Omaya Investments Pty Limited v Dean Street Holdings Pty Limited [2020] NSWLEC 9 | Case summary

Omaya Investments Pty Limited v Dean Street Holdings Pty Limited [2020] NSWLEC 9 | Case summary | Zoe

[5]

[Judgment Introduction and Background Facts Relevant Legislative Provisions Nature of Claims Ground 1 - Over excavation in breach of DC1 Nature of claim Applicants' submissions on construction of The Consent Respondents' submissions on construction of The Consent Findings on the construction of The Consent The evidence relating to whether the excavation met the performance criteria Applicants' submissions on the evidence as to whether the excavation met the performance criteria Respondents' submissions on the evidence as to whether the excavation met the performance criteria Credit of Mr Maroun Taouk Findings on evidence of soft rock Findings on whether the presence of soft rock was a sufficient reason (or a reason at all) relating to the extent of excavation Not a reasonable response Conclusion on whether there has been a breach of The Consent relating to the extent of excavation Ground 2 - CC1 is invalid because it was issued in breach of Planning Condition (5) of DC2 Nature of claim Legislative provisions Provisions of development consents Agreed facts Applicants' submissions Respondents' submissions Findings on Ground 2 Conclusion on Ground 2 Ground 3 - Building works comprising shoring and piling have been undertaken in breach of CC1 Ground 4 - Building works without construction certificate Nature of Claim Issue for determination Was a construction certificate required for the piling and shoring works? The scope of the evidence Evidence of construction of CC1 Applicants' submissions on construction of CC1 Respondents' submissions on construction of CC1 Findings on construction of CC1 Was CC1 amended to incorporate TQM Plans? Legislative provisions Evidence of treatment of TQM Plans by Respondents and the Certifier Applicants' submissions Respondents' submissions Onus Was there an application made to modify CC1? Could the changes in the TQM Plans be properly characterised as a modification? Applicants' submissions Respondents' submissions Findings as to whether the TQM Plans were a modification Were the plans lodged for the purpose of CC2 and not CC1? Was the modification to incorporate the TQM Plans in fact approved? Date of Stamping of TQM Plans and communication of approval The words on the stamp do not support inference of approval The TQM Plans were stamped in error Findings on whether in fact an approval was granted Findings on breach of the Regulations Does the finding of breach of regulations have the consequence that the modification of CC1 was invalid? Did Mr Freixas give an approval as the accredited certifier or in some other capacity? Applicants' submissions Respondents' submissions Findings on whether Mr Freixas was acting as accredited certifier Conclusion to Grounds 3 and 4 Ground 5 - CC2 invalid Applicants' submissions Respondents' submissions Findings on Ground 5 Ground 6 - Crane base erected without approval Findings on whether crane base required development consent Determination of relief for construction without development consent Ground 7 - The Executed VPA is invalid as it was not notified to the public in accordance with the mandatory requirements for public notification Nature of claim Legislative provisions Evidence relating to public notification of Executed VPA Applicants' submissions Council's submissions Respondents' submissions Findings on whether the Executed VPA is invalid Conclusion on Ground 7 Ground 8 - Occupation Certificate Discretion Costs Conclusion and Orders

[6]

Introduction and Background Facts

These proceedings are civil enforcement proceedings asserting that work carried out at premises known as 1-3 Marmaduke Street and 7 Deane Street, Burwood (the Subject Site), comprising principally the excavation, shoring and slab construction, is unlawful. It is further asserted that proposed future work comprising the construction of a mixed use development and car parking in reliance on the existing works is unlawful.
The First Applicant was the owner of land adjoining the Subject Site at 8-12 George Street, Burwood (the Applicants' Land). The Second Applicant is now the registered proprietor of the Applicants' Land. The First and Second Applicants are collectively referred to as the Applicants.
The First Respondent is the registered proprietor of the Subject Site. The Second Respondent is the contractor carrying out construction and development works on the Subject Site. The Third Respondent is the registered proprietor of land adjoining the Subject Site known as 4 George Street, Burwood upon which has been constructed a concrete pad to support a crane (the construction of and use of which is the subject of a claim in these proceedings). The First to Third Respondents were collectively represented and will be collectively referred to as the Respondents.
The Fourth Respondent, Mr Maurice Freixas, of Dix Gardiner, was appointed as Principal Certifying Authority in relation to the works to be carried out on the Subject Site. The Fourth Respondent has entered a submitting appearance in these proceedings. He was called to give evidence in the matter and to that extent was represented as needed by legal representatives.
The Fifth Respondent (the Council) was the consent authority in relation to the grant of development consents for development on the Subject Site and was the beneficiary of developer contributions pursuant to a condition of a development consent that required the developer to enter into a Voluntary Planning Agreement (VPA).
The relevant (generally agreed) chronology of facts relating to the carrying out of building works on the Subject Site are: Date Event Evidence Reference 06/03/13 First Development Consent granted for 22 storey mixed use development with four basement levels (DC1). Exhibit F 24/10/14 Modification 1 to the First Development Consent - modifications to internal layout, increase number of serviced apartments (2014 Modification to DC1). Exhibit G 03/03/16 Second Development Consent 98/2015 granted for an additional three storeys (DC2). Exhibit H 18/10/16 Complying Development Certificate 16/0475-01 granted for demolition. Exhibit L at 871 03/03/17 Modification 2 to DC1 - extension of B4 and reconfiguration of basement levels (2017 Modification to DC1). Exhibit K 08/03/18 Construction Certificate 1 (CC1) issued. Stamped plans by ABC Consulting for bulk excavation, shoring and piling. Exhibit U Dec 2018 The Development site was acquired by the First Respondent. Affidavit of Mr Mark Taouk dated 17/09/19 at [5] Mid to late January 2019 Piling works commenced at Subject Site. T533 lines 34-37 16/01/19 Application form for CC to roof level (date signed). Exhibit Z Tab 4 05/03/19 Revised shoring and piling Engineering plans prepared by TQM Consulting Engineers dated 21 December 2019 and marked Revision B together with accompanying material delivered by Mr Maroun Taouk to Mr Freixas on a USB stick (the TQM Plans). Affidavit of Mr Maroun Taouk at [15] 02/04/19 Application form for Construction Certificate to roof level (date marked received by Dix Gardner). Exhibit X at 72 07/05/19 4.15 modification application to DC1 and new development application lodged for incorporation of adjoining site and Basement 5. Exhibit 1 23/07/19 These proceedings are commenced. Original Summons Dix Gardiner forwards the revised shoring and piling Engineering plans prepared by TQM to Respondents. Plans marked with stamp that states: DIX Gardner Group Pty Ltd 09/08/19 Certificate Number 16/0475-02 Exhibit U Dated 08/03/2018 Construction Certificate Approved 12/08/19 Letter from Dix Gardner to Second Respondent indicates earlier stamp on plans an: 'administrative error' and attaches 'corrected' plans with a different stamp. Exhibit W 11/10/2019 VPA executed (the Executed VPA). Exhibit JJ Tab 1 15/10/2019 Construction Certificate for structure to roof level issued. Exhibit JJ Tab 2

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Relevant Legislative Provisions

As at the date of the hearing of this matter the Environmental Planning and Assessment Act 1979 (EP&A Act) had been amended to replace, inter alia, the provisions of s 81A and Part 4A of the EP&A Act as it related, in this case, to construction certificates. The commencement of those amendments, by operation of cl 18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, were postponed and the following provisions applied: 18 Postponement of revised building and subdivision certification provisions (1) In this clause, the former building and subdivision provisions means- (a) Sections 81A (2)-(6) and 86 of the Act, as in force immediately before the substitution of those provisions by the amending Act, and (b) Part 4A of the Act, as in force immediately before the repeal of that Part by the amending Act, and the regulations made under that Part as so in force. (2) Until 1 December 2019, Part 6 of the Act (as inserted by the amending Act), other than Division 6.7, does not apply and the former building and subdivision provisions continue to apply in respect of a matter (whether or not the matter was pending on the repeal of those provisions). (3) For the avoidance of doubt, the following provisions as in force immediately before 1 March 2018 continue to apply to and in respect of a breach, occurring on or after that day, of a former building and subdivision provision- (a) Division 4 of Part 6 of the Act, (b) Any other provision of the Act, or a regulation made under the Act, that provides for the prosecution of an offence in relation to the breach, including by way of issuing a penalty notice.
As a consequence, as at the date of the hearing the relevant provisions were those referred to in cl 18. On 1 December 2019 the postponed provisions commenced. As both DC1 and DC2 were granted prior to the commencement of the postponed provisions, the provisions in force immediately prior to that date continue to apply to the determination of the subject matter of these proceedings by operation of cl 18A which provides: 18A Continuation of matters arising under former building and subdivision certification provisions The former building and subdivision provisions continue to apply, despite their repeal, to or in respect of the following- (a) an interim occupation certificate or final occupation certificate in force under those provisions immediately before 1 December 2019, (b) a development consent granted before that date.

[9]

Nature of Claims

The Applicants' Fourth Amended Summons and Points of Claim (filed with leave on 4 November 2019) sets out the Applicants' claims for relief as at the conclusion of the hearing. These grounds were summarised by the Applicants as generally being:

Ground 1 - Over excavation in breach of DC1: the Subject Site has been excavated by or on behalf of the First Respondent and/or the Second Respondent in breach of DC1 (and subject to subsequent approved modifications pursuant to s 4.55 of the EP&A Act) for a mixed-use development, with four basement levels at the Subject Site. Excavation has taken place to a level of RL 7.62 AHD when compared with the approved level of RL 13.200 AHD.
Ground 2 - CC1 is invalid: the construction certificate issued by the Fourth Respondent approved for "CC1: Bulk excavation, shoring and piling" (CC1) is invalid because it was issued in breach of Planning Condition (5) of DC2 for, inter alia, three additional building levels containing eight residential apartments.
Ground 3 - Breach of CC1: if (which is denied) CC1 is a valid construction certificate, the approved plans the subject of CC1 are taken to form part of DC1 and/or DC2, and the First and/or Second Respondents have carried out development comprising shoring and piling and other works otherwise than in accordance with the CC1 plans.
Ground 4 - Building works without construction certificate: in breach of s 81A(2)(a) of the EP&A Act (s 6.7(1) from 1 December 2019), the First and/or Second Respondent have carried out building works at the Subject Site (including the construction of suspended concrete slabs) in the absence of a valid construction certificate, comprising all the works beyond the bulk excavation, shoring and piling works approved by CC1. To the extent that the First and Second Respondents rely on the TQM Plans, those plans do not form part of any construction certificate issued or approved by Mr Freixas, and there has been no valid amendment or substitution of those plans.
Ground 5 - CC2 is invalid: CC2 for the "erection of a multi-storey, mixed-use development containing retail tenancies, serviced apartments & residential units, over basement car parking, CC2: Structural building works up to and including roof slab": 1. has no effect at all, by reason of the operation of s 109F(1A) of the EP&A Act; 2. or alternatively has no effect to the extent that it purports to authorise the carrying out of building works that had already been carried out; and 3. was issued in breach of former ss 81A(2) and 109F(1)(a) (current ss 6.7(1) and 6.8(1)(a)) of the EP&A Act and cl 146(c) of the Environmental Planning and Assessment Regulation 2000 (the Regulations); and is therefore invalid.
Ground 6 - Crane base without consent: the Second Respondent has carried out development without consent, in breach of s 4.2(1)(a) of the EP&A Act by erecting a crane tower base on adjoining land at 4 George Street, Burwood.
Ground 7: the Executed VPA is not a planning agreement within the meaning of s 7.4 of the EP&A Act, as it was not exhibited in accordance with the mandatory requirements for public notification. Therefore, the Executed VPA would be invalid and would not satisfy Planning Condition (5) of DC2.
Ground 8 - Occupation certificates: assuming the Court makes findings with respect to CC1 and CC2, any occupation certificate issued for the new building on the Subject Site would be in breach of s 109H(3) and (5) of the EPA Act (and s 6.10(2) of the Act from 1 December 2019) and would therefore be unlawful. In the alternative, to the extent that it relies upon CC1 or CC2 in respect of building works carried out before the relevant construction certificate was issued, any occupation certificate would be in breach of s 109H(3) and (5) of the EP&A Act (and s 6.10(2) of the Act from 1 December 2019) and would therefore be unlawful.
Discretion and nature of relief: in the event that any or all of the grounds are established, what declarations and orders (if any), in the exercise of the Court's discretion, should be made.

Each of these grounds was addressed by the Applicants and the Respondents. The Council only sought to be heard in connection with Ground 7 (and discretionary considerations relating to that ground) as that ground related to the Council's entitlements under the VPA.
Each of these grounds requires the determination of a number of contingent and subsidiary issues, which I identify at the point that I deal with each of these grounds.

[14]

Respondents' submissions on construction of The Consent

The Respondents submitted that upon a proper construction of The Consent there was no limitation on the depth of excavation as contended by the Applicants and, therefore, the excavation was not in breach of The Consent.
The first basis for this submission was that each of the approvals was required to be construed such that it permits a "practical approach" to be taken to permit "practical results" to be achieved. The Respondents cited the following in support of this submission: Gill v Donald Humberstone & Co Limited [1963] 1 WLR 929 at 933 to 934; Driscoll v J Scott Pty Limited (1976) 50 ALJR 528 at 531; Hecar Investments & Co Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323; Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [40] per Hodgson JA; DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 at [94] per Perram, Wigney and Lee JJ.
The Respondents contend that, during the course of excavation, soft shale soil was discovered on the Subject Site which discovery required further excavation to locate stronger rock. On a proper construction of The Consent such a practical response in the practical exercise of excavation was permitted.
Secondly, The Consent did not impose any limit on excavation. The only constraint is contained in Excavation Condition (1), imposed on DC1, that required the work to be undertaken in "a safe and careful manner in accordance with appropriate professional standards" and the excavation in this case accorded with that requirement in the response to the discovery of the soft shale soils. Such a possibility was identified in the documents that formed part of DC1 by operation of Condition (1). The response to this discovery was consistent with those reports. CC1 also did not place any limitation on the depth of excavation. As with DC1, CC1 incorporated reports that identified the possibility of soft shale soils and the response to this discovery was consistent with those reports.
Finally, if there was a limitation placed on the extent of the excavation by The Consent that consent was modified (or permission was given) to vary that requirement. It was said that this variation or permission arose as a consequence of the approval given at or around 5 March 2019 to incorporate the revised Shoring and Piling Plans prepared by TQM. This incorporation was either a formal modification of CC1 or, alternatively, a determination by Mr Freixas that the revised plans were consistent with the requirements of DC1 and CC1 such that the work could be undertaken without the need to modify CC1.

