The Owners Strata Plan 432 v Seddon

The Respondents' Submissions on Grounds (1) and (2)

1. In relation to grounds (1) and (2), Mr Docker adopted (par 8) the written submissions of the Council, but made some additional/supplementary submissions in respect of them on his clients' behalf.
2. Mr Docker submitted that BA524/62 did not operate as both a building approval and a PC for the following reasons (par 9 - "CB" being "Court Book", now Exhibits A1 and A2): (a) The Building Approval was issued following an application for approval to build, not for planning consent: CB A1-2/106; (b) Although the Building Approval itself is not in evidence, there is no reference to the Building Approval being a planning consent in the papers for the meeting of the Health and Building Committee of the Council on 13 November 1962 or in the letter to the applicant advising of approval on 22 November 1962: CB A8-9 & 11-12/106. (c) There is a planning consent in respect of the Site, being number 60/1594, which suggests the Building Approval is not a planning or development consent. The papers for the meeting of the Health and Building Committee of the Council on 13 November 1962 also refer to the application in respect to planning consent on this allotment being considered by the Council on 8 November 1960: CB A8/106.
3. Mr Docker submitted that, even if I found that BA 524/62 was also a PC/DC, condition 7 was not preserved upon the gazettal of the MPSO, because condition 7 was inconsistent with a provision of the MPSO (cl 69- see [202] above). This inconsistency arose because the provision of the common facilities on Lot 15, pursuant to condition 7, resulted in a garage space smaller than that mandated by the MPSO (cl 57(2)(a)). Mr Docker said (Tp251, L40 - p252, L2): DOCKER: So the internal is 3,600 millimetres which is 11 foot 10. If it's being measured right to the end of the lot it's 13 and a half feet. As a result of this condition this lot or this parcel of land has on it nine parking spaces, because your Honour knows there's six parking spaces in the building and three outside, and one of them is either 11 foot 10 or 13 and a half feet long. That is inconsistent with clause 57(2)(a) which is on page 33 of the Manly Planning Scheme Ordinance, which requires that for the purposes of a residential flat building, which is this, provision must be made for a vehicular parking space for every flat within the building, that is there has to be nine of them which are not less than 18 feet by 8 foot 6. So if the condition existed as a condition of a planning consent prior to the Manly Planning Scheme Ordinance coming in, it died on that coming in because it's inconsistent with that condition and therefore it doesn't get revived by clause 69.
4. Regarding Ms Byrne's "second avenue", through which condition 7 of BA524/62 is allegedly preserved, Mr Docker submitted that the provisions upon which she relied do not preserve condition 7, because BA524/62 is simply not a PC. He said (Tp252, L50 - p253, L8): Insofar as it is alleged by the applicant that the second path to a deemed planning consent, that is the one through the Local Government Act and the EP&A Amendment Act in 1987, is of itself a separate path. It's just not available because it's not a planning consent through that path, it's only a building approval, and as I submitted earlier it needs to be a planning consent to assist the applicant's case, because if it's only a building approval it applies to the whole of the building and the first and second respondents are not doing building, nor do they have control of the whole site, and so they can't be in breach of it.
5. Mr Docker submitted that, even if condition 7 remains enforceable, it refers only to the provision of a common laundry, and there is no mention of the intended removal of laundry facilities in the CDC, and condition 7 does not require the laundry facilities to be provided on Lot 15. Hence, the respondents do not breach condition 7 by removing the laundry facilities from that lot. They have no obligation to provide those shared facilities on their land, and nothing precludes such shared facilities from being placed elsewhere (par 11). Mr Docker submitted, in closing (Tp253, LL21 - 31, and p254, LL29 - 40): The first thing I'd say about such an argument is that because it's not the respondents' obligation, and because it doesn't apply to lot 15 specifically, then the works don't breach any such condition and also the respondents don't breach it. Even if your Honour was against me on that, it's my submission that it can't be said that the taking away of these laundry facilities necessarily results in a breach of that condition. The reason for that is because it's open for The Owners Corporation to provide these facilities elsewhere on the block, and there was actually evidence before your Honour which showed that that was a proposal which the council favoured, and in fact Mr Grevatt said in cross examination he was told in the pre-lodgement meeting by the council officer that the council would approve it. Your Honour might recall that answer. … The point for this purpose of the argument is that your Honour should find that it's not necessary that they be in lot 15, or it hasn't been established that it's necessary that they be in lot 15. It's The Owners Corporation's obligation, if anyone has one, to provide these facilities. So the removal of them from lot 15 doesn't mean there's a breach of this condition if it persists. The second reason why it's not a breach, your Honour, is that The Owners Corporation is already in breach of the condition because your Honour might recall the condition itself which comes out of Ordinance 71, clause 56(b), requires there to be a laundry for every eight lots or part thereof, and there's nine lots, so they're already in breach. So it's not a question of being more in breach. There's no such thing. If there's already a breach then taking it away can't constitute a breach of the condition if it exists.
6. Ms Byrne argued, in response, that the approved plans showed the common facilities on what became Lot 15. As those plans form part of the approval/consent, the common facilities are, absent a modification of the consent, to remain in that location, independent of the operation of condition 7, and their removal from their approved position would be a breach of the DC, irrespective of the application of condition 7 (par 8 of reply). She said (Tp184, LL32 - 37): We know that once a consent is granted, conditions form part of it and the plans form part of the consent your Honour. So the authority really is more in the territory of House of Peace v Bankstown City Council (2000) 48 NSWLR 498, and the words of President Mason that have been applied repeatedly about what is the nature of the development consent? It operates in REM, it endures and binds successors in title and the world at large.

The Council's Submissions on Grounds (1) and (2)

