The Hills Shire Council v Drenovac - [2022] NSWLEC 139 - NSWLEC 2022 case summary — Zoe

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The Hills Shire Council v Drenovac

[2022] NSWLEC 139

Land and Environment Court (NSW)|2022-06-30|Before: Duggan J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-06-30

Before

Duggan J

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

Ross v Lane [2022] NSWCA 235 Rossi v Living Choice Australia Pty Ltd (No 3) (2013) 211 LGERA 238 South East Forest Rescue Inc v Allied Natural Wood Exports Pty Ltd [2021] NSWLEC 89 Temelkovski v Wright (2016) 218 LGERA 381 Trives v Hornsby Shire Council (2015) 89 NSWLR 268 V'landys v Land and Environment Court of NSW (2012) 193 LGERA 47 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Weston Aluminium Pty Ltd v Environmental Protection Authority [2022] NSWCA 236 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 Texts Cited: Macquarie Dictionary (online) Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: The Hills Shire Council (Applicant) Milan Drenovac (First Respondent) Christopher Wahbe (Second Respondent) Amelia Clare McKey (Third Respondent) Benjamin Joel Hynes (Fourth Respondent) Kristy Elyse Dimitroff (Fifth Respondent) James Christopher Dimitroff (Sixth Respondent) Representation: Counsel: I Hemmings SC and J Smith (Applicant) C Ireland (First Respondent) Submitting Appearance (Second Respondent) D Miller SC, M Staunton and L Smith (Third to Sixth Respondents)

[2]

Solicitors: Matthews Folbigg Lawyers (Applicant) Wotton & Kearney (First Respondent) Lindsay Taylor Lawyers (Second Respondent) Mills Oakley (Third to Sixth Respondents) File Number(s): 2021/221017 Publication restriction: No

[3]

Nature of proceedings

The Applicant, the Hills Shire Council (the Council) by way of Summons filed 3 August 2021 commenced these proceedings against Milan Drenovac (the First Respondent), Christopher Wahbe (the Second Respondent), and Amelia Clare McKey, Benjamin Joel Hynes, Kristy Elyse Dimitroff and James Christopher Dimitroff (the Third to Sixth Respondents or the Owners).
In its Amended Summons filed 1 April 2022, the Council seeks the following relief in relation to the issuing of complying development certificates by the First Respondent and the Second Respondent for the proposed demolition of existing dwelling and swimming pool and the construction of multi dwelling development of terrace houses, as well as the subdivision of the site into four lots: (1) A declaration that Complying Development Certificate CDC20/1662 issued by the first respondent on 15 October 2020 for the demolition of existing dwelling, swimming pool and construction of a multi dwelling development comprising of four (4) terrace houses on land known as 2 Chapman Avenue, Castle Hill NSW 2154 (Folio Identifier Lot 3 in DP 246630) (Site) is void and of no effect. (2) A declaration that Complying Development Certificate No.16132 issued by the second respondent on 15 October 2020 for the subdivision of the Site into four Torrens title lots is void and of no effect. (3) A permanent injunction restraining the Third, Fourth, Fifth and Sixth Respondents and their servants and agents from carrying out developments on the Site in reliance on the Complying Development Certificates referred to in paragraphs 1 and 2 above. (3A) An order that the Third to Sixth Respondents, within six (6) months from the date of this order, demolish or cause to be demolished such works that have been carried out on the Site in reliance on the Complying Development Certificates referred to in paragraphs 1 and 2 above. (3B) In the alternative to order 3A above, an order that the Third to Sixth Respondents: (a) within six (6) months from the dated of this order, demolish or cause to be demolished such part of the terrace houses as highlighted green on the marked-up drawings in Annexure F of the Affidavit of Simone Gaye Brew sworn 23 February 2022. (b) be restrained from using so much of the terrace houses remaining after demolition pursuant to order 3B(a) unless or until development consent is obtained for that use.
The First Respondent is a registered certifier under the Building and Development Certifiers Act 2018 (NSW), a director of Uniting Building Certifiers Pty Ltd and the holder of certificate of registration number 2623 for "building surveyor - restricted (class 1 and 10 buildings)" class of registration.
The Second Respondent is a registered certifier, a director of Land Development Certificates and the holder of a certificate of registration number 3015 for "certifier - subdivision" class of registration.
The Third to Sixth Respondents are the Owners of land known as 2 Chapman Avenue Castle Hill, being Lot 3 in DP 246630 (the Site).
The Second Respondent filed a submitting appearance on 9 August 2021 and by that appearance indicated that he submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made save as to costs. The active parties to the proceedings are the Council, the First Respondent and the Owners.
Since reserving judgment, the decision in Ross v Lane [2022] NSWCA 235 (Ross v Lane) was published by the Court of Appeal. The parties were invited to make supplementary submissions relating to that decision. The First Respondent provided further submissions, which submissions were adopted by the Owners. The Council indicated that it did not wish to make further submissions.

[4]

Facts

The parties agreed and tendered as evidence in the proceedings an Agreed Statement of Facts, from which the facts that follow have been drawn.
The Site is located within the Hills Shire Council's Local Government Area and was zoned, at all material times, R3 Medium Density Residential under the Hills Local Environmental Plan 2019 (NSW) (the LEP).
The Site has an area of 1,324m2 and is a rectangular corner block having two street frontages facing Chapman Avenue and Fishburn Crescent. The Chapman Avenue frontage is 28.7 metres including a corner splay and the Fishburn Crescent frontage is 52 metres including a corner splay. The total width of the Site is 26.83 metres and is generally rectangular in shape other than a splay on the north-east corner. The Site has a fall of approximately 4.5 metres from the south to the north.
On 30 September 2020, the Owners made an application for a complying development certificate with the First Respondent for the issuing of a complying development certificate for "the demolition of existing dwelling, swimming pool and construction of a multi dwelling development comprising of four (4) terrace houses" on the Site (Terrace Housing Development).
On 8 October 2020, the Owners made an application with the Second Respondent for a complying development certificate for the subdivision of the Site into four Torrens title lots (Subdivision Development).
On or about 15 October 2020, the First Respondent issued a complying development certificate (Terrace Housing CDC) which: 1. Purports to be a complying development certificate issued under Div 4.5 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act); 2. Approved a set of architectural and engineering plans and specifications for the Terrace Housing Development; 3. Certified the Terrace Housing Development as a complying development and is compliant with: 1. Pt 7 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; 2. Pt 3B of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (LRHD Code); and 1. Prescribed conditions of consent for the Terrace Housing Development.
On or about the same date on 15 October 2020, the Second Respondent issued a separate complying development certificate (Subdivision CDC) which: 1. Purported to be a complying development issued under ss 4.26 and 4.28 of the EP&A Act; 2. Approved a plan of subdivision for the Subdivision Development, which, if carried out, would produce four subdivided lots with areas between 321.2m2 and 348.7m2; 3. Certified the Subdivision Development as compliant with Pt 6 of the State Environment Planning Policy (Exempt and Complying Development Codes) 2008 (Subdivision Code); and 4. Prescribed conditions of consent for the Subdivision Development.
The development as approved by the Subdivision CDC and the Terrace Housing CDC would have the following built form and subdivision pattern: 1. Subdivision of the Site into four separate Torrens title lots, to be numbered lots 31-34; 2. The size of each subdivided lot would be: 1. Lot 31: 348.7m2; 2. Lot 32: 321.5m2; 3. Lot 33: 321.2m2; 4. Lot 34: 332.4m2; 1. An attached dwelling on each of the subdivided lots; 2. All four dwellings would have Fishburn Crescent street frontage with minimum setbacks as follows: 1. Lot 31: 3.42 metres; 2. Lots 32, 33 and 34: 2.42 metres; 1. Each dwelling would have its own driveway entry at Fishburn Crescent; 2. All four dwellings have a minimum site depth of approximately 26.837 metres; and 3. All four dwellings have a rear setback of approximately 5.129 metres.
Also on 15 October 2020, the Second Respondent was appointed as the principal certifier for the Subdivision Development.
On 3 November 2020, notices relating to the issue of the Terrace Housing CDC and the Subdivision CDC that describe the land and the development the subject of the certificates were published on the Council's website.

[7]

What was the minimum site area required for the Terrace Housing Development to be complying development pursuant to the Code SEPP?

Clause 1.17 of the Code SEPP provides that: 1.17 What development is complying development? (1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
Clause 1.5 of the Code SEPP has the following relevant definitions: Multi dwelling housing (terraces) means multi dwelling housing where all dwellings are attached and face, and are generally aligned along, 1 or more public roads. Parent lot in relation to subdivision, means the lot that is being subdivided.
Clause 3B.1(1)(a)(i) of the Code SEPP specifies that "multi dwelling housing (terraces)" is a type of development that is complying development for the LRHD Code.
The LRHD Code is a complying development code for the purposes of cl 1.17(1) of the Code SEPP. Clause 3B.33 of the Code SEPP provides as follows: 3B.33 Lot requirements (1) The area of the parent lot must not be less than the following - (a) the minimum lot area specified for multi dwelling housing (terraces) in the environmental planning instrument that applies to the land concerned, (b) if no minimum lot area is specified for multi dwelling housing (terraces) in that environmental planning instrument - the minimum lot area specified for multi dwelling housing in the environmental planning instrument that applies to the land concerned, (c) 600m2, but only if - (i) the minimum lot area specified in the environmental planning instrument referred to in paragraph (a) or (b) is less than 600m2, or (ii) no minimum lot area is specified in that environmental planning instrument.
The relevant environmental planning instrument referred to in cl 3B.33 is the LEP.
The LEP does not specify a minimum lot area for multi dwelling housing (terraces) but does make the following provision in cl 4.1A relating to lot size for multi dwelling housing in the R3 Zone: 4.1A Minimum lot sizes for dual occupancy, manor houses, multi dwelling housing and residential flat buildings (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted to development on a lot in a zone shown in Column 2 of the table to this subclause for a purpose shown in Column 1 of the table, if the area of the lot is equal to or greater than the area specified in Column 3 of the table. Column 1 Column 2 Column 3 Multi dwelling housing Zone R3 Medium Density Residential 1,800 square metres

[9]

Council's submissions

The Council submitted that the exercise to ascertain the minimum lot size as required by cl 3B.33 of the Code SEPP was relatively simple.
The clause provides a regime to determine lot size by reference to the relevant environmental planning instrument, in this case the LEP. Resort to the LEP will determine which part of cl 3B.33 is relevantly applicable in each case. In this case, the LEP made no express provision for terrace houses, but provision was made for multi dwelling houses and there was a lot size provided which was above 600m2 and, therefore, that was the number to be applied by application of cl 3B.33(1)(b) of the Code SEPP. In this case, the number specified in the LEP was 1800m2. The Site (as was agreed) was of a site area less than 1800m2.
The Council submitted that the provisions in cl 4.1A of the LEP did not detract from this approach. The provisions in cl 4.1A(3) whilst permitting a variation to the site area did not operate to render inoperable the nomination of the site area in cl 4.1A(2) as the "specification" of a site area for the purposes of cl 3B.33.
The nomination of the base number in cl 4.1A(2) is the specification of the site area in that clause and that is the site area to which cl 3B.33 refers. The fact that a specified number may be varied by the application of merit considerations either specified within the clause itself or by operation of other clauses such as, by way of example, the variation powers in cl 4.6 of the standard instrument, does not diminish the nomination of the specified site area being the base from which the planning merit considerations may ultimately operate.
To the extent that the First Respondent relies upon cl 4.1B of the LEP such an approach is misguided. Clause 4.1B is dealing with subdivision of the completed multi dwelling housing and not the site area to enable the making of an application for such housing. Further, the clause only applies if the subdivision and building development applications are made as a single application, which was not the case for these terrace houses - and may not be in all terrace house applications. What is being considered is the size of the lot before subdivision to determine whether the application can be made not how large (or small) the individual lots are able to be once the development has been approved.