[15]

Findings on the construction of The Consent

The principles of construction of development consents are relatively well settled and prescribe that: 1. A development consent, being a statutory instrument, is to be construed in accordance with the usual rules of statutory construction: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395 at [99]; 2. The development consent is to be construed according to the terms of the Notice of Determination and any other document or matter incorporated into its terms either by express reference or necessary implication: Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439 at [35]-[36] (the decision was overturned in Western Aluminium Pty Ltd v Environmental Protection Authority; Western Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 82 ALJR 74, however the principles of construction of consents was not criticised: see [17]), Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434 at [72]; 3. A development consent is to be construed in accordance with its objective terms rather than the subjective intentions of the consent authority: Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434; 4. A development consent, being an entitlement that is enduring, is to be considered as akin to an instrument of title and construed accordingly: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [23].
As noted above, the Respondents contended that it was a principle of construction that consents were required to be construed such that a practical approach is to be taken to permit practical results to be achieved. If this submission is intended to suggest that consents and like instruments are not to be construed in accordance with the principles outlined above but rather be subject to an overarching obligation (independent of the general principles of construction) to construe the terms by determining what is practical and what will achieve a practical result I do not accept such formulation, nor is such formulation reflected in the authorities cited in support of the submission.
The authorities cited do not create an independent rule of construction for "practical results". Rather the authorities recognise that the general principles of construction permit consideration to be given to the purpose and object of the instrument and to determine a construction that best meets that purpose by employing the usual principles of statutory construction which includes a consideration of the context and purpose of the instrument. In that respect, the fact that a development consent, or similar instrument, is prepared with practical application in mind for the undertaking of physical work by practical people may be of assistance in determining the construction of the instrument. This approach is mere recognition that the task of construction permits text, context and purpose to be considered in that exercise. The authorities do not elevate that single factor to a separate and independent requirement to be applied outside the context of the interwoven and complex considerations that apply to the task of construction: Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd at [72].
To the extent that it was submitted that it was a "requirement" to construe The Consent in a practical way I do not consider that approach is appropriate as an independent consideration, however, I do accept that such a consideration is available as part of the matrix of considerations forming context and purpose that is required to determine the proper construction of The Consent.
Consistent with the outlined principles of construction, it is necessary for The Consent to be construed according to its terms. The Consent expressly incorporates: conditions; plans; and nominated reports. A consideration of the totality of these documents, having regard to the text, context and purpose of The Consent, indicates that there is no express limit by reference to an RL (or other benchmarking number) in any of the material that comprises The Consent.
The Applicants suggest that the SFL of Basement 4 at RL 11.05 provides such an express limit on excavation. The express words of The Consent and its contextual indicia do not support such a construction. What is plain from the plans that make reference to the SFL is that the SFL of Basement 4 is referring to the upper surface of the basement slab. The slab has to be formed below this level - on any construction of the consent the SFL of the lowest slab could not be an indication of the BEL. Additionally, neither the plans incorporated in The Consent consisting of the plans nominated in DC1 nor the plans approved in CC1 (the ABC Plans) purport to be plans relating to excavation. The DC1 plans show the architectural features of the proposed building and the ABC Plans are expressed to be "Shoring Plans". Whilst both sets of plans rely on the excavation to enable effect to be given to the works to which they relate (either with respect to the spatial requirements of the building or its requirement for structural support) they do not purport to express a limitation on the extent of any excavation, but rather, indicate the manner in which such excavation will be shored and then filled by the proposed building. To the extent that the plans refer to a handwritten notation by the certifier that the construction certificate works are "To comply with DA RL's" such a reference relates to the finished or structural levels of the building rather than the extent of excavation.
To the extent it is suggested that the SFL is an implied benchmarked limit on excavation, for the same reasons as expressed above, such implication is not available when The Consent is considered as a whole.
However, The Consent does not confer an unlimited entitlement to excavate. The Consent formulates performance criteria that operate to control the manner of excavation and its limits. Such an approach is consistent with the condition making power in s 4.17(4) of the EP&A Act. This performance-based limitation is indicated, in particular, by a combination of the following elements of The Consent: 1. Development consent Building Condition (3) that provides: All excavations and backfilling associated with the erection or demolition of a building shall be carried out in a safe and careful manner and in accordance with appropriate professional standards. All necessary planking and strutting shall be of sufficient strength to retain the sides of excavations. A Certificate verifying the suitability of structural details for any proposed shoring is to be submitted to the Principal Certifying Authority before excavating. Excavation Condition (1) that is in materially similar terms to Building Condition (3). 1. Pursuant to s 4.17(11) the EP&A Act also nominates certain conditions prescribed by the Regulations to which a development consent is subject. Clause 98E of the Regulations makes such provision in respect of shoring in the following terms: 98E Condition relating to shoring and adequacy of adjoining property (1) For the purposes of section 4.17(11) of the Act, it is a prescribed condition of development consent that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the development consent must, at the person's own expense - (a) protect and support the building, structure or work from possible damage from the excavation, and (b) where necessary, underpin the building, structure or work to prevent any such damage. (2) The condition referred to in subclause (1) does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying. 1. Development consent Building Condition (41) that provides: The following engineering details or design documentation shall be submitted to the Principal Certifying Authority (Council or Accredited Certifier) prior to the issuing of a Construction Certificate: (a) Documentary evidence prepared by a suitably qualified professional geotechnical engineer that confirms the suitability of the site for the proposed excavation and building, as well as certifying the suitability and adequacy of the proposed design and construction of the building for the site. (b) A report shall be prepared by a professional engineer prior to the issuing of a Construction Certificate, detailing the proposed methods of excavation, shoring or pile construction including details of vibration emissions and detailing any possible damage which may occur to adjoining or nearby premises due to building and excavation works. Any practices or procedures specified in the engineer's report in relation to the avoidance or minimisation of structural damage to nearby premises, are to be fully complied with and incorporated into the plans and specifications for the Construction Certificate.
Together, these conditions indicate that the manner and extent of excavation are to be identified subsequent to the grant of development consent and prior to the grant of a construction certificate. To the extent that CC1 that forms part of The Consent expressly authorises to "bulk excavation" it incorporates a number of materials that refer to the extent and manner of excavation. Firstly, the ABC Plans indicate that the piles should be socketed 1m into "Class III shale or better". This provision does not identify an absolute depth of excavation, rather it identifies the depth by reference to a geological feature on the Subject Site.
The supporting incorporated material also identifies excavation depth by identifying performance criteria. The reports, having been prepared prior to excavation, are predictive based primarily upon four borehole results on the Subject Site and the interpolation of other general knowledge of the geological features of the broader locality. Making predictions from that data the reports express an expected outcome but also make provision for the real potential for the actual outcome to vary from the predicted. This variation in the actual features of the Subject Site can only be exposed and assessed during the actual process of excavation. To accommodate these potentialities the reports identify the extent of excavation to be the extent that meets those criteria. In particular the following were identified: 1. Geotechnical Engineers Jeffery and Katoukas - Bulk Excavation level assumed at about RL15 comprising excavation about 7.8 depth to North and 10.3 to the South (folio 1106); The purpose of the investigation was to obtain geotechnical information on subsurface conditions at four borehole locations as a basis for comments and recommendations on excavation, groundwater, retention, footings and floor slabs (folio 1104); Within the augered portions of the boreholes, the strength of the underlying shale and sandstone was assessed by observation of the drilling resistance of a tungsten carbide (TC) bit attached to the augers, together with examination of the recovered rock chips and subsequent correlation with laboratory moisture content tests. Rock strength assessments in this way are approximate and variances of one strength order should not be unexpected. The strength of the cored rock was assessed with reference to Point Load Strength Index {I5(501)} tests carried out on the recovered rock core. The results of the point load strength index tests are summarised on the borehole logs and the attached Table B (folio 1104); The classifications were made based on representative sections of the rock, typically about 2m thick and should be sued for indicative purposes only. Some of the higher classes (Class II, BH2) of rock may contain bands of weaker material with a greater degree of fracturing and presence defects. The transition from Class V shale to Class IV shale were assessed based on the augered portions of the boreholes so should be taken as approximate only (folio 1105); Foundation conditions should not be problematic with relatively high bearing pressures on class II shale at the assumed Bulk Excavation Level (BEL) at about RL15m. If the BEL is higher than this then footings should be designed for a lower class of shale (Class III) (folio 1106); The geotechnical investigation has provided a basis for the comments and recommendations which follow. However, it will be essential during excavation and construction work that frequent geotechnical inspections are carried out to assess exposed subsurface conditions, so as to provide appropriate geotechnical advice (folio 1106); Excavation of the rock of very low to low strength will require assistance with rock excavation equipment, such as hydraulic rock hammers, ripping hooks, rotary grinders or rock saws. Some of the cored rock contained some very high strength bands, although at the borehole locations they were relatively bands (folio 1106); Since the proposed basement will extend to the site boundaries, insufficient space will be available for the formation of temporary batters and the excavation will need to be supported by full depth shoring systems installed prior to the start of the excavations. Based on the borehole results, the base of the excavation will be within medium strength shale. A number of points were observed within the recovered rock cores and we therefore consider terminating the shoring above bulk excavation level to be too great a risk. We recommend that the shoring system be extended to at least 1m below the level of the excavations, including an allowance for local excavations for service, footings, lift pits, etc (folio 1106); Occasionally, the subsurface conditions between the completed boreholes may be found to be different (or may be interpreted to be different) from those expected. Variation can also occur with groundwater conditions, especially after climatic changes. If such differences appear to exist, we recommend that you immediately contact this office (folio 1108). 1. iSTRUCT - structural engineers column grid and footing System - Anticipated BEL 11.6 Piles to be socketed 1m below BEL into shale bedrock During excavation inspections to be undertaken for joints
Accordingly, I find that on a proper construction of The Consent the extent of excavation is limited to that which will produce a BEL level sufficient: to give effect to the approved basement plans with four basement levels; to permit the piles to socket 1m below the BEL into shale bedrock; and to a level at which point the soil condition underling the BEL will be sufficient, from a structural perspective, for the structural footings to accommodate the erection of the proposed building above.
It is then necessary to determine whether the BEL actually undertaken on this site exceeds or meets those performance criteria fixed by The Consent.
The Consent, by adopting performance criteria is not prescribing the manner of meeting that criteria; the determination of the manner is left to the person undertaking the work: Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd at [69] and [163]. There may be multiple ways in which the criteria may be satisfied. The selection of method is not dictated by terms of The Consent nor is there a dictate on what can be considered in determining which method should be adopted. Therefore, having regard to the terms of The Consent and, in particular, the performance criteria adopted by it, provided the manner selected provides a sufficient response to satisfy the specified criteria, the reason it was selected over any other option is not relevant to the satisfaction of the performance criteria imposed by The Consent.
Therefore, on the basis of the construction of The Consent determined above, in order for the Applicants to succeed on this ground it is necessary for them to establish that no part of the reason for the excavation related to meeting the performance criteria set by The Consent or that the method adopted did not meet the performance criteria in The Consent. That is, it is not sufficient to identify that there may have been other additional reasons to motivate the depth of the excavation, or even that such other considerations were the primary motivation for the decision to excavate to the current depth; they must demonstrate that that there is no reasonable justification from an engineering perspective to excavate to the current depth in order to meet the performance criteria. In effect this means that a finding must be made (on the evidence) that there was no soft rock or if there was soft rock the response of the Respondents to excavate to the present depth was not within the range of responses to the presence of soft rock.
The evidence on this question is controversial. The primary evidentiary question is whether, during the course of excavation in the area of Borehole 3 there was discovered to be an area of what was described as "soft shale" material which was insufficient to meet the performance criteria, and that the excavation to the present RL was undertaken to provide for the meeting of the performance criteria. The evidence of the presence of this soft rock is disputed.

[16]