1. Ms Byrne relies upon Council's documents, but Mr Seymour made the point, during her oral submissions (see Tp174, LL45 - 46), that "the Court can't use these documents to construe the approval", and Ms Byrne conceded that (at L58).
2. Mr Seymour submits (par 19) that BA524/62 is not a DC under the EPA Act, because it is not a "consent, approval or permission", granted under a "former planning instrument" (See cl 7 Sch 3 of the 1979 Planning Repeal Act - see [227] above). Rather, it remains simply a BA, granted under the now repealed LGA 1919.
3. Mr Seymour said (Tp279, LL18 - 45): So what clause 7 is picking up, "consent approval or permissions granted in respect of an application made under a former planning instrument". The County of Cumberland Planning Scheme Ordinance is a former planning instrument and the council has no difficulty with the 1960 planning consent being something that might have been caught by this section and turned into a development consent. But that's not part of my friend's case. My friend says, the 1962 building application is a consent approval or permission granted in respect of an application made under a former planning instrument and this is why it's important, your Honour, that my friend be able to establish that it was two things in one because if it was only a building application for the purposes of the 1919 Act which is what we say, then it doesn't get picked up by clause 7 because that wasn't something made under a former planning instrument, it was something made under the 1919 Act. So it's only by mashing them together that my friend gets her historical continuation, but if they weren't - if they were two separate things then that clause simply isn't engaged and so that's what I've said at paragraph 22 at the last sentence, "As the building approval 524/62 was something granted under the 1919 Act that clause of that repeal Act just isn't engaged". Now, I can make good the proposition that they're different things and it may depend on your Honour's view about whether this involves the construction of an approval in the sense that the authorities say is a limited form of inquiry or whether your Honour permits it looking at the assessment material. It won't matter either way, but the council has to submit to your Honour as part of the planning system. This does involve the construction of approvals and traditionally that just means one goes to the approval itself and then looks at what's been brought into it. ...
4. Mr Seymour pointed to a number of facts which, he says, indicate that BA524/62 was not a PC/DC.
5. Firstly, the minutes of the Council meeting approving BA524/62, held on 13 November 1962, never refer to the application before it as an application for PC (Exhibit A1, tab A, fol 6/109, and Tp282, LL21 - 24). On the contrary, they expressly refer to an earlier PC application considered at a meeting on 8 November 1960 (see [128] above, subs par 20, and Tp280, LL31 - 49). As the minutes record (tab A, fol 8/109), "Council at its meeting held on the 8th of November, 1960, dealt with an application in respect of [PC] on this allotment".
6. Additionally, the approved plans (Exhibit A1, tab A, fol 10 - see [125] above), and a subsequent notification letter sent by the Council, informing REX Building Co of the approval (Exhibit A1, tab A, fol 11 - see [132] above), also do not refer to the application as being for PC - "no mention of a [PC] whatsoever" (Tp282, LL21 - 24).
7. Mr Seymour also submitted (par 24) that the "assessment considerations" the then Council identified as being relevant to BA524/62 (see Exhibit A1, Tab1, of fol 5/106), indicate that it was a BA granted under the 1919 LGA, as opposed to a PC issued under the CCPSO. He submitted that the matters considered were consistent with those required in the assessment of a BA under the LGA, as opposed to the process of assessment for a PC under the CCPSO. Mr Seymour said (Tp283, L2 - p284, L7): So, what is being assessed there, apparently, is the character of the proposed area and in the vicinity as a requirement, so it states on its face, of clause 25(a) of a draft Ordinance. Now, the County of Cumberland Planning Scheme Ordinance had a similar requirement and it was in - if your Honour then has exhibit A2 and I'll be asking your Honour to compare a few clauses of the Planning Scheme Ordinance to what was done, but relevantly, clause 27 which is on page 23, so this is the forerunner to a sort of section 79C when you're coming to address a planning consent what are the matters that you should take into account and your Honour will see from paragraph (b), "The character of the proposed development in relation to the character of the development on the adjoining land and in the locality". Okay. They're similar things, but why on earth, if this was a planning consent assessment would that be addressed as something in a draft Ordinance requirement when it's an explicit requirement of clause 27(b) of the County of Cumberland Planning Scheme Ordinance. It just doesn't make sense. That's not my best point. But it is obvious that the person assessing this hasn't dealt with that as a legal requirement of the County of Cumberland Planning Scheme Ordnance. They've put consideration of amenity in terms of draft Ordinance requirements. Now, if your Honour then can see on page 6 what this material is showing, the area of the allotment calculated, the percentage of the area of the site calculated, the area of the building within that is calculated, the area available for carparking is calculated and the area to be occupied by the carparking is calculated. There is nothing in clause 27 that requires that to occur, but if your Honour then has the extract of the Local Government Act, that is at the time-- … If your Honour goes back a page you can see that your Honour is in section 314A, "Special provisions relating to residential flat buildings in certain parts of areas" and then in terms of paragraph 2, the considerations that the Local Government Act is requiring in terms of building approval applications under itself. Paragraph (a), provision of natural light and ventilation of rooms. Paragraph (c), the proposition of a site to be covered by the building. Paragraph (d), the total floor area in proportion to the area of the site. Paragraph (g), the provision of suitable space for parking and accommodation of vehicles, etcetera. So these figures are entirely consistent with an assessment under this section. Nothing in the County of Cumberland Planning Scheme Ordinance required that level of detail.
8. He further submitted (see Tp284, LL10 - 44) that BA524/62 also could not be a PC, as the Council did not consult with the CCC (the regional authority) during its assessment, as required by cl 43 of the CCPSO, because the development was within a foreshore scenic protection area. It was argued that this was not done at that stage, because such consultation had already occurred (see [112] above) when Council was assessing the 1960 PC application, thus illustrating that the 1962 BA was granted in reliance on that 1960 PC.
9. Mr Seymour said (Tp284, LL38 - 44): So again, what we have when we look at the totality of the materials is a clear two step and the applicant's case will entirely fall over if your Honour makes that finding which we say is entirely consistent with the materials and the only thing that my friend can point to to suggest that it's both things is that clause of the County of Cumberland Planning Scheme Ordinance saying if you want it to be it can be both. If it needs to be it can be both. But we say there wasn't any need for it because it had occurred in two stages.
10. As BA524/62 was not a PC, the transitional provisions relied upon by the applicant do not preserve it as such.
11. In respect of the applicant's "second avenue", Mr Seymour submitted that, as the BA permitted the applicant only to "erect a building", as opposed to Council's consenting to the use of that building in its present form, BA524/62 is not preserved by cl 45(1) of the 1998 Transitional Regulation. He submitted (speaking notes pars 26 - 28): 26. The Corporation also relies on the transition of "approvals" from the 1919 Act to the Local Government Act 1993 and then into the Environmental Planning and Assessment Act 1979 by the Environmental Planning and Assessment Amendment (Savings and Transitional) Regulation 1998 ("the Building Approval Transition Regulation"). 27. It is important that these transitional provisions saved approvals that were "for a prescribed activity" (being, in context, "To erect a building"). As at the time of these transitional provisions (ie 1 July 1998) there was no need for Building Application 524/62 to permit of the activity of "erect a building" as the Building had been erected. The ongoing use of the Building did not depend on Building Application 524/62 but on the earlier grant of Planning Consent in 1960 (which the Council accepts is the appropriate instrument that has an on-going life as a development consent due to the operation of transitional provisions and this is consistent with the analysis conducted by Pain J in Caltex Aust [sic] v Manly Council (2006) 155 LGERA 255). 28. Building Approval 524/62 is not a "development consent" for the purposes of clause 45(1) of the Building Approval Transition Regulation. It might be a construction certificate for the purposes of cl 46(1) of that Regulation.
12. Even if the BA is considered a PC, and its conditions are preserved by the transitional provisions, Mr Seymour submitted that condition 7, properly construed, created no ongoing obligation to provide the common facilities. He said (sub 25): In any event, the relevant condition was expressed, in terms, to apply to the plans the subject of the building approval. This condition was satisfied once those notations on the plans were made. The condition then expired in practical effect on registration of the strata plan: Hillpalm v Heaven's Door Pty Ltd (2004) 200 CLR 472. Following registration of the Strata Plan, the rights and liabilities of the residents of the Building concerning the use of individual lots and common property, inter se, would be determined by the registered plan and any subsequently issued certificate of title and, in those terms, the register is paramount: City of Canada Bay Council v F&D Bonaccorso Pty Ltd [2007] NSWCA 351 [("Canada Bay")]; Koompahtoo Local Aboriginal Land Council v KLALC Property Investment Pty Ltd [("Koompahtoo")] [2008] NSWCA 6.
13. Council further submitted (par 27) that, even if Condition 7 did create an ongoing obligation to provide laundry facilities, that obligation rested on the applicant, not on the respondents, and relates to its ability to provide those facilities on the common property. It does not require the placement of the common facilities on Lot 15, nor apply to Lot 15 at all.
14. Mr Seymour submitted that the works authorised by the CDC would not contravene BA524/62, even if it be considered a DC. The CDC is clear as to what works it certifies - removal of an internal non-structural wall. The removal of any fixtures, and the capping of pipes servicing Lot 15 do not require approval, such work being "exempt development". He said (Tp264, LL24 - 42): If, as my friend has said, you go to the plans it puts it beyond all doubt that the certification is in respect of work within lot 15. If I then take your Honour to those drawings, because at the moment I'm just construing the instrument. That starts at page 32. What I'd ask your Honour to do is just to compare the certified development on page 46 to the drawing shown on page 32, and the development is the removal of a non-structural wall of an existing residential flat building, or within an existing residential flat building. If one asks what is the wall that's being removed, then that's what's depicted on the drawing on page 32 and that's confirmed on page 33 by the hatching. So that's the development that we say has been certified. There may well be an argument about whether the removal of the sinks and the toilet has been certified. For my part I would say that it wasn't certified, but that's a question of whether the plans incorporated that beyond the description of the complying development. It doesn't matter because what I'll take your Honour to eventually is the exempt development part of the LEP and minor operations to residential buildings are exempt development. So on any view, whether the removal of the sinks and the toilets were certified by this instrument or not doesn't really matter because they're exempt development.

Consideration of Grounds (1) and (2)

1. In light of the competing submissions of the parties on these two grounds, there are four questions which fall for consideration: 1. Is BA524/62 a PC by virtue of cl 41(2) of the CCPSO, and, therefore, a "deemed" consent under the EPA Act?; 2. If it is a PC, is BA524/62, including condition 7 (see [129] above), preserved by the relevant transitional provisions?; 3. If so preserved, does BA524/62 create a continuing obligation on the owners of Lot 15 to maintain the common facilities on their property?; and 4. If it does, are the proposed works in contravention of BA524/62?