[10]

First Respondent's submissions

The First Respondent submitted that cl 4.1A of the LEP did not specify a minimum lot size. In order to ascertain the effect of cl 4.1A the whole of the provision must be considered. Clause 4.1A is made up of two relevant components: subclause (2) is the starting point and not the end point (or minimum); subclause (3) by its operation provides no minimum requirement as it operates to prevail over subclause (2) by the use of the words "despite subclause (2)" such that the minimum lot size is something less than the number nominated in subclause (2) depending upon the outcome of the exercise of the power conferred by subclause (3). As a consequence, there is no minimum lot size specified by the LEP, the provisions of cl 3B.33(1)(c)(ii) of the Code SEPP applied and the minimum lot size was 600m2. The Site exceeded the minimum lot size required by cl 3B.33 and was, therefore, complying development for the purposes of cl 1.17 of that SEPP.
This construction of cl 4.1A is consistent with the construction of similar provisions considered in RIG Consulting Pty Ltd v Queanbeyan-Palerang Regional Council (2021) 249 LGERA 377 at [7], [20] and [22].
In the alternative, cl 4.1B(3) of the LEP applied to the R3 Zone and relevantly provided: 4.1B Exceptions to minimum lot sizes for certain residential development … (3) Development consent may be granted to a single development application for development to which this clause applies that is both of the following - (a) the subdivision of land into 3 or more lots, (b) the erection of an attached dwelling or a dwelling house on each lot resulting from the subdivision, but only if the size of each lot is equal to or greater than 240 square metres. …
Terrace houses, once subdivided, are for the purposes of the LEP a type of attached dwelling as defined: attached dwelling means a building containing 3 or more dwellings, where - (a) each dwelling is attached to another dwelling by a common wall, and (b) each of the dwellings is on its own lot of land, and (c) none of the dwellings is located above any part of another dwelling.
Multi dwelling housing is defined as: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.
Clause 4.1B, where the development proposed is attached dwelling as distinct from multi dwelling housing, operates as an exception to cl 4.1A thereby, for the purposes of cl 3B.33 of the Code SEPP, it is the appropriate clause to which regard is to be had to determine if a minimum lot size is specified. In this case, the minimum lot size is either unspecified, or if specified, is specified a minimum lot area of 240m2 per terrace. There being four terrace houses the minimum lot size would be 4 x 240 = 960m2. The area of the Site is greater than this minimum and is, therefore, complying development for the purposes of cl 1.17 of the Code SEPP.
In the alternative, cl 4.1B is the relevant provision as multi dwelling housing (terraces) in the Code SEPP is interpreted as the equivalent of attached dwellings in the LEP, then cl 4.1A does not apply. The only relevant provision in the LEP relating to lot sizes for attached dwelling is cl 4.1B where there is no minimum standard because it operates as a general exception provision to the minimum lot size provision.
On any of those constructions the site area is not required to be 1800m2 as contended for by the Council.

[12]

Findings on required lot size

Clause 3B.33 of the Code SEPP is intended to make provision for all circumstances, namely: where an LEP specifies a minimum site area above 600m2; where an LEP specifies a site area below 600m2; and, where and LEP does not specify a site area. It is necessary that cl 3B.33 provide for such alternatives as the specification of a site area in an LEP is not a mandatory inclusion in all LEPs by virtue of the Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument). As a result, a local government authority can elect whether to include such a provision and the manner of its drafting. Clause 3B.33 can therefore be seen as a requirement for there to be a minimum site area either derived from an LEP (depending upon its designation above 600m2) or where no such provision is made in an LEP to dictate that site area by operation of cl 3B.33. From such construction it can be derived that it is intended that there be a site area that is ascertainable from an application of the provisions of cl 3B.33.
Clause 3B.33, however, does not by its terms or context "import" the provisions of a relevant LEP into the Code SEPP. What cl 3B.33 requires is that enquiry be made of a relevant LEP and if it makes a provision that is applicable pursuant to cl 3B.33(1)(a) or (b) the area of the site as nominated in the LEP is the area of the site that must be met for the purposes of cl 3B.33.
What is also apparent from the clear terms of cl 3B.33 is that the clause is referring to the "parent lot" which term is defined in the Code SEPP to mean "in relation to subdivision…the lot that is being subdivided". Whilst cl 3B.33 is not expressly dealing with subdivision the use of the term parent lot in this context can only reasonably be taken to mean a lot prior to its subdivision, otherwise there would be no need for the term "parent" to be used, it would merely refer to the lot size. Therefore, cl 3B.33 is seeking to ascertain a minimum area of the lot on which development is proposed prior to it being subdivided as part of or after the carrying out of the development.
Clause 3B.33 also makes provision for where an LEP specifically nominates a lot area for multi dwelling housing (terraces) and where it does not. Where there is no specific provision then cl 3B.33 requires a consideration of whether a provision is made for "multi dwelling housing" and if so that site area applies for the purposes of cl 3B.33. The statutory intention appears to be that whilst multi dwelling housing (terraces) is a form of development referred to in the Code SEPP it may not be a form of development specifically identified in a provision in an LEP. I note that such a use is a sub-species of what the Standard Instrument defines as multi dwelling housing - in which attached housing is also a subspecies of that larger grouping of "residential accommodation". To that end, if an LEP makes no provision for multi dwelling housing (terraces) but does make provision for multi dwelling housing, then the provision for the latter will apply to the terrace form. There is no qualification in the provisions of cl 3B.33(1)(b) that would suggest that it was intended that if there were other provisions of the relevant LEP that specified a requirement for another type of defined development (such as attached housing) that may be equally or otherwise capable of characterising the proposed terrace form of the proposed development that cl 3B.33(1)(b) would not apply or that the application of the specified site area would be qualified in its application.
The question then remains for consideration in this case as to whether a "minimum lot area [was] specified" in the relevant LEP. Clause 4.1A of the LEP purports to specify minimum lot sizes. Although not determinative, it uses the term "specified" in connection with the numeric areas nominated in column 3 of the table to cl 4.1A(2). That numeric provision permits the granting of development consent provided the lot size is "equal to or greater than the area specified". Clause 4.1A(3) operates to permit a departure from the numeric lot size if "the consent authority is satisfied" of certain nominated factors relating to the manner in which the development proposed is expressed in its design and in its relationship to its environment. If the consent authority is so satisfied of the matters enumerated there is no expressed limit on how small a lot can be, that is, there is no minimum lot size.
In construing the terms of cl 4.1A of the LEP to determine whether a minimum lot area is specified the ordinary meaning of the term "specified" is to be taken into account. As was recently observed by Basten JA in Weston Aluminium Pty Ltd v Environmental Protection Authority [2022] NSWCA 236 at [32]-[33]: … because a term is undefined in a statute or regulation, it does not follow that it has the same usage as in ordinary speech. Indeed, the meaning intended in ordinary speech can only be identified by reference to its use in a particular sentence, in a particular context. The present context is a legal document, namely a regulation made under an Act of Parliament. How it is used in that instrument must depend on a careful analysis of the surrounding text and context. …as this Court has warned on many occasions, reference to dictionaries to determine the meaning of statutory language can only assist in identifying the range of possible meanings. To determine the actual meaning, it is necessary to return to the context, and particularly the text of the statute. Indeed, dictionaries demonstrate that the term "dispose of" has more than one meaning, so that choice will be arbitrary unless the word is construed in its statutory context.
With such cautions in mind, the Dictionary definition referred to at [44] does attribute some definite or detail in the specification. In this case, from a consideration of the provisions of cl 4.1A the nomination of a specific numeric minimum in column 3 meets such a description. When considered in the context of the whole of cl 4.1A(2) it is apparent that the numeric nomination is the specification of the minimum of the lot area. The provisions of cl 4.1A(3) do provide a capacity to vary the lot size, however, that variation is dependent upon the form and expression of the development proposed and not the size of the "parent lot" as required by cl 3B.33 or the lot size minimum specified in column 3 of cl 4.1A of the LEP. Whilst there is a capacity to vary the minimum specified that capacity does not deprive the original designation of the numeric minimum from having the character of a "minimum lot area [being] specified" in the relevant LEP.
From the reasoning above, it is apparent that I do not accept the submission of the First Respondent that cl 4.1B of the LEP was a relevant consideration in the determination of the lot area for the purposes of cl 3B.33. I do not accept that submission, first, because the provisions of cl 4.1B are not addressing the parent lot but rather the resulting lot sizes and, therefore, cannot be a relevant determination of lot area for the purposes of cl 3B.33. Second, as observed at [49] it matters not whether the form of development proposed can, or can in the future, be characterised as something other than multi dwelling housing, the provisions of cl 3B.33 dictate the relevant considerations in an unqualified fashion.
For those reasons, I accept the Council's submission and construction of cl 3B.33 of the Code SEPP that on a proper construction of the Code SEPP and the LEP the minimum lot area specified in the LEP pursuant to cl 4.1A(2) for the Terrace Housing Development is 1800m2.

[14]

Council's submissions

The certifier committed an error of law in the construction of the Code SEPP. The proper construction of the Code SEPP - and by necessary extension cl 4.1A of the LEP - is not a jurisdictional fact, being a non-reviewable error as identified in Trives v Hornsby Shire Council (2015) 89 NSWLR 268 (Trives), but rather, is a separate and independent reviewable error. Whilst Trives identified, by reference to the particular issues in that case, that the proper characterisation of complying development was not a jurisdictional fact capable of being determined by the Court as a question of fact for itself, it did not determine that questions of characterisation could never, in any circumstances be the subject of judicial review. As was identified by Basten JA in Trives at [14], [54] and [57] (emphasis added): 14 Before considering the relevant statutory provisions, a further qualification on the significance of the principle should be noted. If it were thought that the validity of the certificate turned on the state of satisfaction of the accredited certifier, that would not place the certificate beyond challenge. The certifier must act according to the law, and must act rationally and not unreasonably…. … 54 In that context, there has been a further development: the principle that no question of law arose with respect to statutory language involving words in their ordinary everyday meaning has given way, in many circumstances, to the principle that, as words take their meaning from their context, the construction of statutory language will usually give rise to a question of law. These factors, in combination, make it unlikely that an application for judicial review will need to rely upon the somewhat confusing concept of "jurisdictional fact" in order to establish a ground of review in circumstances where there is truly an arguable issue as to validity of the exercise of a power. … 57 That position was not easily supportable. It is true that, in its summons commencing proceedings in the Land and Environment Court, the council sought a declaration that the certificates were invalid. However, it did so on the basis that the proposed developments could not properly be characterised as detached studios, as they were in the relevant certificates. That suggested a limited question of law. The convenience of separating that question from issues relating to relief is far from clear. Had the relatively confined issues raised by the proceedings in the Land and Environment Court been determined as a whole, much time and energy would have been saved and the matter could have been finally disposed of by this court on appeal. In the circumstances, that is not possible. Although the primary judge sought to dispose of the question of "characterisation" as a jurisdictional fact, it might well be open to the court to reach a similar result (namely that the certificates were invalid) by identifying the proper construction of the relevant environmental planning instruments. However, whether the judge's reasoning in this regard was correct or erroneous was not an issue litigated in this court and no finding (nor further comment) is appropriate. The council put on no notice of contention seeking to support the decision raised by the primary judge on other grounds. The matters must be remitted to the Land and Environment Court.
Each of these observations make it plain that whilst the question of characterisation may not be a jurisdictional fact, the question of construction as to whether a particular development was capable of comprising complying development within the provisions of the Code SEPP is a matter that goes to jurisdiction and is a matter subject to judicial review.
The operation of s 4.31 of the EP&A Act has been considered in Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133 (Gindurra). In that case Pain J at [46] held that s 4.31 is intended to expand the power of the Court to review CDCs for a three month period from the date of issue, not limit the power of judicial review generally. In making that finding her Honour expressly accepted the submissions of the Council at [40]-[42] that: 40 This context led to the enactment of s 4.31 of the EPA Act. The provision is expressed in terms of amplifying the power of the Court to declare the invalidity of a CDC. Section 4.31 enables the Court to directly review the matters about which a certifier must be satisfied as jurisdictional facts, as opposed to indirectly review a certifier's state of satisfaction per Trives (CA). This is made clear by the chapeau of s 4.31 "Without limiting the powers of the Court … the Court may …" and specifically in s 4.31(b), "for which the Court determines that a …certificate is not authorised to be issued". 41 Section 4.31 does not restrict or limit judicial review of the state of satisfaction of a certifier required by s 4.28(3) (formerly s 85A(3)), for example, that the proposed development is complying development and complies with required development standards. Nor does s 4.31 seek to otherwise prescribe a restriction generally on the judicial review of CDCs. 42 The difference between the language employed in ss 4.31 and 4.59 is stark. Section 4.59, where engaged, explicitly prescribes a restriction on the jurisdiction of the Court to determine the validity of inter alia a CDC, hence the words "cannot be questioned". By comparison, s 4.31 is not expressed as a restriction at all, but an additional power given to the Court. Given that s 4.59 continues to apply to CDCs it would have been entirely otiose for s 4.31 to be enacted if it were to be construed as creating any discrete restriction on judicial review. Section 4.31 is not a privative clause.
For reasons of judicial comity, the construction of s 4.31 in Gindurra should be applied. Section 4.31 has no application to these proceedings as the nature of the error, being one going to jurisdiction, is not a matter to which s 4.31 is directed.