The evidence relating to whether the excavation met the performance criteria

The primary evidence relating to the possibility of soft rock comprised: 1. The pre-excavation investigations and recommendations contained in the J&K report referred to at [38(1)] above. These boreholes did not extend to the full depth of excavation required to facilitate the four basement levels. Borehole 3 indicated the presence of softer rock at the lowest point of the borehole.
By the commencement of these proceedings the bulk excavation had been completed. The only evidence relating period of time at which the excavation occurred was: 1. The observations of Mr Maroun Taouk. With respect to this issue his evidence was given in his affidavit sworn 17 September 2019 in the following terms: 13. In about January 2019, I attended the Site and I observed a pile rig or drill rig being used to conduct test bores on the Site. While watching the drill rig being used in the north east section of the Site, I observed that, at a certain depth, the vertical displacement of the augur drill slowed down indicating to me that the augur drill hit dense rock which is also a phrase known as 'refusal'. I understood that dense rock had been hit based upon my previous experience observing the operation of drill rigs to conduct test bores and how those drills behaved when dense rock was encountered, namely that the vertical displacement of the drill slowed down during extended periods of rotation. 14. I observed that the slowing of the vertical displacement, or 'refusal' of the drill only occurred for a short period of time and then I observed the augur drill increased its vertical displacement once more, indicating to me that a layer of soft rock was present below the initial band of dense rock. Again, this indication was based upon my previous experience observing the operation of drill rigs to conduct test bores. The drill continued again for an extended period of time until I observed the vertical displacement slow once more indicating the presence of dense rock. Mr Maroun Taouk was not cross examined on these observations. The references to the north-east section of the site is generally in the location of what had been the location of Borehole 3. 1. On 5 March 2019 Mr Maroun Taouk personally attended upon Mr Freixas to provide him with documents relating to a revised shoring and piling plans. A conversation between Mr Freixas and Mr Taouk took place and its content attested to at [19] of Mr Taouk's affidavit was admitted pursuant to s 136 of the Evidence Act for a non hearsay purpose. Therefore, whilst the content of the conversation is not evidence of the fact of the presence of soft rock, the content of the conversation is taken to be a record of what was said. Neither Mr Freixas nor Mr Taouk was questioned about the content of this conversation. It was in the following terms: I said: Maurice, here are the revised shoring and piling plans and a structural certificate. He said: Thanks. What are the changes? I said: We've identified poor quality rock on site. These are the revised drawings. He said: Ok I'll go through them. 1. The Respondent had appointed a project engineer, Mr Mena Daniel. By letter dated 5 March 2019 Mr Daniel advised Dix Gardiner (inter alia): The quality of the rock/shale masses is essentially dependent on the shear strength, orientation and continuity of joints, bedding planes or fault planes within the rock mass. Onsite inspections during excavation revealed fractures in the rock formation at RL:12m along the north east section of the site, bands of weaker material were deemed to be a defect in the shale/rock mass. There was no alternative but to excavate this defective seam until the underlying bedrock was exposed and was deemed suitable for the design foundations. … All voids between the footings and the basement 4 slab can be filled once all subsurface fire and sprinkler tanks and other services tanks with validated compaction fill so as to achieve the first level of RL: 11.055. Therefore, the reduced level of the footings and permanent lateral restraint elements should not be construed to be the same level of the approved car park slab. All finished levels will be consistent with Reduced Levels as approved by Burwood Council. This letter was delivered to Mr Freixas as part of a package of material provided to him in person by Mr Maroun Taouk on 5 March 2019. A letter in the same terms dated 12 June 2019 was also sent to Dix Gardner. 1. By email exchange between Mr Maroun Taouk and Mr Freixas dated 26 June 2019 photographic evidence of "spoon tests" was provided. Mr Freixas responded to that material (inter alia) in the following terms: Given the latest news in Sydney with regards to weak engineering design practices, as the responsible engineer you are, you should drill up to suitable rock. 1. By email dated 1 August 2019 Mr Freixas emailed the Council and advised: I have inspected the site on the following dates and have reviewed the documentation from the applicant and their Structural Engineer. Dates: 02/07/2019 & 30/07/2019 I am of the opinion that the over excavation of the site was required for structural reasons as advised to me by the Structural Engineer, for which I have no information to the contrary from another Structural Engineer. I am in receipt of an application for the next CC (for structural building works up to and including the roof slab) with the RL of basement 4 clearly consistent with the Council's Development Consent. I concur with the Council that any unused void under the lower basement is not of concern to the Council or the PCA as this is a commercial decision by the builder based upon structural advice, and not a compliance issue….
The Applicants also relied upon the following evidence to demonstrate, it was submitted, that there was not an engineering purpose for the excavation (or at least not the sole purpose) but rather it was the Respondents' intention to construct a fifth level of basement: 1. The Applicants cross examined both Mr Mark Taouk and Mr Maroun Taouk as to their intention to construct a fifth basement level and ultimately submitted that the Respondents had always had an intention to excavate a fifth basement level as evidenced by: 1. The existence of the TQM Plans illustrating or referencing a fifth basement level, such plans first came into existence in December 2018. In those plans, whilst there is no illustration of a fifth basement level the "work method statement for shoring and piling work" does state: 14. Pour concrete for Basement 5. 2. Plans had been circulated by the Respondents in December 2018 to Infrabuild - a company that constructs the steel pile cages - for pricing purposes. Quotes were provided on those plans in mid-January 2019. Those plans were also dated December 2018 and indicated in both the work statement and on the plans and elevations the presence of a fifth basement. The RL for Basement 5 is noted at RL 8.355 and the BEL below that as RL 8.155. It is apparent from the existence of these plans that at least in December 2018 the Respondents were entertaining the possibility of a fifth basement level being constructed at the Subject Site. 3. Pile cages were ordered and delivered at the lengths and in the numbers determined by reference to the December plans. 4. On 7 May 2019 (Exhibit 1) the Respondents lodged a development application together with a s 4.25 modification application with the Council to develop the adjoining land at 4 George Street and to reconfigure some of the residential accommodation and add an additional 5 storeys to the existing approved 22 storey development and to provide a fifth basement level on the Subject Site to accommodate parking for that proposed development. It is noted that the development application and s 4.15 application did not rely upon the additional development approved in DC2. The proposed SFL for Basement 5 was SFL 8.355 which was consistent with that shown on the plans sent to Infrabuild and within the area of excavation undertaken below Basement 4.
Mr Maroun Taouk was cross examined about the reasons giving rise to the extent of excavation and on matters going to his credit.
As to the reliance upon the identification of soft soil, it was put to Mr Maroun Taouk that at T446 lines 31-46: Q: Under any or all of the first development consent and the second development consent or CC1, you were aware as at the end of 2018 that the approved bulk excavation level was intended to be RL10.4; do you agree? A: It would have been whatever was on the varied approved drawings, which was that figure less 2.15 because of the error. Q: It was 13.2? A: No, less. Q: Yes, less the figure for the error; correct? Do you agree with that? A: Yes. Q: At some point, I think you say January 2019, [TQM] made a decision to change the shoring design from the ABC design; correct? A: Our intention was always to chain [change], not use that design. Yeah, you can see the design because it didn't work for us.
The oral evidence of Mr Taouk indicated that from a date in early January 2019: 1. The Respondents had decided to change the shoring design from that shown in the ABC Plans as it "did not work for them" for a number of reasons unrelated to the quality of the rock on the Subject Site. 2. After the pile testing with an augur, as referred to at [45(1)], the potential for unsuitable soft rock raised a concern that this area of soft soil would impact on the capacity to meet the performance criteria. 3. The excavation and shoring plans were revised to take the soft soil and the general unsuitability of the shoring method into account.
The substance of his evidence was that there were two reasons for the change to the TQM Plans, first, the unsuitability of the design to this builder, and second, the presence of soft rock at a level that was proposed for structural support.

[19]

Credit of Mr Maroun Taouk

The primary evidence in relation to the issues in this matter relate to the evidence of Mr Maroun Taouk. Mr Mark Taouk also gave evidence, however, the substance of that evidence is not relied upon to the same extent as that of his brother. For that reason I will deal with the submissions as to the reliability of the evidence of Mr Maroun Taouk and address the reliability of the evidence of Mr Mark Taouk to the extent that evidence given by him is critical or determinative to an issue in dispute.
The submissions put on credit concluded with the proposition that the evidence of Mr Maroun Taouk was "unreliable, self-serving and at times contradictory. [The Court] would not accept their evidence unless corroborated by contemporaneous documentation". The essence of this submission was not that Mr Maroun Taouk had a poor memory or that for some other reason his evidence should be considered unreliable, rather, the fundamental proposition underlying the submission (albeit not stated in terms) was that Mr Maroun Taouk was not telling the whole truth, but fabricating evidence to suit the case being put on behalf of the Respondents either as to the presence at all of the soft rock, or if there was soft rock, whether the excavation was a response to the soft rock.
Where such a finding is invited two factors must be present: it is necessary that the Court identify the reasons it has concluded that the truth has been deliberately withheld; and that the witness must have been given an opportunity to deal with the criticism: State of New South Wales v Hunt (2014) 86 NSWLR 226 at [32]-[40]. In the cross examination of Mr Maroun Taouk it was not put to him that he was fabricating his evidence as the presence of soft rock. Whilst Senior Counsel for the Applicant was careful not to put the submission of fabrication directly, it is the finding I would be required to make if I was to accept the proposition that because of the nature of Mr Maroun Taouk's evidence I should not accept it without corroboration. In light of Mr Maroun Taouk not being given the opportunity to deal with the criticisms of his evidence I am unable to satisfy the requirements that must be present in order to make the findings the Applicants suggest. This matter was raised with the Applicant in submissions and it was indicated that notwithstanding that the proposition of fabrication had not been put in terms to Mr Maroun Taouk the submission was maintained. It was acknowledged by Senior Counsel for the Applicants that it was once put to Mr Maroun Taouk that his evidence was false. This occasion, however, related to whether ground anchors were proposed in the ABC Plans and the fact that no such anchors were proposed. This related to a suggestion of why the Respondents abandoned the ABC Plans rather than the presence of soft rock either existing or being a factor in the decision to carry out excavation to the current depth. Such isolated statement is insufficient to constitute the opportunity by Hunt to enable the finding sought by the Applicants that, in effect, the totality of his evidence should not be accepted.
Accordingly, I do not accept that as a general proposition, or in respect of any particular aspect of Mr Maroun Taouk's evidence, that he is not a witness of truth.
If I be wrong that the cross-examination of Mr Maroun Taouk was insufficient to meet the second limb of the test in Hunt, I would not find that his evidence was so unreliable or that his evidence was to be viewed with suspicion such that it would not be accepted without corroborative evidence. The reasons for declining to accept such a submission are provided with respect to each of the individual matters raised by the Applicant to support its submission in [105] of the Applicants' closing submissions. I attach [105] of the Applicants' closing submissions to these reasons and deal with each proposition below. 1. 105 - 1. Mr Maroun Taouk is a director of the Second Respondent. He is not a director but he is the shareholder of the First Respondent (of which his brother Mark is the director). Whilst the businesses have relationships where the First Respondent owns and develops the land and the Second Respondent constructs the development, the companies are otherwise independent in directorship and purpose. In those circumstances I do not find it unusual for Mr Maroun Taouk not to know of the details of what goes on in a company of which he is a shareholder and not a director. I do not consider that his disclaimer of responsibility for the actions of the First Respondent to reflect adversely on his credit. 1. 105 - 1. Mr Taouk swore an affidavit in the interlocutory application heard in this matter prior to the final hearing. The affidavit was not tendered or read in these proceedings. Mr Maroun Taouk was cross-examined on the content of that earlier affidavit. It was no part of this case that required me to make findings in the final hearing as to those matters in the interlocutory proceedings except in so far as they may impact on the credit of Mr Maroun Taouk. 2. Further, I observed that Mr Maroun Taouk, although a man of clear learning and intelligence, had difficulty when being asked questions that contained legal phraseology; for example, when asked about the "consideration" for the contract rather than the contract price. His answers were delivered in an attempt to answer the questions but were audibly delivered in a less certain manner. I also observed that when non-legal language was used his answers became more confidently delivered. To that extent where the criticism points to Mr Maroun Taouk changing his evidence or obfuscating on these issues I consider that if there be a defect it lay with the language used in the questions rather than the content of the answers. 3. Mr Taouk acknowledged the inaccuracy of the evidence in the earlier sworn affidavit and explained that the affidavit was based on information given to him rather than information known to him and that it was done in pressured circumstances both relating to the fact that the application for interlocutory relief was brought on urgently and that the affidavit had to be prepared overnight and sworn in the early morning of the hearing. I accept this explanation. Not all inaccuracies are deliberate attempts to consciously mislead. I found Mr Maroun Taouk to express regret at the inaccuracy and his explanation was understandable and was proffered by him in sincere terms. For that reason, whilst I accept that the initial affidavit was inaccurate and that such is unacceptable, the explanation of the cause does not lead me to find that Mr Maroun Taouk is a witness who is not to be relied upon without corroborative evidence. 1. - 1. This confusion was admitted by Mr Maroun Taouk and it appeared to rely, in part, on his misunderstanding as to land ownership of the blocks to the North of the Subject Site. For the reasons I outline below as to land ownership I would not find this error undermined Mr Taouk's credit to a significant degree. 1. - 1. Mr Maroun Taouk admitted that this was an error and that he had held a belief at the time that the land at 4 George Street was owned by Omaya. He also indicated that some time after the interlocutory proceedings when he had a chance to reflect on the affidavit sworn by him for that application he brought the error to the attention of his solicitors. This statement was not challenged. Despite Mr Maroun Taouk being vigorously cross examined as to the assertion of Omaya ownership he held his position that he was not lying or seeking to sheet home responsibility for the change in design to Omaya. I find his answers consistent with him being a witness of truth. Whilst the fact was wrong, there is no real basis for me to accept the proposition that the evidence was intentionally false or seeking to lay blame at the feet of the Applicants. 1. - 1. The statement of environmental effects is said to be of his company's property and contracts for bulk excavation. Whilst it is true his company had a contract with the First Respondent for carrying out the bulk excavation it was not the owner of the Subject Site nor did his company commission the SEE or negotiate with Mr Elias with respect to that development proposal. The SEE and the development discussions were matters within the purview of Mr Mark Taouk's company and he had the discussions with Mr Elias. Accordingly, I do not consider this criticism well founded or an indication that I should treat Mr Maroun Taouk's evidence with caution. 1. - 1. This complaint is a reference to the development application made by the First Respondent (that is, not the company of which he is a director) to develop the Subject Site with adjoining land and an application for a fifth basement level on the Subject Site. The transcript reference provided in support of this criticism of Mr Maroun Taouk is that at T514 line 20. The question and the answer relied upon are as follows: Q: And it's correct to say, isn't it, that Dean Street's intention is to continue to pursue amalgamation with other land, including the Omaya land, isn't it? I withdraw the question. It's true to say, isn't it, that as at 1 May 2019, Dean Street's intention was to continue to pursue amalgamation of its land with other land, including the Omaya land; do you agree? A: Not to my knowledge. To the extent that Mr Maroun Taouk's denial is related to his knowledge I find that eminently explicable for the same reasons I found that Mr Maroun Taouk's lack of detailed knowledge of the operations of his brother's company is explicable. For the same reasons I would find that this evidence does not reflect adversely on Mr Maroun Taouk's evidence such that I would not accept it absent corroborative evidence. 1. -(j) - 1. The examples given have either been dealt with or are consistent with findings as to the construction of the material relating to The Consent. I do not find these examples to be compelling such that I would find that Mr Maroun Taouk's evidence should not be accepted absent corroborative evidence.

[21]

Findings on whether the presence of soft rock was a sufficient reason (or a reason at all) relating to the extent of excavation

The Applicants challenged that the soft rock was any part of the impetus for the change to the TQM Plans and/or the change in excavation levels.
As referred to above, the Applicants must establish either that the presence of the soft rock played no part in the excavation level or that the excavation level was not a response sufficient to address the performance criteria referred to above. I do not accept that the soft rock played no role in the extent of the excavation level. The evidence of Mr Maroun Taouk and that of Mr Freixas (outlined above) indicates a direct connection between the presence of soft rock and the excavation level. The evidence also clearly demonstrates that even if there were no soft rock the Respondents intended (and had taken steps to implement this intention) to change the piling and shoring design from that in the ABC Plans. The fact that there were two reasons for the change from the ABC Plans does not preclude a finding that the extent of excavation was to meet the excavation performance criteria in The Consent.
In addition to the evidence outlined above, the presence of the soft rock influencing the excavation level is also consistent with the following evidence: 1. Notwithstanding the desire to build a fifth basement, it was not built. The excavation void below Basement 4 remains a void (treated with drainage measures). 2. The December plans sent to Infrabuild illustrated a fifth basement level with a BEL of 8.155 with 1m socketed piles below RL 8.355 (I note these RL's appear accurately determined and do not need to be adjusted for the initial benchmark error). Therefore, it was not necessary to excavate to a BEL of RL 7.62 (the current excavated level). In those circumstances it would appear that the BEL was determined for a reason unrelated to the desire to achieve a fifth basement as illustrated in the December 2019 plans. 3. The development application lodged that proposed a fifth basement was made on 7 May 2019 and the plans have an initial date of March 2019. Whilst this indicates that the proposal was being formulated at the same time as the TQM Plans were given to Mr Freixas and excavation was already underway and the soft rock identified, this does not demonstrate that the fifth basement level was the sole driver for the excavation. It is equally open to infer that the proposal was formulated to exploit the excavated void required for the soft rock.
Therefore, I find, on balance, that these factors do not evidence that the sole or only reason was the desire to achieve a fifth basement level.

