The Owners Strata Plan 83556 trading as Aspect Apartments v Dehsabzi [2020] NSWLEC 175 | Case summary

Land and Environment Court (NSW)|2020-11-19|Before: Preston CJ

The owner's consent ground

The Owners Corporation contended that the development the subject of the application for a complying development certificate, and the CDC itself, includes building work on common property, including basement B1, and hence the consent of the owner of the common property, the Owners Corporation, was necessary. Section 4.26(2)(b) of the EPA Act permits an application for a complying development certificate to be made by any person other than the owner of the land on which the development is proposed to be carried out but only with the consent of the owner of that land. In this case, the consent of the Owners Corporation was not obtained for the carrying out of development on the common property.
The Owners Corporation relied on two indications in the application and plans in support of its contention that development was proposed to be carried out on the common property. First, in the application form, the "lot and plan" were stated to be "Lot CP SP 83556". The reference to "CP" is a reference to the "common property" in the specified strata plan "SP 83556". Second, a note on the coldroom details plan A114 refers to the installation of refrigeration equipment outside of Lot 12, which would necessarily be in the common property. The note states: "Install refrigeration equipment on a suitable metal frame located externally, at the rear of the tenancy, roof of the tenancy or in the ceiling as a last resort only."
The Dehsabzis contested that the application for the CDC proposed carrying out any of the development on the common property, but rather limited the carrying out of the development to Lot 12 only. The Dehsabzis submitted that the owner of a lot in a registered strata plan who applies for a development consent or a complying development certificate to carry out development wholly within the boundary of the lot is not obliged to obtain the consent of the Owners Corporation of the strata scheme to the lodging of that application: Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5; (2003) 1 STR (NSW) 154, at [163].
Mr Smith agreed with the Dehsabzis, submitting that both the application for the CDC and the CDC that was issued only concerned development on Lot 12 and not on the common property. Mr Smith had made that plain to the Dehsabzis after he had issued the CDC, saying "we cannot approve any construction outside of your tenancy, eg common property".
I find that "the land on which the development is proposed to be carried out" is limited to Lot 12 and does not extend to the common property. First, the proposed development is described as a "tenancy fitout of a pizza shop" this refers to the tenancy of Lot 12, as only that lot was proposed to be fitted out as a pizza shop. No fitout as a pizza shop was proposed for the basement or other common property in the building.
Secondly, the plans and specifications only show a fitout of Lot 12. All of the furniture, fixtures and equipment specified in the plans are shown to be installed in Lot 12 only. There is no plan specifying any fitout of any other part of the building, including basement B1 or other common property.
Thirdly, the description of the lot and plan in the application form is equivocal. The application did state the street address of the building (in this case 154-156 Sailors Bay Road, Northbridge) and the formal particulars of title of the building (in this case strata plan "SP 83556"). What the application form did not do was to identify the particular lot in that strata plan in which the development described as "tenancy fitout of pizza shop" was proposed to be carried out. The reference to the strata plan SP 38556 was preceded by first "Lot" and secondly "CP". It is possible that the first reference to "Lot" might identify that the proposed development would be carried out in a lot, but the precise lot is not identified here. Equally, it is possible that the second reference to "CP" might identify that the proposed development might be carried out on common property. But these references to "Lot" and "CP" need to be read in the context of the description of the development, "tenancy fitout of pizza shop", which refers to the lot and not to the common property, and the plans accompanying the application, which identify only the lot and not the common property as the land on which the development is proposed to be carried out.
That the land on which the development is proposed to be carried out was limited to Lot 12 that was proposed to be fitted out as a pizza shop is corroborated by the determination of the application by the issue of the CDC. The CDC identified the site address at which the development of "tenancy fitout of pizza shop" was to be carried out as "Shop 1, 154-156 Sailors Bay Road, Northbridge". This limits the land on which the development can be carried out to "Shop 1", which is Lot 12.
Fourthly, the note on the coldroom details plan is also equivocal. The note does not approve the installation of unspecified refrigeration equipment at any specified location in the building. The note merely provides hortatory guidance for selecting where and how any refrigeration equipment can be safely installed. It certainly does not approve the installation of unspecified refrigeration equipment in common property. This conclusion is corroborated by the absence of reference to the refrigeration equipment in the schedule of furniture, fittings and equipment on the floor plan A103. Every other piece of furniture, fixture and equipment approved for the tenancy fitout of pizza shop is listed in the schedule. The absence of reference to the refrigeration equipment in the note to the coldroom details plan supports this conclusion that such equipment was not approved.
For these reasons, the application for the CDC did not propose to carry out development on the common property. The consent of the owner of the common property, the Owners Corporation, was therefore not required to be obtained for the application. I reject the owner's consent ground.

The sham application ground

The Owners Corporation contended, in the alternative to the previous ground, that if the application for the CDC did not include the carrying out of building works in the common property, the application was a sham or a contrivance. The Owners Corporation contended that the proposed fitout of Lot 12 as a pizza shop necessarily required the installation of the grease trap and arrester, utility services, such as gas, electricity, water and waste water drainage, and the compressor for the coldroom. The pizza shop cannot function as a pizza shop without these facilities and utility services being installed.
The Owners Corporation contended that application needed to be made not only for the fitout of Lot 12 as a pizza shop but also for installation of these needed facilities and utility services in the common property. The Owners Corporation submitted that application needed to be made for the whole of the development, and not only for the part of the development in Lot 12, for two reasons.
First, it was not permissible to divide development of an intrinsically indivisible nature into parts and apply for a complying development certificate for only a part of the development: Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 500, 502, 510, 514.
Secondly, characterisation of the purpose of the development can only be done by reference to the whole development. It is not permissible to single out for the purpose of characterisation but one part of the whole development: People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 at [139]-[143].
The Dehsabzis contested that the application for the CDC was a sham or a contrivance. A sham is a disguise concealing reality. In Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454, Lockhart J found: "A 'sham' is therefore, for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive." And see at 468 per Beaumont J.
Hence, in order for the application for the CDC for the development in Lot 12 to be a sham, it needed to be an application that was intended to be mistaken for something else or was not really the application it purported to be.
In this case, the Dehsabzis submitted, the application sought a complying development certificate for the development described in the application and the plans, being a tenancy fitout of a pizza shop, which development was proposed to be carried out only on Lot 12. Even if other building works needed to be carried out on other land, the common property, in order to enable the development of the pizza shop on Lot 12 to function, this did not cause the application that was made for a complying development certificate for the development on Lot 12 to be a sham. The application was not a disguise, façade, sham or a false front to conceal what in reality was being applied for. The application did not in reality seek a complying development certificate for development other than or in addition to the development on Lot 12 that the application described or seek a complying development certificate for development on land other than or in addition to Lot 12, being the land on which the application stated the development was proposed to be carried out.
The Dehsabzis submitted that there is little scope in the legislative scheme of the EPA Act for the concept of a valid application. People are entitled to make application for whatever development they want: Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 at [35].
The Dehsabzis submitted that the High Court's decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council turned on the particular wording of the Queensland planning law there considered and is distinguishable. Whilst development on adjoining land that is related to the proposed development may require consent to be obtained before being carried out, any necessary consent for the proposed development is to be sought by a development application or application for a complying development certificate that relates only to the land on which the proposed development is to be carried out and not to the adjoining land: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 477.