Q. (1) Is BA524/62 a planning consent by virtue of cl 41(2) of the CCPSO?

1. There is much to commend Mr Seymour's analysis that Council followed the then usual two or three stage process (development approval, building approval, SP), and no basis was advanced for a Town Clerk to simply write a letter declaring a PC "null and void", and inviting a fresh application. However, no case has been properly made to the Court by the applicant that the 1960 PC actually lapsed, as envisaged by cl 41(5) (see [192] above).
2. On the other hand, there is High Court authority that would dictate a finding that BA524/62 is indeed a PC, by virtue of cl 41(2) of the CCPSO.
3. In 1967, Wilcox wrote (op cit [183] above, p338): In many cases an applicant for development consent to erect a building or work or open a new road would have to seek the consent of the same authority under a different Part of the Act (e.g. Pt. XI or Pt. XII). This is the case whenever the local council is the responsible authority for the purposes of development consent. In such a case no separate development application is necessary; the building or road opening application is deemed to be also a development application except where the application omits particulars required by the ordinance and the council so informs the applicant on or before its decision on the building application. This provision, which appears not only in the County of Cumberland Planning Scheme ordinance but also in the various local schemes, is of great benefit in minimizing formalities. It is not, of course, incumbent on an applicant to use this concession. In may cases he may prefer to defer preparation of a formal building application or subdivision application, with the necessary plans, until development consent is granted.
4. He added (at p438) a comment suggesting that cl 41(2) of the CCPSO enabled Council approvals to be "simultaneously both building and development approvals".
5. In 1974, the High Court decided Drummoyne Municipal Council v Lebnan ("Lebnan") [1974] HCA 34; 131 CLR 350. Mr Wilcox appeared for the successful respondents. The principal judgment (of the 4-1 majority) was delivered by Gibbs J. Menzies J dissented, but Barwick CJ agreed "entirely" with Gibbs J, Stephen J expressed "complete agreement" with him, and Mason J also agreed, without added comment.
6. The case turned on cl 31(3) of the Drummoyne PSO which provided: Where, in pursuance of the Act (except Part XIIA thereof) or of an Ordinance made under the Act (except the said Part), an application is made to the Council for its approval to erect a building or work or to open a new road, such application shall, if the matter to which it relates requires the consent of the responsible authority under this Ordinance, be deemed to be an application for such consent, unless the application does not contain the information and particulars required by sub-clause (1) of this clause and the responsible authority so informs the applicant on or before giving its decision in respect of such application.
7. It is to be noted that the terms of cl 31(3) are in all material respects identical to those of cl 41(2) of the CCPSO ([192] above).
8. Gibbs J said (at 358 - 9): The material words of the Ordinance - "if the matter to which it relates requires the consent of the responsible authority under this Ordinance" - raise the question whether the consent of the responsible authority is required and not whether the consent has in fact been given. The fact that there is a subsisting consent does not mean that the proposed building does not require a consent - it merely means that the requirement, if it exists, is satisfied. Clause 31 (3) was apparently intended to deal with those cases where, to speak only of buildings, the erection of a building requires the consent of the responsible authority under the Ordinance as well as the grant of a building approval under Pt XI of the Act. It no doubt appears convenient that it should be possible in such cases to obtain the two requisite consents upon one application only. In some such cases the landowner concerned may consider it prudent to obtain a development consent before proceeding to prepare the building plans necessary to support an application under Pt XI, but having regard to the time necessary to prepare building plans it is by no means unlikely that, as happened in the present case, the existing development consent will be due to expire soon after the building approval takes effect. In such a situation it would again appear convenient, speaking generally, that a development consent and a building approval should be in force for the same period of time. Whether or not considerations of this kind provided the reason for the enactment of the clause, its meaning seems to me to be clear; it applies when the erection of the building to which the building application relates requires, as a matter of law, the consent of the responsible authority under the Ordinance, whether or not, as a matter of fact, a consent of that kind has actually been given. In the present case, therefore, by virtue of the operation of cl. 31 (3) the building application made on 23rd September 1971 was deemed to be an application for a development consent. ... The effect of cl 31 (3) was that the building application had a twofold operation - it was deemed to be an application for a development consent as well as an application for approval. In my opinion It follows that an unqualified approval to the building application would amount to an approval to everything it was deemed to embrace and in other words amount to a development consent as well as to a building approval. No doubt a responsible authority has the power (subject to any right of appeal) to limit the effect of its approval, and to refuse a development consent while granting a building approval. However, in the present case the appellant approved of the application without any relevant qualification. Since the application was deemed to be, inter alia, an application for the consent of the responsible authority under the Ordinance, the approval took effect in part as an approval of that deemed application. On the proper construction of cl. 31 (3) and in the circumstances of the case the appel1ant as the responsible authority under the Ordinance gave its consent for the purposes of the Ordinance when it approved of the erection of the building under Pt XI of the Act.
9. Nothing either in cl 31(3) of the Drummoyne PSO, or in cl 41(2) of the CCPSO, required the consent authority to spell out specifically the fact that it was treating the BA application (here BA524/62) as an application for PC. It simply provides the consent authority with the ability to treat a BA application as if it were a PC application in certain prescribed circumstances.
10. References, in the Council's assessment material for BA524/62, to the 1960 PC having been "considered" by the Council do not alter this view. The fact that it had previously been "considered" simply indicates that the Council had previously considered an application for consent to a development on the land.
11. I, therefore, answer the first question "yes", and so turn now to the second.

Q. (2) Is BA524/62 preserved by the relevant transitional provisions so as to be a deemed development consent?

1. The applicant has argued that there are two avenues which would lead to the preservation or survival of the consent so deemed.
2. Avenue 1 (see [307] above), relies on the operation of transitional provisions, which were considered by Pain J in Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; 155 LGERA 255.
3. In that case, Manly Council granted a building application pursuant to Pt 11 of the LGA 1919, for the construction of a service station on certain land. Pursuant to cl 41(2) of the CCPSO that application was also considered to be a development application. In 1988, upon the gazettal of the 1988 Manly LEP, use of the subject land for a service station became prohibited. The Council argued that there were no existing use rights attached to the land, because of the existence of a 1953 development consent, which remained in force, which rights, by virtue of s 109B of the EPA Act, authorised development for the purpose in that consent. It was submitted that, if s 109B applied, there could be no existing use rights, as defined under s 106(a), because the use of the land was not "prohibited".
4. Pain J concluded (at [59]) that, if there are appropriate transitional provisions in force under a PSO replacing the CCPSO, a deemed consent under the CCPSO continues in force.
5. Her Honour followed Court of Appeal decisions in Auburn Council v Nehme; [1999] NSWCA 139; 106 LGERA 19, and Harris v Hawkesbury Shire Council (1989) 68 LGRA 183, and I respectfully adopt her detailed analysis of the case law, and of the transitional provisions of direct relevance here.
6. For Condition 7 to survive beyond the repeal of the CCPSO, it must not be "inconsistent" with any provisions of the MPSO (cl 69 MPSO - set out above at [202]).
7. Clause 57(2)(a) of the MPSO has also already been set out ([201] above. It provided: (2) A person shall not erect or use a building for the purpose of a [RFB] unless provision is made within the site of the building for - (a) vehicle parking space of an area not less than 18 feet by 8 feet 6 inches for every flat within the building.
8. Condition 7 required "laundry facilities being provided in accordance with the provisions of ordinance 71, and the plans being amended accordingly".
9. The plans were subsequently so amended, and plan (iii) (Exhibit A1, tab A) shows a hand-drawn alteration placing the common facilities within what became Lot 15. Plan (iv), which is stamped "amendment approved", also shows the common facilities in that location (see [125] above).
10. As a consequence of the amendment, the garage area within what became Lot 15 was reduced to length of 13.5 ft, well below the 18 ft mandated by cl 57(2)(a) of the MPSO (Tp251, L40 - p252, L2 ).
11. It cannot be disputed that this reduced area is inconsistent with the area mandated by cl 57(2)(a), but the question for the Court is whether Condition 7 itself is "inconsistent" with that clause, and I believe it is not.
12. Condition 7, on its terms, did not necessarily require the reduction of the garage space in Lot 15. It was the manner in which condition 7 was given effect which caused the area of Lot 15 to be reduced. This does not give rise to an "inconsistency" of the type envisaged in cl 69 of the MPSO.
13. Accordingly, I find that BA524/62, including, in particular, condition 7, is preserved by the relevant transitional provisions.
14. Even if I am wrong in this conclusion, the approved plans form part of the BA/DC, because their incorporation is necessary to understand the consent. Those plans depict the common facilities in their present location, and removal of them from that location would be inconsistent with the consent (see my examination of the relevant principles in Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services (No 3) ("Quarry Products") [2012] NSWLEC 57).
15. Having found that BA524/62 is preserved through avenue 1, it is unnecessary for me to consider avenue 2 ([308] - [309] above).