[29]

Applicants' submissions

The sole basis that the Applicants put this Ground was that on a proper construction of the development consents the carrying out of development the subject of DC1 became subject to the conditions in DC2, which, as a consequence, would require compliance with Planning Condition (5) prior to the issue of CC1. It was said that DC1 and DC2 constituted a single integrated approval of one development with 26 above ground levels and four basement levels in accordance with the conditions of both consents (as modified). In effect the Applicants submitted that the provisions of Condition (3) of the 2017 Modification to DC1 had the legal effect of merging or amalgamating the two consents such that they operated as a single development consent indivisible each from the other.
The consequence of such construction was submitted to be that the Respondents were bound by the singularity of the development consents and could no longer elect whether to take up one of the consents to the exclusion of the other as Condition (3) to the 2017 Modification to DC1 compelled the two consents to operate as a single unit. The consents (including the conditions imposed thereon) were valid unless declared invalid and therefore, in this case, continued to operate in accordance with their combined terms: Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436.
The failure to comply with Planning Condition (5) prior to the grant of CC1 was submitted to be a breach of the requirements of s 81A(2) and 109F(1)(a) and cl 146 of the Regulations. The consequence of such breach was that CC1 was invalid as the primary purpose of a construction certificate is to ensure compliance with the conditions of a development consent prior to the commencement of work. There is a discernible legislative intent that the consequence of a breach of the type contended should produce invalidity as indicated by: the unambiguous mandatory terms of cl 146(c); and the scope and purpose of the EP&A Act that provides a "vitally important step" in the certificate process of verifying that certain pre-conditions to building work have been met.
To the extent that the Respondents relied upon Burwood Council v Ralan Burwood Pty Limited (No 3) (2014) 206 LGERA 40 (Ralan) such decision was not directly applicable to the facts of this case as: 1. Ralan was concerned with the issue of inconsistency between a development consent and construction certificate. This case is concerned with the issue of whether pre-conditions to the power that limit the issue of a construction certificate had been met, as such it is a matter going to the power of the certifier to issue the certificate rather than an error in the exercise of that power; and 2. Central to the Court's reasoning in Ralan at [175] was the proposition that cl 145 of the Regulations involved an "inherently contestable judgment", as to whether there was a relevant inconsistency between the development consent and construction certificate. In this case the provisions of cl 146(c) do not contain a contestable judgment, rather it calls for a straightforward analysis of whether the pre-conditions have been complied with.
It was submitted that the Court would exercise "great caution and indeed reluctance, to extend the reasoning in Ralan to effectively excuse any failure to satisfy pre-conditions" to the issue of a construction certificate provided for in conditions of consent.

[31]

Findings on Ground 2

The determination of this ground turns upon the proper construction of Condition (3) of the 2017 Modification to DC1 and whether it had the effect of requiring the VPA referred to in Planning Condition (5) to be executed prior to the issue of CC1.
Adopting the principles of construction earlier identified to the consents containing the conditions in question in this case requires regard to be had to the express terms of the condition viewed both with respect to the words used and the context of the whole of the consent and the nature of the power sought to be exercised. In that context the first thing to be observed is the terms of the express words of Condition (3). Contrary to what is submitted by the Applicants the words of the condition do not in terms incorporate any conditions into the modified consent. Rather, the words expressly provide that the modification is to be subject to "all original conditions of development consent" contained in DC1 and DC2. These words, viewed in isolation (and without context) in fact require the conditions of DC1 as originally imposed and the conditions imposed on DC2 to prevail over the modification to which Condition (3) relates. Condition (3) expressly requires compliance with all of the conditions of each of the nominated consents. Such a construction of these terms is consistent with the ordinary meaning of the words "all" and "original" as used in this condition. Such words are generally understood to mean: All 1. the whole of (with reference to quantity, extent, duration, amount, or degree): all Australia; all year round. 2. the whole number of (with reference to individuals or particulars, taken collectively): all women. 3. a large number of; many: he collects all kinds of things; all sorts of people were there. 6. The whole quantity or amount: all of the cake. 9. a whole; a totality of things or qualities. Original 1. belonging or relating to the origin or beginning of something, or to a thing at its beginning: the original binding. (Macquarie Dictionary Revised Third Edition)
DC1 (original) and DC2 both contained conditions that required the development to be carried out in accordance with nominated plans. The consequence of the modification being conditioned to require the development (as modified) to comply with those original conditions incorporating the original plans is, in effect, a refusal of the modification application - as the original condition specified plans that were different to the modification.
When the words of Condition (3) are placed in the context of: the consents to which it expressly refers; the notice of determination in which it is contained; and the power sought to be exercised in the grant of the approval of that modification application (again to which the condition expressly refers), such a construction is inconsistent with that context and purpose for the reasons that follow.
First, the modification application was limited in its scope. There is no evidence as to the terms of the modification application other than the description in the Notice of Determination that recited that the modification was: Extension to level B4, reconfiguration of levels B1-B3, reconfiguration of Ground level shops, which I accept (it being the only available evidence) that such was the nature and scope of the modification made and approved. The modifications were illustrated in the accompanying approved plans by the architectural convention of "clouding" the areas of change. In this regard the clouds on the plans identified in Exhibit K: 1. Plan Basement 3 - removal of surplus carpark and replacement with storage. This clouded change was also noted in the clouded Schedule of Changes; 2. Plan Basement 1 - clouded part of basement removing surplus carpark and replacement with storage. This clouded change was also noted in the clouded Schedule of Changes; 3. Building Section A-A - clouded part of Basement 3 and 4. Schedule of Changes identified "Portion of B4 added". Whilst it is noted that the section included the additional 3 levels of residential at the top of the building referred to in DC2 there is no clouding of this level and there is a note of "Approved DA parapet RL93.800" which accords with DC1 level and "Proposed Parapet RL 102.300" which accords with DC2 level; 4. Plan Ground Basement - areas clouded relate to the revision of the retail layout and ramps. The Schedule of Changes identified these changes; 5. Plan Basement 2 - no changes identified; and 6. Plan Basement 4 - includes increase in basement area and parking. The Schedule of Changes identifies the areas of increased parking and an update of the parking schedule.
By Notice of Determination dated 3 March 2017, the 2017 Modification to DC1 was approved. The proposed development to which that Notice of Determination related was identified as: Development Application No: 136/2012 Proposed Development: S96 Mod to an approved mixed commercial/residential development - Extension to level B4, reconfiguration of levels B1-B3, reconfiguration of Ground level shops.
The Notice of Determination stated that the subject matter of the modification application related to the approved development being expressed to be DC1 (being DA 136/2012). Further the description of the proposed development in the Notice of Determination related only to the limited stated changes. These stated changes referred to as the "Proposed Development" coincided with those parts of the plans which had been identified by being clouded on the architectural plans. From this context, it is apparent that the modification application intended that DC1 be modified only in so far as it related to those stated features of the existing approved development. There was no statement relating to any changes as referred to in DC2, nor any stated intention to incorporate or merge the two development consents.
Secondly, in order to construe Condition (3) it is necessary to consider the Notices of Determination that contain the "original conditions of development consent contained in DA 136/2012 and DA 98/2015 relating to the site" as not only do they provide context but they are also expressly referred to in the condition and are to that extent a document incorporated by express reference such that it is permissible to consider that document for the purpose of construing the consents. In considering the terms of those Notices of Determination, to read the words in Condition (3) according to the literal words would produce an inconsistency between the 2017 Modification to DC1 and the consents to which it refers. Specifically: 1. DC1 1. The description of the development refers to: 1. Demolition of existing residential flat buildings and the erection of a 22 storey mixed use development comprising 3 ground floor level retail units, 62 serviced apartments at levels 1-11, 36 residential apartments at levels 12-21 and 4 levels of basement parking for 108 vehicles. 1. Condition (1) - provides that: 1. The development being carried out in accordance with the following plans and documentation submitted to Council on 22/10/2012 & 24/12/2012, except where amended by the conditions of consent. Condition (1) then listed the plans and documentation in a table. 1. Planning Conditions (2) and (3) relate to car parking numbers and location - nominating 108 car parking spaces. 2. Planning Condition (6) levied a s 94 contribution. 3. The balance of the conditions remain generally applicable to the development approved in the original grant of DC1 and the 2017 modification to it. 1. DC2 stated that the proposed development was: Construction of an additional three (3) levels containing eight residential apartments to an approved 23 level mixed-use development. 1. Condition (1) of the notice of determination required the development as described to be carried out in accordance with plans nominated in that condition. Those plans identified by the architectural convention of clouding those parts of the plans that the proposed development sought to alter of the prior approved development and those additional "new" parts by the architectural convention of colouring the new part and leaving the existing building in black and white. The only parts of the building coloured were the three additional floors and the increased communal open space area at ground floor. The only parts of the existing building clouded were the four basement levels where additional parking, layout and allocation were proposed to be changed. 2. The consent then imposed a number of conditions specifically and only relating to those changes. In particular a number of conditions relating to the parking layout, allocation and design were imposed. 3. Planning Condition (6) imposed an additional s 94 contribution calculated solely with respect to the additional cost of the additional three levels; and 4. Planning Condition (5) required the VPA where the reason for the imposition of that condition was stated (at folio 798) as being: Note: the VPA provides for a monetary contribution in exchange for additional development on the site.
If Condition (3) is to be read in accordance with its literal words this would require these specified components to be complied with. The plans in the 2017 Modification to DC1 seek to alter the plans in the DC1 and not relate to those parts of the building referred to in DC2. Therefore, there would be produced an incompatible inconsistency between the plans purportedly approved by the 2017 Modification to DC1 and the conditions imposed on that consent. The two provisions cannot coexist.
Further, the reference to the original conditions also fails to have regard to the fact that such conditions had, prior to the 2017 Modification to DC1, been modified by an earlier s 96 modification application approved on 14/10/2014 - the 2014 Modification to DC1. By the 2014 Modification to DC1 the proposed development was stated as comprising: 22 Level Mixed Commercial/Residential Development - Modifications to internal layout, serviced apartment numbers and external façade. It was further described in the following terms: The Section 96(2) modification submitted to Council on 2 May 2014 for a 22 level mixed use development comprising ground floor retail, 112 studio serviced apartments on levels 1-13, 34 residential apartments on levels 15-23 comprising 15x1 bed, 15x2 bed and 4x3 bed apartments with basement parking for 102 vehicles be approved and the DA 136/2012 dated 6 March 2013 be modified accordingly and subject to the following conditions as modified.
The 2014 Modification to DC1 then recited the original conditions with (relevant to this matter) modifications to: 1. Condition (1) - new list of plans and some additional reports. 2. Planning Condition (2) - changes to parking numbers and allocation. 3. Planning Condition (6) - reduced both the agreed value of the development and the requisite s 94 contribution. 4. Planning Conditions (20)-(22) were deleted.
When viewed in the context of the Notices of Determination referred to above, there appears an intention that DC1 would be modified by the 2014 Modification to DC1 and that the 2017 Modification to DC1 would operate on the original DC1 as modified in 2014 and not as originally granted. Further, DC2 was drafted such that its terms were independent of the approval for DC1 and that if DC2 was taken up DC1 would be required to reflect the additions and changes contained in the conditions to DC2. Whilst DC2 was reliant upon the physical presence of the development approved in DC1 the terms of its consent were quite capable of separate and independent operation.
Thirdly, the power being exercised by the Council in the modification application is that conferred by s 4.55(2) of the EP&A Act (formerly s 96(2)) provides: 4.55 - Modification of consents - generally (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and… .
Section 4.55(3) identifies the relevant consideration of such a modification application as being: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
In the case of a s 4.55 modification application, whilst there is a power to impose conditions, that power is constrained in that a condition may only be imposed if it relates to the subject matter of the modification: 1643 Pittwater Road Pty Limited v Pittwater Council [2004] NSWLEC 685. This reflects the general constraint in s 4.55(3) above that the consideration must be …of relevance to the development the subject of the application…
The consequence of an approval of a modification application is that the original consent is "modified" to the extent of the changes sought in that application. The consequence of that modification is specified in s 4.55(4) as being: (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
A development consent (either the original grant or a grant as modified) is an instrument as defined in s 3 of the Interpretation Act 1987 as it is an instrument made under an Act (the EP&A Act) or an environmental planning instrument: MLC Properties v Camden Council (1997) 96 LGERA 52 at 58- 59. Section 32 of the Interpretation Act provides: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.
If Condition (3), as its express terms suggest, was construed as intending to modify DC1 with the effect that: 1. DC1 and DC2 would be an integrated consent; and/or 2. DC1 was to revert to the original conditions of DC1 notwithstanding the 2014 Modification to DC1 and the proposed changes in the 2017 Modification to DC1; such a construction would be beyond the power the Council was exercising. As the legislative scheme indicates the scope of the modification application is defined by the application and the Council must determine the application within that scope - it is unable to unilaterally modify a consent in a manner inconsistent with the modification application. Conditions imposed upon a modification must arise as a consequence of a matter relevant to the modification application, it cannot go beyond to impose conditions not relevant to the modification application. As identified above, it was no part of the application for the 2017 Modification to DC1 that related in any way to DC2 or that required (as a consequence of the scope of the modification) that all of the conditions of DC2 become incorporated into DC1.
On each of those three bases Condition (3) cannot be construed according to its express terms as to do so would be: inconsistent with the terms of the consents; inconsistent with the power being exercised; and beyond the power of modification conferred by the EP&A Act. As a consequence Condition (3) must be given a meaning consistent with each of these factors.
The Applicants contend, as it must in order to succeed on this ground, that Condition (3) is to be construed as incorporating all of the conditions (as modified not as originally granted) from DC1 and DC2 such that the two consents operate as a single amalgamated consent. However, such a construction would suffer the same defects as the construction discounted above as it requires: 1. A unilateral modification by Council to amalgamate DC1 and DC2 which was not any part of any modification application before it for determination, nor were such considerations and conditions relevant to consider for the purposes of the determination of the modification; 2. An inconsistency between DC1 and DC2 in so far as by their original terms they were intended to operate as related but independent development consents; therefore the construction contended for by the Applicants cannot be accepted.
In order to provide a construction of Condition (3) of the 2017 Modification to DC1 it must be within power; relate to the scope and nature of the modification application made; and be consistent with the terms of the two consents (as modified). Having regard to the nature and scope of the matters outlined above that are relevant to the determination of the construction of this condition in its context the only sensible, lawful and contextually appropriate construction must be that Condition (3) requires: Condition (1) of DA 136/2012 (as modified) to be amended to refer to the plans approved in Condition (1) of the modification and that DA 98/2015 to the extent that it refers to and relies upon the approved development such approved development is taken to be a reference to DA 136/2012 as modified by this modification. Whilst I accept that such a construction requires a significant alteration of the words used in the condition, unfortunately, Condition (3) is so poorly drafted that no other alternative is reasonably available.

[37]

Was a construction certificate required for the piling and shoring works?

