Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd

Court of Appeal (NSW)|2020-10-26|Before: Basten JA, Payne JA, Brereton JA, Duggan J

Solicitors: Lindsay Taylor Lawyers (Appellants) Salim Rutherford Lawyers (First, Second and Third Respondents) Jaku Legal (Fourth Respondent) Houston Dearn O'Connor (Fifth Respondent) File Number(s): 2020/71992 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2020] NSWLEC 9 Date of Decision: 05 March 2020 Before: Duggan J File Number(s): 2019/228381

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BASTEN JA: On 23 July 2019 the appellants commenced proceedings in the Land and Environment Court seeking declarations and restraining orders in relation to a development then under way on land at Marmaduke Street, Burwood, near Burwood railway station. The appellants owned land on an adjoining site at George Street, Burwood. Three respondents, both in this court and in the Court below, were (i) the registered proprietor of the development site, (ii) the contractor carrying out construction work on the site and (iii) the registered proprietor of an adjoining site involved in the development. The fourth respondent, Mr Maurice Freixas of Dix Gardner Group Pty Ltd, was the principal certifying authority for the development. The fifth respondent, Burwood Council, was the consent authority which approved a relevant development application. [1] The fourth and fifth respondents filed submitting appearances, both in this Court and in the court below.
The trial in the Land and Environment Court ran before Duggan J over 16 days. Judgment was delivered on 5 March 2020, relevantly dismissing the proceedings. [2] The only affirmative result achieved by the appellants was to obtain the removal of a crane base used by the first and second respondents from land owned by the third respondent. Why the third respondent is a party to the appeal is not apparent. It is true that the notice of appeal sought an order that the third respondent pay the applicants' costs below on relation to "ground 6", which was the ground dealing with the crane base. However, the claim for costs at trial was not the subject of submissions in this Court and will be disregarded.
Before outlining the relevant factual background and legislative provisions, it is convenient to note the limited scope of the appeal. As explained by senior counsel for the appellants in opening in this Court: [3] "There are two points in this case. The first is that there was no construction certificate modified to support the works of shoring, excavation and piling that were undertaken on the site. The second point is that if there was such a certificate then those or some of those works occurred before the certificate was issued and by dint of the [Environmental Planning and Assessment Act 1979 (NSW) ('the Planning Act')], the certificate didn't authorise those works because it doesn't have retrospective effect. There were three grounds in the appeal but those are essentially the two issues. The first ground has considerable significance for the system of certification in this State because it is premised on there having to be an application for a construction certificate, a written application and then a certificate, a formal document that states certain things as required by the regulations under the Act."
There was no dispute that a construction certificate has no retrospective effect if it is issued after the building work to which it relates has been commenced: see s 109F(1A) of the Planning Act as then in force. [4]

