Reece Australia Pty Ltd v Alamdo Holdings Pty Ltd [2026] NSWCA 175 | Case summary

Reece Australia Pty Ltd v Alamdo Holdings Pty Ltd [2026] NSWCA 175 | Case summary | Zoe

Plain English Summary

The Court of Appeal upheld the finding that Reece was responsible for a significant part of the delay that meant no occupation certificate was obtained by the Lease deadline. Council had required a BCA report before Reece lodged its application, and the required report needed to assess both the existing building and the proposed fit-out clause by clause. Reece’s report did not do that, and the later correction process took time. The Court found that the Fire Safety Order did not explain the initial report requirement or establish an independent cause of the missed deadline. Other information requests were not enough to change the result, and the construction program could have been achieved in time. The appeal was dismissed, and Reece was ordered to pay Alamdo’s costs.

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Deep Dive

2,508 words · generated 08/10/2026

What happened

Reece Australia Pty Ltd leased Unit 4 of a commercial warehouse from Alamdo Holdings Pty Ltd under a lease executed on 23 December 2022. Reece intended to use the premises for wholesale trade, which required development consent for fit-out works and a change of use. The Lease set out a sequence of steps: Reece was to apply for development consent, provide the information Council required to process that application, apply for a construction certificate after consent, and apply for an occupation certificate after practical completion of the works: [27]-[28].

The central contractual provision was Article 29(2), requiring Reece to “provide all plans, statements and other information required for Council to expeditiously process its application”. Article 29(9) gave either party a right to terminate if an occupation certificate was not obtained within six months of commencement, being 23 June 2023, subject to the Lease’s terms: [5], [27]. The trial judge construed Article 29 as preventing a party from relying on that termination right where its own breach or default brought about the failure to obtain the certificate by the deadline. Reece did not challenge that construction on appeal: [54]-[59].

Before lodgement, Novatec, Reece’s development application consultant, contacted Council and was told a “BCA report for a fit out” was required. Reece arranged a report, but the first version was produced quickly and without an inspection. It did not assess the Building clause by clause against the BCA: [21]-[22], [31], [73]-[77]. Council’s First RFI, issued on 2 February 2023, identified that deficiency and requested a clause-by-clause assessment of the Building: [32].

The later reports and responses also took time. Council issued further requests, and the relevant deficiencies were not addressed until a later report was supplied in May 2023: [38]-[48]. Development consent was granted on 1 June 2023: [50]. Reece did not apply for a construction certificate, and no occupation certificate was obtained by 23 June 2023: [51].

At trial, Alamdo obtained declarations that Reece’s purported termination was invalid and that the Lease remained on foot. The trial judge also entered judgment for Alamdo for unpaid rent and outgoings. Reece appealed, arguing that the BCA report was not required until the First RFI, that Alamdo’s outstanding Fire Safety Order caused or contributed to the delay, that other Council requirements would have caused delay anyway, and that the works could not have been completed in time even if Reece had complied: [7]-[8]. The Court of Appeal rejected those arguments and dismissed the appeal with costs: [206].

Why the court decided this way

The Court treated the content of Council’s requirement as an objective question. The evidence showed that Council had requested a BCA report before the application was lodged. The significance of the request was not resolved merely by the phrase “for a fit out”. The Court considered what a BCA report was for, the relevant planning context, the expert evidence, and the information Council needed to assess the application: [125]-[136].

The experts explained that a report assessing compliance with the BCA helped Council perform the function described in s 64(2) of the Environmental Planning and Assessment Regulation 2021 (NSW). Where s 64 applied, Council had to consider whether the existing building should be brought into total or partial conformity with the BCA. A report limited to the proposed fit-out, or one that simply identified matters for later consideration, would not provide the relevant assessment information: [132]-[139]. The Court concluded that the report required was a clause-by-clause assessment of the Building and the fit-out: [136]-[149].

The Court also rejected the argument that the absence of an express statutory rule requiring a BCA report to accompany the application meant that Article 29(2) was not engaged. The Lease covered requirements communicated by Council, not only requirements found in legislation. Council had a lawful purpose for seeking the report because the application concerned a change in use of premises in an existing building and raised the possible application of s 64: [65], [147]. In addition, the evidence was that BCA compliance would need to be demonstrated at later stages of the certification process: [148].

The Court gave an alternative answer to the argument that Council’s initial request was too general to identify the necessary content. If Reece or Novatec was uncertain about what Council required, the contractual obligation to provide the required information expeditiously called for clarification. Submitting a report that might not meet Council’s needs was inconsistent with that obligation: [151]-[152].

On causation, the Court separated the original requirement for a BCA report from the later assessment of the Fire Safety Order. The initial request came before the Lease was signed, through a generic checklist and a conversation with Council. There was no evidence that the checklist or the person who spoke with Novatec was responding to the outstanding Fire Safety Order: [155]-[158]. The Lease also contemplated that Alamdo might need to carry out base-building compliance works: [162]. The Court found no evidence that the outstanding order independently prevented consent once the required report was supplied: [160].

The Court considered the other Council questions and the counterfactual timing. It accepted that Council might have issued an RFI even if an adequate report had accompanied the application. But the relevant questions were generally minor, could be addressed quickly and concurrently, or reflected Reece’s own indecision about the mezzanine: [167]-[183]. Council’s 30-day response period under s 36(3) of the EPA Regulation did not alter Reece’s separate contractual obligation to Alamdo. The contract’s purpose was to achieve the agreed timetable, not merely to meet Council’s minimum response deadline: [184]-[185].

Finally, the Court upheld the trial judge’s assessment of the proposed works program. It accepted that Mr King’s program was aggressive but achievable. The Court found that alleged concessions about extra time were overstated and that the available buffer was sufficient: [188]-[200]. The lease periods requiring steps “within” 14 days or two days did not require Reece to wait for those periods to expire before acting: [195]-[196].

Before and after state of the law

The judgment does not purport to announce a new general rule for development applications or commercial leases. It applies the wording of this Lease, the evidence about the Council request and the relevant statutory setting. The operative contractual language was Article 29(2), which required Reece to provide “all plans, statements and other information required” for Council to process its application expeditiously: [27].

On the facts, the Court treated a requirement communicated by Council as capable of engaging that clause even though no statute expressly required the particular report to be filed with the application: [65], [147]. The content of the requirement depended on an objective assessment of what Council’s request signified in context, rather than on the private understanding of Reece or Novatec: [130], [144]-[149]. The decision therefore illustrates the importance of identifying both the words used by the regulator and the purpose those words served in the statutory process.

The Court also applied the established contractual causation approach recorded in the judgment. The trial judge had concluded that material contribution could be shown where the breach deprived the other party of a substantial chance of the relevant condition being fulfilled. That test was not challenged on appeal: [60]-[61], [187]. The appeal accordingly did not decide a contested issue about the proper formulation of that test. It applied the test to the evidence about Council processing and the counterfactual works timetable.

The judgment’s treatment of the Fire Safety Order is specific to the evidence and the Lease. It does not establish that an outstanding fire safety order can never affect a development application or contractual causation. Rather, the Court found no demonstrated link in this case between the order and the Council’s initial request, and no evidence that it independently prevented consent once Reece provided the required material: [155]-[162].

Similarly, the judgment does not establish that statutory time periods are always irrelevant to contractual performance. It holds that the 30-day period Council allowed under s 36(3) did not define Reece’s distinct contractual obligation to act expeditiously for Alamdo’s benefit under Article 29(2): [184]-[185]. The result turned on the Lease’s stated purpose and its six-month timetable.

Key passages with plain-English translation

At [130], Free JA states: “The question of fact is ultimately an objective one, involving identification of what was signified by Council’s requirement to provide a ‘BCA report’.” In plain English, the question was not simply what Reece’s consultant thought the request meant. The Court had to decide what a reasonable understanding of Council’s request was in the relevant planning context.

At [136], the Court explains that a report assessing the Building and fit-out clause by clause would give the consent authority information needed for its s 64(2) assessment. Put simply, Council needed to know what complied and what did not so it could decide whether some or all of the existing building should be upgraded. A report that merely identified issues for later investigation would not serve that purpose: [137]-[139].

At [147], Free JA explains that the absence of an express statutory filing rule “goes nowhere” because Reece accepted that Article 29(2) could be triggered by a requirement Council communicated. In plain English, the contract required compliance with relevant Council requests, not only with requirements expressly written into legislation.

At [152], the Court states that if the request was uncertain, Reece was required to seek clarification rather than provide a report that might not satisfy Council. The practical point is that, on the Court’s reading of this particular contract, uncertainty about a requested document did not remove the obligation to deal with the request properly.

At [185], the Court explains that Reece’s obligation to act expeditiously was owed to Alamdo and served the Lease timetable. Council’s willingness to allow 30 days did not mean Reece could use that entire period if a faster response was required to meet its separate contractual commitment.

At [196], the Court rejects the suggestion that the Lease required Reece to wait 14 days before applying for a construction certificate. The words “within 14 days” set an outer period for acting, not a waiting period. The Court applied the same reasoning to the two-day period for applying for an occupation certificate.

What fact patterns trigger this precedent

The reasoning is most relevant where a commercial lease makes one party responsible for obtaining planning or building approvals, requires it to provide information requested by a consent authority, and links a termination right to a deadline for obtaining a certificate. The precise wording matters. Here, Article 29(2) expressly required all information Council needed to process the application expeditiously, and Article 29(9) set a six-month occupation-certificate deadline: [27].

The decision may also be relevant where a regulator’s request is brief or general, but expert or other evidence may establish what the requested document ordinarily needs to contain. The Court looked beyond the words “BCA report for a fit out” to the report’s purpose, the statutory function, professional evidence and the later RFIs: [125]-[149]. It also treated clarification as relevant where there was genuine uncertainty about the content of the request: [151]-[152].

For causation, the judgment is relevant where a party argues that delay had multiple causes. The Court examined whether the alleged alternative causes were independent, whether they would have arisen in the counterfactual, how quickly they could have been resolved, and whether they were actually caused by the party alleging them: [167]-[183]. It also considered whether the alleged breach deprived the other party of a substantial chance of timely performance: [61], [197]-[200].

The judgment should not be read as deciding every case involving building compliance, fire safety orders or staged certification. It did not decide whether a staged construction certificate was legally available, because the accepted works program did not depend on it: [201]-[205]. Nor did it make a final finding that Alamdo breached Article 13.05: [154], [160].

How later courts have treated it

The supplied judgment contains no later judicial treatment of this decision. It was delivered on 27 August 2026, and the material provided does not identify subsequent cases that applied, followed, distinguished or criticised it. Any assessment of its later treatment therefore cannot be made from this judgment alone.

The judgment itself identifies several earlier authorities in relation to contractual causation and the effect of a party’s own default. It records the trial judge’s reliance on Kyrwood v Drinkwater, Cypjayne Pty Ltd v Babcock & Brown International Pty Ltd, Mitchell v Pattern Holdings Pty Ltd and Gange v Sullivan when discussing whether a breach caused or materially contributed to the non-fulfilment of a contractual condition: [60]. It also records the substantial-chance approach discussed in Masters v Belpate Pty Ltd, Mordue v Kroone and Joseph Street Pty Ltd v Tan: [61]. The Court states that the appropriateness of that test was not challenged on appeal: [187].

For the appeal standard concerning a factual finding, Free JA applied Robinson Helicopter Company Inc v McDermott, stating that Reece bore the burden of demonstrating that the trial judge’s finding about what Council required was wrong: [122]. The Court also cited Westfield Management Limited v Perpetual Trustee Company Limited when addressing the construction of the Lease as a whole: [162]. These references explain the legal framework applied in this case; they do not establish how later courts will treat the 2026 decision.

Still-open questions

The Court expressly left open whether a staged construction certificate process was available or consistent with the relevant consent, lease and statutory provisions. Because Mr King’s program did not depend on a staged approach, there was no need to decide those questions: [201]-[205]. That issue would require determination in a case where the outcome depended on the availability or legality of staged certification.

The judgment also did not decide whether Alamdo was in breach of Article 13.05 because of the outstanding Fire Safety Order. The Court found it unnecessary to determine that hypothetical question, since the evidence did not establish the necessary causal connection to the failure to meet the deadline: [113], [160]. Reece abandoned its appeal ground concerning waiver or estoppel, and Alamdo did not raise those matters by notice of contention: [154]. Their possible operation was therefore not resolved.

The Court did not need to decide the outer limits of what Council could lawfully require under s 64 of the EPA Regulation. Reece accepted that a requirement communicated by Council could engage Article 29(2), and did not establish that Council’s actual request was unlawful: [65]-[68], [147]. The decision addressed the specific report request and application before it.