The Respondents' preliminary submission was that Ground 3 does not arise as a construction certificate was not required for the piling and shoring works and therefore the invalidity of CC1 in so far as it related to those works was of no consequence. During the course of the closing oral submissions the Respondents appeared to place less significance on this submission, however, the submission was not withdrawn.
The Respondents' argument was that the conditions imposed upon the development consent, in effect, covered the field and approved the piling and shoring work without the need for the further requirement of a construction certificate.
Section 6.7 of the EP&A Act provides: 6.7 Requirement for construction certificate (cf previous s 81A) (1) A construction certificate is required for the erection of a building in accordance with a development consent. (2) However, a construction certificate is not required for the following - (a) the erection of a building in accordance with a complying development certificate, (b) Crown building work that is certified under this Part to comply with the Building Code of Australia.
There is no suggestion in these proceedings that the piling and shoring works fall within the exceptions contained in s 6.7(2). Therefore a construction certificate will be required if the piling and shoring works are properly characterised as being "the erection of a building". Building is defined in the EP&A Act as meaning: Building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.
Erection of a building in accordance with the ordinary meaning: Erection 1. the act of erecting. 2. the state of being erected. 3. something erected, as a building or other structure.
The piling and shoring works proposed in either the ABC Plans or the TQM Plans are properly characterised as the erection of a building as the purpose of those works is to make provision for the introduction of structures (the piles) to provide structural support (shoring) of the excavated walls: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400. Those works also facilitate and become part of the building proposed by providing a structure into which the lateral support of the basement slabs will operate to: continue the structural support of the excavated faces; the underlying integrity of the building; and the adjoining land below the level of which the Subject Site has been excavated. Accordingly, as a pure matter of characterisation of the piling and shoring works, I find that they are works for the erection of a building in accordance with a development consent.
It was further submitted that the conditions imposed on the development consent somehow operated to overcome the legislative requirement to obtain a construction certificate. The condition making power conferred by s 4.16 of the EP&A Act is the sole source of condition making power and none of those powers include a power to grant a condition to remove the operation of other parts of the EP&A Act.
For those reasons I do not accept this submission and find that a construction certificate was required for the piling and shoring works.

[38]

The scope of the evidence

At least as to the fundamental facts the parties' evidence was aligned. As far as the ABC Plans the piling and shoring works undertaken by the Respondents differed from those plans in identifiable respects, including: 1. The ABC Plans anticipated contiguous piling on three of the shoring walls and soldier piles on one shoring wall. The TQM Plans provided for contiguous piling on one shoring wall and soldier piles on three of the shoring walls. Where identified, the spacing of the soldier piles varied between the ABC and TQM Plans; 2. The ABC Plans did not provide for shoring by the construction of the basement slabs whereas the TQM Plans did. The ABC Plans used steel whalers for temporary support and the TQM Plans did not; and 3. The ABC Plans proposed raked struts to support the northern shoring wall whereas the TQM Plans did not.
However, it was also agreed that CC1 was comprised of more than just the ABC Plans and that The Consent would be required to be properly construed to ascertain whether there was an obligation to carry out piling and shoring works in accordance with the ABC Plans.
If there was an obligation to carry out the piling and shoring works in accordance with the ABC Plans it arises for determination as to whether that requirement was varied by the TQM Plans. This issue turns upon an analysis of the evidence to ascertain whether CC1 was amended to incorporate the TQM Plans or whether the evidence discloses that Mr Freixas gave some other lawful permission that had the effect of allowing the piling and shoring to be undertaken in accordance with the TQM Plans rather than the ABC Plans.
It was also agreed that the piling and shoring work that had been undertaken on the Subject Site is consistent with that identified on the TQM Plans. It was further agreed in the evidence that the work undertaken was of sufficient engineering quality that it was a sufficient system of piling and shoring. Whether the experts considered it to be the preferred method was a matter of some disagreement that does not require resolution in the context of Ground 3.

[39]

Evidence of construction of CC1

The evidence relating to the coming into being of the TQM Plans has been canvassed in respect to Ground 1 and to the extent that it is relevant to this ground I rely upon that summary and the findings without repeating it: see [45].
CC1 expressly and physically comprised: the certificate; the approved plans; and the "other documentation relied upon". The plans referred to were the ABC Plans and showed a system of piling and shoring that was illustrated on the plans numbered S01.01/2, S01.02/2, S01.03/1 to S01.06/1 & S01/11/1. With respect to the "other documents", provision for piling and shoring was relevantly referred to by the following: 1. iSTRUCT - 1. Identified the Structural system and noted: A geotechnical investigation by Jeffrey & Katauskas Pty Ltd dated 18 February 2012 indicates that the site is underlain by shale and bedrock and thus the columns will be supported on pad footings founded on the underlying bedrock; 2. Indicated that: Structural floor slabs in the basement levels, where adjacent to the shoring wall, will be poured against the shoring wall to provide permanent lateral support to the shoring system; 3. Identified the appropriate shoring system was in the following terms: 5. SHORING SYSTEM 5.1 Sub-surface Conditions A geotechnical investigation by Jeffrey & Katauskas Pty Ltd dated 28th February 2012 reference 25467SMrpt. The results from the geotechnical report indicate that the sub surface conditions consist of high plasticity clays to a maximum depth of approximately 2000mm overlying shale. 5.2 Extent of Shoring The clay throughout the site, which is at varying thicknesses over the shale, will need to be supported along all of the boundaries of the site for the proposed excavation of the basement levels. Furthermore, the report by Jeffrey & Katauskas Pty Ltd states that the shoring system is to continue a minimum of 1000mm below bulk excavation level to provide support to the shale. The report states that this is due to a number of joints being found in the core samples taken of the shale. 5.3 Proposed Shoring System The proposed shoring system along the southern boundary is to consist of a soldier pile wall system. The proposed soldier pile wall will comprise of 600mm diameter piles at 1800mm centres with shotcrete infill panels in between the piles. The soldier pile wall will be temporarily anchored into rock. It is anticipated that three rows of anchors will be required in order to control the deflection of the wall and therefore negate any impact on neighbouring structures and/or council infrastructure. The proposed anchors need only to be temporary, and de-stressing of the anchors will take place once the basement floor slabs and ground floor slabs are poured and sufficiently cured. Approval for the anchors from council and neighbouring property owners will be sought. The rock anchors will be installed at a decline of 30 degrees, at each pile. The anchors, as per the recommendations in the Geotechnical Report, are to have a minimum bond length of 4000mm into the rock. Refer to the attached drawings, DA-S02 and DA-S03, for detailed cross sections. All temporary rock anchors will not impact the rail line. The piles will be socketed into the shale bedrock by 1000mm below bulk excavation level, as per Geotechnical Report, to provide lateral support to the base of the wall. 1. ABC Consultants Structural Engineers prepared a "Compliance Certificate - Design" Certifying that if the works were carried out in accordance with the certificate the works would comply with the Building Code of Australia. The Certificate nominates the Structural Drawings (which are the drawings referred to in these proceedings as the ABC Plans). 2. Jeffrey & Katauskas indicated the shoring necessary to support the excavated walls in the following terms: Shoring systems may comprise soldier pile retaining walls, with shotcrete infill panels, along the street boundaries where some adjacent ground movements would be tolerable, or where adjoining structures are located a horizontal distance of at least 3m from the wall. Soldier piles should preferably be designed at spacings of 1.8m centre to centre but could be as much as 2.4m if somewhat higher deflections and greater risk of short term instability are acceptable. Where adjacent structures are located close to the excavation along the western boundary, our preference would be to adopt more rigid contiguous pile retaining walls or maintain a closer spacing of soldier piles. This restriction may be eased somewhat if it can be confirmed the building is founded at substantial depth on piles. And Where solider pile walls are adopted, geotechnical inspections should be carried out during excavation at depth intervals of no more than 1.5m to check for any large continuous adverse joints within the rock. Shale can sometimes contain such joints and if these occur additional anchoring and/or lateral support may be required. Alternatively, the shoring could be designed to support a large continuous joint within the shale at the base of the excavated shale inclined at 45° but his would be costly and conservative in most cases. However, if contiguous piles are used and the shale cannot be inspected then this arrangement is unavoidable 1. In addition, the construction certificate itself certified that: The work, if completed in accordance with documentation accompanying the application for certificate (with such modifications verified by the certifying authority as may be shown on that documentation), will comply with the requirements of the Environmental Planning & Assessment (EP&A) Regulation 2000 as are referred to in sec.81A(5) of the EP&A Act 1979. The Certificate nominated in terms as the "Approved Plans" the ABC Plans and attached the same to the Certificate.

[41]

Respondents' submissions on construction of CC1

The Respondents submit that CC1 permitted the actual works undertaken as the relevant test is not whether the work accords with the approved plans but whether Mr Freixas considers that such work has the requisite degree of "consistency" as that term is understood in the industry. To support this submission the Respondents rely on the expert evidence of Mr Antcliffe as to industry practice and the evidence of Mr Braybrook and Mr Appleyard. The Respondents make Browne v Dunn submissions as to the failure of the Applicants to cross examine these witnesses as to their opinions on the consistency of the works with the ABC Plans.
The Respondents submit that the works were sufficiently consistent as a fact to be generally in accordance with the ABC Plans. The sufficiency of consistency was identified in the following way (T783 lines 20-42): HER HONOUR: Now when you opened your case, I understood that you would be putting to me that CC1 in its first configuration was sufficiently broad enough that it allowed you to do the piling‑ LEGGAT: It did. HER HONOUR: ‑that ended up being shown in 2019 CC1. LEGGAT: Yes. HER HONOUR: Are you still putting that proposition‑ LEGGAT: Yes, very much. Putting it another way, that there is a consistency between the technique shown for excavation, shoring, piling in CC1 2018 and CC1 2019, but very importantly for present purposes there's two points. The first is CC1 2018 granted a construction certificate for excavation and a way to protect the walls following [from falling into] the excavation. Your Honour recalls the evidence about I think it was Mr Appleyard who said something like, what we're dealing with is a hole in the ground and stopping the hole falling in, and that's what CC1 2018 was directed to. Now, whether you have piles next to each other or a metre or 2 metres apart, you're still dealing with a way of stopping the soil from falling into your excavated hole, and that's Mr Antcliffe's point and Mr Appleyard's point.

[42]

Findings on construction of CC1

Applying the principles of construction outlined at [29] above it is necessary to consider the totality of The Consent to determine what it approved. The totality of the material, and in particular that material referred to above, indicates that with respect to piling and shoring works there was identified a minimum requirement to achieve the retention of the excavation. Those minimum requirements, identified in the iSTRUCT and Jeffery & Katauskas reports, included a system that was sufficiently broad that it could include the works ultimately undertaken by the Respondents. Whilst these reports are quite general as to the specific manner piling and shoring works would be undertaken they cannot be read in isolation. It is apparent that by the provision of the ABC Plans a specific manner of carrying out the works was identified. The Structural Certification provided by ABC was predicated on the piling and shoring works being carried out in the manner specified in the ABC Plans. The construction certificate incorporated that certification as a basis for the opinion certified. The express reference to the ABC Plans and the operation of s 4.16(12) of the EP&A Act renders those plans a part of the construction certificate. For those reasons, on a proper construction of CC1, it is the unavoidable conclusion that piling and shoring works were required to be carried out in accordance with the ABC Plans.
The question then arises whether the requirement to carry out the piling and shoring works in accordance with the ABC Plans permitted, on a proper construction of CC1, a departure from strict compliance with those plans. That is, whether the works were only required to comply with the ABC Plans to the extent Mr Freixas considered that the system was consistent (as that term is understood within the industry) with the ABC Plans. Consistency in this context means any system that achieves the same objective of the ABC Plans, namely to prevent the excavated walls from falling in.
First, the opinion of the "industry" as evidenced by Mr Antcliffe (or any other expert that is called to opine on the topic) is not relevant to the construction of a development consent-including a construction certificate that is taken to form part of it by the operation of s 4.16(12) of the EP&A Act. As outlined above, the determination of the construction of The Consent is to be determined upon the document itself and that task is independent of the subjective intention of either the consent authority or the person acting on that consent. That is more so where what is relied upon is some amorphous "industry" understanding - being people who may have no association at all with the terms of a particular consent. Accordingly, I do not consider this evidence to be of any relevance to the determination of the proper construction of The Consent.
As to the extent to which a person can depart from the ABC Plans (without an amendment to The Consent, which I deal with below), The Consent is not so broad as to allow compliance to be met by merely adopting a system of piling and shoring that meets the objective of the ABC Plans rather than the actual system adopted by those plans. That is not to say that the ABC Plans make an absolute strict system that is unable to be altered without amendment to CC1, rather the plans identify the areas where variation without amendment is anticipated. For example, the ABC Plans provide for areas of performance based design, including the requirement to socket the piles into Class III shale or better and some tolerances for pile centres and the like. These variable elements are identified in terms with the inference being that where such provision is not made variation is not permitted. The ABC Plans and the terms of CC1, by its express adoption of those plans and the contingent certification that relies on those plans, indicates that there is not a capacity (without amendment) to change the broad system adopted by them.
In circumstances such as this where The Consent requires a particular system to be adopted to alter that system materially (such as is proposed in this case with the change in piling from contiguous to soldier piles and the introduction of slab for retaining support) would be in breach of s 4.2(1)(b) of the EP&A Act requires that The Consent be carried out in accordance with those requirements.
For those reasons I find that CC1 required the piling and shoring work to be carried out in accordance with the system adopted in the ABC Plans and that The Consent was not sufficiently broad to permit a change in the system of piling and shoring from the system adopted by the ABC Plans without some modification of CC1.
The question that next arises for determination is whether by amendment or such other process CC1 was varied or amended to incorporate the TQM Plans and thereby authorise the piling and shoring works that accord with those plans.