Factual background

The site in question was known by its location as 1-3 Marmaduke & 7 Deane Street Burwood. The development application had been accompanied by building plans prepared by ABC Consultants (structural and civil engineers) which made specific provision for excavation to a particular level and shoring and piling which would accompany the excavation. A development consent issued on 6 March 2013 described the development in the following terms: "Demolition of existing residential flat buildings and the erection of a 22 storey mixed use development comprising 3 ground floor 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."
A second development consent, dated 3 March 2016, provided for the addition of three further levels containing eight residential apartments. The present relevance of the 2016 consent lay in a requirement for a "voluntary planning agreement (VPA)", which was to be executed (and payment made to the Council) prior to the issuing of a construction certificate. The VPA provided for a contribution to be paid to the Council in relation to the additional development. The contribution (subject to indexation) was a levy of 4% of the cost of carrying out the development, then calculated at $136,480.
The trial judge held that the VPA condition did not apply to the excavation, shoring and piling works. That finding was not challenged; rather, the appellants relied on the fact that by April 2019 the Council had expressed a different view to Mr Freixas, making it unlikely that he would have issued a construction certificate thereafter, absent compliance with the condition (which, it was contended, did not occur until some months later).
On 8 March 2018 Mr Freixas issued a construction certificate (known as CC1) for the "bulk excavation, shoring & piling". The certificate stated: "I certify that: • the work, if completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation), will comply with the requirements of Environmental Planning & Assessment (EP&A) Regulation 2000 as are referred to in sec. 81A(5) of the EP&A Act 1979." The accompanying plans were those prepared by ABC Consultants.
In December 2018 the first respondent purchased the site with the relevant approvals. However, TQM Pty Ltd, presumably a company related to the second respondent, had been the builder nominated on the construction certificate in March 2018. (It is possible that the name of the builder on the construction certificate had been abbreviated and it was in fact the second respondent.)
Mr Maroun Taouk, the director of the second respondent, gave evidence (accepted by the trial judge) that test bores conducted on the site in or about January 2019, discovered bands of soft rock, which led him to seek a variation of the engineering plans to allow for deeper excavation. On 5 March 2019 Mr Taouk met Mr Freixas and handed him fresh plans, prepared by TQM Consulting Engineers and dated 21 December 2018. The substance of the conversation was set out in the respective affidavits of Mr Taouk and Mr Freixas. Mr Freixas stated: "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 Taouk stated that on 6 March 2019 Mr Freixas called him and the following exchange occurred: "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.'" The evidence was unchallenged and the trial judge accepted it. [5]
The new plans were referred to as the "TQM plans". It is not disputed that they involved a variation of the development. Not only did they provide for a deeper excavation across the site, but they also involved a different system of shoring with bracing slabs rather than raked struts on the northern wall, and a different configuration for the piles.
What happened to the TQM plans thereafter was a matter in dispute. Mr Taouk gave evidence that he had not requested "an amended construction certificate" and was not provided with one. [6] He agreed that he had not asked Mr Freixas for the plans to be stamped, and only requested stamped plans once the proceedings in the Land and Environment Court had commenced. [7]
Mr Freixas stated in his affidavit that he was aware that Mr Maroun Taouk had attended the Dix Gardner offices on 9 August 2019 and obtained a copy of the revised shoring and piling methodology plans. He annexed a copy of the plans he understood to have been provided to Mr Taouk; the stamp carried the name of the firm, the certificate number of CC1 and the date on which CC1 was approved, namely 8 March 2018. It also contained the words "construction certificate approved". All the details relating to CC1 were correct. The stamp did not, however, reveal the date on which it was affixed, which was clearly not 8 March 2018.
On 12 August 2019 Mr Freixas sent a letter to TQM which stated: "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." The letter asked that the incorrectly stamped plans be returned and stated that he had "cancelled" the plans "in our construction file and from our electronic database." A fresh set of plans was attached to the letter. There is some doubt as to whether the fresh plans, which were annexure J to the affidavit of Mr Freixas, were in evidence in the proceedings. The copy in the materials before this Court bore a stamp "not read", but the index to the materials did not include annexure J as part of the material not read. (In fact it did not refer to annexure J at all.) No reference was provided as to where in the 16-day transcript this material may have been dealt with. However, the annexure appears to have been the subject of submissions below, [8] and this Court was taken to the annexure and the new stamp was noted. The new stamp bore the date 9 August 2019, with the annotation "Received for information".
For reasons explained below, the new notation has no significance for the resolution of the issues before the Court. The trial judge took a similar view. [9]
It is necessary to refer briefly to one further matter, which provided background to the appellants' claims. On 16 January 2019, TQM sought a further construction certificate for the building works involving the tower. That application, and the certificate granted by Mr Freixas were known as "CC2". With respect to the second development approval (for the additional units), a memorandum by Mr Freixas to TQM dated 17 January 2019 noted that the VPA was outstanding. That comment was reiterated in a further memorandum from Dix Gardner dated 2 April 2019, and finally in a memorandum dated 16 July 2019. The appellants noted that, in an email dated 11 April 2018, the Council had reminded Mr Freixas that the second development approval was subject to a requirement for a VPA and that the VPA was to be executed and the fee paid prior to the issue of a construction certificate. The appellants submitted that Mr Freixas, being on notice of this requirement, would not in fact have issued a construction certificate absent the condition being satisfied.
However, there was no evidence that Mr Freixas understood the requirement for the VPA to affect the issue of a construction certificate for the excavation, shoring and piling work which had been issued pursuant to the earlier consent. In his affidavit, in respect of which he was not required for cross-examination, Mr Freixas stated that he had a telephone conversation with the manager of compliance at Burwood Council in April 2018 in the course of which he was reassured that the issuing of CC1 did not contravene the requirement, then unfulfilled, for a VPA.
Although the trial judge found that the requirement for a VPA did not condition the issue of CC1, a finding not challenged on the appeal, the appellants nevertheless contended that the question to be addressed was whether Mr Freixas had believed it conditioned the issue of CC1 in March 2019, in which case he would have been unlikely to have issued a modified CC1 absent compliance with the condition. Since the only evidence was that he had received an assurance that the issue of CC1 absent compliance was not a problem, in April 2018, there was no evidence upon which the judge could have found Mr Freixas believed it to be a problem in March 2019. This evidence need not be discussed further.