[15]

First Respondent's submissions

The Council's formulation of its case makes it difficult, if not impossible, to ascertain what breach it is in fact alleging. It expressly eschews a claim that the certifier acted unreasonably or was subject to error of jurisdictional fact but rather relies upon an unspecified breach of construction that it says is identified by the Court determining for itself what the proper construction of the development standard should have been and then testing that against the approved Terrace Housing CDC - rather than any actual construction undertaken by the certifier.
The breach must be particularised with clarity as mere breach is insufficient to establish invalidity.
The Council instead pleads a case requiring the Court to determine whether or not the CDC was for complying development and complying with cl 3B.33 of the Code SEPP. Notwithstanding the Council's attempt to avoid pleading an error that is not reviewable, what the Council is in fact alleging is a "jurisdictional fact", contrary to Trives, or whether the determination of the certifier that the development did comply was reasonable having regard to the provisions of the Code SEPP and the LEP.
The provisions of the EP&A Act set out the process for determination of a CDC. That process includes the determination of whether a particular application is properly characterised as complying development in that it meets the relevant development standards. That requirement is part of the process of evaluation conferred upon the certifier by s 4.28(3) which provides: 4.28 Process for obtaining complying development certificates … (3) Evaluation The council or registered certifier must consider the application and determine - (a) whether or not the proposed development is complying development, and (b) whether or not the proposed development complies with the relevant development standards, and (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions. …
The effect of s 4.28(3) is to confer all matters of mixed fact and law to the certifier to undertake as an evaluative judgment. That judgment is for the certifier to make alone - it is not a judgment that goes to jurisdiction in the true sense that an error in the evaluation will of itself rob the decision of validity.
Even if it was an opinion involving certain errors of construction of the standards and development standards, by reason of it departing from the proper construction of cl 3B.33 of the Code SEPP and cll 4.1A and 4.1B of the LEP, that does not render the opinion one that was outside the limits on his decision-making set out in s 4.28(3). That subsection conferred authority to decide and make an evaluative judgment about such matters. Section 4.28(3) makes no distinction between questions of construction of the standards and questions of fact, and a judgment as to whether a standard is or is not complied with and whether development is or is not complying development necessarily involves decisions on such matters of construction.
The result may be that there was an error of law involved in the First Respondent's decision pursuant to s 4.28(3), but, if so, that was an error of law within jurisdiction. The line between jurisdictional and non-jurisdictional error where errors of statutory construction are involved has been said to be particularly difficult to discern: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (Kirk) at [72], but is a distinction that exists, as Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) reiterates and as recognised by Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) at 24, some but not all errors of law are jurisdictional.
The alleged constructional error here was not jurisdictional for a number of reasons, applying Craig v South Australia (1995) 184 CLR 163, Kirk and Hossain.
First, even if there was an error in construction by the First Respondent, it was not such an error as led to him to misconceive the nature of his function, and so is not jurisdictional: Kirk at [72] and Craig at 177-178. As Craig at 179 noted legislation may confer power on a certifier to decide questions of law.
Second, the error of construction is not jurisdictional as it fails to satisfy the third requirement for the existence of jurisdictional error namely whether it is the legislative intention that the consequence of a mistaken decision pursuant to s 4.28(3) that development is complying development departing from cl 1.17 and cl 3B.33(1), by reason of a misconstruction of that clause and an LEP identifying a minimum lot size, is to invalidate it: Area Concrete Pumping Pty Ltd v Inspector Childs (2012) 223 IR 86 at [81]; V'landys v Land and Environment Court of NSW (2012) 193 LGERA 47 at [48]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [93].
There is no such discernible Project Blue Sky legislative intention that invalidity is the consequence from such a departure from the regulatory scheme, and this is substantially due to the plain words of s 4.28(3) that provide for a judgment to be made on such matters of compliance with the scheme.
It follows that even if there was an error of construction of cl 3B.33 in the First Respondent (relying on planning advice) not finding that the reference to minimum lot size for multi dwelling housing refers to 1,800m2 on a proper construction of that clause and the LEP, this was an error of law within jurisdiction.
However, even if it be an error of construction, s 4.31 of the EP&A Act applies. That section provides: 4.31 Validity of complying development certificate Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a complying development certificate is invalid if - (a) proceedings for the order are brought within 3 months after the issue of the certificate, and (b) the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued.
Further, given its use of the language of authorisation, the proper construction of s 4.31 is to provide for a jurisdictional challenge based on material jurisdictional error for three months only: see Hossain at [61]. However, as s 4.59 contemplates the possibility of a legal challenge beyond the s 4.31 period, the lack of authority referred to in s 4.31 must be a subset of all available grounds of challenge. The reference in s 4.31(b) to the Court determining that development is one for which a complying development certificate is not authorised to be issued, is apt to describe a challenge alleging that a departure from the Code SEPP of the kind alleged in Trives is reviewable as a jurisdictional fact. That is the pleaded challenge in the Amended Summons. It is only available for three months from the date of the Terrace Housing CDC's grant, and it is not an available ground of challenge given the timing of the commencement of these proceedings.
The decision in Gindurra is relevant to the present proceedings as the error as alleged by the Council is not one that goes to jurisdiction in the relevant sense, but an error within jurisdiction. The present proceedings allege that the Terrace Housing CDC was not authorised to be issued - as it was not relevantly complying development. However, the proceedings were not commenced within three months of the issue of that CDC. This is a complete answer to the Council's case and requires dismissal of the proceedings.

[17]