Under the EPA Act, an application for development consent or complying development certificate is not defective because it does not include in it land the use of which is necessarily involved in the use the subject of the application: King v Great Lakes Shire Council (1986) 58 LGRA 366 at 380; Cooper and Wilton v Maitland City Council (1992) 130 LGERA 217 at 221.
The Dehsabzis contended that it is not unlawful to apply for a complying development certificate for part of a development and not for the whole of the development. In this case, it might be accepted that, in order for the pizza shop in Lot 12 to function and be operational, certain facilities and utility services needed to be installed in the basement, which is common property. But this did not prevent application being made for a complying development certificate only for the building works of fitting out Lot 12 as a pizza shop. The development to be carried out on Lot 12 is capable of being the subject of an application for a complying development certificate or development consent; it is sufficiently identifiable and divisible from whatever other facilities or utility services might need to be installed in the common property in order to service the development carried out on Lot 12.
As a matter of fact, the Dehsabzis have applied for a complying development certificate for the tenancy fitout of a pizza shop on Lot 12 and for development consent to extend the trading hours from those approved for the real estate office to be longer for the pizza shop and to install a mechanical ventilation system for the pizza shop. The certifier issued the CDC but the Council has refused consent to the development application. The Dehsabzis say they will appeal the Council's refusal of the development application to the Court.
The Dehsabzis contended that this approach of applying for a complying development certificate for some development (the fitout of the pizza shop) and development consent for other development (the change in trading hours for the pizza shop and installation of the mechanical ventilation system) is legitimate. If both a complying development certificate and a development consent were to be obtained, they would need to be read together to understand all of the developments that have been approved: Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [3]-[4].
The Dehsabzis also distinguished the Court of Appeal's decision in People for the Plains Inc v Santos NSW (Eastern) Pty Ltd. The issue there concerned the characterisation of the purpose of the development, the Court of Appeal holding that the characterisation of purpose should be done by looking at the development as a whole, not at the component parts of the development. Here, no question of characterisation of the purpose of the development arises, regardless of whether part of the development is to be carried out on Lot 12 and another part is to be carried out on the common property.
Mr Smith adopted the Dehsabzis' submissions.
I find the sham application ground has not been made out by the Owners Corporation, for the reasons advanced by the Dehsabzis.
First, as a matter of fact, the application for a complying development certificate for the development described in the application was not a sham or a contrivance. The application did not in reality apply for a complying development certificate for development or relate to land other than the development and the land it purported to apply for or relate to: see Sharrment Pty Ltd v Official Trustee in Bankruptcy at 454, 468. On a proper construction of the application, it only sought a complying development certificate for the development of the fitout of Lot 12 as a pizza shop and did not seek a complying development certificate for any building works to be carried out in basement B1 or other common property.
Secondly, as a matter of law, it is the application that defines and confines the complying development certificate or development consent that can be granted. The application selects the development for which a complying development certificate or development consent is sought: "A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought": Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 at [14]. For this reason, a complying development certificate or development consent cannot be granted to development wider than the development sought in the application: Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480 at [46] and see Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [57], [296]-[298].
In this case, on a proper construction of the application for the CDC, the application sought a complying development certificate only for development on Lot 12, being the tenancy fitout of Lot 12 as a pizza shop. The development to which the complying development certificate could be given needed to accord with the development for which application had been made: GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [44]; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council at [296].
This is what occurred in this case. On a proper construction of the CDC, it authorises only the development of the tenancy fitout as a pizza shop of Lot 12. Hence, both the application for and the grant of the CDC only concern the development of the tenancy fitout of Lot 12 as a pizza shop.
This conclusion about the development the subject of the application for the CDC necessarily means the land to which the application relates is only Lot 12, as that is the only land on which the development the subject of the application is to be carried out: North Sydney Council v Ligon 302 Pty Ltd at 476-477; Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [89]. The application did not relate to the common property, as the application did not propose carrying out development on the common property.
Thirdly, there was no requirement under the EPA Act to apply, in the application for a complying development certificate for the tenancy fitout of Lot 12 as a pizza shop, for a complying development certificate for the building works in the common property, irrespective of whether those works could be described as related development to the fitout of Lot 12 as a pizza shop because they were necessary in order to make the pizza shop functional. An applicant for a complying development certificate, like an applicant for development consent, can apply for whatever development that needs consent as the applicant chooses: Currey v Sutherland Shire Council at [35]: "Citizens are entitled to apply to authorities for whatever they like."
Where the applicant proposes development on different parcels of land, the applicant can include every development on every parcel of land in the one application, but the applicant is not bound to do so, and can instead make separate applications for each development on each parcel of land. In this circumstance, the land to which each application relates is the land on which the specified development is proposed to be carried out: North Sydney Council v Ligon 302 Pty Ltd at 476. The application for the specified development does not need to seek a complying development certificate or a development consent for any related development on adjoining land: at 477 and see King v Great Lakes Shire Council at 380 and Cooper and Wilton v Maitland City Council at 221.
Accordingly, the fact that the building works on the common property might need to be carried out in order to make the use of Lot 12 as a pizza shop functional or operational does not necessitate inclusion of those building works in the application for the complying development certificate for the tenancy fitout of Lot 12 as a pizza shop. It only means that those building works on the common property will need to be carried out and, unless they are exempt development that can be carried out without consent, development consent will need to be obtained before carrying out the works. But such consent can be obtained by a separate application for a complying development certificate or a development consent.
For these reasons, I reject the sham application ground.

The absence of notice ground

The Owners Corporation contended that the applicant for the CDC sought and the CDC granted approval for a change of use of Lot 12 from office premises to food and drink premises (being a pizza shop). Both the application and the CDC described the development as being "tenancy fitout of pizza shop". The reference to "pizza shop" describes the purpose of the use of the premises once the fitout is undertaken. This is what s 4.27(3) of the EPA Act requires in order to authorise the use of the premises. Section 4.27(3) provides: "A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9."
The application for the CDC specified the purpose of the use of Lot 12 as pizza shop, a type of food and drink premises under the Act. The CDC granted to that application enabled the erection of a building (in the wide sense given in s 1.4(1) of the EPA Act) by the fitout of Lot 12. Hence, the CDC was sufficient to authorise the use of Lot 12 when the fitout was completed for the purpose specified in the application for the purpose of a pizza shop.
Clause 5.3(1) of the Exempt and Complying Development Codes SEPP specifies as complying development a change of use from a current use of office premises to a new use of food and drink premises. However, in order for development specified in cl 5.3(1) "to be complying development", cl 5.3(2) requires that "the applicant must obtain a notice or other form of written advice that specifies the works and other requirements to be completed as part of the development from the relevant water utility". Section 4.28(3) of the EPA Act requires the council or accredited certifier to consider the application for a complying development certificate and determine three things, the first of which is "whether or not the proposed development is complying development": s 4.28(3)(a).
The Owners Corporation submitted that cl 5.3(2) specifies that, "to be complying development" specified in cl 5.3(1), there must be compliance with the condition for obtaining the notice or other form of written advice from the relevant water utility specified in cl 5.3(2).