Issues on appeal

The focus of the present appeal was a variation in the depth of the excavation. It is not in doubt that the excavation proceeded to a level below that indicated on the original engineering plans. The respondents' case was that they struck "soft rock" in the course of preliminary drilling, which required that they go to a deeper level to obtain sound footings for the foundations. The appellants' case was that the respondents intended to develop a fifth basement level and that the claim to have struck "soft rock" was merely a cover for the real intention involving an expansion of the development.
The first question addressed by the trial judge was whether there had, as alleged by the appellants, been "over excavation". The question was whether the 2013 development consent provided for a building excavation level (BEL) below which excavation could not take place. The judge rejected that claim, concluding: "[39] 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. [40] 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 judge then reasoned that, in order to succeed on the first ground before her, it was necessary for the appellants 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." [10] She rejected the claim that the excavation was unlawful based on inconsistency with the terms of the consent. That finding was not challenged.
The trial judge made findings with respect to the events of 5 and 6 March 2019. The judge held that the TQM plans were provided to Mr Freixas on or about 5 March 2019. It is common ground that the excavation, shoring and piling works were in fact carried out in accordance with those plans. The case put by the appellants was twofold. First, it was submitted that if CC1 was in fact modified to incorporate the plans, that did not occur until at or about the time that Mr Freixas stamped the plans, namely 9 August 2019. By that stage excavation, shoring and piling works had been substantially carried out and the modification was ineffective to make that development work lawful. Secondly, the appellants contended that no modification of a construction certificate could occur without a written application. Whatever happened on 5 and 6 March 2019, there was no written application to modify the construction certificate. Absent a valid application for modification, the appellants submitted that, even if purportedly modified, the modification was invalid.
Having dismissed the submissions that there was any breach of the development consent as a result of the extent of the excavation, the judge said it was "unnecessary" for her to determine whether the consent was modified to incorporate the TQM plans. Accordingly, issues which otherwise arose with respect to ground 1 of the application before the trial judge were delayed until she considered the scope of ground 3, which alleged that building works comprising shoring and piling had been undertaken in breach of CC1.
The evidence of Mr Maroun Taouk and Mr Freixas, accepted by the trial judge, was that the TQM plans were handed to Mr Freixas at the meeting on 5 March 2019. The result of the meeting, according to the respondents, was agreement between the builder and the certifying authority (Mr Freixas) that the excavation, shoring and piling work could be undertaken in accordance with the TQM plans. The appellants submitted that such an agreement, to be effective, required a valid modification of CC1.
The need for a modification of CC1 was accepted. The trial judge held: "[140] 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. [141] 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."
The trial judge then addressed whether there was an application to modify CC1: "Was there an application made to modify CC1? [168] I will deal first with the general question of whether an application was made at all on the basis that there was no request, on the evidence, in terms, for an amendment to CC1 to incorporate the TQM Plans. [169] I accept that on the evidence the word "modification" was not used. However, the evidence of both Mr Freixas and Mr Maroun Taouk is that they spoke of "revised" piling and shoring plans. That term is a synonym for a modification (being the term used in the Regulations) or a variation (being the term used in s 4.16(12) of the Act). Neither witness was examined or cross examined on the use of this characterisation. It appears common that the witnesses were looking at something that was intended to revise something else. At that time the only extant "something else" that related to piling and shoring was the ABC Plans referred to in CC1. This conversation is the only oral evidence of the purpose for which the TQM Plans were provided to Mr Freixas. To the extent that both witnesses have a similar recollection of this conversation and both independently characterise the TQM Plans as revised piling and shoring plans indicates, on the balance of probabilities, that Mr Maroun Taouk was requesting that CC1 be modified to incorporate the TQM Plans. There being no evidence to contradict or indicate a different available inference, I find that the Respondents made a request to Mr Freixas to modify the piling and shoring plans, and that Mr Freixas received the TQM plans for that purpose."