Finally, the judgment did not decide a contested general question about the substantial-chance test. Reece abandoned its ground challenging that test, and the Court proceeded on the basis that the test applied: [61], [187]. The decision’s contribution is principally its application of that approach to the particular evidence concerning Council’s processing, alternative causes of delay and the works program.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.

Catchwords

APPEAL – from findings of fact – challenge to trial judge’s finding as to nature of information required by local council – appellant bore burden of demonstrating that finding was wrong – burden not discharged LEASES AND TENANCIES – default and termination – commercial lease – express right to terminate if occupation certificate not obtained by contractual deadline – implied limitation preventing party from relying on own breach or default – construction of lease not challenged on appeal – whether lessee entitled to terminate CONTRACTS – performance – discharge by performance – lessee required to provide all information required for Council expeditiously to process development application – Council requested “BCA report for a fit out” – whether request required clause-by-clause assessment of proposed fit-out and existing building – purpose of BCA compliance report – absence of express statutory requirement immaterial – obligation to seek clarification if request ambiguous – breach established CONTRACTS – causation – material contribution –substantial chance – whether outstanding fire safety order caused requirement for BCA compliance report or material delay – no causal connection established – other requests for information concerned minor matters capable of prompt and concurrent resolution – statutory period allowed by Council for response did not qualify contractual obligation to act expeditiously CONTRACTS – causation – counterfactual program of construction works – expert program aggressive but achievable – alleged concessions overstated – sufficient allowance for contingencies – substantial chance occupation certificate would have been obtained by contractual deadline ENVIRONMENT AND PLANNING – application concerning fit-out and change of use of premises in existing building – assessment under s 64(2) of Environmental Planning and Assessment Regulation 2021 (NSW) – purpose and required content of BCA compliance report

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Reece Australia Pty Ltd v Alamdo Holdings Pty Ltd [2026] NSWCA 175

Hearing dates: 30 and 31 March 2026

Date of orders: 27 August 2026

Decision date: 27 August 2026

Before: Bell CJ at [1]
Kirk JA at [2]
Free JA at [3]

Decision: (1) Appeal dismissed.
(2) The appellant is to pay the respondent’s costs.

Catchwords: APPEAL – from findings of fact – challenge to trial judge’s finding as to nature of information required by local council – appellant bore burden of demonstrating that finding was wrong – burden not discharged
LEASES AND TENANCIES – default and termination – commercial lease – express right to terminate if occupation certificate not obtained by contractual deadline – implied limitation preventing party from relying on own breach or default – construction of lease not challenged on appeal – whether lessee entitled to terminate
CONTRACTS – performance – discharge by performance – lessee required to provide all information required for Council expeditiously to process development application – Council requested “BCA report for a fit out” – whether request required clause-by-clause assessment of proposed fit-out and existing building – purpose of BCA compliance report – absence of express statutory requirement immaterial – obligation to seek clarification if request ambiguous – breach established
CONTRACTS – causation – material contribution –substantial chance – whether outstanding fire safety order caused requirement for BCA compliance report or material delay – no causal connection established – other requests for information concerned minor matters capable of prompt and concurrent resolution – statutory period allowed by Council for response did not qualify contractual obligation to act expeditiously
CONTRACTS – causation – counterfactual program of construction works – expert program aggressive but achievable – alleged concessions overstated – sufficient allowance for contingencies – substantial chance occupation certificate would have been obtained by contractual deadline
ENVIRONMENT AND PLANNING – application concerning fit-out and change of use of premises in existing building – assessment under s 64(2) of Environmental Planning and Assessment Regulation 2021 (NSW) – purpose and required content of BCA compliance report

Parties

Applicant/Plaintiff:

Reece Australia Pty Ltd

Respondent/Defendant:

Alamdo Holdings Pty Ltd

Legislation Cited (5)

Environmental Planning and Assessment Regulation 2021(NSW)

Cited:** Environmental Planning and Assessment Act 1979(NSW)

Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021(NSW)

Planning and Assessment Regulation 2021

Planning and Assessment Act 1979

Cases Cited (19)

[2011] NSWCA 173

[1966] HCA 55

BELL CJ: I agree with Free JA.
KIRK JA: I agree with Free JA.
FREE JA: The appellant, Reece Australia Pty Ltd (Reece), and the respondent, Alamdo Holdings Pty Ltd (Alamdo), entered into a commercial lease on 23 December 2022 (Lease) over Unit 4 (Premises) of a commercial warehouse (Building) at 6-8 Hudson Avenue, Castle Hill. The Lease was for ten years, with multiple options for renewal.
Reece purported to terminate the Lease on 27 June 2023. The issue arising on the appeal is whether it was entitled to do so.
The resolution of that issue turns on the operation of Art 29 of the Lease. Article 29 contemplates an application (development application) being made by Reece to the Hills Shire Council (Council) for consent for the carrying out of fit-out works and a change of use of the Premises. Under subclauses (1) and (2) of Art 29 Reece was required to make the development application prior to 23 December 2022 and was to “provide all plans, statements and other information required for Council to expeditiously process its application”. Article 29(9) conferred on each party an express right to terminate the Lease if an occupation certificate was not obtained within 6 months of commencement (being 23 June 2023). No occupation certificate was obtained by 23 June 2023, which prompted Reece to terminate the Lease in purported reliance on Art 29(9).
Alamdo denied Reece’s entitlement to terminate the lease. It did so on the basis that Reece had not performed its obligations with respect to the development application and was responsible for the delay in obtaining an occupation certificate. Alamdo commenced proceedings in August 2023 in the Commercial List seeking a declaration that Reece’s purported termination of the Lease was invalid and of no effect, a declaration that the Lease remains on foot, judgment for an amount for outstanding rent and outgoings payable under the Lease and other relief. Reece filed a cross-claim seeking a declaration that the Lease was terminated with effect from 27 June 2023 and other relief. The outcome of both Alamdo’s claim and Reece’s cross-claim turned on whether Reece was entitled to invoke the express right to terminate under Art 29(9). Reece did not identify any alternative basis to justify the termination. The trial was conducted on the basis that if the lease had not been validly terminated pursuant to Art 29(9) then Alamdo was entitled to the relief that it sought.
The trial judge found that Reece breached Art 29(2) of the Lease and there was a causal link between that breach and the failure to obtain an occupation certificate by 23 June 2023. As a result Reece was not entitled to rely on the express right of termination under Art 29(9). His Honour made a declaration to the effect that the purported termination was invalid and the Lease remains on foot. Judgment was given for Alamdo in the sum of $1,552,310.35, corresponding to unpaid amounts due under the Lease. The cross-claim was dismissed.
Reece’s appeal to this Court involves essentially four contentions. The first is that the trial judge erred in finding that under Art 29(2) of the Lease Reece was required to submit to Council a report that assessed on a clause-by-clause basis how the fit-out works and the Building complied with the provisions of the Building Code of Australia (BCA), as part of its development application and not merely in response to a later request from Council. The second is that the trial judge, when analysing the causes of delay, erred in assessing the impact of an outstanding fire safety order that had been issued to Alamdo by Council. The third contention is that the trial judge erred in concluding that Reece’s breach of Art 29, as found by his Honour, caused relevant delay in the issue of an occupation certificate. Reece argues that other factors would have relevantly delayed the process irrespective of the supposed breach. The fourth contention concerns evidence about the program of works that could have been carried out in the counterfactual scenario where Reece complied with Art 29(2). Reece argues that, contrary to the finding of the trial judge, there was not a substantial chance that an occupation certificate would have been issued by 23 June 2023 absent Reece’s breach.
None of these contentions should be accepted. The trial judge was correct to find that Reece failed to perform its obligations to provide the information required by Council to process the development application. The requirement to provide a BCA compliance report that assessed compliance with the BCA on a clause-by-clause basis, and the delay arising from Reece’s failure to comply with that requirement, did not arise from the outstanding fire safety order. Nor did it arise from the time required to comply with other requirements of Council. His Honour did not err in concluding that, absent Reece’s breach, there was a substantial chance that occupation certificate would have been issued by 23 June 2023. The appeal should be dismissed with costs.

The Building is divided into four units, being the Premises and units 3A, 3B and 5. The previous tenant of the Premises was Flip Out Australia Pty Ltd (Flip Out), which operated an indoor trampoline facility. Flip Out vacated the Premises in 2021.
In around April 2021, Alamdo and Reece commenced negotiations about a lease over the Premises. By around June 2021 Reece had prepared and provided to Alamdo fit-out plans for the Premises, involving a change in use from recreation to warehousing. Reece intended to use the Premises for wholesale trade.
On 19 August 2021, the Council issued to Alamdo “Fire Safety Order Number 1” (Fire Safety Order), pursuant to s 9.34(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Fire Safety Order described various inadequacies with the existing provision for fire safety in the Building and required Alamdo to undertake certain works in order to comply with relevant fire safety standards. The Fire Safety Order identified 17 separate items requiring remediation, including fire seals, various aspects of the fire hydrant booster, signage, emergency lighting, sprinklers and hose reels. Item 13 concerned work on the separation of external walls and openings in different fire compartments. The Fire Safety Order specified that compliance must be achieved by 15 February 2022. It was signed on and behalf of Council by its Senior Building Surveyor – Fire Safety, Mr Charbel Gittany.
Reece was not provided with a copy of the Fire Safety Order by Alamdo. Reece first became aware of it as a result of a search conducted by its solicitors, shortly before the Lease was executed.
In September 2021, Reece engaged Novatec Design Pty Ltd (Novatec) to prepare an initial plan or concept drawing for the Premises. Novatec took responsibility for managing the development application process on behalf of Reece. Novatec’s responsible manager for this project was Ms Aranka Young, who gave oral evidence at the hearing. Novatec in turn engaged Mr Brent Williams of BW&A National Building Consultants (BW&A) to ascertain, amongst other things, whether a fire wall (being a wall rated for the purposes of fire resistance) would be required between the Premises and the adjoining unit, Unit 5.
Following communications with Council about the change in tenancy, Council advised Mr Anthony Maurici, Alamdo’s principal, on 5 October 2021 that the new tenant would need to lodge an application for consent under the EPA Act for the change in use and for any proposed building work. Mr Maurici provided Reece with documents relating to Flip Out’s occupation of the Premises, including a 2013 report prepared by BuildCert Consultants (BuildCert) which was apparently prepared to accompany an application to be lodged with Council. The purpose of the Report was described as being to identify the relevant deemed-to-satisfy provisions of the BCA and “provide any non-compliances” with the relevant clauses of the BCA. It identified the Building as being of Type A construction for the purposes of the BCA.
In October 2021 Reece was advised through a report from its consultant engineer Mr Mitchell Howes (Howes Report) that the intertenancy wall between the Premises and Unit 5 did not meet the requirements for a fire wall. Reece shared the Howes Report with Alamdo. Mr Maurici took issue with the conclusion in the Howes Report and told Reece by email that there was no requirement for a fire wall as the Building was of Type A construction under the BCA. Mr Maurici in the same email complained about delay and said that Alamdo would be seeking other tenants. That precipitated a break in negotiations with Reece over the lease.
Negotiations resumed in around June 2022. On 14 June 2022 Reece asked the agent for Alamdo about the wall separating the Premises and Unit 5, and specifically asked if any fire rating had been installed on the wall. Mr Maurici responded to reiterate his view that the wall did not need to be fire rated. He invited Reece to have a BCA consultant review the Premises. A draft report was prepared by BW&A which identified the Building as being of Type A construction and concluded that to achieve an occupation certificate for the proposed new use the building would need to comply with BCA requirements, which may include construction of fire walls between tenancies and other fire safety works.
On 8 November 2022 Reece made an offer to lease the premises. It provided Alamdo’s agent with proposed fit-out plans and also the draft report of BW&A. Alamdo made a counter-offer some days later. Mr Maurici of Alamdo also commented on the draft report of BW&A, expressing disagreement with many aspects of the report including its conclusions concerning fire walls. On 17 November 2022 Mr Maurici sent Reece a copy of the BCA compliance report that had been prepared for Flip Out by BuildCert and an advice of 2015 by Mobius Fire Safety Pty Ltd (Mobius) which concluded that because the Building was Type A construction the intertenancy wall was not required to be a fire wall. Mr Maurici’s email to Reece stated:

Following the lodgement of the development application, Novatec’s employees were on Christmas leave. On 4 January 2023 Council issued a notice to Novatec regarding payment of the application fee of $2,458.00. The notice warned that the application could be rejected if the fee was not paid within two business days. The fee was paid by Novatec on 12 January 2023.
The application was reviewed within Council by Mr Gittany, the Council employee who had issued the Fire Safety Order. Mr Gittany determined that the BCA Report Version 1 was unsatisfactory for a number of reasons. One reason was that the report was “not a clause-by-clause assessment, just a mere summary of what the author believes is relevant for each section”. A further reason was the conclusion in the report that the building was Type A construction, whereas Mr Gittany considered that the Building had been compartmentalised and assessed as Type B construction. Mr Gittany’s opinion in that regard was based on a fire engineering report that had previously been provided to Council about the Building (Red Fire Engineers Report).
On 2 February 2023 Council issued to Novatec a request for information, pursuant to s 36 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), requesting Novatec to provide, within 30 days, additional information to enable the further processing of the development application (First RFI). The First RFI set out Mr Gittany’s criticisms of the BCA Report Version 1, and his conclusion that in order for Council to be satisfied that the Building is capable of complying with the BCA the applicant needed to submit a revised BCA report by a suitably qualified building surveyor assessing the Building, on a clause-by-clause basis, against various deemed-to-satisfy provisions of the BCA. The First RFI also requested a floor plan of the proposed mezzanine, details regarding the proposed number of staff and patrons expected on site and confirmation as to whether consent was sought to operate on Sundays. It further required that Reece address the issue of consistency between the proposal and the Red Fire Engineers Report. The First RFI indicated that the development application would be held in abeyance by Council pending receipt of the requested information.
On 16 February 2023 Ms Young had a discussion with Mr Gittany. Mr Gittany advised that the Building owner had not complied with fire orders which remained outstanding. Ms Young asked Mr Gittany if it would be acceptable to Council if Reece’s BCA report addressed only the fit-out as being compliant. Mr Gittany did not provide any assurance in that regard. On the following day Ms Radford of Reece sought confirmation from Mr Maurici that the works required by the Fire Safety Order had been completed. Mr Maurici responded in the following terms:

The issue regarding the Red Fire Engineers Report was resolved by a conversation between Ms Young and Council on 27 February 2023, with Council apparently accepting that the report was not relevant to the Premises.
Ms Young accepted in cross-examination that she understood at the time of receiving the First RFI that there was an urgency in dealing with it. On the day that she received it she forwarded it to Mr Williams, drawing his attention to the comments made by Council on the BCA Report Version 1. On the following Monday 6 February 2023 Mr Williams indicated to Ms Young that he would review his report in light of Council’s comments and prepare a revised version.
There was then some delay on the part of Mr Williams in preparing a further version of the BCA report. Ms Young was concerned about the delay and followed up Mr Williams. Ms Young set a deadline of 14 February 2023, but that was not achieved. Mr Williams carried out a site inspection of the Premises on 23 February 2023. On 28 February 2023 Mr Williams sent to Novatec a document described as a “Building Inspection Report”. It contained one page of text and some photographs.
One issue raised in that report concerned the floor loadings of the proposed mezzanine area. Novatec informed Mr Williams on 28 February 2023 that Reece did not propose to use the existing mezzanine area and would close off access to that area to prevent its use. Reece instead proposed to build a newly designed raised storage area, supported on the racking system beneath which was to be designed to carry the intended load.
Mr Williams provided a draft revised BCA report on 28 February 2023 (BCA Report Version 2). Ms Young provided comments to Mr Williams the following day, and also advised that Novatec was preparing new architectural drawings showing the new mezzanine storage area. The updated drawings were sent to Mr Williams on 3 March 2023 and he was requested to finalise the report as soon as he could. On 6 March 2023 Ms Young followed up Mr Williams noting the date for response to the First RFI had passed.
Novatec submitted the response to the First RFI to Council on 8 March 2023. The response included a revised BCA compliance report (BCA Report Version 3). BCA Report Version 3 identified the Building as being of Type A construction. It featured a table assessing various provisions of the BCA. It also contained a “Summary of Non-Compliance Issues” which included the following:

The response to the First RFI generated a further request for information from Council, issued on 16 March 2023 (Second RFI). The Second RFI was the product of a review of the response to the First RFI carried out by Mr Gittany. Among other things, the Second RFI indicated Council’s view that it was not acceptable for the BCA Report Version 3 to state, as it did in various places, that particular requirements of the BCA were “not applicable to fit-out works”. The author of the report was instead requested to advise if the Building was compliant or non-compliant. The Second RFI also noted an issue about the existing mezzanine area, noting that the floor area of the mezzanine as shown on the plans was such as to trigger requirements under the BCA for assessment of the access arrangements for the mezzanine.
On the same day that the Second RFI was issued, a conversation between Mr McKinley of Novatec and Mr Gittany resolved the issue concerning the mezzanine. Mr Gittany indicated that he would be happy if Novatec removed the existing mezzanine stairs, in which case the existing mezzanine would not be included in any floor area calculations. The issue about the need for assessment of access based on the size of the mezzanine would then fall away. On 17 March 2023 Mr McKinley sent an email to Mr Gittany which recorded the contents of this discussion and attached new drawings in which the mezzanine stairs were removed, reflecting Reece’s revised position. An internal memorandum prepared by Mr Gittany in the ensuing days showed that for the purposes of resolving the issue concerning the floor area this solution was satisfactory to Mr Gittany.
Mr Maurici had a conversation on 24 March 2023 with Mr Curran, a Fire Safety Coordinator at the Council, regarding BCA compliance issues, the report submitted by Reece and the proper classification of the Building (noting the ongoing confusion caused by references to Type B, rather than Type A, construction). The trial judge concluded, based on that conversation, that the main issue delaying the Council’s assessment of the application for development consent was the failure of the BCA reports submitted by Reece to contain a clause-by-clause assessment of the Building (as opposed to just the fit-out) against the provisions of the BCA. The classification of the building as Type A was not controversial, based on that discussion.
Mr Williams produced a further draft version of the BCA report (BCA Report Version 4) which was sent to Novatec on 29 March 2023. Certain changes to that draft were suggested by Novatec. There was then a further period of delay in which Novatec employees chased Mr Williams to finalise the report. On 6 April 2023 Mr Williams provided to Novatec another version of the report (BCA Report Version 5). That report included a conclusion stating “Building owner to upgrade non-compliant wall”, in reference to the intertenancy wall between the Premises and Unit 5. Novatec provided Council with the response to the Second RFI, including BCA Report Version 5, on the same day.

At trial Alamdo pursued two arguments about the construction of Art 29(9). The first argument focused on the express qualification that the right of termination under Art 29(9) is “subject to the Lessor complying with [Art 29(5)]”. Alamdo argued that this meant that the right of Reece to terminate the Lease only arose after Alamdo had fully complied with its obligations under Art 29(5). This argument was rejected by the trial judge and Alamdo has not sought to revive it on appeal.
Alamdo also submitted that, reading Art 29 as a whole, there was an implied limitation to the effect that a party seeking to rely on Art 29(9) to terminate the Lease could not, by its own breach or default, be the cause of the failure to obtain a construction certificate by the deadline. Alamdo invoked the principle that a party cannot take advantage of its own breach or default to terminate a contract: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 440-441; [1950] HCA 35, citing New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France [1919] AC 1 at 9. This is a principle which guides the construction of a contract. It can accordingly give way to sufficiently clear expressions of intention to the contrary: MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 at [42]. Based on this construction of Art 29 Alamdo argued that Reece had breached Arts 29(1) and 29(2) in a way that materially contributed to Reece’s failure to obtain an occupation certificate by 23 June 2023, and in the circumstances Reece could not invoke the right to terminate under Art 29(9).
Reece resisted the construction advanced by Alamdo. It argued that the only limitation on the right to terminate under Art 29(9) was the qualification expressly forming part of the words of the Article, relating to Alamdo’s obligations under Art 29(5). From this premise Reece contended that even if it breached Arts 29(1) or 29(2) that would have no impact on its right to terminate under Art 29(9).
The trial judge accepted Alamdo’s construction of Art 29. Reece’s interpretation of the clause was held to be one which no reasonable businessperson would give to the power to terminate.
The implied limitation on the exercise of the right to terminate constrained the rights of both parties. Alamdo’s right to terminate under Art 29(9) was conditional on Alamdo having complied at that time with its obligation to perform the Lessor’s Works “expeditiously and continually”. As to the implied limitation on Reece’s ability to terminate under Art 29(9), his Honour noted that the objective purpose of the parties, in agreeing to a “Procedure to be Followed” in the six-month period after commencement of the Lease, was to “ensure that both parties actively and expeditiously took steps to obtain an Occupation Certificate by the end of this period”: J[213]. For its part Reece was required to meet tight deadlines in order to achieve this outcome. It was required to:
apply for development consent on the date the Lease was entered into: Art 29(1);
provide all information required for the Council expeditiously to process the development application: Art 29(2);
apply for a construction certificate within 14 days of obtaining development consent: Art 29(4); and
apply for an occupation certificate within two days of practical completion of the Lessee’s and Lessor’s Works: Art 29(7).
The trial judge observed that in addition to such express obligations Reece was obliged to do all such things as were necessary to enable Alamdo to have the benefit of the Lease: Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45 at [36]. That reinforced the conclusion that Reece cannot rely on the right of termination under Art 29(9) if “its own default has brought about the event which triggers that right”.
On appeal Reece has not challenged the trial judge’s construction of Art 29. It has instead challenged the conclusion which his Honour proceeded to make on the facts about Reece having been in default of its obligations. Reece also challenges the trial judge’s conclusion that Reece’s default brought about the failure to obtain an occupation certificate by the deadline.

On the latter question of causation, the trial judge heard competing submissions on whether it was necessary, before finding that Reece was precluded from exercising the right to terminate, to find that there was a “direct causal relationship” between the breach and the failure to obtain an occupation certificate by the deadline (as Reece contended), or only that the breach “materially contributed” to that result (as Alamdo contended). After referring to a number of authorities involving broadly analogous contractual obligations, the trial judge concluded that there was no inconsistency between the two posited tests in the context of a contractual arrangement of this kind. The test of “material contribution” was found to be consistent with requiring “a direct causal relationship between the non-compliance and the failure to complete” (Kyrwood v Drinkwater [2000] NSWCA 126 at [154]) and with requiring a “causal link … between th[e] breach and the non-fulfilment of the condition precedent” (Cypjayne Pty Ltd v Babcock & Brown International Pty Ltd [2011] NSWCA 173 at [82]; (2011) 282 ALR 152). His Honour referred with approval to the principle as expressed in Mitchell v Pattern Holdings Pty Ltd [2002] NSWCA 212; (2002) 11 BPR 20,241 at [56(b)], namely whether the default “brought about, or at least materially contributed to, the occurrence of the relevant event”. That was held to be consistent with the statement of principle in Gange v Sullivan (1966) 116 CLR 418 at 441-442; [1966] HCA 55 where Taylor, Menzies and Owen JJ described the question of causation in a context of this kind as turning on whether a contractual default “contributed to” the non-fulfilment of a condition. The trial judge therefore concluded that the relevant test of causation was whether any breach by Reece of its obligations under Arts 29(1) or 29(2) caused or materially contributed to the failure to obtain an occupation certificate by 23 June 2023.
As to what a “material contribution” entails in this context, his Honour referred with approval to the decision of Hodgson CJ in Eq in Masters v Belpate Pty Ltd [2001] NSWSC 169; (2001) 10 BPR 18,527. At [66] Hodgson CJ in Eq stated that if the facts indicated that the relevant contractual condition would not have been fulfilled even if the breach had not occurred, the breach will not have made a material contribution to the non-fulfilment of the condition. However, if there is a “substantial chance” that the condition would have been fulfilled if the breach had not occurred, that will be sufficient to demonstrate that the breach materially contributed to the non-fulfilment of the condition. The notion that deprivation of a “substantial chance” of the condition being fulfilled equates to a material contribution was accepted by Brereton J in Mordue v Kroone [2009] NSWSC 255 at [16]; (2009) 14 BPR 26,771 and by the Victorian Court of Appeal in Joseph Street Pty Ltd v Tan (2012) 38 VR 241; [2012] VSCA 113 at [47]. This was the test which the trial judge came to apply to the facts of the present case. The appropriateness of this test was not challenged on appeal.