In this case, the Dehsabzis did not obtain such a notice or other form of written advice from Sydney Water, the relevant water utility, before the CDC was issued. The certifier, Mr Smith, gave evidence that his understanding was that Sydney Water's practice was not to issue any approval for connection to water supply services or give any notice specifying the works to be completed in order to be able to connect to the water supply or sewerage services until after a complying development certificate has been issued. Based on this understanding, Mr Smith did not request the applicant for the CDC, the Dehsabzis, for a notice or other form of written advice specifying the works or other requirements to be completed as part of the development from Sydney Water. Instead, Mr Smith imposed as a condition of the CDC that any works the subject of a notice from Sydney Water be completed before the occupation certificate is issued: "If the work will be the subject of a notice of requirements for water supply or sewerage services (or both) by a water utility or an entity authorised by the utility, the work must be satisfactorily completed before the occupation certificate is issued."
The Owners Corporation submitted that this approach of the certifier inverted the requirement of cl 5.3(2). The certifier was required by cl 4.28(3)(a) of the EPA Act to consider the application for a complying development certificate and determine whether or not the proposed development is complying development. Clause 5.3(2) makes the obtaining of a notice or other form of written advice that specifies the works or other requirements to be completed as part of the development from Sydney Water a condition precedent to the development being the complying development specified in cl 5.3(1).
The certifier failed to satisfy himself that this condition precedent to the development being the specified complying development in cl 5.3(1) had been complied with. Instead, the certifier, by imposing the condition on the CDC, made carrying out of any works or other requirements the subject of a notice from Sydney Water a condition precedent to the issue of the occupation certificate. This is a different condition precedent to that imposed by cl 5.3(2). It is a condition precedent to the issue of the occupation certificate rather than the complying development certificate and it requires the carrying out of the works specified in any notice from Sydney Water rather than obtaining the notice specifying the works from Sydney Water. The certifier could not be satisfied that the development was the complying development specified in cl 5.3(1) by imposing that condition on the CDC.
The Owners Corporation submitted that the applicant's failure to obtain the notice required by cl 5.3(2) meant that the development the subject of the complying development certificate was not complying development specified in cl 5.3(1) and, as a consequence, the CDC purporting to authorise such complying development was invalid.
The Dehsabzis took issue at the outset with the Owners Corporation's submission that the application for the CDC sought and the CDC granted approval for a change of use. The Dehsabzis submitted that the application did not seek a complying development certificate for the specified complying development of a change of use of the premises in cl 5.3(1) of the Exempt and Complying Development Codes SEPP. Rather, the application sought and the CDC granted approval only for the fitout of Lot 12 as a pizza shop. This was the specified complying development of internal building alterations in cl 5.1 of the Exempt and Complying Development Codes SEPP. The fact that the building alterations were described as being "tenancy fitout of pizza shop" does not necessarily convey that a change of use of the premises was being proposed. Premises can be fitted out as a pizza shop without being used as a pizza shop. Use of the premises as a pizza shop is a separate and subsequent step to fitting out the premises as a pizza shop.
The Dehsabzis also submitted that the internal building alterations of fitting out Lot 12 as a pizza shop did not involve the erection of a building, within the meaning of that phrase in s 1.4(1) of the EPA Act. Hence, s 4.27(3) did not operate to cause the CDC that enabled the fitout of Lot 12 as a pizza shop to also authorise the use of Lot 12 as a pizza shop.
The consequence was that cl 5.3 of the Exempt and Complying Development Codes SEPP was not engaged and there was no need for the Dehsabzis to obtain a notice from Sydney Water under cl 5.3(2).
If, however, the CDC did authorise not only internal building alterations to fitout Lot 12 as a pizza shop but also a change of use of Lot 12 to a pizza shop, the Dehsabzis accepted that no notice or other form of written advice from Sydney Water required by cl 5.3(2) had been obtained. However, they submitted that this would not lead to invalidity of the CDC. Not all failures to comply with requirements governing the exercise of a statutory power will result in invalidity of an exercise of that power. In the case of cl 5.3(2), the Dehsabzis submitted that there are at least four indicators that a failure to comply with cl 5.3(2) will not result in the invalidity of a complying development certificate issued for complying development specified in cl 5.3(1).
First, there is no requirement in cl 5.3(2) or elsewhere that the notice or other form of written approval required to be obtained by the applicant be given to the certifier or for the certifier to make enquiries as to whether such notice or other form of written advice has been obtained by the applicant.
Second, there is no statement in cl 5.3(2) or elsewhere as to when the notice or other form of written advice is to be obtained. Clause 5.3(2) does not say in terms that such notice or other form of written advice has to be obtained and seen by the certifier in order for the certifier to be satisfied that the development is complying development. On one reading of the subclause, the applicant could obtain the notice at any time, and, so long as notice was obtained at some point in time, the development could be said to be complying development. If the legislative draftsperson intended that the notice had to be provided prior to the issue of the complying development certificate in order for the certifier to be satisfied that the development was complying development, then cl 5.3(2) would at least require that the notice that has been obtained by the applicant be sent to the certifier, or that the certifier make enquiries of the applicant as to whether that notice has been given, but there are no such requirements in cl 5.3(2).
Third, the requirement in cl 5.3(2) that the applicant obtain "a notice or other form of written advice that specifies the works or other requirements to be completed as part of the development from the relevant water utility" is expressed in general terms. The Dehsabzis submitted that if the legislative draftsperson intended that failure to comply with the subclause would invalidate the complying development certificate, the subclause would have advised of more specific requirements as to the contents of the notice or other form of written advice that has to be provided. The lack of prescription in the subclause as to what the notice must contain or what the notice must do is an indicator that the legislative draftsperson did not intend that a failure to comply with the subclause necessarily leads to invalidity of a complying development certificate.
Fourth, the applicant may not be able to obtain the notice or other form of written advice required by cl 5.3(2) from the relevant water utility. The water utility may not, for whatever reason, provide the required notice or other form of written advice to the applicant. If obtaining the notice or other form of written advice from the water utility is a precondition to the applicant being able to obtain a complying development certificate, an applicant in these circumstances would never be able to obtain a complying development certificate. Where an applicant is reliant on the water utility to obtain the required notice or other form of written advice, the legislative draftsperson cannot have intended that a failure to obtain a notice from the relevant water utility will result in invalidity.
Mr Smith adopted the submissions of the Dehsabzis. He added that the requirement in cl 5.3(2), that for development specified in subclause (1) "to be complying development", the applicant must obtain the required notice or other form of written advice from the relevant water utility, does not need to be satisfied before the complying development certificate can be issued. Section 4.26(1)(b) of the EPA Act provides that a person may carry out complying development on land if the development is carried out in accordance with a complying development certificate and any provisions of an environmental planning instrument that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued. The requirement in cl 5.3(2) of the Exempt and Complying Development Codes SEPP is one such provision of an environmental planning instrument. The applicant will be required to carry out the complying development of the change of use of Lot 12 to a pizza shop in accordance with this provision. The condition that Mr Smith imposed on the CDC required the applicant to carry out any work required in a notice from Sydney Water before the issue of the occupation certificate.
I find at the outset that the application was made not only to carry out internal building alterations to fitout Lot 12 as a pizza shop but also to change the use of Lot 12 from the currently approved use of office premises (real estate agent office) to the new use of food and drink premises (pizza shop). The description of the development in the application is brief, merely "tenancy fitout of pizza shop", but this brief description embraces both building alterations ("tenancy fitout") and the intended purpose of the use of the building alterations ("pizza shop"). The plans accompanying the application make plain that the fitout is for a Domino's pizza shop. All of the furniture, fixtures and equipment specified in the plans as proposed to be installed are for the purpose of enabling the use of the premises so fitted out as a pizza shop. There would be no utility in carrying out the building alterations to fitout a pizza shop if the premises could not be used as a pizza shop. The purpose of the use of the premises as a pizza shop is clearly specified in the application and accompanying plans.