The trial judge accepted that reference to "revised" plans, together with the provision of copies of the plans, marked "issued for CC", to the certifying authority constituted an application for modification. The effect of the plans was to vary aspects of the work identified in the ABC plans.
The trial judge then considered whether there was a modification of the methods for shoring and piling works envisaged under CC1. She concluded that there was in that the method of shoring and piling required by the ABC plans was varied, though not in any fundamental respect. [11] The judge then asked whether the modification to incorporate the TQM plans was in fact approved by the certifier. As the judge noted "[t]his 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." [12] The following discussion assumed that the approval was conveyed by the stamping of the plans. The judge accepted that, as revealed by the copy of the plans produced by Mr Freixas on 9 August 2019, the TQM plans had in fact been stamped and therefore formed part of CC1. She dismissed the later letter from Mr Freixas purporting to change the stamp on the plans as legally ineffective. [13] The judge's findings as to approval were contained in the following passages: "[196] Due to the paucity of direct evidence dealing with this matter it is necessary to draw inferences from the evidence. The inference conveyed by the stamping of the TQM Plans is that the plans were approved as a variation or modification to CC1 as originally issued. The evidence relied upon, for the reasons outlined above, are [sic] insufficient to suggest that this is not the appropriate inference to be drawn from the evidence. When the evidence relating to this issue is put in the context of the evidence relating to the making of the application the inference is even more compelling as it is consistent with that evidence preceding the approval. [197] For those reasons I find that in fact Mr Freixas approved the modification of CC1 to incorporate the TQM Plans. However, I am unable to make a finding on the evidence as to the date on which such modification occurred except to the extent of the range of dates identified above."
The range of dates referred back to an earlier statement by the judge: "[186] 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."
The significance of the date on which approval was given was that the approval was a necessary element of the CC1, so that the variation would only be effective if given before the work was done.
Relevantly for present purposes, the trial judge then identified alleged breaches of the regulation: "[198] 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 (1), the judge concluded: "[200] 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."
The judge rejected the assumption underlying (2) and there is no challenge to that ruling. [14] With respect to (3), the judge found that stamping the TQM plans did not constitute modification of the certificate. The judge concluded that there was a breach of the regulations which required Mr Freixas to produce an amended certificate. [15] Whether the judge was correct in the underlying assumption as to the requirement of the regulations will be addressed below. With respect to (4), the judge concluded: "[205] 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. …"
Again, it will be necessary to consider the requirements of the Regulation with respect to "inspections" and changes to the certificate.
Finally, the judge concluded that, to the extent that there were breaches of the regulations on the part of Mr Freixas, they did not invalidate the certificate, or render the work done in compliance with the TQM plans unlawful. The reasoning in that respect was based on the principles established by this Court in Burwood Council v Ralan Burwood Pty Ltd (No 3). [16] The appellants challenged the reasoning in this respect, which will be considered below.
Finally, the trial judge addressed the question of whether works the subject only of the TQM plans were carried out prior to 6 March 2019, being the earliest date upon which the TQM plans were approved.
The trial judge dealt with the evidence relating to this issue at [225]-[231]. The judge noted that there was "very little evidence" as to when particular work was undertaken, the submissions before her relying entirely upon evidence given by Mr Taouk in cross-examination, set out in full at [226]. The judge's findings with respect to that evidence were as follows: "[227] 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. [228] 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."
The judge further noted, favourably to the appellants' case, that there was some "additional evidence not referred to in support of the submission". [17] The evidence involved some further brief questions and answers given by Mr Taouk in cross-examination. The final conclusions of the judge were as follows: "[230] 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. [231] 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."