Q. (3) Does BA524/62 create a continuing obligation on the owners of Lot 15 to maintain the common facilities on their property?;

1. It was submitted that, even if I found that BA524/62 was a DC and remained in force, condition 7 itself placed no ongoing obligation on the respondents to maintain the common facilities on their lot.
2. The respondents cited Hillpalm Pty Ltd v Heaven's Door Pty Ltd ("Hillpalm") [2004] HCA 59; 220 CLR 472, in support of the proposition that no ongoing obligation can rest on them, as the owners of Lot 15, to maintain the common facilities on their lot, because to do so would "require an implied easement or right of access over lot 15", which is contrary to the High Court's finding (at [53]) that conditions attached to PCs do not give rise to rights in rem, and it would be contrary to the long-standing principle that rights in land do not exist outside those which are depicted in the register, because the Torrens system is one of "title by registration not registration of title" (see also Canada Bay; and Koompahtoo.
3. Hillpalm Pty Ltd was the registered proprietor of land adjacent to land owned by Heaven's Door Pty Ltd. Both parcels had formerly been parts of one lot. In 1977, the land was subdivided, and a condition of that subdivision required that a right of way be granted and constructed over the Hillpalm lot for the benefit of the Heaven's Door lot. However, the easement was never granted, nor the right of way constructed, and Heaven's Door brought proceedings in this Court, seeking to compel Hillpalm to grant the easement. Hillpalm argued before me, at first instance, that, as the failure to grant the easement was in breach of the original subdivision consent, and so contrary to s 76A of the EPA Act, it was entitled to relief pursuant to s 123 of that Act.
4. My decision went on appeal, and eventually the case was determined by the High Court, which held, by majority (McHugh, Hayne and Heydon JJ) that Heavens Door could not rely on the condition of consent to compel Hillpalm to grant it an easement. Their Honours reasoned (at [42]) that, by merely occupying the land, Hillpalm was not "carrying out development in breach of a [DC]", and, accordingly, there was no breach of s 76A, and no action arose against Hillpalm under the EPA Act. Heaven's Door had sought to overcome this difficulty by arguing that the consent created a right in rem (see [51]), but their Honours rejected this position, stating that "the existence of such a right would be inconsistent with s 42(1) of the Real Property Act" (quoted at [266] above). The majority continued (at [53]): "If the consent to the subdivision did create a right in rem, that would be a right or interest in the land not shown on the computer folio certificate. There would then be a real and lively question about how the two statutory schemes (the scheme under the EPAA and the Torrens system for which the Real Property Act provides) were to be reconciled, and questions of implied repeal or amendment might arise.
5. The joint judgment did, however, state that "the availability of rights in personam is entirely consistent with the Torrens system of title". They said (at [54] - [55]): 54 The immediate indefeasibility of a title to land under the Torrens system does not deny "the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant" [(33)] and those proceedings "may have as their terminal point orders binding the registered proprietor to divest himself wholly or partly of the estate or interest vested in him by registration" [(34)] . If the respondent has a right against the appellant, it is a personal right, not a right in rem, and that personal right must be found, if at all, in the relevant statutory provisions. 55 For the reasons given earlier, however, the respondent has no such right. Section 123 of the EPAA does not provide that right to the respondent in this case, the appellant not being in actual or threatened breach of that Act. No other provision of that Act was identified as founding the right asserted. That being so, the respondent's claim to orders obliging the appellant to create an easement and construct a right of way must fail.
6. Unlike the Hillpalm situation, the respondents in the present case propose to carry out a positive act that is contrary to a previous DC. There can be no doubt that what they propose is "carrying out development", and that, therefore, a right in personam arises under s 123 of the EPA Act. The applicant does not rely on the consent providing a "right in rem", but seeks to restrain a positive breach of a DC which, it says, remains in force.
7. Ms Byrne sought to distinguish the present case from Hillpalm, stating (at Tp18, L44 - p19, L11): This case is not about resolving conflicting interests in land. Hillpalm v Heaven's Door, a case that your Honour would be aware of and I'm aware of - … - is not engaged. We're not seeking to enforce an unfulfilled condition of a development consent against a subsequent owner of t the fee simple, which was what the Heaven's Door party had applied to do before your Honour. The relevance of any condition of a development consent in this case is because of the complying development certificate application and the fact that the Manly LEP 1988, as at the relevant time, specified, as one of the criteria for a comply development, that it could not be in breach of a condition of a development consent. It's a very different inquiry, and what we have to show is that the building approval granted by Manly Council in 1962 is a deemed development consent for the purposes of the Environmental Planning and Assessment Act and, therefore, that reference in the Manly LEP is engaged and that the complying development certificate could not - sorry, I withdraw that. The nature of the work that the first and second respondent applied to do under the complying development application would be in breach of a condition of that development consent. So that's the main point in regard to the relationship between the development consent and the complying development certificate.
8. I accept this submission. Unlike Hillpalm, the applicant is not asserting a right to have a new proprietary right created over land in its favour, in purported compliance with a condition of consent. Rather, it seeks the maintenance of the "status quo", or the current form of the building, in which those common facilities were approved, and have remained for many years in that position. It says that the removal of those facilities would be a breach of the consent, unlike the situation in Hillpalm, where it was asserted that Hillpalm had a positive obligation to create a right so as to comply with the consent. Hillpalm, therefore, does not prevent the applicant in this matter from succeeding.
9. It was asserted by all respondents that condition 7, on its terms, was "spent" when the plans were amended, because it required only that the plans be amended to show the common facilities, and, when that was done, it was satisfied, and had no further operation. Additionally, it was submitted that Condition 7 placed no obligation on the owners of Lot 15 to provide the common facilities on their property, but, rather, it placed an obligation on the Owners Corporation to provide the facilities on Common Property.
10. I consider that the obligation to provide the common facilities in their present location arises from the approved plans themselves, as part of the consent, independently of Condition 7 (see again Quarry Products). Whether those facilities become common property is a separate issue from precisely where they are located.
11. The respondents are, therefore, not at liberty to remove them.

Q. (4) Are the proposed works in contravention of BA524/62?

1. Finally, it was submitted, that, even if condition 7 remained in force, and created an obligation to maintain the common facilities in their present location, the works actually authorised by the CDC do not contravene that condition (Council's speaking notes, par 32).
2. The CDC certifies the removal of an internal non-structural wall, which is complying development pursuant to the LEP. The removal of the sinks and toilets at the end of Lot 15 did not need development consent because such work is considered "minor internal alterations", and so is "exempt development", not needing certification.
3. I consider that the works the subject of the CDC clearly involve the removal of common facilities, and the transformation of that area into a garage space for the exclusive use of the owners of Lot 15. The CDC expressly states that "This approval relates to drawings/plans Nos. DA01 - DA04 dated 27 September 2010 and received by Council on the 5 October 2010" (Exhibit A1, Tab E, fol 46/49). Drawings DA03 and DA04 clearly show that the works relate to the proposed demolition of internal walls partitioning the garage space from the common facilities. An annotation on DA03 reads: "Remove existing sinks & toilet suite and make good".
4. In my opinion, the CDC clearly authorises the removal of the common facilities, and I am satisfied that those proposed works are contrary to BA524/62, which operates as a deemed DC.

Conclusion on Grounds (1) and (2)

1. The applicant must succeed on grounds (1) and (2).

Grounds (3) and (4)

1. Having come to the conclusion that the applicant succeeds on grounds (1) and (2), it is entitled to the grant of relief.
2. It may, therefore, not be strictly necessary for me to determine the remaining grounds, but, as they were fully argued before me, and have relevance to relief, I will now deal, hopefully more briefly, with each of grounds (3) and (4) in turn.

Ground (3) - owner's consent

1. The applicant claimed that the CDC is invalid, as the respondents did not obtain its consent as owner of the common property in fee simple: see ss 84A(2)(b) and (3) of the EPA Act, Schedule 1, Pt 2, cl 3(e) of the EPA Regulation, and s 18 of the 1996 Strata Act.
2. There were two alternate arguments advanced by the applicant as to why the works were on common property:
3. First, it was argued that the registered SP showing the common facilities wholly within Lot 15 is erroneous, and that, as a matter of fact, the applicant is the owner of that part of Lot 15 containing the common facilities.
4. Second, even if the SP is considered correct, the works involve the common property, as they extend beyond the inner surface of the walls, the upper surface of the floor, and the under surface of the ceiling, in the cubic space occupied by Lot 15. The works involve interfering with pipes and wires which are not for the exclusive use of Lot 15, and are, therefore, common property: see ss 5(1) and 5(2) of the 1973 Strata Act and applicant's subs 41 - 49.
5. The respondents submitted that the applicant should be held estopped from asserting these grounds, as the issue was the subject of earlier proceedings in the CTTT (see [32] above), the outcome of which was unfavourable to the applicant.
6. It is convenient to address that threshold issue first.

Issue Estoppel/Res Judicata?

