Quin v O'Malley t/as Yellamo Building Certifiers and Another

KEY ISSUES: :- Construction Certificate:- Jurisdictional fact is the formation of the requisite opinion of the certifier - decision to issue can be subject to judicial review.

Environmental Planning and Assessment Act 1979 s 76A(1), s s 80A(1)(f), s 81A(2), 81A(5), s 96, s 109C(1) LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 cl 145(1)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ; Lesnewski v Mosman Municipal Council [2004] NSWLEC 99, unreported ; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; CASES CITED: Moy v Warringah Council (2004) 133 LGERA 49; Warringah Council v Moy [2005] NSWLEC 416, unreported ; Williams v Blue Mountains City Council [2001] NSWLEC 73, unreported

DATES OF HEARING: 25/08/2005, 26/08/2005, 31/08/2005 (written submissions), 01/09/2005 (written submissions).

APPLICANT Mr G B Newport (Barrister) SOLICITORS Doyles Construction Lawyers

LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr T G Howard (Barrister) SOLICITORS Wilshire Webb

SECOND RESPONDENT Mr M C Fraser (Barrister) Sid Hawach & Associates

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40010 of 2005 Quin v O'Malley t/as Yellamo Building Certifiers and Another

JUDGMENT 1 Talbot ACJ: Ken Chun Ban Quin ("the applicant") in these proceedings is the owner of a property known as 169 William Street, Bankstown situated to the south of land owned by Artec Developments Pty Ltd ("the second respondent"). 2 On 13 January 2003 Bankstown City Council granted development consent to development application No.379/2002 for the construction of a villa and town house development on the second respondent's land. The approved works included the construction of a retaining wall abutting the common boundary between the applicant's land and the property of the second respondent. 3 On 15 October 2003 Michael O'Malley, trading as Yellamo Building Certifiers ("the first respondent") issued construction certificate No. 212/2003 in relation to the development. The second respondent has carried out the development on the land adjoining the applicant's property which is known as 171-171A William Street, Bankstown. 4 It is alleged by the applicant that the construction certificate issued by the first respondent to the extent that it refers to works pertaining to the retaining wall is invalid. It is also alleged that the retaining wall is constructed contrary to the terms of the development consent and in the alternative has been constructed contrary to the construction certificate. 5 On 4 June 2005 the first respondent issued a Final Occupation Certificate, No. 90/2005. The applicant claims that it was not open to the first respondent to be satisfied that a development consent was in force in respect of the retaining wall as constructed and alternatively it was not open to the first respondent to issue a final occupation certificate in respect of parts of the building described in the consent. 6 The applicant claims relief by way of a declaration that the construction certificate is invalid and that the second respondent has carried out development without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). He also seeks a declaration that the Final Occupation Certificate issued on 4 June 2005 is invalid. The consequential orders claimed include that the second respondent demolish the retaining wall and carry out remedial works to rectify damage to the applicant's property. No consequential orders are sought against the first respondent. 7 The evidence discloses that the retaining wall itself is constructed wholly within the land of the second respondent. However excavation and fill on the southern side of the retaining wall has occurred within the applicant's land. Agricultural pipes have been laid within the applicant's land at the base of the retaining wall. 8 The plans approved by the development consent show the position of a retaining wall abutting the common boundary within the land of the second respondent. 9 Condition 24 of the development consent provides as follows:- 24) Where Council approved cut or fill exceeds 150mm and a stable batter of 1 vertical to 4 horizontal maximum grade cannot be achieved, then a concrete or masonry retaining wall shall be constructed within the development site. Note filling of the site needs specific approval from Council. The retaining wall shall be located so that it will not impede or obstruct the natural flow of stormwater and shall be designed by a Chartered professional Civil / Structural Engineer. Plans and details prepared and signed by the Engineer are to be submitted to the Principal Certifying Authority (PCA) prior to the issue of the Construction Certificate. 10 The first respondent certified that the work, if completed in accordance with plans stamped by him and attached to the construction certificate, will comply with the requirements of the EPA Act, s 81A(5). 11 The construction certificate drawings show the location of the retaining wall inside the boundary of the second respondent's land. However the wall detail shows in section that compacted granular fill is to be placed behind the wall with a "100 agg. drain in blue metal fill" adjacent to the base of the wall. The cross section of the retaining wall does not identify the location of a boundary. The applicant was never requested to nor gave his consent to the development application in respect of prospective works to be carried out on his land. The validity of the construction certificate 12 Erection of a building in accordance with a development consent must not be commenced until a construction certificate for the building work has been issued (s 81A(2)). 13 A construction certificate is defined in s 109C(1) as a certificate to the effect that work completed in accordance with the specified plans and specifications will comply with the requirements in the regulations referred to in s 81A(5). Section 81A(5) does no more than provide the regulation making power concerning the issue of certificates for the erection of buildings.