Relevant legal provisions

Identification of the relevant legal provisions turns on the operation of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) ("2017 Regulation"). The operation of this Regulation has caused considerable difficulties; and worse, they are not apparent on the face of the legislation. It is necessary to take a chronological approach to resolve the issues.
The first step is to note that Pt 4A of the Planning Act was repealed on 1 March 2018 on the commencement of the Environmental Planning and Assessment Amendment Act 2017 (NSW) ("2017 Amendment Act"). [18] The construction certificate CC1 was issued on 8 March 2018, seven days after the commencement of the 2017 Amendment Act. Absent a transitional provision, it was therefore issued under Div 6.3 of the current Act.
The first relevant transitional provision, which took effect as part of Sch 13 of the 2017 Amendment Act, was cl 14: 14 Existing building and other Part 4A certificates etc (1) A certificate that was issued under Part 4A of the Act (as in force immediately before the repeal of that Part) and that continues to have effect is taken to be a corresponding certificate issued under Part 6 of the Act. (2) Part 4A of the Act (as in force immediately before the repeal of that Part) continues to apply to an application for a certificate under that Part pending on the repeal of that Part. Subclause (1) extends to a certificate issued on the determination of any such application.
Clause 14(1) was not engaged; however, the application for the certificate was made under Pt 4A, and is therefore within cl 14(2). Nevertheless, upon the determination of the application a certificate is issued to which sub-cl (1) applies. That is, the certificate becomes a certificate under the new Pt 6 of the Planning Act.
The second step turns on the operation of cl 18 of the 2017 Regulation, which came in to force on 1 March 2018, [19] and now relevantly provides: 18 Postponement of revised building and subdivision certification provisions … (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).
The phrase "former building and subdivision provisions" was defined to mean: [20] "(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."
Clause 18 therefore took effect at the time of the 2017 Amending Act and effectively postponed the operation of Pt 6 of the Act until 1 December 2019. The result was that CC1 was governed by Pt 4A and the regulations made under that Part.
The third step was the introduction of cl 18A, which came into force on 1 December 2019: [21] 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) … (b) a development consent granted before that date.
It appears to have been common ground below, and in this Court, that the Planning Act as in force prior to amendments made by the 2017 Amendment Act continued to operate. That was because, pursuant to cl 18A(b) of the 2017 Regulation the former building and subdivision provisions continued to apply "to or in respect of" a development consent granted before 1 December 2019. Both development consents relevant to the present matter were granted prior to that date.
It is necessary, however, to identify the relevant provisions relating to enforcement proceedings governing these certificates. Before assaying that task it is convenient to note the source of the regulations made under Pt 4A, referred to in cl 4(b), set out at [45] above. Part 4A included, relevantly, ss 109C-109Q. The last provision read as follows: 109Q Regulations under Part 4A (1) In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following: (a) the documents to be provided to, and the matters to be notified to, a consent authority, council or certifying authority for the purposes of this Part, (b) the records to be kept by certifying authorities under this Part, (c) applications for Part 4A certificates, (d) the form and content of Part 4A certificates, ….
Section 109C(1) provided for certain certificates to be issued for the purposes of Pt 4A, including: (b) a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A(5).
Section 81A, as presently relevant, provided as follows: 81A Effects of development consents and commencement of development … (2) The erection of a building in accordance with a development consent must not be commenced until: (a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and … (5) Regulations 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. …
It is not entirely clear why the regulation-making power contained in Part 4A was not sufficient without s 81A(5), but nothing turns on this apparent duplication of authority. Part 4A provided for the appointment of certifying authorities (now known as certifiers) and the appointment of a principal certifying authority for each development. Otherwise relevant for present purposes are the following parts of s 109F: 109F Restriction on issue of construction certificates (1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless: (a) the requirements of the regulations referred to in section 81A(5) have been complied with …. (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.
Before turning to the regulations, it may be noted that the savings provisions set out above do not in terms refer to s 80 of the Planning Act. The principal purpose of s 80 was to confer power on a consent authority to determine a development application and make consequential provision in relation to development consents. In particular, s 80(12) read as follows: 80 Determination … (12) Effect of issuing construction certificate If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).
To the extent that s 80 no longer applies with respect to this development, the equivalent provision is now found in s 4.16(12). The effect of this provision is important in the appellants' case, which is that the plans form part of the construction certificate, which in turn forms part of the relevant development consent. Variations to the construction certificate or the plans can only be effected in accordance with the Act and regulations, which must be construed bearing in mind that the effect of any variation will itself form part of the development consent. Development consents are the legal authority with which any lawful development of land must comply.