1. It was submitted by Mr Docker, on the respondents' behalf (par 26): Moreover, the Owners Corporation is seeking to collaterally attack the decision of the Tribunal in the CTTT Application, which rejected an application for injunctions restraining Seddon and Larsen from carrying out works or demolishing the laundry and toilet facilities on the basis that the laundry and toilet facilities are erected on and entirely within Lot 15. The decision of the Tribunal created a res judicata against a claim for injunctive relief: see Hill End Gold Ltd v First Tiffany Resource Corporation [2010] NSWSC 375 at [31] - [40] per Brereton J. Alternatively, an issue estoppel arose against the Owners Corporation from the Tribunal's decision preventing it from arguing that Lot 15 is owned by Seddon and Larsen and that the work will be on common property because that fact was indispensable to the decision, the same questions were decided by the Tribunal as are posed here, the Tribunal's decision was final and the same parties are involved: see Port of Melbourne Authority v Anshun Pty Ltd [("Anshun")] (1981) 147 CLR 589 at 597 and Kuligowski v Metrobus [("Kuligowski")] (2004) 220 CLR 363 at [21] - [22]. Such a collateral attack on the Tribunal's decision also amounts to an abuse of process: Rippon v Chilcotin Pty Ltd [("Rippon")] [2001] NSWCA 142; 53 NSWLR 198.
2. However, in his oral submissions, Mr Docker qualified the estoppel point, stating (at Tp236, LL23 - 29): I should pause there and say when I take your Honour to the decision your Honour will find that there was no finding of an error, but what it said was that there wasn't evidence before me to conclude there was an error. That's not sufficient for an issue estoppel. So I'm not relying on the issue estoppel to say there was no error, but what I am relying on is to say that there's an issue estoppel as to the ownership of lot 15, and the lack of rights of The Owners Corporation over it.
3. The acknowledged expert on res judicata, in all its forms, is retired NSW Court of Appeal judge, the Hon K R Handley, who conveniently updates the contents of his 1996 text book by occasional lectures. In particular, I have been referred to his 1999 lecture "Res Judicata: General Principles and Recent Developments", published in 18 Australian Bar Review 214.
4. The learned author distinguishes carefully four types of res judicata - "cause of action estoppel", "issue estoppel", "merger in judgment", and so-called "Anshun estoppel", which draws, from Anshun, the principle that re-litigating an issue can amount to an "abuse of process". It will be recalled that the respondents distinguished between "estoppel" and "abuse of process", and pleaded both in their POD (see [59] above).
5. Mr Handley deals with many leading cases in detail, and I will not repeat that analysis here, but I have applied it to the competing submissions made in the present case.
6. The cause of action brought before the CTTT in 2010 arose from the applicant's asserted right to apply for a statutory order under s 138 of the 1996 Strata Act - as to which see Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5, per Giles JA at [42] - [46], and The Owners - Strata Plan No 37762 v Pham [2006] NSWSC 1287 (Rothman J) - whereas a different cause of action is relied upon in these proceedings, one based on an alleged breach of provisions of the EPA Act. I do not believe that a "cause of action" estoppel arises in this case, but I now move on to consider other types of estoppel.
7. The applicant submitted that a decision of an Adjudicator under the Strata legislation is not capable of giving rise to estoppel/res judicata, because it is administrative in character, not judicial: Papua New Guinea v Daera Guba [1973] HCA 59; 130 CLR 353 at p 453. It was submitted that many of the aspects of a judicial process are missing - there is no "joinder of issue", the Adjudicator is not required to provide reasons for a decision, and an order of an adjudicator ceases to have any effect after two years from the making of the order. An Adjudicator also has the power to make a decision on a matter which was not agitated by the parties, making an order under a different section of the Act than that nominated in the application, and a strata manager may be appointed without an application having been made.
8. The applicant also relied upon the decision of Macfarlan JA in Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190, where His Honour held (at [42]) that a decision of an adjudicator under the Building and Construction Industry (Security of Payment) Act 1999 would create an estoppel only if there could be discerned a "legislative intention ... to confer upon adjudicator's determinations a sufficient degree of finality to attract the principles ...". The applicant submitted that there are several features of the decision-making process under the 1996 Strata Act that illustrate a lack of finality - the range of possible orders, beyond the adjudication of pre-existing rights between parties, or the review of a pre-existing decision; and a decision of an Adjudicator cannot be "final", because it can be corrected, or clarified, or a time limit may be extended, on the application of people who are not necessarily parties.
9. In response to this, Mr Docker relied heavily on Kuligowski, which I am bound to follow. Applying the principles the High Court espoused, I conclude that a decision of a Strata Adjudicator can create an issue estoppel. However, the parties to the CTTT proceedings were not entirely the same as those to these proceedings, and the applicant submitted that estoppel does not arise here because of those differences (namely the Council was not a party to the earlier proceedings): Ramsay v Pigram [1968] HCA 34; 118 CLR 271, at 282 - 283.
10. However, Biscoe J in Gold and Copper Resources Pty Ltd v Newcrest Mining Limited [2014] NSWLEC 148, said at [20]: If an issue estoppel exists between two parties, then it is not defeated by the fact that another person was also a party to the earlier proceeding (and is not a party to the later proceeding), nor by the fact that another person is also a party to the later proceedings (but was not a party to the earlier proceedings): ...
11. Therefore, the fact the Council was not a party to the 2010 proceedings does not preclude the existence of an issue estoppel.
12. The applicant next submitted that, although the factual issue of ownership of the toilet/laundry facilities was involved in both proceedings, the factual matrix is not exactly the same, and, therefore, issue estoppel does not arise. In the proceedings before the adjudicator the issue to be determined was whether the common facilities were located entirely within Lot 15, whereas here the issue is whether the works the subject of the CDC involve works which require owners consent because they interfere with common property.
13. I agree with the applicant's submission that the issue of ownership dealt with by the Adjudicator is different from that which requires determination here: they are certainly not "identical", and I, therefore, find that the applicant is not estopped from asserting this ground on the basis of issue estoppel.
14. I also do not accept the argument that ground (3) is "a collateral attack on the Tribunal's decision [which] amounts to an abuse of process": Rippon (see [382] above). The applicant was apparently not aware of the CDC when the CTTT proceedings were heard.
15. I conclude that the applicant is not estopped from making its claim in ground (3), and I now proceed to determine it.

Consideration of Ground (3)

1. On the assumption that I am correct on the estoppel point. I must now consider whether the works the subject of the CDC did involve works on the common property, and, therefore, whether the CDC is invalid as owner's consent was not obtained from the applicant (see Tpp205 - 211).
2. Ms Byrne's submission that the registered SP showing the common facilities wholly within Lot 15, is "erroneous" must be rejected, as inconsistent with the High Court decision in Hillpalm, which clearly establishes that planning law does not create property rights, beyond those recorded in the register. The applicant's assertion of ownership of that part of Lot 15 on which the common facilities are located is inconsistent with that principle. The proper remedy for any alleged error on the registered title is an application made to the Registrar-General to correct the register under the Real Property Act 1900, but any lack of ownership does not preclude the applicant from restraining the respondents from breaching a DC, as I have found that they will if their works proceed.
3. It was also argued that the internal infrastructure (pipes, electrical wiring etc), which is common property, would also be interfered with.
4. I have earlier set out the statutory definitions of "lot", "common property", and "structural cubic space" (see [272] - [273] above).
5. The applicant submitted, that as the works the subject of the CDC impact "pipes, wires, cables or ducts that are not for the exclusive enjoyment of one lot", which are "structural cubic spaces", and, therefore, do not form part of a "lot", the works impact "common property" as defined.
6. Ms Byrne relied on Grevatt's 24 January 2014 affidavit to support the proposition that the pipes and wires were not for the exclusive enjoyment of one lot (at pars 22 - 24): 22. Electricity is supplied to the laundry via the ceiling cavity and western external wall cavity. The electricity powers the lights and power points internal to the laundry. Electricity is supplied to the toilet light via the ceiling cavity and internal dividing wall cavity (light switch). 23. I have observed that the power lines servicing the facilities are connected to the common property circuit board and are sourced from common property services which have separate electricity meter and circuit breaker (formerly fuses). I say that I have carried out a test whereby I have disconnected the common property electricity supply. Upon disconnection, the lights and power within the facilities, being originally switched on, instantly turn off along with all common property external house lighting. 24. I say that the Strata Scheme has always been billed separately for the common property electricity usages within the facilities, including lighting and power.
7. The pipes proposed to be removed feed the taps, washing machine and toilet facilities in the laundry area, and drain the waste water and sewerage from that area (Exhibit A4, fols 3, 5 - 8). The applicant submitted that, as the common facilities are "enjoyed by more than one lot", the pipes and wires servicing them are "not for the enjoyment of Lot 15 exclusively, and, therefore, from part of the common property (see Tp206, LL22 - 36, and the applicant's supplementary submission on ground (3), filed 22 May 2014).
8. Mr Docker rejected this argument, as misconstruing the meaning of "structural cubic space" (speaking notes, par 24): The Owners Corporation appears to be arguing that because other lot owners currently use and have used Lot 15 as a laundry and because the owners corporation has maintained the laundry, the pipes and cables in Lot 15 are structural cubic space and therefore not in Lot 15. This misconceives the definition of structural cubic space which refers to exclusive enjoyment of "one lot" and says nothing about users. This is understandable because whoever is using the lot in fact should not be able to affect the ownership of it as boundaries need to be certain and ascertainable.
9. He relied upon Larsen's affidavit of 25 February 2014, in which she deposed (at [36]): I agree that there is electricity and water supply to Lot 15 through walls and the ceiling and that there is water drainage from Lot 15 through the floor. The proposed works will not effect the electricity supply or wires. In my observation, the pipes which supply water to Lot 15 are only for Lot 15 and do not supply any other Lot or the common property. Lot 15 is on lowest level of the building at the back and end of the building and the water meter is at the front of the building near the street. Some taps and pipes are to be capped but all capping will be wholly within the space of Lot 15. We are not proposing to cap the floor waste but the toilet drain will be capped above the level of the floor.
10. I agree with Mr Docker. It may be true that the pipes and wires supply services to the common facilities on Lot 15 which are used by other lot owners, but I am not satisfied, on the balance of probabilities, that the wires/pipes supply services to any lot other than Lot 15. In my opinion, the relevant definition of "structural cubic space", correctly construed, requires the pipes/wires to supply more than one "lot" - not just assist other lot owners - so that such services are "enjoyed" by those other lots. Use by other Lot owners is insufficient to alter the nature of the ownership of the pipes/wires.
11. The definition of "structural cubic space" included (sub-pars (b) and (c)) "any pipes, wires, ... not for the exclusive use of one lot and ... any cubic space enclosed by a structure enclosing any such pipes, wires ...". Campbell J said in Le v Williams [2004] NSWSC 645 (at [55] and see Tp243, LL3 - 21): Fixtures within the cubic spaces of a strata title lot (not including structural cubic spaces) are part of the lot: Lawrom Nominees Pty Ltd v Kingsmede Pty Ltd and Another [("Lawrom")] [2000] NSWSC 1048; (2000) 10 BPR 18,417 at [65] per Hodgson CJ in Eq. Thus, even if such fixtures are affixed to a wall, ceiling or floor which is common property, the fixtures themselves are owned by the registered proprietor of the lot. It is unusual, in real property law, for a fixture to be owned by someone different to the owner of the real estate to which it is affixed, but that unusual consequence follows, so far as owners' fixtures are concerned, from the structure of the Strata Schemes (Freehold Development) Act 1973.
12. Accordingly the works are not on common property, and do not require owner's consent. See also Burgechard v Holroyd Municipal Council [1984] 2 NSWLR 164; 53 LGRA 346 (Roden J), upon which Hodgson J relied in Lawrom.
13. Ground (3), therefore, fails.

