the environmental planning instrument concerned allows. A person authorised by those owners may act on their behalf for the purposes of this subsection. (4) The relevant planning authority may make a development control plan submitted to it under this section, including with such changes as it thinks fit. (5) If the relevant planning authority refuses to make a development control plan submitted to it under this section (or delays by more than 60 days to make a decision on whether to make the plan): (a) the owners may make a development application despite the requirement of the environmental planning instrument concerned for the preparation of a development control plan, or (b) the Minister may act in the place of the relevant planning authority to make the plan (with or without modification), but only if the environmental planning instrument concerned authorises the Minister to do so. (6) The regulations may extend the period of 60 days referred to in subsection (5) in connection with any failure by the owners to provide further information required by the relevant planning authority for the purposes of making the plan. Note - Section 83C provides that a concept development application may be made for development requiring consent under Part 4 as an alternative to a development control plan required by an environmental planning instrument.
Relevant parts of North Kellyville DCP 2008, as set out above, make clear that the land including Lot 544 and Lot 547 were part of the one development being Stage 5 Blue Horizons development. The language in that DCP speaks of prospective residences to be built in that development including their sizes and types and that the housing development is consistent with the zoning for the land being R2 Low Density Residential.
In our view, the North Kellyville DCP is directed to residential purposes for the use of the land. That "development" (as defined in the EP & A Act) includes the use of the land and subdivision of the land as well as the erection of a building and the carrying out of a work. We are of the view that the subdivision into residential lots was a necessary step in, and part of, the residential development of Stage 5 Blue Horizons. The consent for the subdivision was for residential purposes - to create individual residential allotments before homes could be designed, development applications for those homes lodged and subsequently built. Each home in the development of Stage 5 Blue Horizons was subject to the design and construction restrictions as set out in North Kellyville DCP 2008.
When regard is had to those planning instruments it is apparent, and we find, that Stage 5 Blue Horizons was a "residential development" within the meaning of s 3A HBA ("Stage 5 development").
That each house built in that residential development might be on a separate parcel of land (as subdivided); constructed under separate development applications at different times; and may have had separate policies of insurance, does not mean that it was no longer part of the Stage 5 development.
Further, the evidence reveals that a s 94 contribution was required to be paid for or on behalf of the landowners of the land comprising the Stage 5 development. One of the conditions a consent authority can impose in respect of development of land is that a contribution be made (under s 94 of the EP & A Act) towards the provision or improvement of public amenities and public services. The consent authority does so where it is satisfied the development for which the development consent is sought, is likely to require those amenities or services.
There was no dispute that a s 94 contribution was required in this case and Lots 544 and 547 are included in the table of property for which development consent was sought. The contribution was paid on a per lot basis in the development as a whole. This included CN1 as the owner at that time of seven of the lots of land. We consider this further supports our conclusion that Lot 544 and 547 were both part of the one residential development.
We further find that the "residential building work" on Lot 544 was done in connection with a proposed dwelling in the Stage 5 development (being a "residential development"). We also find that 4 or more of the proposed dwellings (being those on Lot 544 and Lot 547) in the Stage 5 development were owned by CN1. Consequently, CN1 is a "developer" for the purposes of s 3A of the HBA and also a "developer" within the meaning of cl 7 of the Policy.

Costs

Both parties sought an order as to costs and agreed that the amount in dispute is more than $30,000 and that, consequently s 60 of the NCAT Act (which provides that costs will only be granted in exceptional circumstances) does not apply because of the operation of rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). Each party made submissions on costs.
Rule 38A of the NCAT Rules deals with costs in internal appeals, and relevantly provides: 38A Costs in internal appeals … (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. As noted above, there was no dispute between the parties that the amount in dispute was more than $30,000.
We cannot see any reason in the circumstances why CN1 should not pay the costs of the appeal of SiCorp as agreed or assessed in accordance with the Legal Profession Uniform Law Application Act 2014 (NSW), and so we have made this order.

Orders

We order as follows: 1. The appeal is allowed. 2. Orders (2), (3) and (4) of 19 March 2024 in matter 2023/00407852001 are set aside and the following order made in substitution: Matter 2023/00407852001 is dismissed. 3. The respondent is to pay the appellant's costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 12 February 2025

Environment Planning and Assessment Act 1979(NSW)

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