Formalities for varying plans

It is convenient to address the content of the regulations in considering the issues to which they are relevant.
Part 8 of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the Planning Regulation") is headed "Certification of Development"; Division 2 relates to construction certificates. Only one provision deals with "modifications": 148 Modification of construction certificate (1) A person who has made an application for a construction certificate and a person having the benefit of a construction certificate may apply to modify the development the subject of the application or certificate. (2) This Division applies to an application to modify development in the same way as it applies to the original application.
Despite the heading to the clause, the clause itself referred not to modification of a construction certificate, but to modifying "the development the subject of the … certificate." The first question is therefore whether there was an application to modify the development, pursuant to cl 148(1).
The requirements with respect to applications for construction certificates were found in the following provisions of Div 2: 139 Applications for construction certificates (cf clause 79A of EP&A Regulation 1994) (1) An application for a construction certificate: (a) must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and (b) if the certifying authority so requires, must be in the form approved by that authority, and (c) must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission. (1A) The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development. (2) Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt. … 141 Certifying authority to supply application form for construction certificates (cf clause 79C of EP&A Regulation 1994) If a certifying authority requires an application for a construction certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
Finally, the Planning Regulation provided for the formalities attending the determination of an application: 142 Procedure for determining application for construction certificate (cf clause 79D of EP&A Regulation 1994) (1) The determination of an application for a construction certificate must be in writing and must contain the following information: (a) the date on which the application was determined, … (2) The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of: (a) the determination, together with the application to which it relates, and (b) any construction certificate issued as a result of the determination, and (c) any plans and specifications in relation to which such a construction certificate has been issued, and …
There was passing reference in the appellants' submissions to the obligation to record site inspections by the certifier, but neither the scope of the obligation to inspect, [22] nor whether it was complied with, was the subject of findings below. Clause 142 was relied on only in support of the contention that the determination of the modification application had to comply with cl 142 and, therefore, if there were no compliance with cl 142 it should be inferred that there was no approval of the application.

Ground 1 - form of application

The appellants did not challenge the findings as to what occurred; rather, they challenged the inference that whatever approval may be inferred from the words used by Mr Freixas, it did not involve a modification of the construction certificate. The appellants submitted that inference was not open. The appellants' written submissions did not clearly distinguish between evidence from which it might be inferred that no application was made, and evidence from which it might be inferred that no modification was approved.
The requirement that an application be delivered by hand, sent by post or transmitted electronically (cl 139(1)(c)) assumes that the application will be in documentary form. However, it is not required to be in a particular form unless the certifying authority so requires: cl 139(1)(b) and cl 141. There was no evidence that Mr Freixas required a proposed variation of plans to be in a particular form. The judge was satisfied that the plans themselves constituted the necessary writing: [23] "[200] 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."
There may have been some doubt as to whether the TQM plans themselves required a modification of the existing construction certificate, or whether what was sought was approval of the plans which, if followed, would comply with the existing construction certificate. The approval might require an amendment or modification of CC1 under the heading "Approved Plans", and the attachment of the new plans to the certificate. These were steps to be taken by the certifier: an application to vary the plans did not need to spell out what the certifier was to do with them, once approved. The proposed changes were properly set out, and in detail, in the plans which were provided to the certifier. Accordingly, while an application to modify the plans accompanying the certificate was necessarily to be in writing, that condition was satisfied, as found by the trial judge.
Ground 1 should be rejected.