Ground (4) - Council inspection

1. Ground (4) asserts that no "inspection" of Lot 15 was undertaken by the Council, prior to the grant of the CDC, as required by cl 129B(1) of the 2000 Regulation. A record of such inspection is required to be kept by the Council pursuant to cl 129C (see [248] above).
2. It is common ground that no record of inspection can be found in respect of the CDC. Ms Byrne submitted that, from this absence, the Court can infer that no inspection took place, thus invalidating the CDC.
3. Mr Seymour submitted that such an inference should not be drawn. Alternatively, he argued that (1) on a proper construction of cl 129B(1), a failure to inspect does not render the CDC invalid, and/or (2) a "desktop survey" of material concerning the subject land would suffice.
4. I have earlier summarized the evidence of Ellise Mangion (the town planner assigned to assess the CDC application), on the inspection issue (see [93] - [101]).
5. Larsen deposed (affidavit 20 May 2014) that, "towards the end of the week" prior to the issuance of the CDC, she received a phone call from a Council officer whose name she could not recall. During that conversation, the Council officer allegedly said that he/she was ringing to make sure the Council could get access to the relevant area, so that an inspection could take place. Larsen replied that access could be gained through the laundry door, which was unlocked, and that she would make sure to leave the garage door unlocked as well. Ms Byrne tested Larsen on this evidence at (Tp141, L11 - p142, L4), and Larsen was adamant that she received a telephone call from a Council officer requesting access.
6. The hearsay aspects of this evidence are clear, and were the subject of considerable debate (Tp114, L39 - p116, L38). The evidence was admitted, but not for its hearsay purpose.
7. However, during her cross-examination of Larsen, Ms Byrne raised the issue of her credit, in particular the question of whether she actually remembered such a conversation taking place. Following this, the following exchanges took place at (Tp142, L26 - p143, L6): SEYMOUR: Your Honour, I do have an application, based on the conclusion of my friend's cross examination of the witness, and that is that your Honour revisit the issue of whether that paragraph 2 [(sic)] of the affidavit sworn yesterday can be used for a hearsay purpose. The basis is this. My friend has now challenged this witness on her credit, whether she would have remembered that conversation and the witness has said, "Yes, I remembered it." That's now relevant to the credibility issue of the witness and, based on section 60, because it's admitted for that purpose it can now be used for its hearsay purpose. It was my friend's choice to cross examine the witness in that way. The Act is clear in its terms that, once it's in for a credibility purpose, it can be used for a hearsay purpose. My application is that the court now use that paragraph for that purpose. DOCKER: I join in the application, your Honour. BYRNE: Well, I was asking the questions so I didn't take notes, but I'm told by my instructing solicitor that she didn't validate the actual words. HIS HONOUR: But that's the whole point, isn't it? You asked would she be able to really remember that if she didn't remember what the person's name was. No, I think the application is well founded. BYRNE: In any event, I say that because of, one, the late service of the affidavit and the non-identification of the person, giving my client very little chance to test the conversation, section 136 applies and it's unfairly prejudicial to my client. Now, I heard what Mr Docker said about that, but the fact of the matter is we served the proposed amended further amended summons on 11 April, your Honour - 11 April - and they had to make a forensic decision, as any lawyer does, as to whether the amendment is likely to be allowed and prepare accordingly. So that's my application.
8. Section 136 of the Evidence Act 1995, as noted above ([258]) provides: The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing.
9. Given the late service of the Larsen affidavit, and her inability to verify that it was indeed a Council officer with whom she had the conversation she alleged, I agree that admitting evidence of this conversation to prove the facts contained therein, namely that a Council officer requested access to the property for the purpose of an inspection, would be unfairly prejudicial. Accordingly, I have not had regard to the evidence of this conversation for its hearsay purpose.
10. Ms Byrne submitted (Tp212, L41 - p213, L8): As to the evidentiary requirements, firstly we say the evidence doesn't rise high enough that an inspection actually occurred. Secondly, there's no record of the inspection. Thirdly, we tendered the notice to produce which asked for the record of inspection and there was nothing produced, and that became exhibit A7. There's a principle that's enunciated by the Court of Appeal in a case called [Baiada v Waste Recycling and Processing Service of NSW ("Baiada") [1999] NSWCA 139; 130 LGERA 52]. What the Court of Appeal is saying there is that a decision maker has an evidential burden of proving the negative proposition. At paragraph 55: "Where relevant facts are peculiarly in the knowledge of a defendant and where the defendant has the greater needs to produce evidence relating to those facts, then providing the plaintiff establishes sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden." So we say there's no evidence of the actual inspection and counsel was unable to produce any documents of the inspection.
11. In Baiada, Mason P actually said (at [55]): Where, however, relevant facts are peculiarly in the knowledge of a defendant or where the defendant has the greater means to produce evidence relating to those facts, then provided the plaintiff establishes sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden ... This principle would have assisted the appellants in seeking to disprove the existence of consent granted to the respondent. However, they succeeded on this point and no notice of contention has been raised against them.
12. His Honour later said (at [60]): Nevertheless, in my view the appellants did establish to the requisite standard that no consent had been granted by the Council to itself. My reasons follow: "(a) The registers were as probative in relation to the non-existence of consent to the Council as they were in relation to the non-existence of the relevant consent to the respondent. ... (b) ... this particular application of the presumption of regularity cuts both ways in the present case. True it is that the appellants bear the onus of establishing the failure to do an action (ie obtain consent) the breach whereof is punishable at law. But the same can be said about the Council's obligations stemming from the BPSO and Ordinance 32 to record any consent in the register. ... (c) The evidentiary groundwork was not laid for drawing the distinction that was ultimately critical to the determination of this case at trial. Indeed, it is somewhat unclear why his Honour was prepared to infer that no consent had been granted to the respondent, but was not prepared to infer that no consent was granted by the Council to itself. The same primary material is relevant to each. ... (d)This was a case where it was proper to infer that, if the respondent held a relevant consent or evidence thereof, then it would have been produced. The proceedings were civil proceedings in which the appellants established evidence from which an inference favourable to their ultimate contention was clearly capable of being drawn. The respondent had it within its means to produce evidence of consent if it had it. Its failure to do so leads to an inference that no such evidence exists ... Jones v Dunkel (1959) 101 CLR 298 ... (e)In my view the inference of lack of consent can more safely be drawn in the light of the letters of particulars from the Crown Solicitor's office which are extracted above. Coming from the solicitor for a party in the context of providing a response to a request for particulars, the letters are properly to be read as admissions that no 'relevant approval' was obtained other than the approvals identified in the letter of 13 December 1997 (none of which were found to constitute an approval under the BPSO). ... (f)It is true that the appellant did not call anyone to prove the system of record keeping at the Council during the relevant period. But the appellants were not obliged to do so having regard to the probative effect of the registers produced. (g)Talbot J considered that the accuracy of the register was undermined by the absence of any record relating to the development consent referred to in para (g) of the particulars provided by the Crown Solicitor's Office on 13 December 1996 ... (h)To my mind, this is an area where the law should lean in favour of doing things 'by the book'. A Council is not above the law, and should as a general proposition stand accountable for its actions. The creation of proper records evidencing the seeking and granting of consent serves several functions, including that of being the means of forcing a decision-maker to ensure due consideration of relevant issues and interests. Bearing in mind that the civil onus is involved, I see no reason why a court should hasten to draw a favourable inference in circumstances where the Council itself was shown to have been unable to produce the ultimately relevant consent."