Findings on invalidity

The Council, due to the timing of the bringing of these proceedings, is constrained by the operation of s 4.59 (which will be dealt with below). The Council is also constrained by the findings in Trives as to the nature of available review. To the extent that the introduction of s 4.31 may have ameliorated the effect of Trives it also has constraining limitations. As a consequence, the Council has taken great care in the formulation of its claim as it must be a claim that survives the time constraint in s 4.59 and, it accepts, cannot be a claim that relies upon a determination of a breach as a "jurisdictional fact" or unreasonableness. In doing so it has formulated the claim as an error of law in the construction of the relevant preconditions to the operation of the complying development provisions to the facts of the Terrace Housing CDC.
To succeed in this claim the Council requires the Court to undertake a task of construction and apply that construction to the particular factual features of the Terrace Housing CDC (that is, the actual lot size of the Site). It is said that the outcome of this exercise will demonstrate that the certifier must have erred in the construction of the provisions of the Code SEPP, as the result of the exercise will demonstrate that the lot area of the Site does not meet the minimum lot area required by a proper construction of the LEP. This exercise it says is a mixed question of fact and law.
When the Council's case is broken down into its elements, as above, the Respondents' complaint that the Council is in substance impermissibly seeking to have the Court undertake the task of determining a "jurisdictional fact" must be accepted. Whilst the Council has sought to frame the question as being a different task, in order to answer the question posed by the Council the precise task that is required is that which has been held in Trives to be beyond the scope of review in these proceedings. To the extent that the operation of the decision in Trives has been ameliorated by the insertion of s 4.31, such a review for the error of construction is not available in these proceedings as the proceedings were not pleaded in that manner.
The Council contends that this criticism is merely a recognition that some heads of review may overlap - one may be a permissible ground and one may be an impermissible ground. Provided that there remains a permissible ground of review the overlap with the impermissible ground should be ignored. The principle espoused by the Council is accepted, however, in this case there is no relevant remaining permissible ground of review. The Council suggests that Trives is authority for the proposition that an error of construction of itself can be a ground of judicial review in connection with the grant of a complying development certificate. Whilst Trives does at [14], [26]-[31] and [34] note that alternative challenges other than "jurisdictional fact" may remain available, the context in which those observations are made relates to the determination by certifier of the CDC pursuant to s 4.28. As was observed in Gindurra at [62] and Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 (Trives (No 3)) at [16]-[23] the prerequisite to the exercise of the certifier's power to issue the CDC was the state of satisfaction as required by s 4.28(3) (see [63] above). The question of whether that satisfaction was based upon a misapplication of the proper construction of the Code SEPP and the LEP is a matter going to the reasonableness of the certifier's decision. As the Council accepted, in this case it did not (and could not) plead its case on this basis.
When enquiry was made as to whether there was any authority other than Trives upon which the Council relied to establish a separate and independent ground of review on an error of construction by a certifier, Senior Counsel for the Council confirmed that the decision in Trives was the only authority upon which it relied: Tcpt, 29 June 2022, p 126(42-49). It was authority, it was said that an error in construction may be reviewable as an error of law, but not as a jurisdictional fact. The distinction was said to be that in a jurisdictional fact question the court is "determining" whether the proposal is complying development as a matter of fact, whereas in the error of law the Court is determining whether the certifier made an error in the determination of that fact. This raises the question as to whether such an error is reviewable, in the sense that such an error (if established) would lead to the invalidity of the Terrace Housing CDC.
This submission when critically examined, however, identifies the error in the Council's approach. The concept of "jurisdictional fact" as identified in Trives was not merely limited to a consideration of "facts" in contrast to legal preconditions. As was observed in Trives at [52]: It is appropriate, however, to make some further comment as to the approach adopted in Pallas Newco with respect to the concept of "jurisdictional fact". As explained in Corporation of the City of Enfield, "[t]he term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion". In short, the phrase "jurisdictional fact" is a potentially confusing label for what is better described as a precondition to the engagement of a statutory power.
In this case, the Council is contending that the fact that the First Respondent was satisfied that the Terrace Housing Development met the statutory definition of "complying development" as it complied "with the relevant development standards" was in error at law as the certifier misconstrued the relevant statutory provisions. The answer to this question requires the Court to determine for itself the proper construction of the relevant provisions - which is the exact exercise as it would be undertaking if the case was pleaded as an error of "jurisdictional fact". The distinction sought to be made by the Council is in essence one of labelling and not one of substance.
The determination of whether an error, even an error relating to a matter that is a precondition to the exercise of a power (namely, one going to the jurisdiction to make the decision) will result in invalidity is to be determined having regard to the particular statutory context. The principle was expressed in Project Blue Sky at [91] and [93] in the following way: 91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. … 93 A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
The Council identified the legislative indicia of invalidity relating to what it referred to as the "bifurcation" of assessment. This being the differentiation of approval pathways in s 4.2(2) for development which may be undertaken with development consent, which development is divided into: development that requires development consent pursuant to s 4.15 as a development application; and development that can be addressed by specified predetermined development standards as complying development. The focus of the submissions was that it was clear that the legislative intent was that the determination of the particular class of development pursuant to s 4.2 was of such importance that invalidity would be the consequence of error as the error itself would permit some development that should have had a more "rigorous" assessment process to proceed without that process being undertaken.
Apart from identifying the factual policy demarcation in s 4.2 the Council declined to identify any other legislative provision or contextual factor that it relied upon to indicate that a consequence of a breach would result in invalidity. This approach, however, is insufficient to determine the statutory purpose of whether a breach is intended to result in invalidity, the whole of the statutory context must be examined. The matters relied upon by the Council relate to the policy considerations that underlay the creation of the two classes of development and not the legislative purpose to be derived from the context in the event of breach. This fails to recognise that as part of that policy regime the legislators have intentionally vested the determination of such factors in the certifier by dint of the express terms of s 4.28.
The Respondents identified the elements of the statutory regime that would indicate that invalidity was not the intended consequence of an error of construction such as that contended for by the Council: see [63]-[74] above, which submissions I accept.
As indicated in Project Blue Sky it is necessary to ask whether it was a purpose of the legislative provision that an act done in breach of the provision should be invalid and in determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute. As identified at [64]-[71] above, the statutory context is contained primarily in s 4.28(3) which indicates that the legislative intent the fundamental mixed questions of fact and law as to whether the development proposed, on a proper construction of the relevant provisions, is complying development, is left to the Certifier.
Any error is therefore an error within the certifier's jurisdiction. The certifier, once satisfied, has no basis to refuse to grant the CDC: s 4.28(7) and there is no right of appeal from the decision: s 8.6(3)(b). The decision of the certifier confers rights, which rights are valuable and benefit from certainty. Each of the reasons which speak against the consequence of invalidity were considered (albeit for a different purpose) in Trives at [17]-[58]. Those reasons speak against the characterisation being a "jurisdictional fact" and are equally forceful in the consideration of whether an error by such certifier in the construction of a provision of the Code SEPP would produce invalidity.
These statutory indicia focus the exercise of the power upon the certifier and leave to the certifier alone the determination of questions such as the construction of the relevant provisions that operate as preconditions to the exercise of that power. The determination of these factors are matters within the statutory jurisdiction conferred upon the certifier. Errors as to the determination of these factors are errors within jurisdiction. By the legislative focus remaining on the acts of the certifier it is that decision that is identified by the legislative purpose that is open to challenge. There are no legislative indicia that would indicate invalidity was intended in circumstances that operate independently of the exercise of the determination of s 4.28, and by that, I mean a challenge that does not relate to the exercise by the certifier of that power. To the extent that a review can exist it is a challenge to the exercise of the certifier of the s 4.28(3) power and would comprise factors such as the reasonableness of the certifier in making the relevant determination required by s 4.28(3); the denial of procedural fairness; and the like. There is no indicia in the statutory scheme that an error of construction challenged independently of the exercise of the s 4.28(3) determination power either exists as a basis for judicial review or if it does so exist, that it would result in the invalidity of the CDC.
The recent decision in Ross v Lane reinforces the approach adopted above. The First Respondent's supplementary written submissions on that decision observed at pars 5 to 8: 5. On appeal, Basten AJA and Macfarlane JJA held that the decision of council as to the application of clause 4(1)(a)(ii) of SEPP 65 was not a jurisdictional fact, on the basis that as the question involved an evaluative judgment, the legislative intention was that this decision was one within the decision-maker's jurisdiction. This is the situation with the evaluating judgment required by the certifier pursuant to s4.28(3) and which was a judgment made by the First Respondent in the present case. The fact that the SEPP 65 issue with which Ross v Lane was concerned involved an evaluative judgment was crucial to the non-identification of the matter as a jurisdictional fact, and a distinction was drawn with the preliminary question of planning characterisation in relation to a DA that was found to be a matter of jurisdictional fact in Woolworths v Pallas Newco, not being a question requiring an evaluative judgment: [103] (Basten AJA). The question arising for the First Respondent here under clause 3B.33 and s4.28 is not such a preliminary "gateway" matter outside the conferred functions of the First Respondent, but as with the application of clause 4(1)(a)(ii) of SEPP 65 pursuant to s4.15 of the EP & A Act, is part of the function conferred on him by the statute. 6. To employ and adapt the language of Macfarlane JA at [5], the evaluative judgment required by clause 4.28 as to which development is complying development under a clause in the Codes SEPP such as clause 3B.33 is one that certifiers are well equipped to determine, and it would be detrimental to the public interest and the efficiency objectives of the CDC legislative scheme for the certifier's decision to be reviewable other than on conventional judicial review grounds rather than on the basis that the evaluative judgment is one to be re-exercised by the Court on judicial review, which would be the effect of recognising the question as one of jurisdictional fact. 7. The reasoning and decision of Basten AJA and Macfarlan JA on the identification of jurisdictional fact in Ross v Lane provides support for the First Respondent's arguments in the present case as explained above. 8. Further, the judgment (and reasoning of all judges in Ross v Lane) powerfully reinforces the authority of Trives (CA), which concerned complying development and is dispositive on the question of whether a certifier's evaluative judgment as to whether development is complying development within the meaning of a category on the Codes SEPP is a matter of jurisdictional fact. Even Beech-Jones JA who decided that the SEPP 65 issue was a matter of jurisdictional fact expressly recognised the correctness of Trives (CA) as regards the certifier's decision as to whether development was complying development or not: Ross v Lane at [38] and [39].
I accept these submissions. By parity in reasoning, the decision of the certifier in s 4.28(3) is a matter left to the certifier and is not open to review independent of a challenge relating to the certifier's decision-making (subject to s 4.31). The capacity to challenge the validity of a CDC on grounds that include the Court determining for itself whether the proposal meets the preconditions in s 4.28(3) is now available pursuant to s 4.31. That evaluative decision of the certifier is not open in this case as it was neither pleaded nor would the construction of s 4.31 as to time have been met.
In conclusion, I find that, taken as a whole, the legislative purpose evinced by the power contained in s 4.28 and the EP&A Act as a whole, a challenge on an error of construction unrelated to impugning the satisfaction of the certifier in accordance with s 4.28 is unavailable. In this case, the Council's complaint as to a bare error of law based upon an error of construction is unrelated to the satisfaction of the certifier pursuant to s 4.28 and is therefore not available as a separate ground of review that would lead to invalidity.
Accordingly, I find that the error identified by the Council (if established) is not an error which on the proper construction of the statutory provisions would lead to invalidity. The error was within the jurisdiction of the certifier. For this reason, the proceedings should be dismissed.

[18]

Were the proceedings commenced within time having regard to the provisions of s 4.59 of the EP&A Act?

For the reasons I have identified, I have found that the Council's claim as pleaded is unavailable and that the proceedings must be dismissed. However, if I am in error in such finding it would be necessary to consider whether the claim, as pleaded, is precluded by operation of s 4.59 of the EP&A Act.
Notice of the grant of the Terrace Housing CDC and the Subdivision CDC was given on 3 November 2020 in accordance with the Environmental Planning and Assessment Regulations 2021 (NSW). No issue has been taken as to the validity of either of the notices.
These proceedings were commenced on 3 August 2021.
Section 4.59 of the EP&A Act provides: 4.59 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
The Council admits that the proceedings were not brought within the 3 months provided for in s 4.59. The Council accepts that the provisions of s 4.59 apply to the Terrace Housing CDC and Subdivision CDC, it contends, however, that the operation of s 4.59 does not preclude the particular grounds of challenge raised by it in these proceedings.
Section 4.59 has been held to be a privative clause in that it operates not as an absolute bar to the bringing of proceedings but limits the type of claims to only those that fall within the recognised exceptions to clauses of this type, commonly referred to as the Hickman exceptions (and the extensions thereto) adopting the name from the decision in R v Hickman (1945) 70 CLR 598. These exceptions are at 615 (per Dixon J): Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
The Council identified that it relied upon the specific Hickman exceptions at Tcpt, 28 June 2022, p 23(11-16): HER HONOUR: I need you to identify for me specifically what grounds of Hickman you're relying upon? HEMMINGS: I rely upon the second of the traditional grounds where it does not relate to the subject matter of the legislation, and the first of the extended grounds.
Which was confirmed at Tcpt, 29 June 2022, p 145(26-34) (notwithstanding a submission in the written submissions relating to the third Hickman exception): HEMMINGS: Thank you. At paras 15, 16, and 17, we raised the - we've identified the principle, we've identified the way in which we say that matter can be brought in the section. At para 15, we've got both the second and third, but in opening yesterday I confined myself to the second, and I continue-- HER HONOUR: The second and the first extended? HEMMINGS: Extended, correct, thank you. The second, that it does not relate to the subject matter of the relevant legislation, …

[19]

Evidence

The relevant evidence relating to this issue that the parties relied upon was the Terrace Housing CDC in particular: 1. The certificate on page 1 (folio 311 of the evidence book) that stated: I, Milan Drenovac, as the certifying authority, certify that the proposed development is a complying development, and, if carried out as specified in this certificate, will comply with all development standards applicable to the development and with the requirements prescribed by the Environmental Planning & Assessment Regulation 2000 as referred to in section 4.28 of the Environmental Planning & Assessment Act 1979 concerning the issue of this certificate. The issue of this certificate has been endorsed on the documents listed in Schedule 1, which were provided in connection with the application for this certificate. 1. The list of endorsed documents in Schedule 1 included a Town Planning report prepared by Urbis dated 14 October 2020 (the Town Planning Advice) which stated at folio 312: Control Comment Compliance Subdivision 2 Built form development standards 3B.33 Lot requirements (1) The area of the parent lot must not be less than the following - The minimum lot size for multi-dwelling housing is 1,800sqm except that Clause 4.1B of The Hills LEP 2019, currently allows multi-dwelling housing provided that each lot created is a min of 240 sqm in the R3 Medium density residential zone. Yes (a) the minimum lot area specified for multi dwelling housing (terraces) in the environmental planning instrument that applies to the land concerned. Width of parent lot exceeds 21m at the building line. (b) if no minimum lot area is specified for multi-dwelling housing (terraces) in that environmental planning instrument - the minimum lot area specified for multi dwelling housing in the environmental planning instrument that applies to the land concerned. (2) The width of the lot must not be less than 21m measured at the building line.