Ground 2 - stamping of new plans

There was a degree of ambivalence on the part of the appellants as to the nature of the challenge being raised, if it were found that an application to modify the development had been made. Ground 2 alleged error on the part of the trial judge in failing to find that "the TQM plans were first stamped by [Mr Freixas] on or about 9 August 2019". The assumption underlying this ground was that a modification of the construction certificate occurred when, and only when, the plans were stamped by the certifier.
The Planning Act does not expressly provide for modification of a construction certificate. Section 80(12) of the Planning Act assumes that a construction certificate may be the subject of "variations": the term modification is not used. Clause 148 of the Regulation refers to a person applying "to modify the development the subject of the … certificate." The Planning Regulation, cl 147(1), requires that a construction certificate include a statement as to the effect of compliance with "documentation accompanying the application for the certificate". It anticipates that there may be "modifications … shown on that documentation". The modifications are to be "verified by the certifying authority". It is possible that a modification is made prior to the certificate issuing; alternatively, a modification may be made after the certificate is issued, in which case the clause does not envisage a modified certificate, but rather verification of the modification on the document which accompanied the application. That may be effected by a stamped form of verification, but the regulation is silent as to the mechanism of verification, except that it must be "shown" on the documentation, such as the new plans.
Clause 139, which applied to proposals to modify the development (cl 148), required that the certifier "endorse the application with the date of its receipt". That did not happen in this case, but it was not contended that that omission invalidated any resulting approval.
It is clear that the certifier did not give the Council notice of his determination to approve the new plans, as required pursuant to cl 142(2), but that in itself was not said to invalidate the approval. Rather, it was contended that the omission demonstrated there was no approval and that the plans were in fact stamped in about August 2019 in response to the commencement of the proceedings. [24]
These breaches of the planning regulations were included in the four categories identified by the trial judge at [198] and discussed at [32]-[34] above. As noted, the breaches which were established were found not to have resulted in the invalidity of the approval which, as a matter of fact, had been given on 6 March 2019. That reasoning turned on the judgment of this Court in Burwood Council v Ralan.
In Burwood Council v Ralan, this Court held that a construction certificate which failed to comply with s 109F(1) of the Planning Act and cl 145(1) of the Planning Regulation was not therefore invalid. The basis of invalidity relied on in that case was inconsistency between the requirements of the construction certificate and the development consent. No such inconsistency is relied on in the present case. Nevertheless, it would be a surprising result if compliance with plans which were conceded to be consistent with the development consent and had, in each case, been approved by the certifying authority, could result in invalidity of the development undertaken in accordance with them.
If the failure of the certifier to notify the Council of the approval of the new plans did not invalidate the development, the appellants nevertheless maintained that non-compliance with the regulations should have led the judge to infer that no approval was given in March 2019. However, as noted above, there was ample evidence to support the finding that the certifier approved the new plans on 6 March 2019.
Otherwise, the dispute as to whether the plans were in fact properly stamped by the certifying authority on 9 August 2019 was primarily relevant only to the first ground of appeal. It was not in dispute that the piling and shoring work and the excavation were substantially completed by that date. However, if the appellants failed on that ground, they asserted that significant piling and shoring works had been carried out prior to 6 March 2019. That matter was addressed in ground 3.