13. In light of Mason P's reasoning in Baiada (c.f. J D Heydon, "Cross on Evidence", Butterworths, 7th ed, 2004, p181, par [3240], and Connor v Blacktown District Hospital [1971] 1 NSWLR 713, at 721), I am of the opinion that it should be inferred in the present case that no physical site inspection took place.
14. The Council had an obligation under s 129C to make a record of site inspections carried out for the purpose of CDC assessment pursuant to s 129B. Had there been a physical site inspection, it can reasonably be inferred that such an inspection would have been recorded, particularly as Mangion said that it was "standard practice" to make such records. The absence of such a record provides a reasonable basis for the negative inference that there was no physical inspection.
15. The evidential burden on the inspection question rests on the Council, and Mr Seymour observed that, as s 129C(3)(c) provides that a record must be kept of the "type of inspection", Mangion's "desktop" perusal of the documentation which, she said, Council personnel include on the application file to assist assessment officers such as herself, should be sufficient. He submitted (Tp291, L50 - p292, L12): If there are different types of inspection that implies that there's a range of things that someone can do to inspect a premises and physical attendance there is only one type. So there must be times when you can carry out something less than physical inspection at the site and here I can remind your Honour we have internal alterations to a garage in a residential flat building when the assessing officer has those printouts on the file - does your Honour remember seeing those printouts that are put on every file that had an aerial photograph showing the footprint of the building in its locality and in its streetscape? And your Honour knows from the schedule that I took your Honour to on Friday, there are no requirements when it comes to internal alterations. You can carry out internal alterations to your heart's content because there are no prescribed conditions on doing it.
16. Ms Byrne responded (written reply subs 4 June 2014, pars 11 - 12) as follows: 11. An 'inspection of the site of the development' could not be read down to be satisfied by a desktop survey as submitted by Mr Seymour. The time period in which a CDC has to be determined means that a prompt and thorough inspection of the site of the development to determine if in fact the proposed development fits within the category of complying development under the EPI is essential. Subclauses 129C(3)(i) and (j) are specifically directed to this purpose. To suggest as Mr Seymour did that a 'tick the box' analysis from an assessing officer's desk is sufficient is to set at naught the statutory mandate for a determination by the assessing officer that the proposed development is in fact in the location on the site and of the magnitude and scope stated on the application. This is particularly important for works to a RFB that is the subject of a plan of strata subdivision and to the issue of whether owner's consent of the body corporate might be required before the CDC can be determined. 12. Given that an accredited certifier can also issue [CDCs], to read down the prescriptive requirements in clause 129C as submitted by Mr Seymour creates a dangerous precedent. The court is well aware of serious failures by private certifiers since the EPA Act was amended to allow private certification of development in NSW. A variety of scenarios can be envisaged whereby an application for a CDC could be used to mask an unlawful use or unlawful demolition or serious environmental impacts which would not be discoverable unless the officer or accredited certifier actually physically inspected the site and made the records of inspection set out in clause 129C.
17. I agree with those submissions of Ms Byrne, and, therefore, conclude that the inspection requirement was not satisfied, by either means. It is, therefore, now necessary to determine the consequences of such a failure.
18. Mr Seymour then submitted that a failure to "inspect" the property would not necessarily invalidate the CDC. Such invalidation issues were the subject of consideration by me at first instance in Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173, and then by Sackville AJA on appeal: Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40.
19. The word "must" in cl 129B of the 2000 Regulation does not always mean "mandatory". Mr Seymour said (Tp291, LL38 - 48): So my friend says "must" indicates mandatory. Well, if that's so, then everything about a complying development certificate is ... (not transcribable) ... including how it's delivered to the council. Get that wrong and the whole thing is invalid. I mean, the word has been used but it can't be derived that there is an absolute legislative intent that every time it's used it means invalidity if you don't do it. It's a common word. It's a neutral factor.
20. In contrast, Ms Byrne submitted (reply sub 10) that the use of the words "must not issue a development certificate unless an inspection is carried out", in s 129B, clearly indicates that inspection is a mandatory requirement, so a failure to inspect would result in the invalidity of the CDC (Tp214, L31 - p215, L26).
21. I agree again with Ms Byrne. While it is true that the word "must" appears frequently in the regulations, sometimes it is perhaps employed loosely, and may not always signify a truly mandatory requirement, s 129B uses the clear words "must not", and it seems to me that the Court should enforce the clear prohibitive wording of the provision.
22. For those reasons, I am satisfied that, on the balance of probabilities, the Council failed to carry out an inspection of Lot 15 prior to the grant of the CDC, and that such a failure renders the CDC invalid.
23. Accordingly, ground (4) is made out.

Summary on the Grounds of Challenge

1. In summary, the applicant succeeds on grounds (1), (2), and (4), but fails on ground (3), of its challenge.
2. It is, therefore, necessary now to turn the Court's attention to questions of discretion, relief, and costs.

Delay

1. The Council raised the question of delay on the applicant's part, arguing that the delay of more than three years in bringing these proceedings after the CDC was issued disentitles the applicant to any relief: Ex parte Abraham Malouf; Re Gee (1943) 43 SR (NSW) 195 (at 201 - 202 per Jordan CJ, and Council's speaking notes, pars 41 - 43).
2. Mr Seymour said that the delay has caused prejudice to all respondents, as the memories of key witnesses, such as Ms Mangion, have faded. She could not be expected to recall precisely whether, in her busy assessment duties, she conducted an onsite inspection of a particular property over 3 years ago (Tp292, LL38 - 43).
3. He also criticised the applicant's failure to enquire earlier as to whether CDC approval had been obtained for works to remove the common facilities, as the Owners Corporation was otherwise on notice of the respondents' intention to exercise their rights over the whole of Lot 15, including the common facilities, many years previously (Tp292, L45 - p293, L34). He said (Tp293, L39 - p294, L2): … your Honour can find that the delay has not been satisfactorily explained and that the applicant is just not worthy of a grant of relief. Now, I've framed that in paragraphs 41 to 43, both in terms of delay on itself is a ground for refusing judicial review and that's Jordon J in Malouf's(?) case that I've cited in paragraph 43. His Honour is saying where there's unexplained delayed judicial review can simply be refused. But I've also framed it in terms of discretion, your Honour. If your Honour was against everything that the council has put and there is a ground that your Honour is unsatisfied that the assessment in some respect of this complying development certificate we would submit to your Honour that given the length of delay and given the starting of proceedings without having done any search of the records and the subsequent change to the case to allege these challenges against the CDC, we would say it's an appropriate case where your Honour would decline relief in any event.
4. In reply, Ms Byrne submitted that the Council's making of a submission on delay is contrary to authority. She referred to Fatsel Pty Ltd v ACR Trading Pty Ltd (1984) 54 LGRA 291, where Bignold J held (at first instance, at 295, not overturned on appeal) that, as s 123 of the EPA Act provides a statutory remedy which is not equitable in nature, equitable considerations, presumably including delay, are "irrelevant" (Tp295, LL8 - 28).
5. She also submitted that it was entirely reasonable that the applicant would wait, before commencing proceedings, until the respondents communicated their intention to act upon the CDC, particularly as the Owners Corporation had not been notified of the CDC approval (Tp296, L39). She said (Tp296, LL7 - 11): Now the CDC is valid for five years. So why would you rush off to the Land and Environment Court seeking the inconvenience of rustling up the duty judge. As your Honour would know, one has to have a reason. Why would you do it any sooner than when there was the threat to actually commence the work
6. Given the fact that the applicant was not notified of the CDC when it was issued in 2010, I find it entirely reasonable that these proceedings were not brought until it not only became aware of the CDC, but also of the respondents' imminent intention to rely on that CDC to commence works.
7. Accordingly, I find that delay is not a bar to the applicants' obtaining relief, if otherwise appropriate.