[20]

Council's submissions

The error by the First Respondent arises from the error in statutory construction of cl 3B.33(1)(b) of the Code SEPP and the operation of cll 4.1A and 4.1B of the LEP. That misconstruction of the statute and the specified predetermined development standards is an error of law which is reviewable pursuant to the Hickman exceptions namely as the grant of the Terrace Housing CDC "does not relate to the subject matter of the relevant legislation".
By its terms, the subject matter of the legislation for the purposes of a complying development is one that complies with the mandated prescriptions. Understanding in fact what is complying development is relevantly the subject matter of the legislation. The error that the certifier had made is one that goes to the approach to the satisfaction of the prescription where the satisfaction of the prescription is what engages the subject matter of the legislation.
From the Council's submissions (both written and oral) it is unclear whether the Council had a firm position on whether it was necessary that such an error had to be an error on the face of the record. However, it submitted that if the error was required to be disclosed on the face of the record, to that extent the relevant record is the Terrace Housing CDC which document incorporated a list of documents which included the Town Planning Advice that set out the basis for asserting compliance with the site area control in the LEP (see [102] above). From a consideration of the record the reasoning process that the certifier undertook can be discerned. In considering that record which includes the endorsing of the Town Planning Advice upon the face of that record, the Court can discern an error in construction due to the fact that the Terrace Housing CDC approved of something with an actual lot size of less than 1,800m2.
This is not a case where the error is not disclosed on the face of the record as recourse has to be had to the LEP in addition to the Terrace Housing CDC. The LEP is establishing the statutory framework on which the objective error is made.
Alternatively, recourse to the LEP is not required as the Town Planning Advice itself states that the site area is to be more than 1,800m2 and that is on the face of the record. The Town Planning Advice then goes on to apply an exception which approach is an erroneous construction of the LEP.
Alternatively, the Council relied upon what was referred to as the first extended Hickman exceptions. It contended that, in circumstances where the Terrace Housing CDC did not satisfy the specified predetermined development standards in cl 3B.33(1)(b) of the Code SEPP, the extended Hickman exceptions also applies in that there was a breach of a requirement (Lu v Walding (No 2) (2021) 249 LGERA 1 (Lu v Walding) at [128] applying Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [76]; and Maitland City Council v Anambah Homes Pty Limited (2005) 147 LGERA 234 (Anambah) at [111]): "…of such significance in the legislative scheme that it constitutes a limitation or requirement that is, as variously expressed in the authorities as "essential", "indispensable", "imperative" or "inviolable"."
That is, the operation of the EP&A Act, at its core, provides a scheme for the assessment of development. Part 4 of the EP&A Act establishes a scheme for the carrying out of development with or without consent. In relation to development which needs consent the legislative scheme requires either the granting of development consent (following a merit assessment under s 4.15 of the EP&A Act) or a complying development certificate that can be addressed by specified predetermined development standards.
The Council submitted that the distinction between requiring a merit assessment or not prior to carrying out development under Pt 4 of the EP&A Act is of "such significance" in the legislative scheme as is made plain by the stated objective of the EP&A Act "to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment" such to permit the Court's review of the Terrace Housing CDC notwithstanding the provisions of s 4.59.
On each of these bases the Council's challenge to the grant of the Terrace Housing CDC was not precluded by operation of s 4.59 of the EP&A Act.

[21]

First Respondent's submissions

Section 4.59 provides that the validity of the Terrace Housing CDC cannot be questioned in legal proceedings other than those commenced within 3 months of public notice of granting the CDC in accordance with the regulations.
As has been demonstrated above, the alleged error of statutory construction by the First Respondent here does not give rise to jurisdictional error, and no question arises as to whether the clause protects decisions the subject of jurisdictional error.
It is well established that such clauses also protect against non-jurisdictional error of law. The error not being jurisdictional means that the decision to issue the Terrace Housing CDC here is not in the category of a "purported decision" that some authorities have found such privative clauses do not protect: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; Kirk at [105]; and Brown v Randwick City Council (2011) 183 LGERA 382 at [37]; see also Lu v Walding at [108].
There is no "inviolable restraint" to use the language of [18] and [19] of Anambah (Spigelman CJ). To identify an area of operation of the rest of Pt 4 and the CDC provisions is not to identify an inviolable restraint. To refer to the shibboleth of environmental assessment does not do this either. It is equally an object of the EP&A Act to promote efficiency. The Council has not pleaded nor articulated what the said inviolable restraint involves, and it simply cannot be whether objectively the development is complying development or not given s 4.28(3). Compliance or not with every standard of the Code SEPP is quite unlike any of the inviolable restraints contemplated in the extended Hickman exceptions. Indeed s 4.28(3) is the opposite of a provision creating an inviolable restraint.
As to the second limb of the Hickman exceptions, any such error is required to be found on the face of the record. In this case, it is accepted that the whole document that comprises the Terrace Housing CDC is the relevant record. Even if the Court were to find that there was an error of law being the construction of cl 3B.33 of the Code SEPP and cll 4.1A and 4.1B of the LEP, this contended legal error is not apparent on the face of the Terrace Housing CDC. Rather, as is evident from the Council's submissions, it requires many pages of legal argument to demonstrate and the reference to legislative text not included in the CDC. In this case, as pleaded by the Council, in order to appreciate the asserted error of construction, one needs to go to the LEP and also the Code SEPP - multiple instruments.
It follows that the alleged error of law does not bring the decision to issue the Terrace Housing CDC within the Hickman exceptions. The proceedings are precluded by operation of s 4.59 and must be dismissed.

[23]

Findings on whether proceedings were commenced out of time: s 4.59 of the EP&A Act

Dealing with the first basis upon which the Council relies, namely that the decision of the certifier in granting the Terrace Housing CDC was a decision made that did not relate to the subject matter of the legislation, for the reasons that follow I reject that submission.
First, the certifier was making a determination that related to the subject matter of the legislation, namely a determination as to whether a particular development was complying development. The exercise was not one that went beyond the scope of the legislation. The fact that his determination may have been erroneous having regard to his construction of the provisions of the relevant instruments does not have the consequence that his determination did not relate to the subject matter of the legislation, rather that he made an error in dealing with the particular subject matter dictated by the task assigned to the certifier by s 4.28.
Second, if I am wrong and an error in construction was in fact a decision that did not relate to the subject matter of the legislation that error was required to be apparent on the face of the record: Anambah at [8] and [11]-[12]. For the purposes of this case, the relevant record was agreed by all parties to comprise the Terrace Housing CDC and its annexures, including the Town Planning Advice. If the record is taken to comprise those documents the error of construction asserted is not apparent on its face. The certification certifies compliance and the asserted error of construction is not disclosed in that certification. The Town Planning Advice asserts compliance with the site area control for the reasons set out therein. There is nothing on the face of that "record" that indicates the asserted error of construction. In order to establish error, it is necessary that the exercise undertaken by me above at [46]-[53] be carried out which requires recourse to the Code SEPP and the LEP which documents are not incorporated in the relevant record.
Third, the provisions of the LEP are not relevantly incorporated into the Code SEPP such that it can be read as forming part of the record or part of the Code SEPP. The Code SEPP makes provision for both circumstances where there is and where there is not a provision in an LEP. It is only by recourse to the relevant operating LEP that the relevant provision of the Code SEPP can be identified. These two instruments are essential to identifying the error relied upon by the Council in this case and they do not form part of the relevant record. Absent recourse to the Code SEPP and the LEP the error is unable to be ascertained.
Fourth, the statement in the Town Planning Advice that the site area provision is 1,800m2 is not unqualified such that it can operate as, in effect, an admission as to the "incorrect" construction in the manner contended for by the Council. The only way to establish whether the exception to which the Town Planning Advice refers is in fact correct is by considering the relevant provisions of the LEP in conjunction with the Code SEPP.
For those reasons, I find that the error identified by the Council, if it were open to be raised, would not fall within the second of the Hickman exceptions as contended.
The Council also submitted that the error it contended was of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as 'essential', 'indispensable', 'imperative' or 'inviolable' and therefore not precluded by operation of s 4.59 of the EP&A Act. For the reasons that follow, I also reject that submission.
First, in order to establish such significance, it is necessary to undertake the task of statutory construction. In this case, the Council identified what I have described above as the broad policy considerations rather than an analysis of the statutory provisions and so is of little assistance in determining the significance it asserts.
Second, when an examination of the statutory provisions is undertaken it can be seen that the type of significance to which such a provision relates is not present in connection with the power being exercised under s 4.28(3). First, the legislature has left to the certifier the satisfaction of the relevant characterisation of the development as complying development. By operation of s 4.28 the characterisation exercise is incorporated into the determination. This process is to be contrasted with that referred to in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 (Pallas Newco) at [48]-[52] wherein it was observed that the task of characterisation was divorced from the process of assessment (see also Ross v Lane at [102]-[103]).
Third, the consequence of the error is not that potentially prohibited development is approved, but that otherwise permissible development is approved, albeit with a different assessment process. In order to suggest that this "bifurcation" is of such significance as to permit a challenge in the extended Hickman exceptions some basis within the statutory scheme must be identified. In this case, there is no indication in the statutory scheme that the complying development form of assessment is so limited or undesirable that if otherwise permissible development is mistakenly assessed under that assessment process it would be invalid. The identification of policy considerations which underlie the creation of the "bifurcated" process of assessment of permissible development is neutral in the statutory context as it indicates an acceptance, as a matter of policy, of two equally valid and supportable forms of assessment are identified for different classes of development and that policy decision does not express in the statutory language a prioritising of s 4.15 assessment over a s 4.28 assessment. That is, there is no apparent purpose to be derived from the statutory scheme that it is inherently undesirable that this "other" form of assessment be undertaken such that it is a cornerstone or inviolable element of the scheme.
Fourth, if the Council's submission was accepted any error relating to jurisdiction would be saved from the operation of s 4.59 as a question of jurisdiction would be classed as so significant in the scheme. However, this construction cannot be accepted in the circumstance where a very part of the statutory scheme is the operation of s 4.59, the object of which has been held to provide a balance between permitting the challenging of decisions and the need for certainty in planning decisions. For that reason, s 4.59 and its predecessors have been found to operate to protect decisions from jurisdictional error: Pallas Newco at [79]-[80].
For those reasons, even if the error of construction contended for by the Council was available as a separate basis for judicial review in the circumstances of this case, I would find that the proceedings were not brought within time and were precluded by operation of s 4.59 of the EP&A Act.

[27]

Findings on validity of Subdivision CDC

The Council does not assert that the certifier that granted the Subdivision CDC acted erroneously. At the time of the grant of the Subdivision CDC the statutory precondition, namely the existence of the Terrace Housing CDC, was met. The complaint is a defect arising if the Terrace Housing CDC is itself found to be invalid. In the circumstances of this case with the operation of s 4.59 the Council would need to establish that the decision made by the certifier in granting the Subdivision CDC was open to challenge pursuant to the Hickman exceptions it relied upon. It has not done so; in fact, it appears to have ignored the operation of s 4.59 on this Subdivision CDC assuming as it put it that it would "automatically follow". Absent satisfaction that the provisions of s 4.59 do not apply there is no power to find the Subdivision CDC invalid. The Council, in failing to address this fundamental aspect of its claim, has failed to discharge the burden of proving that it is entitled to bring the claim and prima facie the relief sought. For that reason alone, I find that the Council has not established a breach for which it is entitled to bring proceedings and would dismiss this ground.
Further, reliance upon Bhardwaj and the authorities in this Court are not particularly helpful.
In Bhardwaj the High Court was dealing with the efficacy of a single decision found to be made beyond jurisdiction. It did not deal with a decision made in reliance upon a decision later found to be made beyond jurisdiction. This distinction is not without substance, particularly in a case such as this where the particular statutory context must be examined to determine the consequence, if any, of such a set of circumstances. The Council, apart from citing Bhardwaj as authority, does not examine whether, in this particular statutory context, the consequences it says follow are justified.
In Hollis at [105]- [107] Pain J held: 105. Bhardwaj did not deal, as this case does, with what is the effect of modifying an administrative decision while it is under challenge, in the circumstances where the Court has now found the first decision is invalid because of jurisdictional error. The application for modification was to the invalid consent for DA 336 of 2000 rather than an application for a new development consent. I consider the argument can be made strongly in this case that it is not open to the First Respondent to modify its first decision to grant development consent as that was based on jurisdictional error as a result of which no decision was made. In other words, there was no relevant decision to amend. 106. The situation in this case can be contrasted with a council making a decision about the modified development based on a new application, with the processing of that new application taking place in accordance with the procedures under the EP&A Act. As that would not require reliance on the previous decision there is nothing in law to prevent it. The modification of an existing development consent which is based on a jurisdictional error is of a quite different legal character. 107. In the statutory context of the EP&A Act concerning designated development there was a failure to perform an essential statutory function at the time the first decision was made. There was, accordingly, as the statutory function had not been performed by making the original development consent, no development consent to modify when the First Respondent purported to modify the development consent to DA 336 of 2000 in February 2002. In my opinion, the modified development consent is therefore also invalid.
In Fenwick Pepper J found that a later modification was invalid for the following reasons: 21 The Planning Assessment Report in respect of Mod 05 made it abundantly clear (a fact not cavilled with by the respondents) that it was, in several material respects, premised on Mod 01 and Mod 04 insofar as it purported to modify the development consent already amended by the earlier modification approvals. 22 It is trite law that a decision that is infected with jurisdictional error is no decision at all (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] and [153], applied in Hollis v Shellharbour City Council [2002] NSWLEC 83 at [103]-[107]). The invalidity is generally retrospective, but a Court will try to fashion an order that is not only directed to the harmful consequences of the decision to the applicant, but is also appropriate in all the circumstances. 23 Again, no argument or evidence was advanced that would suggest that anything other than a finding of invalidity as at the date of the determinations would result in respect of Mod 01 and Mod 04. 24 That being so, what is effect [sic] on Mod 05 of Mod 01 and Mod 04 being invalid? 25 In my opinion, to the extent that the council took into account Mod 01 and Mod 04 in determining Mod 05, it fell into jurisdictional error because it took into account an irrelevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). Hence it too is invalid. 26 There being no reason not to grant the relief sought in relation to Mod 05, a declaration of invalidity should be made in relation to that determination also.
As can be observed from the decisions of Pain J and Pepper J, each have quite different factual scenarios in that each found that the subsequent determination had a defect in so far as it operated on the earlier impugned consent: that is, by seeking to modify an original consent or to further modify an already modified consent. Such is not the circumstance in this case. The decision to grant the Subdivision CDC did not operate on the Terrace Housing CDC. True the Terrace Housing CDC had to be in place, but in this case, it was in fact in place and the certifier made no error in that regard.
The Council has declined to identify any error on the part of the certifier or some other basis to judicially review the decision which would be available having regard to the operation of s 4.59 and, accordingly, has failed to establish this ground of challenge, therefore, this ground must be dismissed.