[44]

Evidence of treatment of TQM Plans by Respondents and the Certifier

Again, the evidence relating to the coming into being of the TQM Plans has been canvassed in the context of Ground 1 and to the extent that it is relevant to this ground I rely upon that summary and the findings without repeating them: See [45].
The TQM Plans together with other documents were provided to Mr Freixas and he relevantly deposes in his affidavit to the following: 12. On 5 March 2019, I had a meeting with Mr Maroun Taouk in which he provided me with a set of structural plans and a certificate relating to twelve of those plans. He took me through the design and the drawings in these plans to explain how, in his view, they were consistent with the approvals which had been issued for the Development Site. During that meeting, I had a conversation with Mr Taouk to the following effect: He said: I've brought a complete set of structural plans for the site, which includes revised shoring and piling plans and a structural certificate. I said: Leave them with me, I will have a look at them and call you. 14. On 6 March 2019, I telephoned Mr Maroun Taouk and said words to the effect "I have reviewed the plans and I have no objection".
Mr Freixas was a submitting party to these proceedings. A summons for his attendance to give evidence was issued at the request of the Applicants after the proceedings had commenced. Mr Freixas prepared an affidavit indicating the matters relevant to the proceedings upon which he was able to give evidence. The Applicants read his affidavit (subject to objections) and made no further application to adduce any further or other evidence from him. Mr Freixas was not cross examined by the Respondents.
Each of the plans provided to Mr Freixas were endorsed on the plan sheet as being "Issued for C.C.".
Mr Maroun Taouk deposed that he received a telephone call on 6 March 2019 from Mr Freixas where words to the following effect were said: He said: I've reviewed the plans and I have no issue with them. I said: Great, so we are OK to go ahead? He said: Yeah the plans are all good.
Mr Maroun Taouk and Mr Mark Taouk both recall that after this telephone call Mr Maroun Taouk advised Mr Mark Taouk to the effect that: Maurice called about the plans and has no issue. Whilst the actual words used differ in each recollection of the substance is the same.
There is no evidence as to what Mr Freixas then did with the TQM Plans.
On 9 August 2019 (after the commencement of these proceedings), Mr Maroun Taouk obtained a copy of the TQM Plans from the offices of Dix Gardiner. Those plans were the TQM Plans provided by him to Mr Freixas in March and those plans had been stamped in red with the words: Dix Gardiner Group Pty Ltd Certificate Number 16/0475-02 Date 08/03/2018 Construction Certificate Approved
There is no evidence as to when the stamp was placed on the plans or that any other part of CC1 was altered as a consequence of the TQM Plans being stamped in this manner.
On 12 August 2019, a letter was sent from Mr Freixas to TQM Design (Mr Maroun Taouk) in the following terms: Reference is made to the Structural plans forwarded to you on the 09/08/2019. Our review of the file has indicated that an administration error has occurred during our processing resulting in the incorrect electronic stamping being affixed to the plans. This is clearly evident from the mismatch of dates. Please return the incorrect stamped plans to our office immediately. We have cancelled these plans in our construction file and from our electronic data base. They are not to be used disseminated or permitted for distribution for any purpose whatsoever. Please find attached the correct plans with the relevant electronic stamp attached. We apologize for this error. Thank you for your cooperation in this matter.
The Plans attached to that letter were the same as the TQM Plans provided on 9 August 2019 with the exception of the earlier stamp being removed and replaced with a stamp that read: Dix Gardiner Group Pty Ltd Reference 16/0475-02 Date 09/03/2019 Received for Information

[45]

Applicants' submissions

By way of general submission the Applicants contend that the evidentiary burden to establish the modification of CC1 lay with the Respondents. For the reasons they submitted (outlined below) they contend that the Respondents have not discharged that evidentiary burden.
The Applicants' primary submission was that there was no application or no proper application made to amend The Consent, therefore, there was no power to amend it, even if that was what the parties intended. There are two submissions that are the foundation for this contention: the first, in effect, is that Mr Maroun Taouk never asked for CC1 to be amended and Mr Freixas never said that he did amend CC1; second, if there was an application made to amend such an application it must be made in accordance with the mandatory requirements of the Regulations and this application did not comply with any of those requirements.
The relevant provisions of the Regulations that the Applicants asserted were mandatory requirements are all of the requirements of Division 2 of Part 8 of the Regulations. These provisions include the formal requirements contained in clauses 139 (which incorporates a requirement to provide the documents referred to in Part 3 Schedule 1), 139A, 142, 143C, 144A and 147. With respect to this matter the Applicants provided a table styled "Applicants' Compliance Table" that identified the provisions of the Regulations that it contended had not been met with respect to any application for modification of CC1 such that non-compliance with the provisions of these Regulations means that no effective modification of CC1 occurred. To the extent that the Respondents relied upon Ralan to suggest that the consequence of non-compliance with the Regulations was not invalidity, the Applicants sought to distinguish Ralan.
It was also submitted that, as a question of fact, the Court would find that the TQM Plans were not provided to Mr Freixas as part of an application to modify CC1 but rather were provided to meet a requirement of Mr Freixas that such plans be provided to support the application for the later issued CC2.
The Applicants also submitted that there was no power to amend CC1 in the manner contended as the changes between the ABC Plans and the TQM Plans were so different such that it could be said that they amounted to a "modification" of the ABC Plans.
Further, at law, the amendment was beyond power as the proposed amendment was in breach of "numerous conditions" of DC1 including: Building Condition (14) and Building Condition (26(b)). Building Condition (28) and Building Condition (41(b)) and the EP&A Act require such conditions to be met: cl 146 of the Regulations.
Additionally, Mr Freixas had no power to amend CC1 as he was receiving the plans in his capacity as PCA and not certifier.

[47]

Onus

The question of who bears the onus of proof depends on the nature of the allegation and the nature of the particular component of the allegation to which that proof is directed. The question of onus in the context of the EP&A Act was recently the subject of consideration by the NSW Court of Appeal in Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128 where the relevant principles relating to the determination of onus were stated as: 86. In relation to both ss 76A and 76B, the ultimate onus of proof of breach of the section rests with the Council that asserts the breach. The correct approach, which is consistent with Lebnan, is that indicated in Vines v Djordjevitch (1955) 91 CLR 512 at 519; [1955] HCA 19; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 611 ("United Telecasters"); [1990] HCA 5; and Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 ("Chugg"). In Chugg, Dawson, Toohey and Gaudron JJ said (at 257): For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an 'exception'), which serves to take a person outside the operation of a general rule. The distinction does not depend on the rules of formal logic. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention 'to impose upon the accused the ultimate burden of bringing himself within it'. The intention may be discerned from express words or by implication.
In this case it is the Applicants that assert that the Respondents have carried out work contrary to the provisions of The Consent. It is therefore uncontroversial that the Applicants bear the onus of establishing what is authorised by The Consent and that the alleged work does not fall within the authority conferred by it. In order to establish what relevantly comprises The Consent that too falls to the Applicants as it is part of the "general rule" that development can only be carried out in accordance with a consent. In this case there is prima facie a set of plans that purports to relate to CC1, namely the TQM Plans. This is not the reliance by the Respondent on a stated "exception" to the general rule, rather it falls within the question of what is The Consent and what does it authorise. Therefore, it also falls to the Applicant to establish that The Consent does not incorporate the TQM Plans as an amendment anticipated by the EP&A Act. If, however, the Respondents assert that there is some other power (other than modifications) that permits the TQM Plans to be relied upon or otherwise operate to the exclusion of the ABC Plans, then such a proposition would, in a general sense, operate as an exception which will have the consequence that the burden of proof of that exception will fall to the Respondents.

[52]

Findings as to whether the TQM Plans were a modification

The word modify is to be given its ordinary meaning. However, the power to modify a construction certificate is not otherwise limited in terms. This is to be contrasted with the power of modification in Part 4 that places a limitation on the modification such that it may only be made where the consent authority is satisfied that the development to which the consent as modified relates is "substantially the same development as the development for which consent was originally granted... ": s 4.55(2). It is important to ensure that concepts of "substantially the same" are not imported into a different statutory context when considering whether something is a modification.
A determination of this question requires an assessment of the differences and whether they alter CC1 so as to produce a radical transformation. It is not sufficient to merely identify that there are differences as the presence of a difference is what renders the application a modification.
The differences identified by the Applicants are those noted at [125] together with the construction of the basement slabs. As has been considered at [69]-[72] the issue of bulk excavation was within the scope of CC1 and therefore could not be said to be relevant to the determination of this issue. As to the piling and shoring work it is apparent that the TQM Plans provide a different method of shoring and piling, however, the question is whether those differences produce a radical transformation in the piling and shoring proposed in CC1. The Applicants' submissions, apart from asserting the difference, do not engage with this question as it relates to the evidence. The phrase "radical transformation" is not defined and in applying the ordinary meaning to this phrase connotes an extreme alteration to a fundamental aspect of what was CC1. On the evidence I am unable to find that there is such a significant change. In particular, the shoring system is generally the same in principle and outcome with the piling proposed in CC1; it is the method of piling adopted that has changed. The shoring design had temporary shoring with the more permanent shoring to comprise tying the piles into the basement slabs to provide permanent lateral support to the piling. What was proposed in the TQM Plans was not to adopt the interim shoring method but to adopt as both an interim and permanent shoring solution the lateral support of the slabs. Again, the principle is largely the same; it is the method that has changed. Such methodological changes alone, without the benefit of any evidence as to why this comprises a radical transformation, is insufficient to establish on the evidence a radical transformation.
It is acknowledged that I found that CC1 required the piling and shoring works to be carried out in accordance with the method proposed by the ABC Plans. The ABC Plans were only part of the approval issued by CC1, and whilst a construction of the whole of CC1 does require the ABC Plans to be adopted that does not prevent the modification of that method without a finding on the evidence that the methodological change from the ABC Plans radically transforms CC1 as a whole. As observed above, CC1 envisages a range of potential methods and did require the method to be as per the ABC Plans. The method being changed does not alter the concept or principle or scope of work envisaged by CC1. For those reasons the variation was capable of comprising a modification and there is not sufficient evidence to enable me to make a finding that the extent of changes identified was in fact a radical transformation of that approved in CC1.

[53]

Were the plans lodged for the purpose of CC2 and not CC1?

The Applicants also suggested that to the extent that the TQM Plans were submitted to Mr Freixas it was to satisfy his requirements for the making of the next construction certification - being the certificate that was ultimately issued as CC2.
The Applicants submitted that the evidence disclosed that at about the same time as the TQM Plans were being submitted to Mr Freixas the Respondents were preparing the necessary material to make the next construction certificate application for the construction of the building. Mr Freixas had indicated at least by January 2019 that he required, inter alia, a full set of structural plans for the building up to the roof slab. A full set of such plans were provided in March. It was put to Mr Maoun Taouk and Mr Mark Taouk that the TQM Plans were for CC2 and not CC1. Both men denied this assertion. Mr Freixas was not examined on this topic.
Whilst there is some coincidence in the timing of the TQM Plans and the application for CC2, documentary and oral evidence indicates that the TQM Plans were given to Mr Freixas in March only for shoring and piling works. The only firsthand evidence available to me is that of Mr Maroun Taouk, which is evidence that the TQM Plans were for the piling and shoring works. This evidence is consistent with the subsequent actions of Mr Freixas where he identified from the package of plans those that related to piling and shoring and stamped only those plans. Further, at the time of delivery of the TQM Plans the structural certificate was provided; that structural certificate was limited to "temporary and permanent shoring" and referred in terms only to those plans relating to the basement levels, which were the plans ultimately stamped by Mr Freixas. Accordingly, the Applicants have failed to establish on the evidence that the TQM Plans were for CC2 and not CC1. On that basis the issues that follow will be determined on the finding on the evidence that the TQM Plans were prepared for the piling and shoring works.
Whether that request to vary the ABC Plans with the TQM Plans was legally sufficient to meet any requirements of the EP&A Act or the Regulations is the next question that arises for determination.

[54]

Was the modification to incorporate the TQM Plans in fact approved?

This issue arises independently of any issue as to whether the approval, if granted, was sufficient to meet the requirements of the Regulations and, if not, what the consequence of such breach of the Regulations would be. This issue relates to the factual circumstances surrounding the stamping of the TQM Plans and the consequence, if any, of the subsequent letter purporting to cancel the stamped plans and replace them with plans stamped "Received for information".
The starting point for this consideration is that the TQM Plans were stamped with the words that included a reference to "Construction Certificate Approved". Absent any evidence to the contrary the irresistible inference would be that the stamped TQM Plans purport to indicate an approval to the plans forming part of CC1. However, there is other evidence that the Applicants contend would lead to such inference not being drawn. In particular the Applicants rely upon the following factors: 1. The plans were not stamped until 9 August 2019 when a copy of the plans was requested by Mr Maroun Taouk. There was no communication of the approval prior to that date; 2. The stamp itself indicates a contrary intention in so far as the date is the date of the original grant (8 March 2018) and not the amended grant (the earliest of which could have been 8 March 2019) and the reference is to the original certificate number without a reference to a modification; and 3. The subsequent and immediate correspondence from Mr Freixas on 12 August 2019, indicating that the stamp was an administrative error and that such an error is "clearly evidence from the mismatch of dates".
The Respondents reject that the inference of the stamped TQM Plans should not be accepted for reasons that: 1. There is no evidence as to when the stamp was placed and an equally compelling inference is that by the conversation between Mr Maroun Taouk and Mr Freixas of 5 March 2019 where Mr Freixas said "I have reviewed the Plans and I have no objection to them" such is evidence of the giving of an approval and consistent with the words on the face of the stamped TQM Plans, and a fruther equally compelling inference is that they were stamped contemporaneously with the March conversation with Mr Freixas; 2. The words of the stamp and the date are not inconsistent with the inference as they reflect the details of CC1 which is what the TQM Plans were to relate; and 3. Even if the TQM Plans were stamped in an administrative error there is no power to revoke a grant of the modification to CC1 once it is transmitted.

[55]

Date of Stamping of TQM Plans and communication of approval

As has been earlier observed there is no evidence as to the date that the stamp was placed on the TQM Plans. It has also been observed that apart from reading parts of the affidavit of Mr Freixas (that was sworn by him in response to the Summons to give evidence) he was not examined by the Applicants nor was he cross-examined by the Respondents. Nor was Mr Maroun Taouk cross-examined as to any observations he made as to the production of the plans at the date he collected them. If the Applicant sought to contend that contrary to the stamp on the TQM Plans there was in fact no amendment it was a matter for them to adduce sufficient evidence of the factors it relied upon to make good this proposition.
The state of the evidence is that the only certainty is that the stamp was placed on the TQM Plans. On the evidence the only conclusion that can be reliably drawn is that the TQM Plans could have been stamped at any time on a date between 6 March 2019, when Mr Freixas indicated he had no objection, to 9 August, when a copy of the stamped TQM Plans were given to Mr Maroun Taouk. On that basis the evidence does not permit me to make the finding suggested by the Applicants that the TQM Plans were not stamped until a date in August 2019.
In addition, for the reasons outlined above, the conversations between Mr Freixas and Mr Maroun Taouk on 5 and 6 March 2019 were in the context of an application to amend the piling and shoring works. That finding is reinforced by Mr Freixas' observation that Mr Maroun Taouk took him through the plans "to explain how, in his view, they were consistent with the approvals which had been issued for the Development Site". The issue of consistency in this context can only be a reference to the requirement that the certifier be satisfied of the matters in cl 145 of the Regulations (which applies equally to modifications) which includes a requirement to be satisfied that the construction to certificate will not be inconsistent with the development consent.
Curiously, whilst there is a requirement that a determination of a construction certificate be in writing (cl 142(1)) there is no requirement that an applicant for a construction certificate be given notice of its determination. Rather, cl 142(2) provides that notice of the determination be given to the council and the consent authority. In those circumstances, the conversation between Mr Freixas and Mr Maroun Taouk appear sufficient notice of an application for a construction certificate.
Accordingly, I find no irregularity with the manner of notice in this case.