14 The relevant regulations are contained in Part 8, Division 2 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation"). Regulation 145(1) provides for the matters in respect of which the certifying authority must be satisfied before issuing a construction certificate, as follows:- (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires, (a) that 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, (b) that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made). 15 It is not necessary to deal with all of the regulations concerning the application for and the issue of a construction certificate for the purposes of this case. However a comprehensive review of the legislation applicable to construction certificates was undertaken by me in Marvan Properties and Another v Randwick City Council (2005) 138 LGERA 1. 16 No evidence is relied upon by the first respondent. The certificate issued by the first respondent on 15 October 2003 contains the following paragraphs:- As Principal Certifying Authority, I certify that the work, if completed in accordance with the nominated plans and specifications will comply with the requirements of the Environmental Planning and Assessment Act 1979, Section 81A(5). 17 The paragraph appears above a signature purporting to be that of Mr O'Malley. No challenge to the identity of the signature is made. The evidence needs to go no further as the terms of the certificate itself are evidence of the relevant satisfaction by the certifier (Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [48]). Nevertheless enquiry as to the satisfaction of the certifying authority can be the subject of judicial review on conventional administrative law grounds (Lesnewski at [88]). 18 The applicant relies upon a contention that the satisfaction by Mr O'Malley was manifestly unreasonable to the extent that no reasonable certifying authority could have been so satisfied in the circumstances (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 224). To support this contention Mr Newport, who appears for the applicant, relies upon condition 24 of the development consent. 19 The following further matters are relied upon by the applicant to justify the submission that the decision by the certifier that the construction plans were not inconsistent with the development consent was manifestly unreasonable:-