[29]

Evidence

A large volume of evidence by way of affidavit was adduced by the Council and the Third to Sixth Respondents providing facts and information relevant to the exercise of the Court's discretion.
The Council relied upon the following evidence: 1. The three affidavits of Cynthia Dugan, Town Planner at Hills Shire Council, sworn 9 November 2021, 7 April 2022 and 2 June 2022. In her first affidavit, Ms Dugan undertook an assessment of the proposed development as if a hypothetical development application (DA) had been applied for rather than the CDCs. The relevant planning controls were attached by way of Exhibit CD-1 (Exhibit C). Her second affidavit addressed the alternative relief sought, being the partial demolition of the structures. In her third affidavit, Ms Dugan addressed the issues relating to the setback of the development, attaching by way of Exhibit CD-2 copies of the development application report and modification application report she prepared for a nearby childcare site recently approved, also fronting Fishburn Crescent (Exhibit D). Ms Dugan was cross-examined on her evidence; 2. The affidavit of Sarvada Naidu, Building Coordinator - Building Compliance at Hills Shire Council, sworn 10 November 2021 outlining the Council's timeline in relation to the investigation of the alleged non-compliance with the issued CDCs, attaching internal investigation, external correspondence and advice records with the First Respondent and Mills Oakley, being Exhibit SN-1 (Exhibit B); 3. The affidavit of Craig Woods, Manager of Regulatory Services at Hills Shire Council, sworn 10 November 2021 outlining the Council's timeline in relation to the CDC applications and associated notification processes, attaching the relevant application documents, CDCs issued and conditions of approval, as well as associated notifications, licences, reports received and issued relating to the Site at Exhibit CW-1 (Exhibit A). Mr Woods was cross-examined on his evidence; 4. Two affidavits of Simone Brew, Solicitor on record for the Council, sworn 11 November 2021 and 24 February 2022 outlining the relevant searches undertaken in relation to the Site and the First Respondent and Second Respondent, and attaching relevant legal correspondence; and 5. The affidavit of Peter Waugh, Civil/Structural Engineer, sworn 10 June 2022 in which he gave his opinion on the structural impacts of the proposed partial demolition sought as alternative relief.
The Third to Sixth Respondents relied on the following evidence: 1. The two affidavits of Bryan Hynes, agent for the Owners, sworn 2 December 2021 and 17 May 2022. In his first affidavit, Mr Hynes outlined the timelines in relation to the issuing of the CDCs, s 7.11 contributions and the commencement of works and attaching by way of Exhibit BH-1 (Exhibit R1) the relevant documents associated with the applications for complying development certificates and planning reports and correspondence with Urbis Planning. In his second affidavit, Mr Hynes detailed the building contract entered into for the development of the Site and the timeline and payments made in relation to that contract, as well as the progress of the development, with Exhibit BH-2 (Exhibit R2) attaching those documents evidencing such timeline; 2. The two affidavits of Timothy Blythe, Managing Director of Urbis Planning, sworn 2 December 2021 and 9 May 2022 addressing the town planning matters in question in relation to the development, including his responses to the issues raised by the Council's town planner, Ms Dugan; and 3. The affidavit of Benjamin Carruthers, Civil Engineer, sworn 13 May 2022 which outlined his opinion on the structural impacts of the proposed partial demolition of the front of the development.
On the basis of this evidence, the First Respondent and the Third to Sixth Respondents prepared a detailed chronology in relation to the commencement and continuation of the works, particularly relevant to the timing as to the commencement of the proceedings and notice to the Council. In closing submissions, Senior Counsel for the Council adopted this chronology, noting one issue it maintained in relation to the approval of a driveway: Tcpt, 29 June 2022, p 166(50)-p 167(1-4). A summary of this chronology prepared by the Third to Sixth Respondents is extracted below in its submissions.
In the course of the proceedings, Counsel for the First Respondent handed up a note summarising those aspects of the evidence that went to the professional ramifications of a declaration of invalidity on the First Respondent, as follows:

EB 3 at [26] of Steve Naidu's affidavit, he says to Milan that "if the approval is wrong it could cause legal ramification" to which Milan responded "I am concerned about my accreditation";
EB 136 in an email to Milan dated 17 February 2021, Steve Naidu writes "Council will consider what action to take from here on and whether the conduct of this matter by the certifier… requires any referral";
EB 80 - Council sends a letter to Milan dated 23 February 2021, which states "Council is now determining any further action and or referral of the matter to Fair Trading"; and
EB 106 - Matthews Folbigg sends a letter to Mills Oakley dated 7 April 2021, confirming "there has been a breach of [the certifiers] obligations".

Counsel for the First Respondent also provided extracts of ss 45 and 48 of the Building and Development Certifiers Act 2018 (NSW), which provided the relevant grounds for disciplinary action including departing from a statutory duty and the ability for complaints to be made to the Secretary and for action to be taken by the Secretary.

[30]

Council's submissions

The key principles guiding the Court's exercise of discretion pursuant to s 9.46 of the EP&A Act are well-known: see Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic); Georges River Council v Stojanovski [2018] NSWLEC 125 at [11]-[13] (Stojanovksi).
Factors relevant to the balancing exercise of discretionary factors include: the injury to the public interest by the denial of relief; the likely hardship to the consent holder by the granting of relief; the conduct of the parties; whether the breach is merely technical; and the impact of the breach on the environment: Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228 at [149].
Applying these principles, the Council submitted that the Court would exercise its discretion and grant the relief sought for the following reasons. 1. By undertaking development in accordance with invalid CDCs, the Owners produced unacceptable impacts on the surrounding environment. As outlined in the evidence of Ms Dugan, had the Owners lodged a development application for the subject development, said application would have been refused on the grounds of non-compliance with the minimum setback and lot-size requirements pursuant to the LEP and Pts 7.1, 7.4 and 7.7 of the Showground Station Precinct Development Control Plan (the DCP). These breaches, combined with the lack of rear laneway access, resulted in a built form that has unacceptable visual impact and is out of character with the precinct. The double garages reduce opportunity to provide green spaces and high-quality landscape settings and as contained in the evidence of Mr Woods and Mr Naidu, the Council received complaints from members of the public in relation to the lawfulness of the development; 2. The Owners have not sufficiently demonstrated that rectification works could only be undertaken "at a great cost or inconvenience": Sedevcic at 340. As contained in the engineering evidence of Mr Waugh, the part demolition sought in Order 3B of the Amended Summons to comply with the 10m setback would likely prove feasible from a structural engineering perspective; 3. Any inconvenience or hardship caused to the Owners can be mitigated by allowing a sufficient period of time for the modifications and removal of the unauthorised development. A period of six months from the date of the Court's orders was suggested by the Council; 4. No attempt has been made by the Owners to remedy the breaches despite the Council having written to the Owners on numerous occasions to request rectification; 5. At the time that the Owners commenced construction in accordance with the impugned CDCs, they were, or clearly should have been, on notice that there were issues of the alleged invalidity; 6. The Owners have won a private advantage for themselves by constructing the building otherwise than in accordance with a valid consent. Their actions undermined the legislative purposes of the EP&A Act and an order requiring the removal of the building would remedy the breach and return the Owners to their position prior to breach: Woollahra Municipal Council v Sahade [2012] NSWLEC 76 at [71]-[72]; and Stojanovski at [30]; 7. Although the relief sought is against a "static" development, being the resultant unlawful erection of a structure, there is no "hard and fast exception to the discretion" to grant or refuse relief in relation to static development: Sedevcic at 340. There are instances of the Court ordering demolition of unlawful buildings, structures or works as an appropriate remedy to breach: see Nader v Sutherland Shire Council [2008] NSWCA 265; Fairfield City Council v Ly [2008] NSWLEC 322; Glaser v Poole [2010] NSWLEC 143; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Woollahra Municipal Council v Sahade [2012] NSWLEC 76; Stojanovski; and Barton v Orange City Council [2008] NSWLEC 104; and 8. The orders sought are not the enforcement of a private right, but "enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment…there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid": Sedevcic at 339-40.