At trial Alamdo alleged that Reece breached two separate obligations under Art 29. The first was the obligation under Art 29(1) to make the development application prior to 23 December 2022. Although Reece submitted the documents comprising the development application before that date, it did not pay the fee that was payable in respect of the application until 12 January 2023. Contrary to Alamdo’s arguments, that was held to be sufficient to discharge the obligation in Art 29(1). On appeal Alamdo does not challenge that finding.
The second argument, on which Alamdo succeeded, was that Reece breached the obligation in Art 29(2) to “provide all plans, statements and other information required for Council to expeditiously process its application”.
The trial judge recorded some significant points of common ground in terms of the interpretation and application of Art 29(2). First, argument proceeded at trial on the basis that although the clause refers to Council’s “process” occurring expeditiously, the effect of Art 29(2) was to require Reece to act “expeditiously” in providing the documents and information required for Council to process the development application.
Secondly, it was common ground that plans, statements and other information could be “required” in the sense intended by Art 29(2) either because of a requirement specified in a statute, regulation, policy statement or guideline or because of a requirement communicated by Council to Reece.
One qualification to the latter point is that Reece did argue that Art 29(2) was not engaged by a request from Council that was unlawful, in the sense of being beyond the power of the Council. The trial judge was not persuaded by this argument, but found that in any event none of the requests made by Council was unlawful in this sense. Reece had argued that Council (influenced in particular by Mr Gittany within the Council) requested certain information for the purposes of s 64 of the EPA Regulation, in circumstances where that section was not engaged on the facts.
Section 64 of the EPA Regulation provides:

The trial judge noted a number of features of BCA Report Version 1. It was completed in a single day without the author, Mr Williams, having inspected the Premises. It identified various issues that would need to be investigated and certain steps that would, or might, be required to be undertaken.
The trial judge concluded that BCA Report Version 1 fell well short of the requirement of Council for a BCA compliance report. It did not address the Building’s compliance or non-compliance with the BCA on a clause-by-clause basis. Nor did it identify the extent of any non-compliance.
Reece submitted at trial that BCA Report Version 1 was adequate as a response to the requirements of Council at the point of lodgment of the development application. It submitted that it was enough for the report submitted with the development application to indicate whether the development was “capable of compliance” with the BCA, on the basis that the appropriate time for submission of a clause-by-clause assessment of BCA compliance was at the stage of applying for a construction certificate.
As explained in more detail below, that argument was found to be inconsistent with evidence, including expert evidence, about the nature and purpose of a BCA compliance report. In their Joint Report each expert opined, in one way or another, that BCA Report Version 1 did not contain all of the information required for Council to expeditiously process the development application. Mr Harriman, a fire engineering expert called by Alamdo, and Mr Halstead, a building surveyor and fire safety certifier called by Reece, expressed an agreed position that the documents provided by Reece did not contain all the information required by Council. Mr Betros, a town planning expert called by Alamdo, reached the same conclusion and drew a connection to the deficiencies subsequently identified by Council in the RFIs that it issued. Mr Haskew, a town planning expert called by Reece, drew attention to the fact that BCA Report Version 1 omitted any assessment of the path of travel from the rear of the tenancy to the street and disabled access requirements under D3.2 and D3.3 of the BCA. Those matters came to be the subject of requests for further information in the Second RFI and the Third RFI.
Council’s attitude that BCA Report Version 1 was inadequate was made clear when Council issued the First RFI. Council stated that the report provided by Reece was unsatisfactory because it “was not a clause-by-clause assessment, just a mere summary of what the author believes is relevant for each section”. The information specified in the First RFI was described as being necessary to enable Council to undertake a “proper assessment” of the application. To that end Reece was requested to provide a BCA report which assessed, on a clause-by-clause basis, the Building against the deemed-to-satisfy provisions of parts B, C, D, E and F of the BCA and indicated whether the Building was compliant or non-compliant.

The Development Consent was not granted until 1 June 2023. It was common ground at trial that in the circumstances it was impossible for an occupation certificate to be obtained by 23 June 2023.
The trial judge found that Reece’s breach of Art 29(2) caused or materially contributed to this outcome. Reece contended at trial that there was no such causal connection because even if Reece had complied with Art 29(2) an occupation certificate would not have been issued by 23 June 2023. It was not said that it was impossible per se for Reece to have ever met the deadline. The argument was that it was “very, very difficult from the outset” to achieve that outcome by 23 June 2023: J[361].
There were different factual strands to that argument. Reece contended that irrespective of any breach on its part there would have been delays in obtaining development consent arising from Alamdo’s failure to comply with the Fire Safety Order and the requests for information which were issued by Council for reasons other than the inadequacy of the BCA report. Reece also argued that even if development consent had been obtained by 20 February 2023 it is unlikely that the necessary steps could have been completed in time for an occupation certificate to be issued by 23 June 2023.
The date of 20 February 2023 assumed significance because the expert witness on the programming of building works called by Alamdo, Mr King, was instructed to assume that this is the date on which consent would have been granted, in the counterfactual scenario where Reece complied with Art 29(2). Alamdo justified that date on the basis that this allowed for a period of around five to six weeks from the date of the application. This was the amount of time actually taken by Council to assess the development application (excluding those periods when the fee was unpaid and when there were outstanding requests for information).
Reece resisted this approach, pointing to evidence about the average assessment time taken by Council. The trial judge found such comparisons to be inapt, given other evidence that the time taken to assess development applications depends on the characteristics of the particular application. There was also expert evidence from Mr Haskew that an application for change of use and fit-out of industrial premises is “among the most straightforward of development application types”. Consistent with that evidence, the Dutton consent had been granted within a month of the application for such consent. In relation to the Reece development application specifically, the evidence indicated that Council staff were available to review any materials shortly after receipt. For example, within four days of the development application being lodged (by payment of the requisite fee) Council officers had reviewed the application and provided detailed comments in an internal memorandum. That was despite the four days in question having included a weekend. Taking into account time for Council to act on such internal comments, the trial judge found that in relation to this development application Council was able to respond to information provided by Reece within a period of around two weeks.
The trial judge found that it is likely that Council would have issued a request for information, even if Reece had acted in accordance with Art 29(2) by submitting a BCA compliance report at the time of the development application. His Honour observed that, putting to one side the requests arising from the failure to provide a BCA compliance report, the requests for information that were in fact made by Council concerned “comparatively minor matters” which could have been readily addressed and which were in fact addressed within a short period of time. Novatec had in fact provided a response to each of the RFIs on the same day that it received a revised report from Mr Williams. The trial judge inferred that if Mr Williams had produced a BCA compliance report in a proper form before the development application was lodged or in response to the First RFI, Reece (through Novatec) would have been able to address any other requests for information from Council within a day.
Reece had taken longer than this to respond to the questions concerning the mezzanine level. However, that was found to be the result of delay by Reece in working out its ultimate plans with respect to the mezzanine. Ms Young gave evidence that at the time of the development application there was “indecision” on the part of Reece about the use of the mezzanine. In the development application it indicated that the existing mezzanine floor would be used and the fit-out was described as including “new racking to existing mezzanine”. That prompted a request, in the First RFI, for a floor plan of the proposed mezzanine. Ms Young explained in her evidence that there were ongoing discussions within Reece about the mezzanine and it was only on 28 February 2023 that she received confirmation from Reece that it was not intending to use it. New drawings were prepared by Novatec to reflect this. These were provided to Reece on 3 March 2023.
Council raised a further query about the stairs to the mezzanine in the Second RFI. That query was resolved on the same day by a telephone call to Council explaining that the staircase would be demolished. The third RFI raised an issue that the plans still showed a handrail for the staircase. Again, that was resolved on the same day that the issue was raised.
The trial judge concluded that in relation to the Second RFI and the Third RFI, the queries regarding the mezzanine had no material impact on the time taken by Council to determine the development application. In relation to the First RFI, any delay was attributable to Reece’s indecision. The trial judge inferred that if this was in fact the only issue delaying the assessment of the development application, given Reece’s obligations under Art 29(2) it would have resolved the issue more quickly to facilitate the expeditious processing of the application.
These various findings led the trial judge to reach the following conclusion on causation, at J[392]:

That finding as to the likely timing of consent in the absence of breach led to consideration of what would likely have occurred following the grant of consent. Reece argued that even in those circumstances there was insufficient time for a construction certificate to be obtained, construction work to be completed and an occupation certificate to be obtained.
The trial judge found that the fit-out works were relatively small in scale and complexity. Mr King gave evidence about the program of works that could have been undertaken to complete the fit-out, assuming consent was granted by 20 February 2023. Mr King’s analysis indicated the completion of works and the obtaining of an occupation certificate by 16 June 2023.
Reece relied on the evidence of another work programming expert, Mr Watson. There were differences in approach as between Mr King and Mr Watson. The trial judge found that these were partly attributable to differences in their respective instructions and differences in their approaches to overlapping tasks within the program.
Reece sought to challenge Mr King’s evidence on a number of bases. The first point considered by the trial judge turned on whether it was appropriate to posit an “aggressive” program of works, or a “conservative” one. Mr King had been instructed to prepare a program which set out the “shortest period that this building can be fitted out”. That was said to have led Mr King to posit that a number of tasks could be performed in an overlapping way, which Reece submitted was not reasonable or likely. Mr King accepted that, as instructed, he had sought to prepare a program that resulted in a program of works being completed as soon as possible. He gave evidence that he was comfortable that his program was nonetheless achievable. The trial judge construed Mr Watson as essentially supporting that conclusion. Mr Watson described the estimates given by Mr King for the “durations and sequences” for the works as being “aggressive but achievable”. Mr Watson described his own approach as “conservative”.
The trial judge rejected Reece’s argument that the counterfactual analysis should be approached by reference to a “reasonable” or “conservative” timeframe for construction. The issue arises in circumstances where Reece was contractually obliged to act expeditiously, and to do all things necessary to enable Alamdo to have the benefit of the Lease. The trial judge found that Reece had the resources available to it to ensure that it performed its obligations, including in respect of fit-out works, in a timely and expeditious manner. It was a member of a group of companies with substantial financial resources. At the end of the 2023 financial year, the Reece Group had reported net assets of $3.625 billion, including $372.706 million cash at bank.
The second basis for Reece’s challenge to the evidence of Mr King built on concessions which Reece argued had been made by Mr King in his evidence. In two respects, this turned on differences between the Lease and the assumptions made by Mr King. Under the Lease, Reece had 14 days to apply for a construction certificate. Mr King’s program of works assumed that an application would be made within eight days. Under the Lease, Reece was required to apply for an occupation certificate within two days, whereas Mr King allowed only one day.
Mr King was also said to have accepted that an additional five days needed to be added to his program to account for the link between the insertion of the mezzanine floor and commencement of the mechanical rough-in.
There was a related question about how much time should be allowed for the granting of a construction certificate. Mr King allowed two weeks. Under cross-examination he acknowledged that a construction certificate “might” take three or four weeks to determine. Mr Halstead, Reece’s expert, estimated that a construction certificate would be determined in one or two weeks.
The trial judge noted that there were variables within this evidence that could point to work being completed more quickly than estimated by Mr King. If consent was granted on 20 February 2023 and a construction certificate was issued one week after an application for such a certificate, as Mr Halstead’s evidence contemplated as being possible, that would create a one week buffer in Mr King’s program. There was also scope to posit a more aggressive version of Mr King’s work program. It assumed a five day week. As Mr Watson accepted in cross-examination, a more aggressive approach could be adopted if the owner of the project was in a hurry, involving a six day week. Mr King indicated that if one assumed a five-and-a-half day week, that would probably reduce his program by a week.
The trial judge found that these were minor variables pointing in different directions in terms of lengthening or shortening Mr King’s program of works. The trial judge emphasised that the contractual obligations of the parties and the resources available to Reece were relevant when considering the potential shortening of the program.
The third basis of Reece’s challenge to the evidence of Mr King concerned the assumed start date for the works. Mr King’s view was that work on matters such as updated construction drawings, certifier interface and instruction and the engagement of relevant consultants could have commenced immediately upon the signing of the Lease on 23 December 2022. Reece argued that it was illogical to assume that a party would commence such works when not knowing if consent would be granted.
In the joint report prepared by the experts Mr Watson opined that documentation and certain other steps can proceed while a development application is being assessed by Council. Under cross-examination he agreed that this could include construction drawings. Mr Watson explained that doing such work while a development application remains under assessment involves progressing at risk, given it is unknown what conditions may be imposed on any consent.
The trial judge rejected the proposition that proceeding in such a way, even if described as being “at risk”, would have been illogical for Reece given the nature of its obligations under Art 29 of the Lease. Incurring costs at risk would have made commercial sense in a context where, unless an occupation certificate was obtained by 23 June 2023, all of the costs incurred by Reece for the project (including transaction costs, construction costs and rent), might be wasted. Given that context, expending money “at risk” when the terms of development consent were unknown would itself have been a prudent way of managing the broader risk associated with not meeting the contractual deadline for an occupational certificate.
The fourth basis of challenge related to Mr King having allowed only seven days for the perusal of the conditions of consent. Reece contended that Mr King had overlooked the time required to comply with conditions of consent. Mr King was said to have accepted that the program would probably be delayed by a significant number of weeks if, as Mr Halstead had opined, it would take 50-70 days to satisfy the conditions of consent before obtaining a construction certificate. That essentially followed from assuming, as Mr King was asked to do in cross-examination, that Mr Halstead was correct in this regard. The trial judge was not satisfied that it would have taken 50-70 days to satisfy the conditions of consent and complete the work required before obtaining a construction certificate. Properly scrutinised, Mr Halstead’s evidence did not support that conclusion. On his evidence, the longest period of work required to satisfy the requirements of the relevant condition of consent, being condition 9, would have been seven days. Mr Halstead nevertheless expressed the view that in a best-case scenario it would have taken approximately 50 days to comply from the time of the consent. That is because he opined that it would take up to 40 days to find and appoint an appropriately qualified expert. The trial judge concluded that there was no proper basis for this opinion. Mr Watson, who was also called by Reece and who had extensive experience in programming, project delays and costs, allowed a period of two weeks for the engagement of consultants.
The trial judge also rejected the evidence of Mr Halstead about the particular conditions that were said to have required the engagement of a consultant:
in relation to condition 9(i), which provided for upgrading of the Building to comply with accessibility, sanitary and carparking requirements under DP1, DP2, DP8 and FP2.1 of the BCA, the trial judge accepted the evidence of Mr Harriman that the plans for the Premises already provided for works that would meet the standards stipulated in condition 9(i), such that no further consultant work was required;
in relation to condition 9(v), which provided for the upgrading of the existing hydrant system to comply with the current BCA (appropriate to Pt EP1.3 of the BCA), the trial judge accepted the opinion of Mr Harriman, supported by the evidence of Mr Maurici, that the work relating to bringing the fire hydrant into compliance had been completed by the end of March 2023;
in relation to condition 9(vii) (concerning an upgrade to emergency lighting) and condition 9(viii) (upgrade to exit and directional signs), the trial judge emphasised that these were matters to be addressed in the course of performing the construction certificate works. The trial judge was not persuaded that the time taken to determine if upgrades were required to emergency lighting or exit and directional signs would have added to the program proposed by Mr King. Mr Harriman explained in his oral evidence that one way of responding to these conditions would have been to review and amend the plans to be submitted with the application for a construction certificate. An alternative way, described by Mr Harriman as being “very common in the industry”, would be to adopt a staged construction certificate approach, by which a construction certificate could have been obtained for the new building works, and a second construction certificate issued in respect of other matters covered in an audit report. The trial judge accepted that such an approach would have been consistent with the conditions of the consent, and with Art 29 of the Lease; and
in relation to condition 9(x), which provided for the path of travel to the road from the rear exits to be upgraded to comply with EP2.2, DP4 and DP6 of the BCA, Mr Harriman opined that the existing path of travel was already compliant with the specified requirements of the BCA. On this basis no external consultant was required to be retained. Reece’s expert, Mr Halstead, did not express disagreement with this opinion when asked to address it. The trial judge accepted Mr Harriman’s opinion, meaning that it was not necessary to engage a consultant to address condition 9(x).
The overall result on this limb of the argument was that the trial judge was satisfied that Mr King’s program of works, while aggressive, was achievable. His Honour concluded that if development consent had been granted by mid to late February 2023, there was a substantial chance that the occupation certificate would have been obtained by 23 June 2023. His Honour also went further and concluded that this outcome would likely have been achieved.