In the circumstances of this case, this is sufficient to make the application for a complying development certificate not only for the development of internal building alterations specified in cl 5.1 but also for the development of a change of use of premises specified in cl 5.3 of the Exempt and Complying Development Codes SEPP.
Although not determinative of the proper construction of the application for a complying development certificate, I note that the certifier, Mr Smith, believed that the application did seek a complying development certificate with respect to both the internal building alterations of fitout as a pizza shop as well as the development of the change of use of the premises to a pizza shop. Mr Smith also believed that he granted the CDC for both developments. This supports a construction of the application for the CDC as being for both developments.
This conclusion means that, in order for the CDC to be validly issued to the development of a change of use of the premises, there needed to be compliance with the requirements of cl 5.3(2) of the Exempt and Complying Development Codes SEPP.
I find that the development of a change of use of the premises, being one of the developments for which the CDC was sought, was not in fact complying development because of the failure of the applicant to obtain the required notice or other form of written advice from Sydney Water under cl 5.3(2) of the Exempt and Complying Development Codes SEPP. Clause 5.3(2) makes obtaining the required notice or other form of written advice a precondition to development that otherwise would be complying development specified in cl 5.3(1) in fact being that complying development.
"Complying development" is defined in s 1.4(1) to be "development for which provision is made in s 4.2(5)". Section 4.2(5) specifies that an environmental planning instrument may provide that development or a class of development that can be addressed by specified predetermined standards is complying development. Clause 1.17(1) of the Exempt and Complying Development Codes SEPP provides that "development that is specified in a complying development code that meets the standards specified for that development and complies with the requirements of this Division for complying development is complying development for the purposes of this Policy". Clause 5.3(1) of the Commercial and Industrial Alterations Code provides that a change of use from a current use specified in a category in Column 1 of the Table to the clause to a use specified in the corresponding category in Column 2 of that Table is development specified for the Code. Clause 5.3(2) qualifies subclause (1) if development specified in the subclause is to be provided with water supply or sewerage services or both by a water utility. In that event, in order for development "to be complying development", the applicant must obtain the notice or other form of written advice specified in subclause (2) from the water utility.
This statutory scheme establishes that satisfaction of the requirement in cl 5.3(2) for the applicant to obtain the notice or other form of written advice from the water utility is a precondition in order for a proposed development of the kind described in cl 5.3(1) to be complying development specified by cl 5.3(1) in the Commercial and Industrial Alterations Code. Only if the requirement in cl 5.3(2) is satisfied will the proposed development be complying development specified in cl 5.3(1).
The requirement in s 4.26(1)(b) of the EPA Act that a person may carry out complying development on land only if the development is carried out in accordance with a complying development certificate and any provisions of an environmental planning instrument that applies to the carrying out of complying development on that land is not to the point. That requirement is engaged after the requirements that the proposed development must be complying development and that the complying development certificate can only be issued to development that is complying development. These requirements must be satisfied before the obligation in s 4.26(1)(b) arises. If cl 5.3(2) is not satisfied, because the required notice or other form of written approval has not been obtained from the water utility, the certifier cannot determine that the proposed development "is complying development" under s 4.28(3)(a) of the EPA Act and cannot issue a complying development certificate that "states that particular proposed development is complying development" under s 4.27(1)(a) of the EPA Act (emphasis added).
Consideration of the text of cl 5.3(2) in the context of this statutory scheme answers the Dehsabzis' arguments that the legislative draftsperson cannot have intended that non-compliance with cl 5.3(2) should lead to invalidity of a complying development certificate for a development. The text of cl 5.3(2) makes plain that in order for development specified in subclause (1) "to be complying development" the applicant must obtain the notice or other form of written advice from the water utility specified in subclause (2). The other provisions of the statutory scheme for complying development, in both the EPA Act and Exempt and Complying Development Codes SEPP, make plain that satisfying the requirement of cl 5.3(2) is a precondition to a proposed development that is of a kind specified in cl 5.3(1) actually being complying development for the purposes of the Exempt and Complying Development Codes SEPP and the EPA Act.
Clause 5.3(2) itself, and the statutory scheme for complying development, establish the timing by which the required notice or other form of written advice needs to be obtained. This time is before the complying development certificate can be issued. The obtaining of the required notice or other form of written advice from the water utility under cl 4.3(2) causes the proposed development to be complying development. Only then can the certifier determine that the proposed development "is" complying development and issue a complying development certificate stating that the proposed development "is" complying development.
It is true that cl 5.3(2) does not in terms specify that the applicant must obtain the required notice or other form of written advice before the complying development certificate can be issued for the proposed development, but this flows from the terms of cl 5.3(2) and the other provisions of the statutory scheme for complying development.
Similarly, cl 5.3(2) does not in terms state that the applicant should provide the notice or other form of written advice obtained from the water utility to the certifier before the complying development certificate can be issued, but this too flows from cl 5.3(2) and the other provisions of the statutory scheme for complying development. In order to empower the certifier to determine that the proposed development "is" complying development and state in the complying development certificate that proposed development "is" complying development, the applicant needs to furnish the certifier with a notice or other form of written advice obtained from the water utility. Just as cl 5.3(2) expressly places the onus on the applicant to obtain the notice or other form of written advice from the water utility, so too the subclause impliedly places the onus on the applicant to furnish any notice or other form of written advice obtained from the water utility to the certifier in order to allow the certifier to determine and to state in the complying development certificate that the proposed development is complying development.
In this case, the proposed development of the change of use of Lot 12 to a pizza shop needed to be provided with water supply and sewerage services by a water utility, being Sydney Water. In this circumstance, in order for the proposed development to be "complying development", the applicant needed to, but did not, obtain a notice or other form of written advice from Sydney Water that specifies the works or other requirements to be completed as part of the development. The consequence of this failure to obtain the required notice or other form of written advice from Sydney Water was that the proposed development was not complying development specified by cl 5.3 of the Commercial and Industrial Alterations Code and hence not complying development for the purposes of the Exempt and Complying Development Codes SEPP or the EPA Act.
The certifier therefore had no power to issue the CDC for the proposed development and the CDC is invalid. I uphold the absence of notice ground.

The noncompliance with the Australian Standard ground

The Owners Corporation contended that, in order for the proposed development to be complying development specified in cl 5.1 of the Exempt and Complying Development Codes SEPP, the proposed development needed to meet the standards specified for that development: cl 1.17(1) of the Exempt and Complying Development Codes SEPP. Clause 5.4(1) specifies the standards for the complying development specified in cl 5.3(1). One of the specified standards, in paragraph (f), applies if the new use is food and drink premises. In that event, the premises must comply with the Australian Standard AS4674-2004 Construction and fitout of food premises.
The Australian Standard provides criteria on design and construction of food premises to ensure that food premises, amongst other purposes, are provided with services such as potable water, effective sewage disposal and sufficient light and ventilation for the food handling operations. Section 2 provides the design and construction requirements for food premises, concerning water supply (s 2.2), sewage and waste water disposal (s 2.3) and ventilation (s 2.5). Section 4 provides for fixtures, fittings and equipment, including concerning equipment for cleaning and sanitising (s 4.1), hot and cold water supplies (s 4.1.2) and hand washing facilities (s 4.4), including water supply to hand basins. Section 5 provides for storage and toilet facilities (the latter in s 5.2).