(1) The development consent was issued only in respect of development of the second respondent's land. (2) The drawings lodged in support of the development consent show the retaining wall along the common boundary located within the land of the second respondent. (3) The construction drawings show the retaining wall constructed along the common boundary inside the property of the second respondent. (4) Cross section drawings of the retaining wall in the construction certificate plans shows a strip footing 400mm deep with variable base depending upon the height of the wall above extending either side of the base of the wall. (5) The cross section drawings in the construction certificate plans show an excavation behind the wall filled with "compacted granular back fill" 300mm in width. (6) A 100mm agricultural drain with blue metal fill is shown outside the wall at its base within the compacted granular back fill. (7) What appears to be the boundary line between the two properties is depicted in the drawings outside the southern face of the wall. 20 It is the applicant's submission that it is unambiguously clear that the construction certificate drawings show that integral parts of the retaining wall works are located on the applicant's land. The compacted granular back fill with agricultural drain are alleged to be the integral parts of the design and an essential part of the provision of structural adequacy and accordingly are part of the design of the wall in response to condition 24; there being excavation in excess 150mm without batter. 21 The argument by the applicant appears to be that once it is established that the compacted granular fill and the agricultural drain are part of the design of the retaining wall, then the wall must be regarded as situated on the applicant's land contrary to the depiction in the consent drawings particularly in the acknowledged circumstance that there was no consent from the applicant in respect of any work on his land. 22 No condition contemplated by s 80A(1)(f) was imposed by the council when it granted development consent. According to Mr Newport this provision deals with the carrying out of works not being works on land to which the applicant relates and in the absence of a relevant condition in that respect any work on the applicant's land is not authorised by the consent and therefore contrary to the legislative scheme of the EPA Act. 23 It is submitted therefore that it was not reasonably open for the certifier to form the requisite opinion of satisfaction in circumstances where the construction certificate plans depicted part of the retaining wall on the applicant's land where the consent of the owner of the land had not been obtained beforehand. 24 By contrast with s 96, which contemplates that a modification should result in "substantially the same development", regulation 145 requires satisfaction that the design and construction of the buildings depicted in the plans "are not inconsistent" with the development consent. It is apparent therefore that the degree of variation contemplated by regulation 145 is less than the limitation imposed by s 96 (Moy v Warringah Council (2004) 133 LGERA 49). However a finding of inconsistency by the court, as a question of fact, is not a justification for a finding for manifest unreasonableness of the Wednesbury type. 25 The primary critical question that arises for adjudication in relation to a finding of manifest unreasonableness is whether the compacted granular back fill and agricultural drain are sufficiently specific elements of the design that they are to be regarded as part of the retaining wall. 26 Notwithstanding any degree of distinction or difference between the wall the subject of the development consent and the wall as depicted in the construction certificate plans, the essential point upon which the applicant relies is that the latter encompass works on the applicant's land. This submission, put in its plainest terms, is that no inference could be drawn that the development consent contemplated works on the applicant's land. In fact condition 24 expressly stated to the contrary. 27 In response to an argument by the first respondent that the development consent did not resolve or specify what peripheral or further works might be required in order to actually build the retaining wall, the applicant says that if there were in fact essential works that were not the subject of the approval then either the development application was not finally determined or the additional works do not have the benefit of a development consent. Accordingly as the development consent did not approve any works on the applicant's land, it was not open for the certifier to form the requisite opinion that the construction certificate plans were not inconsistent with the consent. I reiterate that this is said to be particularly so as condition 24 insisted that the retaining wall be constructed within the boundaries of the development site. Determination of the claim against the first respondent 28 I am not convinced that it is realistic to regard the fill and agricultural drain as part of the retaining wall contemplated by the development consent. The conceptual plan approved by the council depicted a wall occupying that part of the second respondent's land abutting against the southern boundary with the applicant's land. There can be no doubt that condition 24 reflects an understanding by the council that any retaining wall shall be constructed within the development site. In the case of the subject wall it was shown on the plans as being so situated. 29 In my opinion it was open for the certifier to recognise that as a matter of structural imperative a retaining wall would have the benefit of support necessary to ensure its stability. The engineers have taken this imperative into account by providing for the fill at the rear of the wall in accordance with normal practice. Recognising the need for the wall to have structural integrity, the certifier was entitled to assume that any necessary ancillary below ground works on the southern side of the wall are not inconsistent with a development consent that expressly gave approval to plans showing a wall built along a boundary. Although no express condition was imposed pursuant to s 80A(1)(f) of the EPA Act, and if even if it had been, foreseeably and arguably the second respondent had the obligation to obtain the permission of the adjoining owner to carry out works on his land and if necessary obtain any further consent in respect thereof. 30 By issuing the construction certificate, the certifier was doing no more than stating that if the work was completed in accordance with the construction certificate plans and any specifications in connection therewith it would comply with the requirements of the regulation 145 made pursuant to s 81A(5) of the EPA Act, which includes that the design and construction of the building will not be inconsistent with the development consent. It was perfectly open for the certifier to issue a certificate to that effect notwithstanding the revelation by the more detailed plans that work was required on the adjoining land. If the plans had not depicted the construction of the wall and ancillary works in the manner shown in the construction certificate plans, arguably the certifier may have been in breach of a duty to ensure that they comply, not only with the development consent, but also, for example, the relevant requirements of the Building Code of Australia. 31 Although I have not accepted that the granular fill and the 100mm agricultural drain form part of the retaining wall it is nevertheless correct that the work in connection with the construction of the retaining wall extended to the excavation, placing of the fill and laying of the agricultural drain. Even if these works are in some way deemed to be part of the wall I would apply the same reasoning to the effect that the works were an essential element of the wall and that the approval of the development application based upon plans showing the location of the wall itself along the boundary necessarily implied that the ancillary works would be necessary, whether or not they formed part of the wall. For this reason I do not need to make a formal finding in respect of whether the fill and drain actually form part of the wall but I am inclined to the view that they are merely ancillary works and do not comprise part of the wall itself (Williams v Blue Mountains City Council [2001] NSWLEC 73, unreported). 32 In Warringah Council v Moy [2005] NSWLEC 416, unreported Bignold J dealing with a different set of differences between the approved development plans and the plans certified, rejected the proposition that the certifying authority had contravened regulation 145(1)(a) notwithstanding a plethora of changes including a major change to the level of a car park, raising of floor levels and a significant number of changes to fenestration. Similarly in Lesnewski v Mosman Municipal Council [2004] NSWLEC 99, unreported Pain J was satisfied that notwithstanding changes in support structures, a setting forward of the building and a reduction in the level of a swimming pool the certifier did not act contrary to regulation 145(1)(a) when certifying that the construction certificate plans complied with the requirements of the Act. 33 Both of these decisions recognise the level of inconsistency that it is reasonable for a certifier to tolerate when considering building and construction plans that by their nature deal with the finer detail of construction and practical completion of building work. Bignold J held that the relevant statutory limitation on the power of a certifying authority to issue a construction certificate by reference to the requisite satisfaction on the part of the certifying authority treats that satisfaction according to the subjective standard. Bignold J at [63] explained the statutory test imposed by regulation 145(1)(a) requires:- a comparison (yielding the result of "not inconsistent") between: (i) the design and construction of the building (as depicted in the CC plans and specifications) and