Reece argued at trial that the delays associated with the determination of the development application, and in particular the requirement for Reece to provide a BCA compliance report, were wholly attributable to Alamdo’s failure to maintain the Building in a compliant state. Reece relied in this regard on the Fire Safety Order, and the fact that there were outstanding works under that order that remained incomplete by late March 2023.
The trial judge did not accept that Alamdo was in breach of the Lease as a result of either the issuing of the Fire Safety Order, or failing to complete the works required by the Fire Safety Order within the time for compliance (being 15 February 2022). Reece referred in this regard to Art 13.05 of the Lease by which Alamdo relevantly warranted, and agreed to carry out all necessary remedial work works to ensure, that as at the Commencement Date and throughout the term of the Lease “the Services are in good and serviceable condition and repair” and comply with all applicable statutory and regulatory requirements. “Services” for the purposes of this Article includes “fire detection and prevention equipment installed in or connected or supplied to the Demised Premises or the Land, and the repair and maintenance of everything (such as plant and equipment) needed to supply them”.
The trial judge noted that, at the time of entering into the Lease, Reece was aware of the terms of the Fire Safety Order, and the fact that works required under that order remained outstanding. The trial judge regarded this to be an important aspect of the pre-contractual context between the parties. His Honour was inclined to accept that in the circumstances Reece could not insist on strict compliance with Art 13.05(1) insofar as it required the fire safety equipment to comply with the matters specified in the Fire Safety Order. The indication was that this conclusion might be reached by interpretation of Art 13.05 in light of the matters known to both parties at the time of entry into the Lease, or because of “some waiver or estoppel”.
The trial judge did not need to analyse either possibility further because his Honour was not satisfied that, assuming there was a breach of the Lease in this respect by Alamdo, such default caused the delay in obtaining the development consent.
The trial judge did find that there was a connection between the outstanding Fire Safety Order and the Council’s approach to the application of s 64(1)(b) of the EPA Regulation. The outstanding issues of fire safety compliance meant that, for the purposes of s 64(1)(b) of the EPA Regulation, the fire safety measures in the existing building were inadequate, which in turn triggered the application of s 64(2). The trial judge also accepted that there was a link between s 64 of the EPA Regulation and the way in which Council assessed the development application. Mr Gittany, in assessing the application and recommending the requests for information, proceeded on the basis that the Council required a clause-by-clause assessment of the Building against the BCA for the purpose of Council considering the matter it was required to consider under s 64(2) of the EPA Regulation.
However, his Honour noted that the request for a BCA report (held to constitute a requirement to provide a BCA compliance report incorporating a clause-by-clause assessment) was communicated by Council before the development application was submitted. Critically, there were no findings that such a request was made by Council because of the existence of the Fire Safety Order, or any question of compliance with that order. Findings about why Mr Gittany and Council took the steps that they did in assessing the development application after it was issued do not lead to the conclusion that the initial request from Council was linked to the Fire Safety Order.
As to the process following the initial requirement communicated by Council, the trial judge accepted that various aspects of the RFIs issued by Council did relate to fire safety matters. However, those requests were held to have arisen in circumstances where the BCA report that Council had initially requested was inadequate. It was in that context that his Honour emphasised that the delay was attributable not to the request for a BCA report but to the deficiencies in Reece’s response (in terms of both timeliness and quality of the content).
There was no indication in the evidence that development consent would not be granted until there was compliance with the Fire Safety Order. To the extent that the conditions of consent imposed by Council touched on matters of fire safety and overlapped with the Fire Safety Order, that was consistent with Council’s attitude that it was content for such matters to be addressed in the course of construction works (and not prior to the issuing of consent).
The trial judge found that, in any event, even if Alamdo had breached Art 13.05 of the Lease by failing to carry out the works under the Fire Safety Order and that this had delayed the granting of consent, it would not follow that Reece was entitled to exercise the right of termination under Art 29(9) of the Lease. In that scenario his Honour considered that neither party would have been blameless, as each would have materially contributed to the non-performance of the condition as to the issuing of the occupation certificate. In those circumstances, neither party would have been entitled to rely on the right to terminate.

Reece’s argument on grounds 1 and 2 of the appeal proceeds from an acceptance that if Council communicated to Reece that it required particular information or documents for the purpose of processing the development application, Reece became obliged by Art 29(2) of the Lease to act expeditiously in complying with that requirement (subject to the qualification, which is not relevant in the context of grounds 1 and 2, concerning unlawful requirements of Council). Resolution of the argument turns on the nature of the requirement that was in fact communicated specifically by Council to Reece (via Novatec) before the development application was lodged. Reece carries the burden of demonstrating that the finding of the trial judge on this question of fact – namely that Council required a BCA compliance report that considered on a clause-by-clause basis the compliance or non-compliance of the Building with the BCA – was wrong: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 at [43].
There were two characteristics of the report that assumed significance in Reece’s argument. One was whether the report needed to address the compliance or non-compliance of the Building, as opposed to merely the fit-out works. The other was whether the report needed to include an assessment, on a clause-by-clause basis, of compliance with the provisions of the BCA.
The BCA prescribes minimum levels for safety, health, amenity, accessibility and sustainability of certain buildings. Compliance of a building (or proposed building works) with the BCA can be demonstrated through a deemed-to-satisfy solution (on the basis that the building complies with set minimum requirements), a performance solution (which is adapted to particular circumstances) or a combination of the two.
As explained above, on 15 December 2022 Mr McKinley of Novatec had a conversation with a Council employee. The call was initiated by Mr McKinley. The Council employee was unidentified but the evidence suggested that the employee was most likely a planner at the counter of the Council office. The specific purpose of the call was to find out what was required by Council for the development application. This was in circumstances where, according to Ms Young, she had reviewed a checklist which identified a “BCA report” as one of the documents to be provided with an application to Council. Ms Young was unfamiliar with the usual practices and requirements of this particular council. Mr McKinley was informed that in order to make the development application Novatec needed to obtain a “BCA report for a fit out”.
In its written submissions Reece argued that a requirement by Council to provide a BCA report with the development application could not engage Art 29(2) of the Lease because that would be a commercially inconvenient result, given the requirement to lodge a development application by 23 December 2022. There is no substance to that argument. Applying the clear language of Art 29(2), a requirement communicated by Council about the information to be provided with a development application was a requirement that Reece was contractually obliged to act expeditiously in satisfying. The plain text of the Article cannot be ignored simply because, as events transpired, this imposed a burden on Reece.
Reece also contended in its written submissions that the “request” communicated by Council did not constitute a requirement for the purposes of Art 29(2). This argument is without merit. The very purpose of the call to Council, according to Ms Young, was to clarify what documents Council “required” to be provided with the development application. The evidence regarding the requirement conveyed by Council was clear and uncontested, and it was also logical because it provided an explanation for why Ms Young then sought a BCA report from Mr Williams. Ms Young plainly proceeded on the basis that Council required a BCA report to be lodged with the development application. That was a requirement that engaged Art 29(2). To the extent that Reece now suggests there was some doubt about the existence of a Council checklist in the form recalled by Ms Young, nothing turns on the point. Even if there was a sound basis to impugn Ms Young’s evidence to that effect, the point goes nowhere in light of the evidence regarding the conversation. But in any case, there is no reason to doubt Ms Young’s evidence. She gave clear evidence that she obtained and reviewed a checklist that identified the need to provide a BCA report. Moreover, that was part of the explanation for why a call was made to Council to clarify what was required.
Reece otherwise argues that Council’s requirement to provide a “BCA report” did not amount to a requirement to provide a BCA report that addressed, on a clause-by-clause basis, whether or not the Building complied with the provisions of the BCA. As Reece correctly observes, the finding about what was expressly communicated from Council did not involve anything more detailed than a requirement to provide a “BCA report”. Ms Young’s evidence was that Mr McKinley was told by the Council employee that Reece needed to submit a “BCA report for a fit out”. In the circumstances, a consideration of other evidence is necessary in order to understand what would constitute a BCA report that satisfied the Council requirement.
Reece, in my view correctly, did not ultimately place much emphasis on the fact that Council told Mr McKinley that it required a BCA report “for a fit out”, as opposed to a BCA report relating to the Building. The development application that was discussed with Council was an application for fit-out works and it is plain from what followed that Novatec understood that what Council required was a BCA report in support of that development application. The fact that the Council planner described this as a BCA report “for a fit out” does not assist in resolving the debate about whether that report also needed to address the properties of the Building in which the fit-out was to be installed.
The trial judge received evidence from a number of witnesses about how they understood this particular requirement for a “BCA report”, what they would generally understand to be contained in a BCA report and the usual expectations when it comes to the submission of BCA reports with development applications. The question of fact is ultimately an objective one, involving identification of what was signified by Council’s requirement to provide a “BCA report”. Evidence of subjective understanding on the part of individuals may be indirectly relevant to the question of fact, although it is important to emphasise that subjective interpretations are not decisive of the issue.
Reece argues on appeal that the trial judge neglected to undertake the necessary exercise of giving meaning to Council’s requirement for a “BCA report”, in light of all of the evidence touching on that topic. That criticism is unwarranted.
Mr Haskew, the expert on town planning called by Reece, gave evidence about usual practice regarding BCA compliance reports. The trial judge found the effect of that evidence to be that it was at least good practice, if not mandatory, for a BCA compliance report to be submitted with a development application. The explanation given by Mr Haskew in this regard is instructive, particularly because it explains the practical object of providing a BCA compliance report. Mr Haskew opined that where a development application relates to an existing building, the need for a BCA report arises because of the Council’s obligations under s 64 of the EPA Regulation. Mr Haskew said the following in his report:

The expert on town planning called by Alamdo, Mr Harriman, gave evidence on this topic that reinforced the evidence of Mr Haskew. Mr Harriman said that in his experience most councils “normally require a BCA Report for development of this nature, that addresses the requirements of [s 64 of the EPA Regulation].” Such a report indicates if the existing building is or is not compliant with the BCA, which can enable the council to discharge its obligations under s 64. Mr Harriman opined that the provision of such a report “assists in speeding up the DC [development consent] application assessment”.
The explanation given by these experts of the purpose to be served by providing a BCA compliance report with a development application is important when it comes to understanding why Council is likely to have called for a report and what Council must be taken to have meant when it called for a BCA Report. The purpose explained by the experts is apt to be served by a BCA compliance report that assesses, on a clause-by-clause basis, the compliance or non-compliance of the proposed fit-out and the Building in which it is contained against the provisions of the BCA. A report of that kind will give the assessing consent authority the information that it requires to discharge its assessment requirements under s 64(2) of the EPA Regulation.
I accept the submission of Alamdo that the evidence of both Mr Haskew and Mr Harriman supported the conclusion that industry professionals well understood that this was the purpose of a BCA report. By contrast, a report which falls short of that standard, for example a report like BCA Report Version 1 that merely flags the issues that will need to be assessed or a report that considers elements of the fit-out without regard to the characteristics of the Building, does not serve that purpose.
The point is borne out by what occurred after Reece submitted a development application without a BCA compliance report that assessed the Building on a clause-by-clause basis. Council found itself unable to undertake the assessment task required under s 64 of the EPA Regulation. It had to seek out a report of the proper kind through the subsequent RFIs.
I respectfully agree with the reasoning of the trial judge that this understanding of the purpose of a BCA report strongly supports the conclusion that by calling for a BCA report Council required a BCA compliance report that contained a clause-by-clause assessment:

According to Mr Halstead, preparation of such a report requires inspection of the building, consideration of the proposed fit-out and analysing by reference to the BCA where there may or may not be non-compliances. That evidence supports the evidence of Mr Haskew and Mr Harriman about the nature and purpose of such reports, when they are submitted.
Mr Halstead did suggest that, in his experience, councils do not typically require that a BCA report be provided with a development application. However, as the trial judge correctly concluded, on the question of whether a report was required in the present case that evidence was of little assistance, given that Council had in this case specifically indicated to Reece that a BCA report did need to be provided with its development application. Otherwise in terms of the content of a BCA report the evidence of Mr Halstead described above was consistent with that of the other experts.
For similar reasons, Reece’s argument is not strengthened by pointing out, as Mr Harriman accepted in evidence, that a council may choose to perform a BCA assessment “in-house”, including for the purposes of s 64 of the EPA Regulation, without requiring any information from the developer. In the present case Council did not take that option, but instead specifically required a BCA report.
Reece submits that there was evidence suggesting that within Novatec the request from Council was understood as requiring something less than a clause-by-clause assessment of the Building and the fit-out against the BCA. As touched on above, evidence of this subjective kind is not determinative on the question of what Council in fact required. In any event, the proposition that Reece and/or Novotec did not understand there to be a requirement to obtain a report addressing compliance with the clauses of the BCA is overstated. It is apparent that Ms Young appreciated that Reece needed to provide a “BCA Compliance Report”. That is the language that Ms Young used when she requested a report from Mr Williams, on the same day that Mr McKinley had spoken to Council. Ms Young gave oral evidence that a BCA report “generally includes items that [say] … a particular element is likely to comply”. Before this exchange with Council, Ms Young had been provided with a copy of the BCA report prepared by BuildCert that had been relied on by Flip Out, the previous occupant of the Premises, for the purposes of its development application. That report contained a clause-by-clause assessment of the provisions of the BCA. There was no explanation in the evidence of why Ms Young regarded a different kind of report to be sufficient for Reece’s application, if that is what she in fact believed.
Viewed as a whole the evidence does not provide a satisfactory basis to conclude that Novatec drew a clear distinction between a merely “preliminary” BCA report and a BCA report that contained a clause-by-clause assessment, and understood that Council was seeking a report of the former kind. Nor does Ms Young’s evidence suggest that she and others within Novatec drew a distinction between a BCA report relating to the fit out and a BCA report that encompassed the Building.
Nor is there any cogent evidence from any other source to suggest that there is a more widely shared understanding, on the part of Council or participants in the planning industry more broadly, that at the development application stage it suffices to provide a “BCA report” that merely anticipates a future assessment in the form of a subsequent “BCA report” of a different kind, or a report that addresses the elements of a fit-out without addressing the building in which the fit-out is to be constructed.
Reece sought to attach significance to the fact that there is no express requirement under the EPA Act, the EPA Regulations or any other regulatory instrument to provide a BCA compliance report with a development application. That observation goes nowhere in circumstances where Reece accepted that a “requirement”, for the purposes of Art 29(2) of the Lease, could also arise because of a stipulation by Council about what needed to be provided. Reece did not contend that Council was unable to require a document unless such a document was already required by force of the applicable regulatory instruments. Nor can it be said that Council acted unlawfully in requiring that a BCA compliance report be provided with the development application. Given that the development application concerned a change in use of premises within an existing building, there was a live issue as to whether s 64 of the EPA Regulation was engaged, which in turn would require Council to consider the matter specified in s 64(2). Council had a lawful purpose to require a BCA report relating to Reece’s application.
That conclusion is reinforced by the fact that, even on Reece’s case, it would have been necessary for it to demonstrate compliance with the provisions of the BCA at later stages in the planning approval process. As Reece concedes, it is necessary to demonstrate compliance of building works with the BCA at the stage of obtaining a construction certificate from a certifier: s 19(1)(c) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) (Development Certification and Fire Safety Regulation). It is also necessary to demonstrate compliance upon the completion of works in order to obtain an occupation certificate: ss 6.10(2)(c) and 6.10(3)(b) of the EPA Act.
Taking account of all of these matters, the trial judge was right to conclude that when Council said that it required a BCA report it required a report that contained a clause-by-clause assessment of the fit-out and the Building against the BCA, and not merely a preliminary assessment indicating matters that would or may need to be assessed at some later point. The breach of Art 29(2) occurred at the point of submitting a development application that was not accompanied by a BCA report of the kind that Council required.
For these reasons, grounds 1 and 2 of the appeal should be rejected.
If I am wrong in the conclusion about what Council required, one alternative possibility is that there was no definite content to Council’s requirement, but merely an ambiguous request that was open to substantially different interpretations. Such a characterisation of the Council requirement would not assist Reece. His Honour found, at J[302], that if the request communicated by Council was ambiguous and Novatec or Reece had doubts about precisely what Council required in terms of a “BCA report”, it was incumbent on Novatec or Reece to seek clarification as to what Council required. This was held to be consistent with the obligations Reece owed under Art 29(2).
I respectfully agree with his Honour’s conclusion on this point, which is not challenged by Reece. If, contrary to my conclusion above, the better view is that the Council request for a BCA report was uncertain, it was inconsistent with Reece’s obligations under the Lease to proceed to prepare a report that may or may not have satisfied Council’s needs. Reece was instead obliged to seek clarification. In light of what followed in the RFI process, it is plain that if Council had been asked to clarify in December 2022 what it required it would have told Reece that it needed to provide a report that assessed the Building and the fit-out on a clause-by-clause basis against the provisions of the BCA.

Reece’s second category of arguments on appeal, covered by grounds of appeal 4 and 5, concerns causation. Reece argues that the trial judge overlooked the causal impact of the Fire Safety Order, for which Alamdo was responsible. It submits that by failing to comply with the Fire Safety Order Alamdo breached both the Lease and the EPA Act and in the absence of such a breach there would have been no occasion or power for the Council to require a BCA compliance report. It argues that Alamdo’s breach of Art 13.05 of the Lease caused Council to request a clause-by-clause BCA assessment report. From that premise, Reece argues that the trial judge erred in treating the Fire Safety Order and Reece’s failure to produce a BCA compliance report in a timely way as being independent causes of the ultimate failure to obtain an occupation certificate by 23 June 2023. The correct causal analysis, Reece contends, is that Alamdo’s breach of the Lease was the occasion for Reece’s breach of the Lease. The two factors were sequential and interdependent causes of the ultimate delay. Reece also challenges the conclusion that if Alamdo was in breach of Art 13.05 of the Lease then neither party could rely on the right to terminate in Art 29(9).
By ground 3 of its notice of appeal, Reece contended that the trial judge erred in concluding that Alamdo had waived or otherwise lost any right to complain about the Fire Safety Order. In oral submissions Reece revised its position. It agreed with Alamdo’s submission that the trial judge merely noted that such concepts might have arisen for consideration if Alamdo had breached the Lease in a way that materially contributed to the delay. His Honour did not find that Reece had in fact waived its rights or was estopped from asserting such claims based on Art 13.05. On this basis, Reece indicated at the hearing of the appeal that it did not press ground 3. Alamdo did not file a notice of contention of a kind that might have raised waiver, estoppel or any similar doctrine of preclusion as an alternative answer to Reece’s claim. It follows that there is no need to address the hypothetical possibility that if Alamdo breached the warranties in Art 13.05 Reece is for one reason or another precluded from relying on Alamdo’s breach as an answer to Reece’s own breach of the Lease.