The Owners Corporation contended that, although the fitout of Lot 12 will provide fixtures, fittings and equipment that could meet these provisions of the Australian Standard, they will not in fact meet the provisions of the Australian Standard due to them not being connected to the applicable utility services, such as water supply and sewerage services, or being made functional, such as by the installation of mechanical ventilation. The proposed development in Lot 12 did not include the installation of the grease trap and arrester, the utility services, or the compressor for the coldroom in basement B1. Instead, separate application was made for development consent to install a mechanical ventilation system, partly in Lot 12 and partly in the common property.
The consequence of not including in the application for a complying development certificate these facilities in the common property, however, was that the development proposed to be carried out in Lot 12 would not be functional without these facilities in the common property being installed. The premises of Lot 12, even if the proposed development authorised by the CDC is carried out on Lot 12, will not comply with the provisions of the Australian Standard for water supply, including hot and cold water supplies, hand washing facilities and toilet facilities, and for ventilation. As the proposed development will not meet this standard in cl 5.4(1)(f) specified for the complying development specified in cl 5.3(1) of a change of use of premises, the proposed development is not complying development.
The Dehsabzis accepted that, by themselves, the internal building alterations proposed to be carried out to fitout Lot 12 as a pizza shop, would not cause the premises to comply with the provisions of the Australian Standard; other building works in the common property of installing a grease trap and arrester, utility services, including connection to water supply and sewage services, and a compressor for the coldroom all needed to be carried out in order to make the pizza shop functional and to comply with the provisions of the Australian Standard. Nevertheless, the Dehsabzis submitted that these other building works will be carried out and when they are so carried out the premises will thereupon comply with the Australian Standard.
The Dehsabzis submitted that cl 5.4(1)(f) does not require that the premises comply with the Australian Standard before a complying development certificate can be issued for the complying development specified in cl 5.3 of a change of use to food and drink premises. Compliance can occur before the new use of food and drink premises commences.
The Dehsabzis noted that paragraph (f) is prefaced by the phrase "if the new use is food and drink premises" and requires that "the premises must comply" with the Australian Standard. The "premises" secondly referred to is the "food and drink premises" firstly referred to. This is the new use for which approval is sought in the application for the complying development certificate. Those premises will be put to that new use in the future if the complying development certificate is issued authorising the change of use of the premises to the new use of food and drink premises. The standard in cl 5.4(1)(f) requires that the premises, once put to the new use, comply with the Australian Standard.
The Dehsabzis submitted that this construction of the standard in cl 5.4(1)(f) is corroborated by the terms of the provisions of the Australian Standard on which the Owners Corporation rely, which require compliance in the future. One example is cl 4.1.2 of the Australian Standard, which requires that equipment for cleaning and sanitising "shall be connected" to a continuous supply of hot and cold water. Another example is cl 4.4.2, which provides that hand basins "shall have" a permanent supply of warm running potable water delivered through a single outlet. The Dehsabzis submitted that this reveals that compliance with such requirements of the Australian Standard can be in the future, when the complying development is carried out. All that is required is that the result of carrying out the complying development will be that the premises comply with the provisions of the Australian Standard.
The Dehsabzis submitted that the complying development alone need not result in the premises complying with the Australian Standard. Other building work on other land might need to be carried out in order for the premises to comply with the Australian Standard. This is the case here where the facilities and utility services in basement B1 needed to be installed before the food and drink premises on Lot 12 would comply with the Australian Standard. But this did not mean that the premises cannot comply with the Australian Standard. If the development on Lot 12 is carried out and the facilities and utility services on the common property are installed, the premises will comply with the Australian Standard.
Mr Smith adopted the Dehsabzis' submissions. He again referred to s 4.26(1)(b) of the EPA Act that a person may carry out complying development on land if the development is carried out in accordance with a complying development certificate for that development. He also added reference to s 4.27(1) of the EPA Act that a complying development certificate is a certificate that particular proposed development is complying development and, if carried out as specified in the certificate, will comply with all development standards applicable to the development. Mr Smith submitted that this reveals that compliance with the development standards can be after the issue of the complying development certificate, and does not necessarily need to be before issue of the complying development certificate. In the case of the development standard in cl 5.4(1)(f) of the Exempt and Complying Development Codes SEPP, it is sufficient if the development, if carried out in accordance with the complying development certificate, will comply with this development standard by the premises complying with the provisions of the Australian Standard.
Mr Smith submitted that there is no evidence that the premises will not so comply if the development is carried out in accordance with the complying development certificate and the other building works necessary to make the new use of the food and drink premises in Lot 12 functional are carried out in the common property.
I find that the proposed development will not comply with the development standard in cl 5.4(1)(f) of the Exempt and Complying Development Codes SEPP. The reason is not that the premises of Lot 12 need to comply with the Australian Standard AS 4674-2004 Construction and fitout of food premises before a complying development certificate for the proposed development of the change of use of Lot 12 to food and drink premises could be issued. Rather, it is that the carrying out of the proposed development of the change of use of Lot 12 to food and drink premises authorised by the CDC will not, by themselves, cause the premises to comply with the Australian Standard.
As I have earlier noted, complying development is development or a class of development that can be addressed by specified predetermined standards: s 4.2(5) of the EPA Act. The Exempt and Complying Development Codes SEPP specifies, in the various complying development codes, the types of development that are complying development and the standards for those types of development. Development that is specified in a complying development code and that meets the standard specified for that development is complying development: cl 1.17(1) of the Exempt and Complying Development Codes SEPP. One of the complying development codes, the Commercial and Industrial Alterations Code, specifies in cl 5.3(1) the development of a change of use of premises and in cl 5.4(1) the standards for that development. In order to be complying development, development must not only involve a change of use of the premises as specified in cl 5.3(1) but also meet the standards specified for that development in cl 5.4(1).
The council or accredited certifier must consider the application for a complying development certificate and determine firstly whether or not the proposed development is complying development specified in a complying development code and, secondly, whether or not the proposed development complies with the development standards specified for that development: s 4.28(3) of the EPA Act. If the council or accredited certifier affirmatively determines these questions, the council or accredited certifier can issue a complying development certificate stating that the development is complying development and that the development, if carried out as specified in the complying development certificate, will comply with all development standards applicable to the development: s 4.27(1)(a) of the EPA Act.
The time at or by which the proposed development needs to meet a standard specified for development that is specified to be complying development will depend on the terms and language of the standard. Some standards in the Commercial and Industrial Alterations Code are drafted so as to require compliance at or before the time the complying development certificate is issued. The standards in cl 5.4(1)(a) and (b) are two examples: the current use of the premises must be a lawful use and not be an existing use within the meaning of s 4.65 of the EPA Act. A third example is the standard in cl 5.4(1)(c) that the new use must not be carried out at premises of specified kinds, being a manufactured home, moveable dwelling or associated structure, temporary structure, tent, swimming pool, ship or vessel. A fourth example is the standard in cl 5.4(1)(i) that the land on which the new use of a manual collection point is carried out must not contain any underground storage tanks. A fifth example is the standard in cl 5.4(1)(j) that an awning under which the new use is proposed to be carried out must be structurally sound.
Other standards set a negative requirement, some act matter or thing that must not occur. The standard in cl 5.4(1)(d) is an example: the new use must not be any of the listed types of uses or involve carrying out a use that is otherwise specified to be a complying development in a certain way, such as food and drink premises with a capacity for more than 50 seats.