[59]

Findings on breach of the Regulations

With respect to the alleged breaches they may be grouped generally into the following categories: 1. The Application was in breach of the Regulations as it was not in writing; 2. The Application was in breach of the Regulations in that there was a failure to produce documents or form opinions already held by the certifier to which no change was proposed by the modification: clause 139(a), 143A(2), 145(1), 146 and Schedule 1 clauses 5, 6 and 6A. Additionally, there was a failure to produce documents required by DC1; 3. The issuing of the modified construction certificate breached the Regulations in that there was a failure to produce a modified certificate containing the information required by the Regulations and a failure to undertake necessary inspections prior to the issue of the modified construction certificate: clauses 142(1) and 147; and 4. The necessary steps after the issuing of the modified construction certificate was in breach of the Regulations in that there was a failure to notify grant of amended construction certificate and the carrying out of inspections: clauses 143B(2), 143C, 142(2) and 142(2A).
With respect to the first grouping, whilst the Regulations require that an application be made with certain documents accompanying if it does not prescribe a form of such application. A form is only required to be used if it is specified by the certifier: cl 139. There is no evidence in this case the Mr Freixas required an application to be made on a nominated form. The documents provided to Mr Freixas contained a number of documents including the TQM Plans. Those plans contained both illustrations and written specifications. The inclusive definition of "writing" in s 21 of the Interpretation Act provides: writing includes printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form.
The TQM Plans contained words in the specifications and as such the plans were sufficient to comprise a written document that set out the terms of what the Respondents were seeking. In those circumstances I find that there was compliance with the requirement of the Regulations that the application be made in writing.
With respect to the next grouping I accept the submissions of the Respondents. Mr Freixas had been given as part of the original application for CC1 the relevant documents to which the relevant clauses referred. To the extent that a modification application is required to comply with the provisions of the Regulations there is no express requirement for re-lodgement of documents already in the possession of the certifier. The statutory intention is that any documents that are required to permit a determination of an application are available: Cranky Rock Road v Cowra Shire Council (2006) 150 LGERA 81 at [76]. A modification permits that statutory intent to be served as the certifier has the relevant documents to enable an assessment of the application. The re-lodgement of all documents, even those not being amended, is not necessary to satisfy the statutory intent of the Regulation.
The assertion that the conditions of the development consent were not met relates to a submission that conditions remained outstanding at the time of issuing the amended CC1. Those conditions related to DC1 Building Condition (14), (26(b)), (28) and (41(b)). This contention relates, again, to the submission that the application for modification did not re-lodge these documents that had already been provided to Mr Freixas. For the same reason I outline at [201] below re-lodgement was not required and therefore these conditions have not been breached.
With respect to the next grouping of asserted breaches the evidence indicates that at least with respect to the document of certification to which CC1 relates, no modified document of this kind was produced by Mr Freixas. Further, without such a modified certificate the CC1 Certificate continues to refer to the ABC Plans - plans which were said to be the subject of the modification to that certificate. The certificate, however, is not the totality of the material to which regard is to be had in determining what has been approved. In this case Mr Freixas stamped the modified plans with a stamp that contained the following words: Dix Gardiner Group Pty Ltd Certificate Number 16/0475-02 Date 08/03/2018 Construction Certificate Approved
When considered as a whole there has been a partial compliance with the Regulations in so far as the plans contain the information required by the Regulations (the date of approval, the determination and the absence of further conditions). Notwithstanding, Mr Freixas was required to produce an amended certificate document and the stamp on the plans is insufficient to meet the totality of the requirements of the Regulations and is therefore issued in breach of the Regulations.
With respect to the last grouping the evidence establishes that with respect to the modification of CC1 there was no notification to the Council by Mr Freixas of any determination of the modification application, and no record of inspections was provided. Notwithstanding that the original CC1 conformed with these requirements it is apparent that such provisions apply equally to a modified construction certificate. The intent of the provision is to enable a Council, and through them the public, to be made aware of the issuing of certificates, the requirements of those certificates and that appropriate inspections are being undertaken. This statutory intent would not be met if a modification of a construction certificate was not required to meet these provisions of the Regulations. Accordingly, I find that the third grouping of requirements of the Regulations were not met.

[60]

Does the finding of breach of regulations have the consequence that the modification of CC1 was invalid?

The Respondents' primary submission was that the decision of Ralan was binding authority and applying the principles set out in that decision to the circumstances of this case the only available finding was that the consequence of any breach of the Regulations was not invalidity. The Applicants submitted that Ralan was not directly applicable and that I would not apply the principles of Ralan to this case and that I would find a statutory intention that a breach of the Regulations would invalidate the modification to CC1.
Both parties submitted that the question of whether the breach of a legislative requirement renders the administrative action invalid is a matter of statutory construction as was identified in the well-known statement of statutory construction in Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors to give guidance on the issue. And at [93]: …a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid….In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
The Applicants contend that such an approach would indicate that there is a statutory intent that where an application for a construction certificate or a modification to a construction certificate is not made strictly in accordance with the requirements of the Regulations the consequence is invalidity. Such intent is primarily derived from: the use of mandatory language in the EP&A Act and the Regulations; and this purpose of the legislative provision to control the manner in which development is constructed and approved.
The question of whether a breach of the Regulations in connection with the grant of a construction certificate would have the consequence that the construction certificate was invalid was considered by the NSW Court of Appeal in Ralan. In that matter the question arose in the context of the requirement contained in s 109F(1) that: (1) A construction certificate must not be issued with respect to plans and specifications for any building work or subdivision work unless: (a) The requirements of the regulations referred to in section 81A(5) have been complied with and…
The Regulations referred to in s 81A(5) were the regulations making power which was in the following terms: Regulation may provide for the issue of certificates The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.
The particular Regulations that was said to be breached in that case was cl 145(1)(a) that provided: (1) A certifying authority must not issue a construction certificate for building work unless: (a) The design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and …
In considering those particular provisions the Court of Appeal (per Sackville AJA) found that the statutory intent of the relevant provisions did not indicate an intention that a construction certificate issued in breach of the Regulations would be invalid. The rationale for this determination can be summarised as: 1. The EP&A Act did not expressly state that a breach of the Regulations would produce invalidity. The absence of such a statement is significant in circumstances where the Act does expressly provide for invalidity in the circumstances, stated in s 109F(1A): Ralan [168]; 2. The prohibition in s 109F(1)(a) is directed at the certifier and not the person who has the benefit of the development consent. Yet the consequence of invalidating would be suffered by the holder of the consent and not the certifier: Ralan [167]; 3. The prohibition is upon the issue of a construction certificate that does not comply with regulations made pursuant to the regulation making power in s 81A(5). Regulations made pursuant to such power may impose a range of requirements varying from the important to the relatively trivial. It would be odd if the issue of a construction certificate was intended to be rendered invalid if the non-compliance related to a matter of no real significance to the building work: Ralan [172]; 4. Since s 109F(1)(a) incorporates requirements laid down in the Regulations the validity may turn on the application of criteria expressed in vague language or which contemplated the making of a contestable judgment. Clause 145 is an example of a standard which may have a rule-like quality but involves the exercise of an inherently contestable judgment: Ralan [174]-[175]; 5. The finding of a breach of the Regulations producing invalidity would produce inconvenient consequences: Ralan [177]-[179]; and 6. The Parliament, through the statutory scheme, has chosen to guard against the risk of accredited certifiers failing to comply with their statutory obligations by an accreditation and disciplinary scheme rather than the "blunt mechanism" of rendering a non-complying construction certificate void: Ralan [182].
The primary challenges for this ground relate to the manner of the modification application and the nature of the alleged grant. Each of these issues relies upon asserted non-compliances with the Regulations. The obligation to comply with the Regulations arises, on the Applicants' case, through the terms of s 80(12) and s 109F(1) both provisions refer to a certificate or any variations to that certificate being required to be issued in accordance with the provisions of the EP&A Act and Regulations. If Ralan is sought to be distinguished on the basis that this case relates to a modification to which s 80(12) applies whereas Ralan only related to an original grant to which s 80(12) did not apply, I do not accept that such is a relevant distinction to a modification application that must also comply with s 109F(1). The principles outlined in Ralan are not only directly applicable but, on one view, even more compelling. The terms of s 80(12) contain no words of prohibition, rather, it dictates the consequence of the issue of the certificate. It would be an odd outcome if a modification application, by operation of s 80(12), could be rendered invalid through non-compliance with the Regulations whereas (on the application of Ralan) an initial construction certificate to which the same provision applies would be valid notwithstanding a breach of the Regulations and a breach of s 109F(1)(a). So whilst the legislative route to the requirement to comply with the Regulations contains two legislative provisions in this case different from that in Ralan, it is not sufficiently different to render the application of the principles determined in Ralan distinguishable or inapplicable.
It was also submitted by the Applicants that the decision in Ralan was required to be distinguished and was therefore inapplicable in the circumstances of this case as the particular clause of the Regulations in Ralan required a contestable judgment to be made, where the majority of the breaches in this case did not require a contestable judgment to be made. Having regard to the principles in Ralan, I do not accept that the finding in that case turned on the particular provision of the Regulations, rather the decision made a determination as to the consequence of any breach of the Regulations. As identified in [174]-[175] of Ralan the contestable judgment in cl 145 was identified as an example of a type of Regulation rather than being the sole reason for the findings made. The Court of Appeal's decision is not limited in its application only to regulations that require the making of a contestable judgment but relate to the breach of any and all of the Regulations to which s 81A(5) refers which include all of the Regulations in Part 8 Division 2.
Accordingly, as I am bound to follow the decision in Ralan, I find that the non-compliance with the Regulations in the issuing of the modification to CC1 does not render the modified construction certificate invalid.

[64]

Findings on whether Mr Freixas was acting as accredited certifier

There is no evidence as to the actual role Mr Freixas was exercising. Mr Freixas was not cross examined as to this matter, nor was the case opened on this issue, nor is there any particularisation of this claim in the Fourth Amended Points of Claim for which leave was granted during the course of the hearing. I also note whilst this issue was sought in closing submissions to be put for the first time, the Applicants bore the onus of establishing on the evidence that Mr Freixas was in fact acting as PCA and not as accredited certifier.
I am being asked to draw inferences from the evidence of third persons (some of whom were not quite sure of the difference). In effect, I am being asked to draw an inference that the capacity that Mr Freixas was acting in was determined by the opinions of others and not him.
In the circumstances, there is an equally (and arguably stronger) inference open that Mr Freixas was aware that he had two roles that could perform different functions and that he performed the role necessary to perform the function. Absent evidence to the contrary, and absent the matter being put to Mr Freixas, I am not satisfied that the necessary inference as asserted by the Applicants can or should be drawn. For those reasons the evidence does not permit a finding that he was acting in any capacity other than the one authorised to perform the functions being exercised, namely as an accredited certifier.
The remaining issue for determination is whether, on the evidence, the Respondents carried out piling and shoring contrary to CC1 (or without a construction certificate) with respect to the period when works commenced until the date the TQM Plans were approved. If that is the case, the TQM Plans could not have approved such work as to do so would be contrary to the prohibition in s 109F(1A) of the EP&A Act.
There was very little evidence as to what work was undertaken when the totality of that evidence was agreed to be that comprised by the cross-examination of Mr Maroun Taouk where he stated at T524 line 42 - T527 line 18 (objections omitted). Q. Mr Taouk, what piling work was carried out prior to the commencement of excavation in late February 2019? A. I can't can't recall. Q. Certainly. All I'm asking you is what piling work was carried out prior to the commencement of excavation on the site? A. I can't I don't know. Q. Mr Taouk, you're an engineer (sic), aren't you? A. Yes, I am. Q. You had day to day involvement with the progress of this project, did you not? A. No, not really. Q. You knew what was happening on site, didn't you? A: No. I wasn't involved in the day to day activity on the site. It was more it was more in the hands of the construction managers and the project managers. It wasn't me personally. Q. Mr Taouk, you were involved, weren't you, in the preparation and finalisation of the shoring design, weren't you? A. I would oversee the design, yes. Q. You are aware, I suggest to you, you were aware, what aspects of that design needed to be implemented prior to the commencement of excavation; do you agree? A. No. No, I wouldn't agree. Q. It was just all a mystery as to when those particular things were happening; is that right? A. It's not a mystery, but we we get informed of what happens, but I'm not there running the day to day activity of the day. I'm- Q. But you know as an engineer (sic)- A. I don't run the day to day activities of the site. As a director of a company, I put out advice. That's essentially what I do, but I'm not running the day to day activities of the site itself. Q. But you know as an engineer what aspects of a piling design need to be implemented before the commencement of bulk excavation, don't you? A. Yes. Q. So, what aspects of this piling design were required to be implemented before the commencement of bulk excavation? A. It depends on where they started the excavation. Q. You do actually know with some precision what piling works would have been carried out on this land prior to the commencement of bulk excavation, don't you? A. Me personally, no, I don't. I wasn't there. Q. But you know now, don't you? A. Are you asking me the sequencing, what happened on site, where they started excavating? Q. No. I'm asking you in general terms what piling work would have been carried out on this site prior to the commencement of bulk excavation? A. They would have been constructing (sic) the piles. That's are you asking me a general question? Q. Yes- A. -or a specific question? Q. Yes, general question, happy with general? A. They complete a wall and they excavate. Q. And the piles get inserted, don't they, prior to the excavation? A. Yes, of course. Q. That would have been right around the perimeter of the site, wouldn't it? A. Not the entire perimeter. It depends where they excavated first. Q. But it would have been the majority of the perimeter of the site, wouldn't it? A. Perhaps each each elevation first. Q. Now- HER HONOUR Q. I'm just not sure what you mean by that. Isn't it the same thing as around the perimeter of the site? A. I mean, the piling doesn't have to be finished completely around the perimeter prior to any excavation starting. They can start on one side. Q. But you said all of the elevations. I'm just wondering how is that different? A. Each respective once each respective elevation was complete, you will get to excavate. That's- Q. So, you could do it in a- A. In a sequence.
The Applicants submitted that "Mr Maroun Taouk ultimately had to concede, a significant part of the piling work the subject of [the TQM Plans] had been completed in February 2019 prior to the commencement of bulk excavation, meaning those works were undertaken prior to the alleged modification on 6 March 2019". The sole reference to the evidence which was said to found that submission was that recited above.
On that evidence, the only finding that is open is, that as a general proposition, piling commences before excavation and may be done in a sequence, meaning that the whole of the piling does not need to be completed before excavation commences. As to what specifically happened on the Subject Site Mr Maroun Taouk simply did not know what dates work commenced or was completed.
There is some additional evidence not referred to in support of the submission that may assist in determining the dates the piling and shoring work was undertaken including: 1. Notice of the commencement of building works on the Subject Site was given to Council on 1 February 2019 (T521 lines 9-10); 2. Mobilisation would have commenced in early January (T519 line 36); 3. Work that commenced in early February comprised: clearing up the site, removing over spoil, mobilising, and pile testing (T523 lines 29-32); 4. Mid to late January piles would have been inserted (T523 lines 34-37); and 5. The piling work undertaken in February was "not in accordance" with the ABC Plans but was "in accordance with the TQM Plans" (T523 line 48 - T524 line 12).
That additional evidence supports a finding that piling commenced mid to late January. Whilst the witness agreed with the proposition that such piling did not accord with the ABC Plans, the evidence does not disclose (as it was not put to the witness) in what manner or to what extent it was "not in accordance" with the ABC Plans. Nor does the evidence allow a finding of what piling was undertaken in what location or whether it was one pile or more.
It is not open, on the basis of the evidence, to make a finding of whether any work that was carried out was not authorised, or without a construction certificate, as it is impossible to ascertain what work was, in fact, carried out before the 6 March 2019 date of modification (being the relevant date the Applicants relied upon for this ground) of CC1 to include the TQM Plans. Accordingly, I find that there is insufficient evidence to establish that work was undertaken that was not authorised (or without a construction certificate) prior to 6 March 2019.