In light of my conclusions concerning grounds 1 and 2, grounds 4 and 5 of the appeal must also fail. Reece breached Art 29(2) at the time of submitting its development application by failing to provide a BCA report of the kind that Council required to be provided with the application. That requirement was communicated by the unidentified Council planner to Mr McKinley of Novatec in the conversation that occurred prior to 20 December 2022. It was also reflected in the generic Council checklist that Ms Young saw before that conversation occurred. There is no finding by the trial judge to the effect that there was a causal connection between the Fire Safety Order and Council imposing that requirement, either through the conversation or through the checklist.
Nor has Reece demonstrated that such a finding should be made. No connection of this kind was established by any internal Council documents, or by any witness. Indeed the proposition that the requirement arose because of specific fire safety issues affecting the Premises, in the form of the unresolved Fire Safety Order, is logically inconsistent with the evidence. On the evidence that was given by Ms Young, the checklist indicating the need for a BCA report was a generic form unrelated to the particular property concerned. As for the telephone conversation, there is no indication that the unidentified Council planner who told Mr McKinley that a BCA report was required had any awareness of the Fire Safety Order, let alone evidence that the planner said that a BCA report was required because of the Fire Safety Order. There is nothing to indicate that Council’s fire safety officer, Mr Gittany, was involved in this communication in any way. Given the nature and purpose of the conversation, the more natural inference is that the planner was simply describing the generic requirements of Council at the time for a development application of this kind (being a fit out and change of use of premises within an existing building).
The evidence of the planning experts about the purpose of providing a BCA compliance report when seeking consent for development within an existing building also tends to support the conclusion that Council required that such a report be provided not because of a specific issue arising from the Fire Safety Order but rather because of the need, in any given case, for the consent authority to have to consider the potential application of s 64 of the EPA Regulation in relation to consents for development in existing buildings. The evidence of the experts on this topic was not confined or directed to a situation where a fire safety order was already in place in respect of the existing building.
Reece placed some reliance on the fact that the Dutton consent, for the neighbouring premises, was granted in October 2022 without Council requiring a BCA compliance report. That observation does not support an inference that in the case of Reece’s development application the outstanding Fire Safety Order caused Council to take a different approach by requiring a BCA compliance report to be submitted with the development application. As explained above, Council did specifically require a BCA report in the case of the Reece application and it did so in circumstances that do not suggest any connection to the Fire Safety Order. The evidence does not reveal why Council did not take the same approach in relation to the Dutton application. The Dutton application concerned the same Building, and it was lodged at a time when Alamdo was in breach of the Fire Safety Order. If the existing Fire Safety Order was treated by Council as a reason to require a BCA compliance report then that would have been an equivalent consideration for the Dutton application. In the circumstances, there is no logical basis to infer from the treatment of the Dutton application that Council took a different approach to the Reece application because of Alamdo’s failure to comply with the Fire Safety Order that applied to the Building.
Reece submitted that its development application was a simple one which should have been the subject of a simple and efficient process, but complications occurred because of the involvement of Council’s fire safety officer (Mr Gittany) and because of Alamdo’s failure to comply with the Fire Safety Order. Whatever weight this submission might carry in explaining other steps in the assessment and RFI process, it is not an accurate characterisation when it comes to Council’s requirement to provide a BCA compliance report.
Once it is appreciated that the requirement to provide a BCA compliance report arose independently of the Fire Safety Order, there is no remaining basis to find that the Fire Safety Order relevantly contributed to the delay in obtaining an occupation certificate by the deadline. Reece has not put forward any coherent case that, over and above its failure to provide what Council required at the time of submitting the development application, the Fire Safety Order became an independent source of delay and materially contributed to the failure to meet the contractual deadline. Let it be assumed in favour of Reece that because aspects of the Fire Safety Order remained outstanding, Alamdo was in breach of its warranties in respect of “Services” under Art 13.05 of the Lease. The evidence does not show that this in any way impeded Council from granting consent for Reece’s development application, once it satisfied Council’s requirement to provide a BCA compliance report.
In any case, as Alamdo correctly submits, there is a temporal problem with Reece’s arguments on this point. Council communicated the requirement to submit a BCA report with the development application before the parties entered into the Lease. If Alamdo’s non-compliance with the Fire Safety Order was the trigger for Council to impose that requirement, that relevantly occurred before Alamdo was subject to any contractual obligations under the Lease. It follows that it cannot be said that Alamdo was in breach of Art 13.05, which breach resulted in Council imposing the requirement, which in turn caused the delay associated with Reece’s failure to meet the requirement expeditiously.
There is a further difficulty with Reece’s argument on this point. The Lease expressly contemplated, in Art 29, that Alamdo may need to carry out the Lessor’s Works to the Building in order to bring it into compliance with the BCA. That was the agreed mechanism for dealing with such non-compliance. In the circumstances there is an internal inconsistency in construing Art 13.05 as applying to the issues raised by the Fire Safety Order in such a way as to mean that Alamdo was in breach of the Lease as soon as it commenced. As this is simply a matter of construing the Lease as a whole, no issue arises about reliance on surrounding circumstances to construe the Lease: see Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 at [37].

Reece’s argument was primarily directed to the counterfactual analysis that was appropriate if one assumed that the requirement to provide a clause-by-clause BCA compliance report only arose from the time of the First RFI. The submission developed by Reece about the lack of time that was then left to obtain the Consent, obtain a construction certificate and complete the works programmed by Mr King assumed that time would have been required to receive and consider an RFI containing a request for a clause-by-clause assessment of compliance with the BCA, which in turn would have required the engagement of experts to inspect the property and prepare such a report.
In light of my conclusions regarding grounds 1 and 2, the premise should be rejected. The requirement to provide a clause-by-clause BCA compliance report arose at the time of the development application.
Reece did develop an alternative submission that even if a clause-by-clause BCA compliance report had been submitted with the development application there was insufficient time to obtain an occupation certificate by 23 June 2023. Reece relies in this regard on the trial judge’s finding that the Council would likely have made a request for information, even if a suitable BCA compliance report had been submitted. During the appeal hearing Reece provided a document setting out alternative counterfactual scenarios. The first assumed a clause-by-clause BCA report being submitted to Council at the time of the development application, on 20 December 2022. In this scenario Reece argued that a request for information would have been issued by Council on 2 February 2023, a response to that RFI would have been provided on 16 February 2023, a further RFI issued between 23 February 2023 and 2 March 2023, a response to that RFI provided between 2 and 9 March 2023, and a consent issued between 15 and 22 March 2023. I regard this counterfactual analysis as being unrealistic in various respects.
It is true that the RFIs raised a number of issues that were not related to the unsatisfied requirement for a BCA compliance report. That is what led the trial judge to find that even if a BCA compliance report had been provided in a timely way as required by Council, it is likely that Council would have issued at least one RFI to deal with other matters requiring clarification or correction. But it does not follow that the time required to meet such matters did, or would have, materially contributed to the failure to obtain an occupation certificate by 23 June 2023.
As explained above, there were various items of information sought, many of which related to the ongoing ability of Reece to produce a BCA compliance report that was fit for purpose. In oral submissions on appeal Reece refined its argument to focus on only a handful of requests that were said to be a cause of relevant delay. The Council requests as pressed by Reece in oral submissions concerned the need for clarification of the construction type of the Building (stemming from Council’s reference to the Red Fire Engineering Report), the request for “design advice” (ultimately abandoned by Council) and the request for information about smoke hazard management.
None of Reece’s contentions about the delay arising from these requests for information withstands scrutiny. Reece draws attention to the fact that the counterfactual analysis of Alamdo, accepted by the trial judge, only allowed one week for Reece to deal with requests for information. The evidence establishes that this is more than adequate allowance. Had Reece been acting reasonably in paying attention to, and responding to, each such request, it could have resolved each and every request very promptly.
As to the first matter, Council in the First RFI requested clarification of the construction type of the Building for the purposes of the BCA. In raising this point Council was relying on a classification of the Building (as type B construction) indicated in the Red Fire Engineering Report. Reece asked Alamdo on 2 February 2023 for a copy of the Red Fire Engineering Report and it was provided by Alamdo less than 45 minutes after it was requested. The evidence of Ms Young was that on reviewing the report she formed the view that it was inapplicable to the Premises. There was no suggestion in her evidence that this was a complex or time consuming task. In fact, given her familiarity with the nature of the Premises and the development application it was quickly apparent to Ms Young that the Red Fire Engineering Report did not provide an accurate classification of the Building. For reasons unexplained in her evidence Ms Young waited until 16 February 2023 to discuss this with Council. On that day she spoke with Mr Gittany who indicated that a letter from a fire engineer was required. Ms Young did not consider that to be reasonable. She nevertheless waited until 27 February 2023 to contact Mr Morris of Council. Ms Young explained to Mr Morris why the Red Fire Engineers Report was wrong on the question of building classification. That explanation was accepted by Mr Morris and the point was resolved.
I infer that the relatively slow approach adopted by Reece to resolving this particular issue in February 2023 arose because it was not on the critical path at the time. That was because of the ongoing delay in resolving the BCA compliance report issue. In the circumstances, there is no criticism of Ms Young involved in observing that the matter took longer to resolve than it needed to. On a counterfactual analysis, however, the hypothesis is that Reece would not have been preoccupied or delayed by that larger issue. It is plain that in the circumstances Reece, if acting reasonably in response to a request for information about the building classification, could have resolved the matter within a couple of days.
Moreover it would have done so, given its contractual obligations and given that (on Reece’s own case) the time was tight to obtain an occupation certificate by 23 June 2023. When it comes to considering how this exercise might impact on the overall time to be allowed in the counterfactual for answering multiple requests, I would infer that resolving the issue arising from the Red Fire Engineers Report would not have precluded Reece from dealing with other matters simultaneously. The evidence of Ms Young demonstrates that it was in fact a straightforward matter once attended to.
In any event, there is also much force in Alamdo’s submission that if Reece had produced a BCA compliance report of the type required by Council at the time of submitting the development application, there would have been no occasion for Council to require clarification of the building type. That is because such a report would have contained an expert conclusion on that topic, which was something lacking from the inadequate reports in fact submitted by Reece.
The second matter relied on by Reece on appeal concerns the request for “design advice”. The request for information on this topic from Council, initially contained in RFI1, specifically requested that advice be obtained from the registered certifier:

This aspect of RFI1 is entangled with Reece’s failure to provide a BCA compliance report as required by Council. In that sense it is problematic to assume for the purposes of counterfactual analysis that in the absence of Reece’s breach a request of this kind would still have arisen. I accept Alamdo’s submission that on the hypothesis that a BCA compliance report had been provided to Council as required, it is unlikely that a request for information of this kind would have been made.
In any case, even adopting an assumption in favour of Reece that it would have been made in an equivalent form, the argument that this would have caused material delay should be rejected. When Reece made inquiries of the registered certifier he advised that he was not an appropriate person to provide such information. The trial judge found that Ms Young eventually called the Council about the requirement for “design advice” and conveyed her understanding that design advice cannot be provided by a building surveyor who has been appointed to certify the project. Council was satisfied with this explanation and the RFI on this topic was thereby resolved. Council proceeded to grant the consent without the design advice in question being provided as per the original request.
Reece in its submissions emphasised that this request was a source of frustration and distraction, and in turn reflected an unsatisfactory degree of persistence on the part of Mr Gittany. Mr Gittany was said to have had a “pernickety” attitude on this issue. In terms of the counterfactual analysis, these matters do not ultimately assist Reece. The critical facts which emerge from the evidence and the trial judge’s unchallenged findings indicate that once Reece attended to this matter, first by speaking to its certifier and then by speaking to Council, the point was readily resolved.
As with the first issue, for the purposes of the counterfactual analysis it is appropriate to assume that Reece would not have been simultaneously dealing with an ongoing issue with the BCA compliance report issue and would have been acting with expedition, in keeping with its contractual obligations and the time pressure that existed to meet the deadline for an occupation certificate. On those assumptions, it is appropriate to infer that it would not have taken Reece any longer than a week to resolve the issue. Assuming, as Reece submits the Court should, that in the counterfactual Mr Gittany would have been persistent on this topic as he actually was, it does not follow that Reece would have been burdened with weeks of delay on the topic of design advice. The more sensible and realistic inference is that if Reece was being materially delayed by Mr Gittany’s personal attitude to the request for “design advice” it would have spoken to others within Council, as it in fact did, and resolved the issue swiftly by explaining the advice given by Reece’s certifier. As with the first issue, this was not an exercise that would have required the devotion of substantial resources. It could have been addressed in parallel with any other requests for information.
The third issue concerns smoke hazard management and the “path of travel from the rear of the tenancy to the road”. This issue was raised in the third RFI on 21 April 2023. Reece submits that this is a matter that could have been raised by Council months prior in the first RFI. In the context of a counterfactual analysis, it is reasonable to infer that any concerns by Council on this topic would have been raised much earlier. The issue was raised in the third RFI in a context where there were multiple problems with Reece’s development application and its responses to earlier requests for information. Most critically, there was a protracted delay in submitting a BCA compliance report that was fit for purpose. In the counterfactual analysis, it is to be assumed that Reece would have submitted such a report with the development application. That would have allowed Council to undertake a more efficient and focused review, which in turn would have made it likely that any residual issues of concern, such as those concerning smoke hazard management and the path of travel, could and would have been readily identified and raised in a timely fashion.
In its counterfactual analysis document Reece also referred to issues raised by Council concerning staff and patron numbers and the intentions of Reece regarding the mezzanine level. The first issue is of no substance. If Council required clarification of the number of staff and patrons expected to be present at the Premises, Reece would have been in a position to provide such information immediately upon request. The point is amply demonstrated by what occurred in reality. On 16 March 2023 a Council officer wrote an email to Mr McKinley of Novatec indicating that she could not find the detail that had been requested on patron and staff numbers. Just over an hour later, Mr McKinley provided the information requested (being more than 9 employees and 20 customers to visit the site each day).
As for the mezzanine, this was a topic where indecision on the part of Reece appears to have been the only cause of delay (to the extent there was any). Council raised issues about the intended use and configuration of the mezzanine in circumstances where, it transpired, Reece changed its plans. If that was a material source of delay, that would reflect a different breach of Art 29 by Reece. In the circumstances it is not appropriate for the purposes of counterfactual analysis to give Reece the benefit of delay corresponding to the time taken to answer questions about the mezzanine. Reece has otherwise failed to substantiate on the evidence that over and above the ambiguities linked to Reece’s change in plans, there was material delay associated with providing information about the mezzanine.
In light of these matters, I respectfully agree with the conclusion of the trial judge that even assuming in the counterfactual that Council would have issued at least one RFI, it would have been in respect of minor matters that would have been addressed within a short period: J[377]. The prospect of such a request for information is therefore not a reason to resist the conclusion that Reece’s breach made a material contribution to the failure to satisfy the statutory condition.
For the same reason, Reece’s counterfactual timeline, developed for the first time in detail on appeal, must be rejected. If a clause-by-clause BCA report had been provided to the Council on 20 December 2022, it is unrealistic to posit that Council would have taken until 2 February 2023 to issue a request for information. On this premise, there would have been only minor issues that were likely to be identified by Council as requiring clarification. Even allowing for delays associated with the Christmas and New Year holidays, it is unlikely that Council would have taken over six weeks to request further information. Nor, given the nature of the requests for information, is there a proper basis to conclude that a second request for information would have been issued. The trial judge was correct to conclude that any request for information would have been issued and responded to in time for the Consent to be issued by mid to late February 2023.