(ii) the development consent. 34 Bignold J also points out the difference between the development consent and the development consent plans for the purpose of making the relevant comparison. In this context it is appropriate to note that the development consent granted to the second respondent required in condition 1 that the proposal shall comply with the conditions of development consent. Condition 1 continues:-

1. In this regard a Construction Certificate shall not be issued until the plans and specifications meet the required technical standards (i.e, compliance with Council's DCP 30 - Engineering Requirements for Development) and the relevant conditions of this Development Consent are satisfied. 35 I have had regard to the whole of the development consent and not merely the plans for the purpose of testing whether it was open for the first respondent to be relevantly satisfied for the purposes of regulation 145(1)(a). 36 It cannot be said for the reasons I have already explained that the first respondent, in issuing the relevant construction certificate, lacked the requisite satisfaction. There is nothing arising from a comparison of the development consent with the construction certificate plans that could justify a conclusion that it was not relevantly open for the certifier (or unreasonable in the Wednesbury sense) to be satisfied that the construction certificate plans were not inconsistent with the development consent. 37 Support for the proposition that the only relevant jurisdictional fact arising out of regulation 145(1)(a) is that the certifying authority must in fact be satisfied of the matters referred comes from the judgment of Tobias JA in Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [43] and [44] as follows:- 43 Support for the foregoing is to be found in the following observations of Spigelman CJ in Woolworths at [25] where he said: "A criterion expressed in terms of the opinion or satisfaction of a decision-maker may be a jurisdictional fact of a special kind, one more readily established. (See, e.g. City of Enfield at [34]; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198 per Gummow J; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 291 at 303.) The Court may subject the opinion to judicial review. It will not determine whether the development was, in fact, consistent with the objectives of the zone." 44 Furthermore, in Moy v Warringah Council (2004) 133 LGERA 49 at 60 [62], Sperling J, with whom Sully and Simpson JJ agreed, held that Regulation 145, in contrast to s 96 of the EPA Act , "calls for a finding of fact by a tribunal (the court) as to whether another person (the certifying authority …) was satisfied that the variation, in nature and degree, was allowable. In one case [s 96] it is a tribunal's own opinion that counts. In the other [Regulation 145], it is a tribunal's finding of fact as to the opinion of the certifier that counts." 38 In the whole of the circumstances I have decided that the claim against the first respondent fails. Costs and other orders 39 There is no reason that is readily apparent to me, notwithstanding a lack of a full and detailed argument in that respect that the applicant should not pay the first respondent's costs. 40 To enable a proper consideration of these reasons I allow 14 days for the parties to bring in appropriate orders relating to the proceedings against the first respondent. I list the matter for mention at 9.30am on 7 October 2005 to enable directions to be made for the further conduct of the proceedings between the applicant and the second respondent.

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