Other standards again require compliance at some time in the future as a result of carrying out of the development that is specified to be complying development. That time might be immediately upon completion of the development (such as when a change of use of the premises to a new use is first effected) or be ongoing (such as throughout the new use of the premises). An example of the former is cl 5.4(1)(f), the standard in issue in this case, which requires that if the new use is food and drink premises, the premises must comply with AS 4674-2004 Construction and fitout of food premises. The time for compliance with this standard is after the premises have been constructed and fitted out for use as food and drink premises but before the use as food and drink premises commences. An example of the latter is cl 5.4(g) that requires the new use not to cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, carparking, loading, vehicular movement, traffic generation, waste management or landscaping. Such conditions of consent regulate the ongoing use, necessitating that the complying development be carried out in ongoing compliance with the conditions.
In this case, the development proposed in the application for a complying development certificate was for a change of use of Lot 12 to food and drink premises. One of the standards specified in cl 5.4(1)(f) for that development is that the premises must comply with AS 4674-2004 Construction and fitout of food premises. The certifier needed to determine whether the proposed development "complies" with this standard. The proposed development will comply with the standard if the fitout as food and drink premises will cause the premises to comply with the Australian Standard. It is at that point in time that the premises must "comply" with the Australian Standard.
In order for such compliance to occur, however, the application for the complying development certificate must propose to carry out all of the development necessary to cause the premises to comply with the Australian Standard. This is because the requirement is that the proposed development, being the particular development proposed in the application for a complying development certificate, must comply with all relevant development standards: in s 4.27(1)(a) and s 4.28(3)(b) of the EPA Act and cl 1.17(1) of the Exempt and Complying Development Codes SEPP. One of the relevant standards with which the proposed development must comply in this case is the standard in cl 5.4(1)(f) that the premises comply with the Australian Standard.
In this case, the application for the complying development certificate did not propose all of the development that would need to be carried out in order to cause the premises to comply with the Australian Standard. The application proposed the fitout of Lot 12 as a pizza shop, including installing fixtures, fittings and equipment required to provide such facilities as hand basins and toilets, but not the installation in the common property of utility services, such as water supply and sewerage services, and a mechanical ventilation system, which are necessary to enable the facilities installed in Lot 12 to function and to comply with the Australian Standard.
As a consequence, the certifier could not be satisfied that the development proposed in the application for the complying development certificate, if carried out, would cause the premises to comply with the Australian Standard. Only if development in addition to the development proposed in the application for the complying development certificate were to be carried out could the premises comply with the Australian Standard. But as that additional development was not proposed in the application for the complying development certificate, the certifier could not be satisfied that the development proposed in the application for the complying development certificate complies with the development standard in cl 5.4(1)(f) by causing the premises to comply with the Australian Standard.
The proposed development did not, therefore, comply with the development standard in cl 5.4(1)(f) and the certifier had no power to issue the complying development certificate for that development.
I uphold the noncompliance with the Australian Standard ground.

The not the specified complying development ground

The Owners Corporation contended that the application for the complying development certificate proposed not only the development of a change of use of the premises specified in cl 5.3(1) but also the development of internal alterations of the building specified in cl 5.1 of the Exempt and Complying Development Codes SEPP. The problem, however, was that the proposed development of the tenancy fitout of Lot 12 as pizza shop did not meet the description of the specified complying development in cl 5.1.
The proposed development did involve internal alterations to a building, but the building was not one that "is used or is the subject of a development consent for use, for the purpose of food and drink premises", being the proposed new use of that part of the building that is Lot 12. The Owners Corporation contended that the specifying complying development in cl 5.1 requires that the building alterations be for the purpose for which the building is to be used. There would be no point in undertaking alterations to a building to fit it out for use as food and drink premises if the building as altered could not be used for that purpose of food and drink premises.
In this case, Lot 12, the relevant part of the building, has been used, and is the subject of a development consent for use, as office premises, being a real estate agent office, but it has not been used and is not the subject of a development consent for use, as food and drink premises. The Owners Corporation submitted that this meant that the proposed internal building alterations to Lot 12 could not be the specified complying development in cl 5.1.
The Owners Corporation accepted that the application for the complying development certificate proposed not only internal building alterations to fitout Lot 12 as a pizza shop but also a change of use of the premises from the current use of office premises to the new use of food and drink premises (a pizza shop). Whilst a "development consent" is defined in s 1.4(1) of the EPA Act to include a complying development certificate, unless expressly excluded, the Owners Corporation submitted that this expansive definition does not assist in making the proposed internal building alterations to be the specified complying development in cl 5.1. Clause 5.1 requires that either the use or the development consent for use of the building for the relevant purpose must exist at the time of the issue of the complying development certificate. The existence of the use or development consent for use of the building for the relevant purpose is a precondition to development involving internal building alterations being the specified complying development in cl 5.1. Unless and until a development consent, which can include a complying development certificate, is granted to use the building for the relevant purpose, the precondition is not satisfied.
As matter of timing, therefore, the Owners Corporation submitted that the internal building alterations to fitout Lot 12 as a pizza shop could not be the specified complying development in cl 5.1 until after the complying development certificate had been granted to change the use of Lot 12 to food and drink premises. In this case, however, the certifier purported to issue the complying development certificate for both the internal building alterations and the change of use of the premises at the same time. The certifier therefore granted a complying development certificate to the development of internal building alterations, but this was not the specified complying development in cl 5.1.
The Dehsabzis contested this construction of cl 5.1. The Dehsabzis submitted that cl 5.1 does not in terms specify any jurisdictional precondition to the issue of a complying development certificate. The only requirements are that the development involve an internal alteration to a building and that that building be used or be the subject of a development consent to be used for any purpose, other than the specified excluded purposes in cl 5.1. This latter requirement ensures that the internal building alterations are to a building that is already lawfully used for a purpose or is the subject of a development consent that authorises use for a purpose.
Here, the part of the building concerned, Lot 12, was used and had a development consent to be used for the purpose of office, being a real estate agent office. This satisfied the requirement in cl 5.1.
The Dehsabzis submitted that there is no requirement in cl 5.1 that the purpose of the use of the building or the use authorised by the development consent be the purpose for which the building will be used in the future if the internal building alterations are carried out. It is sufficient that the internal alterations are to a building that is used or is the subject of a development consent for use for any purpose. If this requirement is satisfied, the development is the specified complying development in cl 5.1.
Mr Smith adopted the Dehsabzis' submissions.
I find that the Owners Corporation has not established that the proposed development of Lot 12 as a pizza shop is not the specified complying development in cl 5.1, not for the reasons given by the Dehsabzis, but because the CDC granted by the certifier authorised the use of the building for the purpose of food and drink premises simultaneously with authorising the internal alteration to the building.
The Dehsabzis' argument misunderstands the reason for the width of the condition in cl 5.1 that the use of the building be "for any purpose". The width of the condition is not to ensure that any internal alteration to a building can be specified complying development under cl 5.1 provided only that the building is used or is the subject of a development consent for use for any purpose. Such a non-demanding condition would serve no screening purpose; almost every internal alteration to a building would satisfy this condition.