By ground 7 of the appeal, Reece argues that when assessing the reasonableness of the time that Reece took to respond to the requests for information, the trial judge should not have disregarded the time that Council had allowed for Reece’s response. Section 36(3) of the EPA Regulation requires a consent authority to specify a “reasonable period” within which the recipient of a request for information must respond. For the First RFI, Council allowed a period of 30 days for Reece to respond. Reece argues that this statutory setting, and the period of 30 days actually allowed by Council, should affect the content of Reece’s contractual obligation to act expeditiously in response to Council’s requirements.
I reject that submission. The relevant question is a contractual one. Having regard to the context of the Lease, in particular the need to obtain an occupation certificate by 23 June 2023 and the recognition that this was a “tight” timeframe, it is irrelevant that Council was prepared to allow 30 days for a response to its request for information. Reece’s obligation to act with expedition was owed to Alamdo, not Council. It served a purpose, being achievement of the timeframes agreed by the parties in the Lease, which had nothing to do with Council’s preferences or the underlying statutory standards. The clear object of the obligation in Art 29(2) was to ensure that to the extent Council required information in order to process the development application, Reece was required to act with expedition in satisfying Council’s needs. Determining whether or not Reece acted consistently with this obligation in any given case requires consideration of the nature of the requirement and the time and resources Reece required to satisfy the requirement. But it would plainly frustrate the mutual intention of the parties to the Lease to reason that, over and above those considerations, Reece was otherwise entitled to take more time than was required because Council was not insisting on a response within 30 days. Ground 7 therefore fails.

Ground 9 raises issues with the assessment of Mr King’s evidence, in light of concessions he is said to have made and other evidence going to the factors that would have delayed the fit-out works. Reece argues that Mr King accepted that an additional five working days needed to be added to his program of works to account for the link between the insertion of the mezzanine floor and the commencement of the mechanical rough-in. Mr King is also said to have made the following relevant concessions:
that extra time had to be allowed to account for the work involved in complying with conditions of consent before obtaining a construction certificate;
that it was possible that the issuing of the construction certificate might take longer than the 14 days allowed by Mr King; and
that the Lease allowed for additional time in respect of particular steps (being 20 days to submit a construction certificate rather 14 days as allowed by Mr King and two days to apply for an occupation certificate whereas Mr King contemplated only one day).
Reece contends that Mr King’s evidence only allowed for a buffer of around two weeks, which is not sufficient to take account of the additional time implied by the concessions listed above.
As Alamdo correctly submits, the matters portrayed by Reece as “concessions” by Mr King are materially overstated.
In connection with (1), Reece draws attention to condition 5 of the Consent, which required updated plans to be prepared and submitted with the construction certificate, taking into account the works specified by condition 9. Mr Halstead had opined that in a “best-case scenario” it would take 50-70 days to comply with the conditions of consent in order to obtain a construction certificate. Reece focuses in particular on the requirements flowing from subconditions 9(vii) and 9(viii). It says that in order to satisfy those subconditions Reece would have needed to engage an electrical consultant.
I do not accept that Mr King made any concessions about the work required to comply with conditions of the Consent, such as to require material adjustments to his work program. Mr King gave evidence that the updates to plans and the other requirements flowing from condition 9 were “small ticket item[s]” that were “fairly quick, simple” and “straightforward”. He opined that the work required would not take “days and days to do” but rather “no time at all”. Mr King accepted that it would be necessary for an electrical consultant to consider subconditions 9(vii) and 9(viii), but he did not concede that this would involve any substantial delay.
Nor did the trial judge accept the evidence of Mr Halstead that 50-70 days was required to update plans. In relation to the engagement of an electrical subcontractor to address subconditions 9(vii) and 9(viii) Mr Halstead opined that 21 days would be appropriate to “find and appoint an appropriately qualified Electrical Engineer and for an audit to be undertaken”. He allowed an additional seven days for the preparation of a report by that consultant. Mr Halstead gave no reasoning to support these estimates. There was no suggestion that qualified electrical consultants are in short supply. Nor did Mr Halstead opine that the work was of a particularly difficult kind. Mr King made no concession that these were realistic estimates and he plainly regarded them as excessive. Reece has not provided any sound reason why this Court should reach a different conclusion. It is inherently improbable, given Reece’s contractual obligation to act expeditiously and the resources available to it, that Reece would take 28 days to satisfy conditions that were, on Mr King’s evidence, small ticket items that were straightforward.
As to (2), Mr King did not accept that it was likely that more time would have been taken for the issue of a construction certificate than was allowed for in his program. He merely conceded that the process “might” take longer. Reece has not made good the submission that additional time should be allowed for this factor.
Point (3) is without substance. It is illogical to assume, for the purposes of the counterfactual, that Reece would have sat on its hands at any point in the process and taken longer to progress matters than was needed, merely because at particular points it could have taken longer without infringing the express contractual obligation attaching to that step. In addition to meeting its express and implied obligations to Alamdo, doing whatever was reasonably possible to progress matters would have been the commercially rational approach for Reece to adopt, particularly given the investments of time and money that Reece would have made to that point in developing the Premises.
To the extent that Reece argued that Arts 29(4) and 29(7) compelled it to wait 14 days before applying for a construction certificate and to wait two days to apply for an occupation certificate, that construction must be rejected. It is contrary to both the words and the clear commercial object of Art 29 as a whole. Article 29(4) did not require Reece to wait 14 days to apply for a construction certificate after obtaining consent. Instead, it required Reece to seek such a certificate “within” 14 days of obtaining consent. Likewise, Art 29(7) required Reece to apply for an occupation certificate “within” two days of practical completion. No commercially rational purpose would be served by Reece choosing to delay in taking either step if it was otherwise ready to proceed.
More generally, Reece’s argument underestimates the extent of the buffer that existed on the evidence. Mr King’s work program begins with a conservative start date of 20 February 2023 as the assumed date for granting of the Consent. The trial judge in fact concluded that if Reece had provided a BCA compliance report of the kind required by Council then consent would have been granted in “mid to late February”. While there is some artificiality in ascribing precise dates to this kind of counterfactual analysis, 20 February 2023 is at the more conservative end of the range implied by the trial judge’s findings.
Mr King’s work program contemplated obtaining an occupation certificate by 18 June 2023, five days before the contractual deadline. That program was predicated on a five day working week. Mr Watson, called by Reece, had a program based on a six day working week. When that was pointed out to Mr King, he said he would be inclined to allow a five and a half day working week, to take account of inefficiencies on Saturdays, which would translate to a saving in his program of around a week. As Alamdo points out in its submissions on appeal, a greater time saving would be implied by assuming a six day working week. That in turn translates to a buffer of greater than 14 days.
Reece has failed to demonstrate that adjustments in the opposite direction need to be made exceeding 14 days. In the circumstances, there is no basis to disturb the trial judge’s finding that there was a substantial chance of work being completed in time to obtain an occupation certificate by 23 June 2023, if Reece had not breached Art 29(2).
In any event, the expert evidence suggests that there was a prospect of additional contraction in the work program, if it became necessary. There was an acceptance that the use of flexible rostered days off could produce time savings as would refined design choices. The evidence on these topics was not specific enough to permit a finding about how realistic these options would have been. There was at least a realistic possibility that Reece could have accelerated matters by these measures if required. Reece’s argument postulates a scenario where timing would have become extremely tight, with the prospect of missing the contractual deadline by a mere handful of days. It is appropriate to assume that in a situation of that kind Reece would have taken every available time saving measure, rather than risk wasting its expenditure and breaching the Lease. The additional matters identified by Alamdo present as realistic options in this regard, and Reece has not demonstrated to the contrary.

By ground 11, Reece challenges the proposition that it could have pursued a “staged” construction certificate process in order to manage any delays associated with particular aspects of the process. Reece contends that such an approach would have been inconsistent with the terms of the development consent, Art 29(4) of the Lease, s 14 of the Development Certification and Fire Safety Regulation and ss 6.4, 6.7 and 6.8 of the EPA Act.
This issue is connected with the requirement under condition 5 to amend and audit plans. That work needed to be done before the construction certificate was issued. Mr Harriman suggested in re-examination that to the extent this presented a problem a “staged” construction certificate process could have been adopted so as to obtain construction certificates on a stage-by-stage process.
Reece submits that there is no evidence that it would have adopted such an approach, including from the programming experts who gave evidence. The fact that the experts did not factor in such a possibility is not in itself a strong indication that a staged approach could not or would not have been adopted. Mr King’s opinion was that the deadline could be achieved without adopting such an approach. It follows that there was no particular reason for Mr King to contemplate a staged approach.
Reece also submits that the Consent did not contemplate or permit a staged construction certificate approach, but rather required Reece to obtain a single construction certificate and the submission of the plans required under condition 5 before any construction certificate was issued. The terms of the Lease were also said to be inconsistent with obtaining multiple construction certificates on a staged basis. Finally, Reece submits that the governing regulations did not permit a staged construction certificate approach in these circumstances. Section 14 of the Development Certification and Fire Safety Regulation required fire safety to be addressed before the consent authority could issue a construction certificate. Applied to the present context Reece submits that this meant that no construction certificate could be issued until Reece completed the audits and reviews required by condition 9 of the Consent.
Given the conclusions that I have reached about ground 9, it is unnecessary to determine these issues. The evidence given by Mr King about the work program that could be achieved if the Consent had been granted on 20 February 2023 did not require a staged approach to construction certification. That evidence continues to provide a firm foundation to find, as the trial judge did, that there was a substantial chance of obtaining an occupation certificate by 23 June 2023.

Reece Australia Pty Ltd v Alamdo Holdings Pty Ltd

At a glance

Result

Key principles

Issues before the court

Cited legislation

Plain English Summary

Deep Dive

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Catchwords

Judgment

Parties

Legislation Cited (5)

Cases Cited (19)

HEADNOTE

JUDGMENT

Background facts and chronology

Negotiations leading to the Lease, the Fire Safety Order and the development proposal by Reece

Requirement communicated by Council to submit a BCA report with the development application

Communications between Reece and Alamdo concerning the Fire Safety Order

Application for development consent by Dutton for Unit 5

Submission of application for development consent by Reece

Signing of Lease

Issues concerning the processing of the application for consent

Second RFI and response by Reece

Further discussions with Council and Third RFI

Development consent granted by Council

Events following the grant of the Development Consent

Determination of issues by the trial judge

Construction and application of Article 29 of the Lease

Findings of trial judge as to the nature of causal connection required

Findings by trial judge on breach of Article 29 by Reece

Findings about the nature of the “BCA report” required by Council

Findings about the inadequacy of BCA Report Version 1

Findings about the inadequacies with Reece’s response to the First RFI

Findings as to the response to the Second RFI and the Third RFI

Findings by trial judge about the causal link between the breach of Article 29(2) and the failure to obtain an occupation certificate by 23 June 2023

The impact of the breach on the issuing of the development consent

Findings about what would have occurred if consent had been granted by mid to late February 2023

Findings about significance of the Fire Safety Order

Issues raised by the appeal

Grounds of appeal 1 and 2 – Challenge to the conclusion that Reece was “required” by Council to submit a BCA compliance report with the development application

The type of report “required” by Council at the time of the development application

Grounds of appeal 3, 4 and 5 – Challenge to the conclusion that Reece’s breach of Article 29(2) caused or materially contributed to the failure to obtain an occupation certificate by 23 June 2023

Grounds 4 and 5 – Causal significance of the Fire Safety Order and the right of each party to terminate pursuant to Art 29(2)

Grounds of appeal 6 and 7 – Contention that delay in the issuing of an occupation certificate was attributable to other causes

Ground 6 – Delay attributable to causes other than the need for a BCA compliance report

Ground 7 – The time allowed by Council to respond to the RFIs

Grounds 9 and 11 – Challenge to the conclusion that the works would or could have been carried out if development consent had been granted by mid to late February 2023

Ground 9 – Adjustments to Mr King’s work program

Ground 11 – Staged construction certificates

Conclusion and orders

AI Analysis