[31]

First Respondent's submissions

The First Respondent submits that in the exercise of the Court's discretion, neither declaratory nor injunctive relief should be granted even if vitiating error is found in the Terrace Housing CDC and s 4.59 of the EP&A Act is found not to protect it. Although there is undoubtedly jurisdiction to grant a bare declaration, it would have the detrimental effect of depriving the Third to Sixth Respondents of their approval upon which they rely to render the buildings and use lawful.
The Court's discretion to refuse relief pursuant to s 9.46 of the EP&A Act due to circumstances of delay, issues of fairness and impact on respondents is akin to that of a court in equity: see Dincel Construction System v Penrith City Council (2021) 247 LGERA 384 (Dincel) at [61]-[68].
The first factor the Court would consider is the Council's unexplained delay in commencing the proceedings, and the Council's conduct in not seeking interlocutory injunctive relief or expedition despite knowing that the approved development was underway. See Sedevcic at 365; Bankstown City Council v Bennett (2012) 187 LGERA 446 at [109]; Temelkovski v Wright (2016) 218 LGERA 381 at [29]-[34]; and Rossi v Living Choice Australia Pty Ltd (No 3) (2013) 211 LGERA 238 (Rossi) at [400]-[408].
Second, the public interest in strictly enforcing a legislative scheme is lessened where it is difficult to understand or there is ambiguity. The question of the legality of the Terrace Housing CDC was reasonably contestable in this case. There was a pathway allowing approval if a single DA had been lodged.
Third, the magnitude of the breach, being the difference in lot area, has no consequence. The overall area of the Site is 1324m2 which is 73.55% of the minimum parent lot size in cl 4.1A of the LEP. The four lots produced are substantially greater than the 240m2 referred to in cl 4.1B. There is no evidence that suggests that the 476m2 deficiency in the parent lot has any adverse environmental significance in itself.
Fourth, significant costs were incurred by the Owners prior to receiving any notification of issue by the Council, including the s 7.11 contribution paid by the Owners to the Council, which would constitute a windfall gain should relief be granted. During the year it took for the Council to commence proceedings without urgent injunctive relief being sought, the development had been substantially constructed and over $2 million had been spent. Said costs would be thrown away should the demolition in whole be ordered and the cost of that demolition would total over $200,000.
Fifth, no private advantage was secured by the Owners. This is not a case of unauthorised development, but of the wrong approvals being sought and obtained of the two available alternatives under the EP&A Act. The EP&A Act provides the CDC process as an alternative to the development application process. What has occurred here is consistent with giving that process a broader application, which is not in itself an adverse regulatory outcome.
Sixth, relief is sought against static development, the demolition of which would incur significant costs and create building and demolition waste and have an unassessed and clearly adverse impact on the subject land and neighbours. The discretion to refuse relief will generally be more readily exercised in relation to static development: Sedevcic at 340.
Seventh, the cost of the alternative relief sought, being the partial demolition of the development, is not quantified in the Respondents' affidavit evidence. The Council's own evidence accepts that should partial demolition occur, what remains would need to be substantially adjusted to make it liveable. This alternative relief is also sought contrary to principle as it would not have the benefit of planning approval and would be in breach of the EP&A Act: Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128 at [138] (Beazley P, White and Meagher JJA agreeing).

[33]

Delay in commencing proceedings

The Council's unexplained delay in commencing the proceedings, noting the nature of the relief sought, is plainly a discretionary consideration warranting the refusal of the relief sought.
As a consent pursuant to a CDC is still a consent pursuant to the EP&A Act, by parity of reasoning with development application consents, a CDC consent is valid until declared otherwise and so the Owners did not carry out unlawful works: Reulie Land Co Pty Limited v Lee Environmental Planning Pty Limited [No 2] [2020] NSWLEC 49 at [43].
In the face of Council's clear notice of commencement of, and continuation of, the works, the delay is a material consideration. A summary of the chronology including evidence references is as follows: Date Event Evidence reference 15 October Terrace Housing CDC and Subdivision CDC are both issued. Woods Affidavit [14]-[15], EB p 2020 3-4 16 October Council receives notification / copies of the two CDCs. Woods Affidavit [16], EB p4 2020 (Note: trigger for s.4.31 3-month purposes) 28 October Council Officer Alicia Jenkins requests a copy of the CDC to Woods Affidavit 2020 calculate S7.11 contribution [23], EB p5 28 October Bryan Hynes provides a copy of the CDC to Council Woods Affidavit 2020 Second time CDC has been provided in 2 weeks [24], EB p5 30 October Council receives notice of appointment of Principal Woods Affidavit 2020 Certifying Authority (Wahbe Subdivision Certifier) [19], EB p4 8 January Council receives notice of appointment of Principal Woods Affidavit 2021 Certifying Authority (Drenovac) [20], EB p4 16 January Site fences and Notice identifying Principal Certifying Hynes Affidavit 2021 Authority put up [27], EB p798 28 January Naidu Affidavit [11], EB p 112 2021 A member of the public contacts the Council "to investigate the construction which was then underway". The concern was that it was 'not compliant with the approved plans'. (and the Pathways annexure to the first Wood affidavit - Exhibit A EB page 68 28 January Mr Naidu discussed CDC with Principal Co-ordinator Brent Woodhams, Senior Town Planner Kayla Atkins, Subdivision Manager Benjamin Hawkins, Principle Co-ordinator Craig Hopfe and Principle Co-ordinator Cynthia Dugan Naidu Affidavit [14], EB p14

Mid- February 2021 Note: EIGHT COUNCIL OFFICERS ARE AWARE OF THE ISSUE BY MID-FEBRUARY 2021 11 Second call from complainant about CDC Naidu Exhibit SD1 at EB p126 February 2021 18 Third to Sixth Respondent's solicitor (Mills Oakley) responds in writing to Council stating why the Terrace Housing CDC had lawfully issued, and advising that the, "Development works (approved by CDC) can lawfully continue". Naidu Affidavit February 2021 (Notes: [20] and Exhibit SN-1, EB p 113 and p 122 1. Applicant on notice that the works were to continue.) Woods affidavit, Ex A at EB79 Council letter to First Respondent, raising objection to the CDCs and seeking developer's 'cooperation' to cease all works on site. (Notes: Woods Affidavit [33], Exhibit CW-1, EB p 6 23 1. Applicant offers no undertaking. and p 15 February 2021 2. Applicant offers no time period to resolve its concerns. Affidavit of S Naidu at [14] EB 112 sets out the list of persons Mr Woods agreed to. 3. Letter makes no assertion of the CDC being legally invalid for R v Hickman reasons, or any legally reviewable basis (other than expired s 4.31 ground of it being erroneously based on wrong 'parent lot size'. Mr Woods stating (in cross examination) that this letter was 'workshopped' by him, Mr Naidu plus also the principal planning coordinator (Mr Woodhams), senior town planner (Ms Atkins), subdivision manager (Mr Hawkins) and principal coordinator (Mr Hopfe) and head of the development assessment unit Ms Dugan. 9 March Third call from original complainant Naidu Exhibit 2021 SD1 EB p131 Mills Oakley provides to Applicant Advice prepared by M Craig QC opining that the CDCs were valid. Mills Oakley state in the covering letter advised that, "… our clients will be proceeding with the commencement of the works approved by the CDCs". 16 March Notes: 2021 1. Second time that Applicant advised that the works would continue. Woods Affidavit [34], EB p 7 2. It unknown if Mr Woods had inspected by this time. His evidence being to the effect that he inspected the site (from outside the front boundary) around 5 times before service of the Summons on 3 August 2021. 3. Mr Woods, however, conceding in cross examination that he was well aware prior to the issue of the Summons that works were continuing. 7 April Matthews Folbigg writes to Mills Oakey Brew Affidavit 2021 Note: Letter does not advise of any proposed action and merely reserves rights [6] EB p170, letter at EB p178 First Respondent provides to Applicant Notice of Commencement of Works to the Applicant council. 9 April Notes: 2021 1. No response was received from the Applicant suggesting that works should not proceed, or demanding their cessation. Woods affidavit [36], EB 7 2. Mr Woods likely undertaking inspections of the site before and after this time. 3. Mr Woods advising that the fact of these works being ongoing were known (and discussed) within Council between himself, Mr Naidu, his superior Mr Woodhams and others within Council. 23 April Building contract entered into by 3rd to 6th Respondents: Second Hynes Affidavit [10], 2021 • more than 6 months after CDCs issued; EB p 1093 • more than 5 months after Applicant published notices of the CDCs. 13 May Building works commenced on site. First Hynes Affidavit [32], 2021 EB p 798 17 May Matthews Folbigg writes to Mills Oakley Brew Affidavit [9], EB p178 - 2021 Requests surrender of CDCs and offers refund of s7.11 if surrendered within 7 days and says "will seek instructions to commence proceedings" and reserves rights letter at EB 181 Note: No response after 7 days in relation to instructions on commencing proceedings 18 May Letter from Mills Oakley advising the Applicant that the Third to Sixth Respondents would not be surrendering the CDCs. First Brew Affidavit [32], 2021 EB p 168 Council officer Craig Woods inspected the site. 2 July Notes: Second Brew Affidavit [10], 2021 • This being one of around five such inspections by Mr Woods prior to the filing and service of the Summons on 3 August 2021 (the only other known date being 2 August 2021). EB p 186 • Mr Woods conceding that by this time the matter was well known within Council including to his immediate supervisor, the director of planning and the General Manager. [unknown] Council officer Craig Woods inspected the site on unknown dates, up to 5 occasions before the proceedings were commenced on 3 August 2021 (around 6 in all in 2021) - T88.31 and T89.25. Oral evidence of Craig Woods, 28 June 2022 Mr Woods - Council Manager for Compliance, (concedes) that: 1. he wanted Applicant to seek an interlocutory injunction to restrain further works (which he knew were ongoing) - T99.4; 2. he was countermanded by Council's Group Manager of Development Compliance (Cameron Mackenzie) and its General Manager (Michael Edgar) (T.99.23); 3. he is unable to say why that decision was taken by those persons (who are not called by the Applicant) (T.99.35); Oral evidence of Craig Woods, 28 [unknown], but likely at least in or around June to 3 August 2021 4. he was not (within Council) agitating for a demolition order (for works already undertaken by that time) (T99.15); June 2022 5. he was not responsible for liaising with Council external solicitors (who ultimately issued the Summons) and was unable to identify who in Council was so responsible; and 6. he did not know who was responsible for making the decision not to seek demolition in the original Summons, but he was aware that it was not being sought; (T98.34ff) 7. after 7 April 2021, he knew works had commenced and were continuing (T98.15); 8. he is not able to explain Council's delay in issuing the Summons from 7 April 2021 to 3 August 2021 (T98.1)(those persons being - at least - his Director of Compliance, and Council's director of planning and General Manager). Proceedings commenced by Summons. Notes: 1. No interlocutory relief sought. 3 August 2. No order for demolition sought. 2021 3. No request for an undertaking to cease work. 4. Relief pleaded only on basis of breach of alleged objective fact (whether complying parent lot size per SEPP cl 3B.33). 5. No plea of relief relying on any R v Hickman or otherwise (to seek to circumvent s.4.31 bar); No plea or application seeking extension of time to commence proceedings for judicial review per UCPR 50.10. 2 or 3 August 2021 Council officers Craig Woods and Steve Naidu inspected the site Second Brew Affidavit [11], EB p 186 3 August As at 3 August 2021, $450,000 had been paid by 3rd to 6th Respondents under their building and substantial building works were completed on site. Unchallenged second Hynes Affidavit [13] and [17], EB p 1093 and p 2021 1095 Council officer Craig Woods inspected the site on unknown dates, and at least on 1 or more occasions after the proceedings were commenced. Mr Woods unable to provide dates of inspections nor confirm the precise number of inspections his inspections. Numbers of inspections (if any) by Council officers other than Mr Woods are not known. Mr Woods concedes that he was aware during this period that the development works were proceeding on the site. Oral evidence of Craig Woods, 28 Between 3 August and 2 December 2021. No application for interlocutory injunction pressed by Applicant, nor application for expedition. June 2022 Notes: Affidavit of S Brew 24/2/22 at [13] and annexure D at EB 200 1. Mr Woods did not keep records of his inspections. 2. Mr Woods did not seek to actually access the site at any time to inspect progress. 3. Mr Woods / the Applicant, was however able to monitor progress (had he / it chosen to) via Nearmaps: see for example the aerial photograph of 15 December 2021 annexed by Ms Brew to her affidavit dated 24 February 2022. 2 All four terrace houses at final stage of construction with internal stairs, electrical and plumbing service rough-in completed. Second Hynes Affidavit [18], December 2021 EB p 1096 Council receives and approves driveway cross over application for each of the 4 terraces (after inspection of the site). 3 February Notes: Hynes 2nd affidavit at [22] to 18 March 2022 1. Shortly prior to amending its Summons to seek demolition, the Applicant is inconsistently acting and approving further works on the site to facilitate permanent access. - EB1097 and Ex R2, tab 5 (pages1306 - 1324) 2. Council inspects site as part of approval process (EB 1318) 24 Works on site continuing to Applicant's knowledge. Second Hynes Affidavit [13], February 2022 As at 24 February 2022, a further $1,509,090.90 had been paid by 3rd to 6th Respondent's to their builders. EB p 1093 Amended Summons filed: CB p 1 1 April • adding new prayers for demolition or partial demolition; Second Hynes Affidavit at [11] (building costs) and [15] 2022 Note: (consultant costs) - EB pages 1093 to • by this time the 3rd to 6th Respondent's had spent approximately $2.75m plus GST in construction and consultant costs. 1095 29 April Construction of the dwellings completed. Hynes 2nd affidavit at [23] 2022 EB 1097 14 April Hynes 2nd affidavit, [25]- 2022 to 10 3-6R seek and receive demolition quotation - $284,000 plus GST (if 3-R are ordered to demolish the four terraces) [27] and Exhibit May 2022 R2 at Tab 8 (page 1338)