Instead, the condition in cl 5.1 is to ensure that the internal alteration to the building relates to and be for the purpose of the use of the building, either the current use or the use the subject of a development consent. The internal alteration to the building needs to enable the use of the building for that purpose. Because there are so many different purposes for which a building can be used or be the subject of a development consent for use, the condition in cl 5.1 is drafted in wide terms so as to refer to "any purpose". But this does not remove the need, imposed by the other words of the condition, for there to be a relationship between the purpose for which the internal alteration to the building is carried out and the purpose of the use of the building.
This conclusion is corroborated by the language of the development standards specified in cl 5.2 for the complying development specified in cl 5.1. For example, cl 5.2(1)(f) requires that if the alteration to the building involves food and drink premises, the alteration must be carried out in accordance with AS46740-2004 Design, construction and fitout of food premises. This reveals the need for a correlation between the alteration to the building and the purpose of the use of the building. Take another example, the standard in cl 5.2(g), which requires that the alteration to the building must not relate to the cooking of food at the premises by barbeque or charcoal methods. Again, note the relationship between the alteration to the building and the use of the building.
The result is that cl 5.1 requires that the internal alteration to the building be related to and for the purpose of the use of the building or the use authorised by a development consent. It is not sufficient, as the Dehsabzis contended, that the building be used or have a consent for use for any purpose; the purpose of the use must relate to the internal alteration of the building.
The upshot for this case is that the proposed internal alterations - the fitout of Lot 12 as a pizza shop - needed to be to a building that is used, or is the subject of a development consent for use, for the purpose of pizza shop or other food or drink premises. The current use of the building and the use the subject of the current development consent was not for that purpose but rather was for the purpose of office premises (a real estate agent office). This does not satisfy the condition in cl 5.1.
Could, however, a complying development certificate that is granted to an application for a complying development certificate authorising a change in use of a building to food and drink premises be sufficient to cause the building to be one that is "the subject of a development consent for use" for the purpose of food and drink premises? I consider it can be.
A development consent is defined in s 1.4(1) to include a complying development certificate. A complying development certificate can be granted to the specified complying development in cl 5.3 of a change of use from office premises to food and drink premises. The grant of such a complying development certificate is the grant of "development consent for use" of a building for the purpose of food and drink premises, within the meaning of that phrase in cl 5.1.
The development of an internal alteration to a building is prospective. An application for a complying development certificate for that development is to authorise the carrying out of that development. Clause 5.1 requires that the internal alteration be to a building that is used or is the subject of a development consent for use for the relevant purpose, here, food and drink premises. The grant of a complying development certificate authorising the use of the building for that purpose of food and drink premises thereupon makes the building one that is the subject of a development consent for use for that purpose of food and drink premises.
Accordingly, the proposed development of the fitout of Lot 12 as a pizza shop, by the time it comes to be carried out, would be an internal alteration to a building that is the subject of a development consent (which includes a complying development certificate) for use for the purpose of food and drink premises, which is the specified complying development in clause 5.1.
I reject the not the specified complying development ground.

The inadequate record of inspection ground

As I have earlier noted, one of the restrictions on the issue of a complying development certificate is that in cl 129B(1) of the EPA Regulation that a certifying authority must not issue a complying development certificate for development unless a council or an accredited certifier has carried out an inspection of the site of the development. If the development affects an existing building that is, amongst other classes of building, a class 6 building, which the building is in this case, the inspection of the site of the development must include an inspection of the parts of the building affected by the development and the egress routes from those parts of the building: cl 129B(1A) of the EPA Regulation.
The council or accredited certifier who carried out the inspection must make a record of the inspection for the purposes of cl 129B: cl 129C(1) of the EPA Regulation. That record must include the information specified in cl 129C(3) of the EPA Regulation.
In this case, the inspection of the site of the development was carried out by Mr O'Neil, who also worked for Professional Certification Group. The inspection was carried out on 24 September 2019. This was six days after the application for a complying development certificate was said to have been received by the Professional Certification Group (the application form stated a date of receipt of the application as being 18 September 2019). However, this date of inspection was seven months before either the date of the plans that were approved by the issue of the CDC (which was 16 April 2020) or the date of the issue of the CDC (which was 22 April 2020).
Mr Smith's evidence is that Mr O'Neil prepared two documents at or shortly after the time of his inspection. The first document was entitled "Checklist Results for Sighting Stage". Mr Smith said this document was a proprietary software programme that is loaded on the tablet or laptop of each employee of Professional Certificate Group and is used to record the results of any inspection (or sighting) of the site of a development for which application for a complying development certificate or other form of certificate has been made.
The Checklist document commences with a title block, with five predetermined fields: BA Number, BA Approval Date, Applicant Name, Certifier and Site Address. Mr Smith said the information in these fields is not recorded until after the complying development certificate or other certificate is issued and the document is printed out. In this case, this did not occur until Mr Smith was asked to print out the document during the hearing. For this reason, the printout of the document recorded the "BA Approval Date" as "Wednesday 22 April 2020". Mr Smith said this was a reference to the CDC, with a reference number 00064397 that was issued on 22 April 2020. Mr Smith said it was not recording the date of the inspection of the site.
Mr Smith said that Mr O'Neil completed the Checklist at or shortly after his inspection. Mr O'Neil's name does not occur on the document. Only Mr Smith's name appears as the "Certifier". Mr Smith said this is because, when the document was printed out in order to tender at the hearing, the software programme auto-populated the predetermined title block fields with the information about the site, the applicant for the CDC, the certifier and the CDC that had been issued. There are no predetermined fields in the title block for the inspection date or name of the person carrying out the inspection, so that information was not recorded by the software programme.
The text of the Checklist has "task" fields, which are predetermined by the software programme. The task fields are: access; commencement; exit discharge; exit lighting; exit path of travel; exit/directional signage; fire extinguisher; fire hose reel; fire hydrants; significant fire safety issues; site conditions - BCA; site conditions - CC; site conditions - CDC; site conditions - plans; and sprinklers.
For each of these tasks, there are questions. Sometimes, the questions pose binary choices. For example, for exit lighting, the choice was whether exit lighting was installed - yes or no? Another binary choice is posed by the task of "Site conditions - CDC", the questions being whether "Site features compatible with CDC" or "Site features not compatible with CDC". Other times, the question directs attention to the existence or nonexistence or the adequacy or inadequacy of a particular feature or aspect of the tasks. An example is the task of fire extinguishers, where questions are raised as to coverage, location and testing.
The questions raised under each task are answered in the column headed "Status". For all but one task, the software programme offered only two answers, either "OK" or "N/A". The exception is the question whether "Work not started" under the task "commencement", where an answer "Req" was given.
Mr Smith said that if the answer "OK" was selected, or for work not started "Req" was selected, the software programme autogenerated a predetermined comment in the column headed "StandardInfoRequest". For example, the autogenerated comment for the answer "Req" to the question "Work not started" was "Work has not started on site"; the autogenerated comment for the answer "OK" to the question "Exit lighting installed - yes" was "Exit lighting is located on site"; the autogenerated comment for the answer "OK" to the question "Site features compatible with CDC" was "The features of the site/plans/existing building are compatible with a CDC"; and the autogenerated comment for the answer "OK" to the question "Plans reflect site conditions" was "The plans and specifications provided adequately and accurately depict the existing site conditions".
Mr Smith said the software programme did allow the user to override the autogenerated comment with the user's own comment, but Mr Smith did not identify any comments in the Checklist where Mr O'Neil had done so. All of the comments in the Checklist were autogenerated by the software programme.