[67]

Applicants' submissions

The Applicants contend that CC2 is purporting to approve work already completed (being the works said to have been constructed as authorised by CC1). They submit that in so far as CC2 purports to relate to work already carried out such is in breach of the provisions of s 109F(1A) that provides: 109F Restriction on issue of construction certificates … (1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies. …
As particularised in [69] of the Applicants' closing submissions it is asserted that the following work has been carried out prior to the issue of CC2 and is work to which CC2 relates: 69. Further, there is a match between the works carried out and the CC2 Plans: (a) the building foundations are shown at plans SA0200 entitled "Footing Plan" and plan SA0201 entitled "Footing Details" and show pad footings and strip footings; (b) the slab on ground is shown in plan SB0100 entitled "Basement 4 Slab Plan and details"; (c) the columns and lift walls between the lowest level and the first suspended level are shown in plan SB0100 entitled "Basement 4 Slab Plan and details"; (d) the first suspended slab is shown at plan SB0200 entitled "Basement 3 Slab Plan"; (e) the columns and lift walls between the first suspended level and the second suspended level are shown at plan SB0200 entitled "Basement 3 Slab Plan"; (f) the second suspended slab is shown at plan SB0300 entitled "Basement 2 Slab Plan"; (g) the temporary loading platform at the south-eastern corner of the site is shown at plan SG0100 entitled "Ground Floor Slab Plan".
The Applicants submit that where the CC2 plans show work already completed it is intended that CC2 is authorising those works. It is said that on a proper construction of CC2 the incorporation of work completed intends to now authorise those works contrary to s 109F(1A) and the whole of CC2 is, therefore, invalid.

[70]

Ground 6 - Crane base erected without approval

This ground was the subject of very little evidence and was dealt with largely by submissions.
The Applicants submitted that the erection of the crane base at 4 George Street (owned by the Third Respondent) was development that required development consent and that such consent had not been obtained. It was apparent on the evidence tendered (and that was not disputed) that no development consent was granted that authorised the crane base.
The Applicants submitted that a consent was required as the erection of the crane base was either the erection of a building and/or the carrying out of a work as those terms are used in the definition of "development" in the EP&A Act.
The Respondents, in its pleadings, did not admit development consent was required and made no submissions in response to the submissions made by the Applicants. However, in its closing submissions it was noted by the Respondents that they had given an undertaking to the Court that they would remove and not use the crane base in the terms outlined at paragraph 5 of the Points of Defence filed on 2 August 2019. Senior Counsel for the Respondents indicated that he was instructed to maintain the undertaking in those terms (T818 lines 20-47). The undertaking as it appeared in the Respondents' Points of Defence and maintained in the final hearing was in the following terms: The First and Second Respondents undertake to the Court, without admission, that: (i) They will not use the tower crane base for the purpose of swinging a tower crane jib; and (ii) They will remove the tower crane base upon the issue of an occupation certificate for the Development Site.
In response to either the giving of or the reaffirmation of the undertaking, Senior Counsel for the Applicants indicated that, save for the issue of costs-related circumstances surrounding the timing of the giving of the undertaking, this ground could be resolved with the acceptance of the undertaking (T853 line 47).

[74]

Nature of claim

By [29]-[30] of the Fourth Further Amended Points of Claim the Applicants contended that the Executed VPA was invalid and of no effect as: 1. Section 7.5(1) of the EP&A Act together with cl 25D(1) of the Regulations required the VPA to be notified contemporaneously with or as soon as possible after any notice of the development application; 2. The Executed VPA was notified more than 3 years after the grant of DC2.
I understand the Applicants to be contending that if the VPA is not a valid VPA there is no satisfaction of Planning Condition (5) and as a consequence the now granted CC2 is invalid and cannot be relied upon by the Respondents to construct any further development on the Subject Site. However, no declarations of invalidity of CC2 were sought. Further, such a declaration is said to have the potential to impact upon the findings required in connection with Grounds 5 and 6 and the exercise of any discretion.
As a preliminary matter the Respondents submitted that the Court should not entertain this ground as it was purely theoretical and not directed to the determination of a particular legal controversy: The Trust Company (Australia) Ltd in its capacity as custodian of The Asia Pacific Data Centre Trust v NEXTDC Limited [2018] NSWSC 1361 at [21]. Whilst this argument was initially formulated to respond to a declaration in relation to a VPA that was not yet executed, it was maintained in response to the amended claim formulated after the execution of the Executed VPA.
The Land and Environment Court has jurisdiction to hear and dispose of claims for declarations of right in relation to the exercise of a function in connection with an obligation or duty arising under, inter alia, the EP&A Act: s 20(2) Land and Environment Court Act 1979. The Applicants seek such a declaration at prayer [10A] of the Fourth Further Amended Summons. Whilst the legal consequence of such a declaration is not the subject matter of a claim, the substance of the ground is one within the Court's jurisdiction, it is material, in that it is not purely theoretical, as whether a VPA is valid has practical consequences without the need for consequential orders. For those reasons I consider the matter one that should be determined in these proceedings and to do so is consistent with the duty conferred upon the Court by s 22 of the Land and Environment Court Act that provides: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

[75]

Legislative provisions

Part 7 Division 7.1 of the EP&A Act makes provision for developer contributions and, relevant to these proceedings, provides for the entering into of a planning agreement that is defined to be a voluntary agreement referred to in s 7.4.
With respect to the requirement for any such agreement to be notified to the public, ss 7.5 and 7.10 of the EP&A Act relevantly provides: 7.5 Information about planning agreements (1) A planning agreement cannot be entered into, and a planning agreement cannot be amended or revoked, unless public notice has been given of the proposed agreement, amendment or revocation, and a copy of the proposed agreement, amendment or revocation has been available for inspection by the public for a period of not less than 28 days. (2) The regulations may provide for the public notice to be given under subsection (1) and may provide that it may be given contemporaneously with, in association with, or as part of, any other public notice or public notification that is required to be given of any matter relevant to the planning agreement. 7.10 Regulations - planning agreements The regulations may make provision for or with respect to planning agreements, including the following - (a) the form of planning agreements, (b) the subject-matter of planning agreements, (c) the making, amendment and revocation of planning agreements, including the giving of public notice and inspection by the public, (d) the public inspection of planning agreements after they have been made.
Clause 25D(1) of the Regulations then provides: 25D Public notice of planning agreements (1) If a planning authority proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a development application, the planning authority is to ensure that public notice of the proposed agreement, amendment or revocation is given: (a) if practicable, as part of and contemporaneously with, and in the same manner as, any notice of the development application that is required to be given by a consent authority for a development application by or under the Act, or (b) if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of the development application that is required to be given by a consent authority for a development application by or under the Act and in the manner determined by the planning authorities that are parties to the agreement.

[76]

Evidence relating to public notification of Executed VPA

There was documentary and affidavit evidence adduced relating to the notification of the VPA generally. This evidence was largely not in dispute and evidenced the following matters contained in the Council's chronology (which has been updated to include exhibit references and reference now defined terms): Date Event Exhibit/ affidavit Reference 06/03/13 First Development Consent granted for 22 storey mixed use development with 4 basement levels. Exhibit F July 2015 DA 98/2015 submitted to Council Ms Kucic Affidavit at [6] September 2015 Council receives draft VPA from Sky Profit Ms Kucic Affidavit at [9] 15/12/15- VPA publicly notified Exhibit R5.1 29/1/2016 23/2/2016 Council resolves to enter into VPA Exhibit R5.2 03/03/16 Second Development Consent 98/2015 granted for an additional 3 storeys. Condition no 5 requires VPA to be entered into by developer Exhibit H 20/12/2018 The Development site was acquired by 1R & Council notified of that fact Affidavit of Mark Taouk at [5] 06/02/19 Mark Raineri emails Dix Gardner & TQM requiring execution of VPA and payment of outstanding monies Exhibit R5.9 06/02/19 Council issues Stop Work Order Exhibit R5.10 26/02/19 S 94 contributions paid to Council Ms Kucic affidavit at [21] 26/02/19 Mark Taouk and Marianna Kucic have a conversation re requirement to amend the VPA Ms Kucic affidavit at [22] Late Feb 19 Marianna Kucic commences work on revising VPA Ms Kucic affidavit at [25] 06/06/19 Council advises TQM that draft VPA will need to be publicly notified Exhibit R5.11 25/06/19 Council members advised that officers had determined that draft VPA needed to be publicly notified Exhibit R5.14 27/06/19 Council sends draft VPA to TQM for comment Exhibit R5.13 09/07/19 Council publicly notifies draft VPA from 9 July to 6 August 2019 Exhibit R5.15 & Ms Kucic affidavit at [27] 23/07/19 These proceedings are commenced Original Summons August 2019 Council joined to proceedings Order of Moore J 11/10/19 VPA executed & monies paid Mr Mark Taouk Affidavit 30 October 2019 at [7]-[8]

[78]

Council's submissions

The Council's primary submission was that the VPA has been notified to the public in accordance with the requirements of the EP&A Act twice: first, with the second DA; and secondly, when it was amended prior to execution. The changes in substance between the two periods of notification were not so material as to render the Executed VPA a "new" VPA as opposed to an amendment to the VPA the subject of the first notification.
It is also submitted that, if the Executed VPA was not relevantly the same VPA for the purposes of public notice, it was not practicable to notify the Executed VPA with the DA as the amendments (including the identity of the developer) changed after the grant of DC2. The Executed VPA was notified to the public as soon as possible after its preparation.
Further, even if there had been a breach, the statutory scheme would not anticipate a breach of this nature to render invalid the making of the VPA as: 1. It would lead to inconvenient consequences where the Council would be unable to recover funds bargained by it; 2. The public had been notified in substance on two occasions - this was not a case where there was no public notification; 3. There was no undue delay in the notification of the Executed VPA for the reasons outlined in the affidavit of Ms Kucic sworn 5 September 2019 which explains: the circumstances surrounding the need to amend the VPA; the steps taken to give effect to the amendment; and the timing of the steps after the Council became aware of the requirement to amend; and 4. Delays to notice and amendments to VPA's were expressly envisioned in the legislative scheme such that the requirements of s 7.15 were not mandatory in the sense that a breach of any kind would lead to invalidity.
Alternatively, if there were a breach of the legislative requirements that would lead to invalidity there were compelling discretionary reasons why declarations and orders relating to the validity of the Executed VPA would not be made.

[80]

Findings on whether the Executed VPA is invalid

For the reasons that follow I find that the Executed VPA is valid and therefore a VPA within the meaning of Planning Condition (5).
The first, and primary, reason is that whilst the requirement for public notice prior to the entering into of a VPA is mandatory, I do not find that there is a mandatory requirement for such notice to occur contemporaneously with any DA. The mandatory requirement for public notice is contained in s 7.5(1). What is mandated by that provision is a planning agreement cannot be entered into unless the public notice has been given and that a copy of the proposed agreement is available for inspection for a period of not less than 28 days. The prohibition is on the entering into the VPA, there is no dictate on the time between the notice and the execution of the VPA. Further, whilst notice (and the period of notice) is mandated, the mechanics of giving such notice are not mandated in s 7.5(1). The requirements of the actual notice are left to the Regulations by operation of s 7.5(2) and s 7.10. This division between the requirement for notice and the mechanism for the giving of that notice is a distinction between the mandatory requirement of s 7.5(1) and the mechanisms provided for in s 7.5(2). Therefore, if there are mandatory requirements as to the manner in which notice is to be given so as to comply with the provisions of s 7.5(1) it is to be found in the Regulations not the Act.
The relevant provision of the Regulations, cl 25D contains mandatory language as to the requirement "to ensure that public notice...is given" but the operative provisions that dictate the manner of notice are not as certain. The concepts of "if practicable" and "as soon as possible" contain subjective elements that could not, having regard to this statutory language, be intended to dictate an absolute mechanism. What the language does indicate is that whilst the requirement for notice is imperative, manner and timing of the notice (other than that the notice must be before the VPA is entered into) is more flexible. This construction is consistent with the regulation making power expressed in s 7.5(2) that leaves a discretion as to whether to permit or require contemporaneous notification. The drafting of the Regulations indicates by its language that the contemporaneous timing of the notification is not mandatory.
Secondly, I find that the VPA and the DA were, in any event, notified concurrently. The subsequent changes to that VPA were amendments to the VPA as originally notified. There is no statutory requirement that the VPA as notified be executed prior to an amendment and therefore there is no statutory irregularity with the re-notification of the amended Executed VPA. The changes were not materially different and did not reduce the impost on the developer or the public benefits proposed such that it was to be required to be assessed as a separate or new VPA to that notified with DC2.
Thereafter, the amendments to the first notified VPA were notified in accordance with the requirements of s 7.5 of the EP&A Act, in that public notice was given as soon as possible after the amendments were made. Whilst the Council became aware of the need to amend the first notified VPA in December 2018 steps were required to be undertaken to give effect to this knowledge. Ms Kucic provided evidence by way of affidavit which was admitted without objection and upon which she was not cross examined. The affidavit discloses a course of conduct that was not unreasonable in the circumstances and the time taken to effect the changes and notify the amendment was also not unreasonable such that it would be found to be in breach of cl 25D of the Regulations.
Additionally, even if it were the case, contrary to what I have found above, that the Executed VPA was one to which the provision of cl 25D applied such that it was, prima facie, required to be notified with the development application for DC2, I would find that it was not practicable to do so as the amendments contained in the Executed VPA were not ascertainable at that date such that a VPA in the terms of the Executed VPA could have been notified. I would also find for the same reasons as outlined above that the notice of the terms of the VPA as contained in the Executed VPA was notified as soon as possible after the notification of the development application to which it related.

Omaya Investments Pty Limited v Dean Street Holdings Pty Limited

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Judgment (86 paragraphs)

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