[34]

Notice of commencement and deficiency of Summons

The Owners waited until the three months period pursuant to ss 4.31 and 4.59 of the EP&A Act had expired to commence its works, and two months after Council had raised its initial concerns (no date was provided to resolve concerns).
No undertaking was sought by Council to not commence works. At its highest, Council asked for the Owners' 'cooperation' in waiting while Council considered the matter internally. Whilst no time period was provided for the said review, the Owners did not commence works for another three months and provided notice to Council prior to doing so.
There was no indication by Council or their solicitors that the CDCs could be invalid in law for reasons of jurisdictional error or the extended Hickman exceptions so as to circumvent s 4.59 of the EP&A Act. There was, furthermore, no indication that the s 4.31 bar may be amendable to challenge under the "satisfaction" jurisdictional basis as per Biscoe J in Trives (No 3) at [16]-[23]. The Council's concern remained limited to the alleged infringement of the parent lot size.
Noting the evidence of Ms Dugan that she considered that the proposed development fit the definition for attached dwelling and if a DA (rather than a CDC) was sought on this basis, she would have considered it met the exception to the minimum lot size standard, the undersized lot complaint that is the genesis of this judicial review is on the proper analysis not a matter of concern for the Council.
The Summons, once filed, contained the following deficiencies: 1. It was not expressly stated that any ground of challenge was based on any judicially or legally reviewable error or jurisdictional error; 2. It described the alleged invalidity in terms of non-compliance with an asserted "prescribed" lot size, rather than as an error of law therefore focusing on an alleged objective matter of lot size. This was a matter for evaluation or determination by the certifier engaging ss 4.28(3)(a) and (b), 4.28(7) and 4.31 of the EP&A Act and the decision of the Court of Appeal in Trives at [20]-[41]; 3. It did not address the Court's observations in Trives at [42] regarding the possible time-bar circumventing the judicial review route through any of the extended Hickman exceptions; 4. It contained no pleading in terms of legal unreasonableness in the Terrace Housing CDC decision so as to seek to invalidate the CDC approvals as lacking the necessary state of satisfaction: Trives (No 3) at [16]-[22] per Biscoe J; and 5. No interlocutory injunction was sought, nor order for demolition of past or future works.
The Owners promptly served a defence denying the alleged matters and pleading statutory time bars. No rejoinder was filed detailing why said bars were not engaged.
It was against this background that the Owners proceeded with the works. Had the proceedings been filed in time (or shortly after with a r 59.10 UCPR application) or been drafted in different or wider terms, it would not be presumed the Owners would have commenced the works. The significant sum expended on the works may have been put on pause while applications for an expedited hearing were made and the Owners would not face potential demolition orders and the associated costs and inconvenience.
The oral evidence of Mr Woods did not adequately explain the Council's delay, choice of grounds or relief sought. The Court would place no weight on Council's attempts to say it did not have the resources to consider what was within the CDCs on receipt. A similar attempt at such an explanation was rejected by Pain J in Gindurra. The Council did not call any other witness from Council who could explain those matters.
The Council's failure to seek an interlocutory injunction is not an irrelevancy: see Pain J's decision in Rossi at [400]-[403] where considerable weight was given to the fact that the applicant had not done so and the developer was entitled to rely on the development consent the subject of review unless it was declared invalid. The developer's decision to continue with the works was not disentitling conduct weighing against the exercise of discretion. See also South East Forest Rescue Inc v Allied Natural Wood Exports Pty Ltd [2021] NSWLEC 89 at [51] (Robson J).

[35]

Absence of genuine planning and environmental concerns in relation to demolition orders sought

There are no sufficient planning reasons that would warrant the demolition or partial demolition of the structures.
For the following reasons, the Court would reject the evidence of Ms Dugan in her assessment of the hypothetical DA and find that upon a proposed assessment of a hypothetical DA, consent would have been granted to the proposed development with appropriate dispensations in relation to street setback and laneway requirements.
In her evidence, Ms Dugan opined that the hypothetical DA would meet the exception to the minimum lot size standard in cl 4.1B(3) of the LEP (the basis of the Council's legal challenge to the Terrace House CDC). Ms Dugan's opposition was based instead on alleged infringements of three controls, being: the failure to provide a 10m front setback to Fishburn Crescent; the non-compliance with the minimum site depth of 30m; and the lack of rear lane access.
As to the 10m setback, Ms Dugan's statement that the setback control in cl 9.3 of the LEP had been consistently applied was misleading as the way in which she applied the cl 9.3 was only to the frontage nominated by the Council as being the front setback, even where the Site had two street frontages. For example, in assessing the childcare site at 45-47 Fishburn Crescent recently approved to the north of the Site in her oral evidence, Ms Dugan acknowledged that that Council had nominated the northern boundary as the front setback despite this entry appearing to be the carpark. The eastern setback at Fishburn Crescent constituted the larger setback, however along this frontage building elements such as a below ground basement, pergolas and retaining walls protrude into the setback and there are limited landscaping opportunities.
The Site depth infringement is de minimus and there is no rational basis demonstrated to suggest it would be sufficient to warrant refusal.
With reference to the alleged rear laneway infringement, Ms Dugan accepted in cross-examination that the terrace houses do not impede the construction of the laneway shown on the Indicative Street Network and Hierarchy in the DCP, which laneway was never designated for the subject site in Council's Plan. Further, the rear laneway behind the childcare centre was "moved" by Council as part of that approval, and there is a relevant exception in the DCP where rear laneways are not achievable (Pt 7.4, control 2).
The Court would also reject Ms Dugan's evidence on the partial demolition as the evidence demonstrated there had been no proper planning assessment to support those orders. The Owners submit that Ms Dugan simply drew a line on a plan which excepts the garages and driveways because they would not result in additional areas for landscaping. There was no assessment of the impact of demolition on the future use or useability of the undemolished portion of the development as the proposed demolition would simply leave the dwellings with four gaping holes to the streetscape and no evidence as to how the partially demolished structure could be used or regularised was given. Further, no consideration as to the landscape outcome Ms Dugan is seeking to achieve was made given that the garages and driveways remain, and entry paths and structures will be required.
The Court would accept Mr Blythe's evidence, which was unchallenged, that the terrace houses that have been built are consistent with the desired future character of the precinct towards medium density terrace housing. The Court would also note of Mr Blythe's acknowledgment that the 10m setback was not applied to the childcare site recently approved (as assessed by Ms Dugan) where only limited landscaping could be achieved along Fishburn Crescent due to the nature of the Site.

[36]

Findings on Discretion

Section 9.46(1) and (2) of the EP&A Act provides: 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may - (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
Inherent in this power is the discretion reserved to the Court to determine whether to make an order where a breach of the Act has been found. As was observed by Kirby P in Sedevcic at 342: It is important to conclude by pointing out that that discretion is itself part of the statutory scheme. In this sense, the exercise of the discretion should not be seen as the illegitimate interference by judges in the even-handed application of planning law which local government authorities have the responsibility of enforcing. Instead, it is an important part - a fulcrum as it were - of that planning law, designed to introduce into it the protection, in reserve, of a salutary discretion. Because it exists in the Court, the discretion must also be considered by planners who invoke the Court's jurisdiction. Because it is established by Parliament and is expressed in such broad terms, it is a legitimate and integral part of the overall scheme of planning legislation operating in this State. It cannot be ignored. It should not be unduly circumscribed by a gloss of cases.
In this case much of the evidence focussed on the exercise of the discretion in the event that the Council established a breach of the EP&A Act. That evidence provided a comprehensive examination of the actions of all parties leading up to the bringing of the proceedings and the consequences to the public and private interest if orders were not made. In the exercise of the discretion, it is necessary to take that evidence into account and determine whether, in the circumstances of this case, having regard to all of the evidence before me, it is appropriate that declarations and orders be made. In that exercise it is necessary to reflect that the exercise in each case will turn on its particular facts and that the decisions in previous cases do not operate in any way to dictate a particular outcome in each and every case. In Sedevcic a number of guidelines were identified as useful in the exercise of the discretion, with the caution that such guidelines are not exhaustive.
In this case, I accept the submissions of the Owners that the circumstances are such that the granting of the relief sought would not be appropriate in the exercise of my discretion. Weighing particularly in that exercise is the lengthy and largely unexplained delay in the Council commencing the proceedings. The Council was made aware of the granting of the two CDCs immediately upon the grant. The Council acted upon such notice being given by seeking payment of the monetary contribution. However, the Council did not, it appears, make any assessment of the validity of the CDCs. Part of the legislative purpose in a Council being given notice of the grant of a CDC where a certifier is engaged is to provide Council an opportunity to consider the CDC at an early stage and take action if appropriate. By failing to take this opportunity the Council, by its own inaction, contributed to the delay experienced.
Thereafter, once the Council determined for itself that there may be issues with the grant of the Terrace Housing CDC it did not act with expediency. Rather, aware that construction was underway, the Council took slow and uncertain steps in dealing with the Owners. The Council wrote letters threatening action; "it reserved its position"; it sought undertakings that were not forthcoming; and, during this period it was aware that the Owners challenged its assertions of invalidity and that it was potentially out of time if it chose to commence proceedings. When proceedings were finally commenced the nature of the relief sought did not include orders for demolition nor a basis for asserting that the time limitation period did not operate as a barrier.
Having regard to the Council's delay and the nature of the actions taken by it when it determined to commence proceedings, I do not consider that the Owner's acted unreasonably in commencing the construction or in continuing the work. It was not a matter of the Owners taking these actions and potentially incurring costs "at its own risk" in circumstances where the Council's actions were equivocal and tardy. It is unreasonable, in the circumstances of this case, for the Council to contend that the Owners should have ceased working for an undetermined amount of time until the Council finally decided what it would do in connection with its complaint.
Further, at the time of the hearing the building works were completed to lock up and substantial sums of money had been incurred in the carrying out of the work. The works are to be regarded as a static form of development. There is no suggestion that the works have been carried out in an unsafe or otherwise unsatisfactory manner or that any particular aspect of the development has an unacceptable impact on a particular member of the public - rather the complaint related to the capacity of the development to meet the character of the locality and the numeric requirements of Council's merit assessment considerations. I take this factor into account.
Finally, I accept the Owners' submissions at [182]-[189] above. Whilst there is a public interest in ensuring compliance with the planning regime this is a case where there was an alternative pathway to approval. I accept the submissions of the Owners that the concerns raised by Council's planner were focussed on numeric compliance rather than a true merit consideration of the hypothetical DA. Having regard to the cross examination of Ms Dugan and the unchallenged evidence of Mr Blythe I am satisfied that permitting the development to remain does not result in an unacceptable outcome for the locality such as would warrant the demolition of the buildings either in whole or in part.
Taken as a whole, I consider that the discretionary considerations weigh heavily in favour of declining relief and I would, if the Council had established a breach of the EP&A Act, have declined to grant the relief sought in the exercise of my discretion.

The Hills Shire Council v Drenovac

At a glance

Court

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Before

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Judgment (39 paragraphs)

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Legislation Cited (4)

Cases Cited (41)

Cited By (3)