Ground 3 - work done prior to 6 March 2019

The judge's finding with respect to this issue, set out above, was to the effect that the evidence failed to persuade her as to what piling work had been done prior to 6 March 2019. In the course of submissions from counsel for the respondents the judge expressed doubts as to the extent of the evidence addressing that issue. Senior counsel for the appellants interrupted (with the respondents' consent) to note that the evidence had been identified at "para 64 of our submissions, and it's the entire transcript referred to at footnote 51." The transcript reference was to pages 524(42)-527(18). The judge looked at the material and said: "That's it, isn't it, Mr Lazarus, that will be the totality of the evidence that points, extent and time. LAZARUS: As far as I'm aware." That was precisely the material extracted by the judge in her reasons, together with counsel's agreement that it was indeed the totality of the evidence relied on.
The appellants needed to establish more than the fact that some excavation had been undertaken prior to 6 March 2019; clearly the RL which identified the extent of the excavation approved under the ABC plans had not then been reached. Further, it was understood that, prior to that part of the excavation which required shoring and piling, it was necessary to undertake preparation work, clearing the site, removing overspoil and testing for the piling. Mr Taouk accepted that piling would have started in mid to late January and that piling work carried out in February was not in accordance with the ABC plans. The problem, as identified by the trial judge, who had heard extensive evidence from the experts as to the precise differences between the two sets of plans and the areas of the site which were the subject of the differences in piling, was that the evidence was imprecise as to what piling was undertaken in February which differed from the ABC plans, and whether it was significant in extent. Mr Taouk was unable to provide that information. None of the experts had seen the site in February 2019.
In the course of argument in this Court, the appellants relied upon a "Nearmap" image (being an aerial photograph) dated 4 March 2019. The image shows excavation occurring on the site but it is not possible, without expert evidence, to draw any conclusions as to the depth of the excavation, nor as to the extent of shoring and piling (if any) which had been undertaken at that stage.
The respondents pointed out that the image was not shown to Mr Taouk and was not introduced until day 12 of the trial, being shown to the third respondent, to establish that the crane base had been constructed or partly constructed on his land by 4 March 2019. [25] No questions were asked about any aspect of the construction site itself.
It is at least doubtful that inferences adverse to the first and second respondents could be drawn from that document without it being placed before the principal witness for the second respondent, Mr Taouk. Further, it does not appear that the trial judge was asked to draw inferences based on this document of the kind now sought to be drawn by this Court.
There is, as the respondents properly noted, a further difficulty with the appellants' case with respect to the proposed inferences. To know whether what was shown in the image demonstrated significant work consistent only with the TQM plans would have required careful identification by reference to two sets of engineering plans, without the assistance of the experts. There can be no doubt that the trial judge, who had access to expert opinion not available to this Court, would have been in a far superior position with respect to that exercise. The fact that she was not invited to undertake it is fatal to the appellants' case on appeal in this respect.
Ground 3 must be rejected.

Orders

Against the possibility that this Court might uphold some aspect of the appeal, the respondents provided a large volume of material as an exhibit to their solicitor's affidavit, setting out the stage reached by the development since the hearing in the Land and Environment Court. The material would have raised large questions as to the discretionary relief available to the appellants. In the event, it is not necessary to address that material, except to note the unresolved issues it would raise. Otherwise, the appropriate course is to dismiss the respondents' motion seeking to rely on further evidence. This step should not affect the order for costs, the respondents having succeeded on other grounds.
The appellants' grounds of appeal having been rejected, the Court should make the following orders: 1. Dismiss the appeal from the judgment of the Land and Environment Court delivered on 5 March 2020. 2. Order that the appellants pay the first-third respondents' costs of the appeal on the ordinary basis and the costs of the fourth and fifth respondents on a submitting basis.
PAYNE JA: I agree with Basten JA.
BRERETON JA: I agree with Basten JA.

Endnotes

The first approval was given by the Sydney East Joint Regional Planning Panel.
Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 ("Omaya Investments (No 5)").
Tcpt, 26/10/20, p 2(27)-(40).
The transitional provisions relating to the 2018 amendments to the Planning Act are discussed below.
Omaya Investments (No 5) at [145]-[150], [169].
Tcpt 01/11/19, p 543(47).
Tcpt, p 544(5)-(13).
Omaya Investments (No 5) at [194].
Omaya Investments (No 5) at [194], [195].
Omaya Investments (No 5) at [42].
Omaya Investments (No 5) at [176].
Omaya Investments (No 5) at [182].
Omaya Investments (No 5) at [195].
Omaya Investments (No 5) at [201]-[202].
Omaya Investments (No 5) at [204].
[2014] NSWCA 404 (Sackville AJA, McColl and Barrett JJA agreeing).
Omaya Investments (No 5) at [229].
See 2017 Amending Act, Sch 6, Pt 6.2, cl 10.
Environmental Planning and Assessment Amendment Regulation 2018 (NSW), cl 2.
Originally found in sub-cl 18(1), and then moved to cl 4.
Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW) ("the Certification Regulation"), cl 2(1).
Planning Regulation, cl 143B (inspection required where existing building affected) cl 143C (making record of inspections).
Omaya Investments (No 5) at [200].
Appellants' written submissions, 15 September 2020, pars 55, 66.
Tcpt, 4/11/2019, p 630. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2021

Environmental Planning and Assessment Amendment Act 2017(NSW)

Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019(NSW)

Environmental Planning and Assessment Amendment Regulation 2018(NSW)

Environmental Planning and Assessment Regulation 2000(NSW)

Planning and Assessment Act 1979(NSW)

At a glance

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