Declarations

1. My findings on the grounds of challenge clearly entitle the applicant to its declarations. However, my rejection of ground (3) requires that I not declare that the proposed works involve common property.

Injunction(s)

1. The question of what injunctions ought follow is not so straightforward.
2. In prayer 3 of its FAS, the applicant seeks an order restraining the respondents from: (i) doing any works on the common property or facilities; and (ii) preventing the other Lot owners from using those facilities in Lot 15.
3. Mr Docker concedes, on behalf of the respondents, that the Court may restrain the respondents from acting on the CDC, but argues that it cannot restrain them from exercising their proprietary rights in respect of Lot 15, as to do so would sanction an ongoing trespass on their land, and would exceed the minimum relief appropriate to give effect to any success in the challenge. Mr Docker relied, in this regard, on Holland J's decision in LDJ Investments Pty Ltd v Howard ("LDJ Investments") [1981] Strata Title Law and Practice 30-035, at p 50,409, where His Honour talked about "wrongful" use and occupation of a plaintiff's land in a Strata'd project as a "trespass".
4. In his original written submissions, filed 19 May 2014, Mr Docker had said (par 24): Prayer 3 in the Amended Summons seeks an injunction restraining Seddon and Larsen "from hindering or interfering with or preventing the use by" various others of Lot 15. Even if any grounds 1-3 are established, such relief goes well beyond the minimum relief necessary or appropriate to give effect to any of those grounds. This is because grounds 1-3 are raised in aid of the contention that the CDC is invalid. If it is invalid, the Court may restrain Seddon and Larsen from acting pursuant to the CDC but the invalidity of the CDC does not justify restraining Seddon and Larsen from exercising their proprietary rights in respect of Lot 15. To do so would be to sanction the ongoing trespass that is occurring on Lot 15 ...
5. In his oral submissions on 23 May, he submitted (Tp255, LL11 - 22): In respect to discretion and the injunction, in my submission your Honour wouldn't make an injunction that in any way requires the first and second respondents to continue to provide laundry facilities or toilet facilities in the lot or to provide access for that purpose. Firstly, because that would be sanctioning a trespass. Secondly, it would be inconsistent with the restrictive covenant that applies to the lot. Thirdly, what it would be doing is making the first and second respondents satisfy The Owners Corporation's obligations in respect to the condition, which is particularly inappropriate in any event, but particularly in this case in circumstances where there's an available alternative to The Owners Corporation who is choosing not to take it. Your Honour might recall that Mr Grevatt said that The Owners Corporation had no plans to build another laundry in cross-examination
6. Mr Docker later added, at the conclusion of his oral submissions on the respondents' behalf (Tp258, LL27 - 36): The last point I make is that in terms of an injunction there's no evidence, firstly, that there's been any breach yet. It's all about apprehended breach. Also, in terms of what work is to be done the evidence is that it's only what is referred to in the scope of works that was lodged with the CDC application. In my submission there would be no need for an injunction. If your Honour were to set aside the CDC then there's no suggestion that the first and second respondents would proceed with the work anyway, and the rest of the injunction goes well beyond that and tramples on our property rights and so forth. So even if your Honour were to set aside the CDC, in my submission your Honour wouldn't make an injunction.
7. The applicant's argument that some distinction must be drawn, and acted upon, as between what is, at law, a trespass to land, and some type of "authorized intrusion", by which I presume the applicant to mean what could technically be a trespass, but is allegedly authorized by some form of consent or user, was not developed, and I find no substance in it.
8. Mr Docker also submitted (par 25) that the Court lacks jurisdiction to enforce any proprietary rights or personal equity which the Owners Corporation may have in respect of Lot 15, such as to require correction of the register in respect of SP 432.
9. I agree with these submissions.
10. Whilst it is true that removal of the common facilities from Lot 15 would be contrary to the DC, the respondents remain the lawful owners of the land upon which those facilities are presently located, and orders which hinder the respondents' assertion of their proprietary rights would be inappropriate.
11. This outcome means that, in many ways, the "dilemma", of which I spoke in the Introduction to this judgment (at [7]), remains.
12. I have earlier referred ([264]) to the corrective provision in s 12 of the Real Property Act 1990. For many years the courts took the conservative approach to s 12, as Holland J did in LDJ Investments (see p 50,410).
13. That approach has softened in more recent times: see now Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395; Sahade per Kunc J; and the Case Note in (2014) 88 ALJ 452, at 458 - 9.
14. This present case has some factual similarities to LDJ Investments, where elements of a carparking area in a strata'd RFB in Point Piper were divided by a non-structural wall, which was omitted from the SP, and a dispute arose between the incoming owners of the two lots, one of whom, in choosing which lot to buy, was the victim of an "implied representation", which he did not check out, and which proved incorrect. Only 3.8m² of space was in dispute.
15. In fact, the wall stood entirely on the plaintiff's lot, and was not an encroachment.
16. Holland J took a conservative approach to the corrective power of the Registrar-General, but, "on the merits", he made an order for possession, and a declaration of rights, and granted an injunction to the plaintiff, observing (at p 50,407) that the defendant was "the innocent victim of a mishap".
17. His Honour found (at p 50,409 - as noted above in [445]) that the "wrongful act" was not the wall, but the use and occupation of the plaintiff's land, which was a trespass. He opined (at p 50,409), that it was "not ... oppressive" to require the defendant to conform to his title, because he contracted to purchase according to a plan annexed to his contract, a plan which it was open to him to search.
18. His Honour, relevantly for the present case, commented (p 50,408): unfortunately for the defendant, property law is cold hearted and whilst he may have the merits in his favour - I think he does - he does not have the law. Merits on the plaintiff's side are at best, I think, dubious but not so the law. The plaintiff's claim is made in the field of proprietary rights, where the law seldom permits sympathy or moral's to intrude.
19. I will grant an amended form of the injunction sought in Prayer 3(i), but, in my discretion, I decline to grant the injunction sought in Prayer 3(ii).

Costs

1. Costs are sought by the applicant in Prayer 5 of the FAS, but, in her written "reply" submissions on 10 June 2014 (par 16), Ms Byrne said the applicant wished to be heard on costs.
2. In his written submissions on Council's behalf, Mr Seymour twice (sub par 36, and final sub par 15) said only that costs should be ordered in Council's favour if the applicant's summons were to be dismissed. He did, however, frequently express, during the trial, Council's concern regarding the amount of costs involved in these proceedings.
3. As earlier noted, the respondents drew the Court's attention to ss 229ff of the 1996 Strata Act (see [286] above). In his speaking notes of 22 May 2014 (par 4) Mr Docker sought a s 229 order, but in his oral submissions on that same day, he said (Tp217, L43 - p218, L5): The other thing I should, before I go into ground 3, raise is that there's a section in the Strata Schemes Management Act 1996 which is section 229 that deals with costs in relation to cases or actions between strata owners corporations and lot holders. My primary submission in relation to costs, your Honour, is that it ought to await your Honour's decision, but I just wanted to put it on the record perhaps mostly for Ms Byrne's benefit, but the first and second respondents will be seeking an order under that section which provides that the court can make an order preventing an owners corporation from levying against the lot owner against whom it's litigating to pay its own fees. As your Honour knows, the way in which owners corporations raise their fees is by levying the lot owners and that section is in there to protect lot owners who are being sued by owners corporations from having to contribute to The Owners Corporations' fees.
4. In all these circumstances, it is appropriate that the question(s) of costs be reserved.

Orders

1. The Orders of the Court are, therefore: 1. The Court declares: 1. that the first and second respondents are carrying out or threatening to carry out works at 15 Crescent Street, Fairlight, being Lot 15 SP 432, in breach of the Environmental Planning and Assessment Act 1979; and 2. that Complying Development Certificate No CD56/10 issued by Manly Council on the 27th October 2010 to the first and second respondents is null and void and of no effect. 1. The Court orders that the first and second respondents, by themselves, their employees, agents and contractors be restrained from carrying out any works in the northern part of Lot 15 Strata Plan 432 occupied by laundry and toilet facilities and/or in any common property associated with such facilities. 2. Costs are reserved. 3. All exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2015