The source of the tasks and the questions listed in the Checklist, and in the autogenerated comments, appear mostly to have been generated by the EPA Regulation, although there are material differences in language. Consider these examples in cl 129B(1A), cl 129C(3) and cl 129D of the EPA Regulation.
Clause 129B(1A)(b) requires an inspection of "the egress routes from those parts of the building". The Checklist refers to "Exit discharge" and "Exit path of travel".
Clause 129C(3)(h) requires the record of inspection to include "details of the current fire safety measures in the existing building on the site" that will be "affected by the proposed development concerned". The Checklist refers to "Fire extinguishers", "Fire hose reels", "Fire hydrants" and "Sprinklers", being some fire safety measures. Clause 129C(3)(i) requires the record of inspection to include "details as to whether or not the plans or specifications accompanying the application for the complying development certificate adequately and accurately depict the site conditions". The Checklist refers to "Site conditions - plans" and asks whether "Plans reflect site conditions". Clause 129C(3)(j) requires the record of inspection to include "details of any features of the site, or any building on the site, that would result in the proposed development the subjection of the application for the complying development certificate not being complying development or not complying with the Building Code of Australia." The Checklist refers to two tasks, "Site conditions - BCA" and "Site conditions - CDC", that are relevant to paragraph (j). The first task asks whether "Site features compatible with the BCA" and the second task asks whether "Site conditions compatible with CDC".
Clause 129D requires the certifying authority to give written notice to the Council if the certifying authority becomes aware of a significant fire safety issue within any part of the building. The Checklist refers to "Significant fire safety issues" and asks whether "Significant fire safety issues" - no or yes?
The second document that Mr O'Neil prepared at or shortly after his inspection was entitled "Pre-site inspection". The document recorded the date of application for the CDC as "17 Sep 2019"; the description of development as "tenancy fitout of pizza shop"; the site address as "154-156 Sailors Bay Road, Northbridge, NSW 2063"; and the site description (lot/plan) as "Lot 12 SP83556". Under the heading "inspection results", the document recorded the "inspection result" answer to the "inspection element" question of whether "work not started" as "work has not started on site". The document recorded Mr O'Neil as the certifier and Professional Certification Group as the certifying authority and gave each's accreditation numbers.
The Owners Corporation contended that whatever inspection of the site of the development might have been carried out did not comply with the requirements for site inspection in cl 129C of the EPA Regulation and accordingly the certifier, Mr Smith, issued the CDC in breach of cl 129B(1) of the EPA Regulation. The Owners Corporation gave three reasons.
First, the Owners Corporation submitted that the document entitled "Checklist Results for Sighting Stage" was not completed at the date of the inspection on 24 September 2019, but rather at the time of issue of the CDC on 22 April 2020. The only date recorded on the document is the date of issue of the CDC of 22 April 2020. The inspection was said to be carried out on 24 September 2019. The Owners Corporation noted that the Checklist document was not produced by the Dehsabzis in response to a notice to produce of any record of inspection of the site of the development. The only document produced in response to that notice to produce was the document entitled "Pre-site inspection".
Secondly, the Owners Corporation submitted that the document entitles "Pre-site inspection" was not a record of site inspection that complied with cl 129C of the EPA Regulation. The document did contain the information required by cl 129C(3)(a) to (g) but did not contain any of the information required by cl 129C(3)(h) to (j).
Thirdly, the Owners Corporation submitted that the document entitled "Checklist Results for Sighting Stage" also was not a record of inspection that complied with cl 129C of the EPA Regulation. The document did not contain the information required by cl 129C(3), including the information required by cl 129C(3)(h) to (j).
Paragraph (h) requires "details of the current fire safety measures in the existing buildings on the site", but the checklist did not provide such details. The checklist merely referred to fire extinguishers, fire hose reels, fire hydrants and sprinklers. The certifier answered the questions raised concerning fire extinguishers, fire hose reels and sprinklers, by saying "N/A", that is "not applicable." The certifier answered the questions raised concerning fire hydrants by saying "OK", which autogenerated the comment that "Fire hydrants are located on site"; "The fire hydrants on site have coverage for" (but the statement is not concluded so as to identify for what or where the fire hydrants have coverage); and "The fire hydrants on site are located" (but the statement is not concluded so as to identify where on site the fire hydrants are located).
Paragraph (i) requires "details as to whether or not the plans and specifications accompanying the application for the complying development certificate adequately and accurately depict the existing site conditions", but the checklist did not provide such details. The checklist referred to "Site conditions - plans". The certifier answered the question of whether "Plans reflect site conditions" by saying "OK", which autogenerated the comments that "The plans and specifications provided adequately and accurately depict the existing site conditions". The Owners Corporation submitted that this answer did not provide the "details" required by paragraph (i).
Paragraph (j) requires "details of any features of the site, or any building on the site, that would result in the proposed development the subject of the complying development certificate not being complying development or not complying with the Building Code of Australia." The Checklist has two fields or tasks that touch on paragraph (j). The first is "Site conditions - BCA" and the second is "Site conditions - CDC". The certifier answered the question raised by the first task of whether the "Site features compatible with the BCA" by saying "OK", which autogenerated the comment "The features of the site/plans/existing buildings are compatible with the BCA". The certifier answered the question raised by the second task of whether "Site features compatible with CDC" by saying "OK", which autogenerated the comment "The features of the site/plans/existing buildings are compatible with a CDC". The Owners Corporation submitted that these comments not only did not provide "the details" of the site features required by paragraph (j), but also failed to address the questions raised by paragraph (j). The questions raised by paragraph (j) are whether the site features result in the development not being complying development or not complying with the BCA, not whether the site features are "compatible with" the BCA or a CDC.
The Owners Corporation submitted, therefore, that the Checklist did not comply with cl 129C(3) and hence was not a record of inspection for the purposes of cl 129C(1). The Owners Corporation submitted that compliance with cl 129C is a condition to cl 129B(1) being able to be satisfied and the certifying authority being able to issue a complying development certificate for the development of the site. The certifying authority needed to have a record of inspection complying with cl 129C in order to be able to exercise the power to issue a complying development certificate, but the certifying authority in this case did not have such a record. The prohibition in cl 129B(1) was therefore not relaxed and the certifying authority, Mr Smith, could not issue the CDC.
The Dehsabzis contested the Owners Corporation's arguments factually and legally. Factually, they submitted that the Court would find, based on Mr Smith's evidence, that Mr O'Neil did carry out an inspection of the site on 24 September 2019 and completed the Checklist and the Pre-site inspection documents at or shortly after the inspection. Legally, the Dehsabzis submitted that the documents complied with cl 129C of the EPA Regulation. Clause 129C does not prescribe any particular form for completing the record of inspection. The clause does specify the information that the record must include, but not the form in which that information needs to be recorded. Hence, the record of inspection could comprise two or more documents, provided the information provided by the clause is included amongst these documents. In this case, the Dehsabzis submitted, the record of inspection includes both the completed Checklist and the Pre-site inspection documents. Together, these documents include the information required by cl 129C(3).
The Dehsabzis submitted that the differences in language between the matters in cl 129C(3) and the fields, questions and comments in the Checklist are only a matter of form and not of substance. For instance, the use of the word "compatible" in the questions and comments on site features being compatible with the BCA and the CDC is a difference in the language used compared to that used in cl 129C(2)(j), but the effect is the same and evidences sufficient consideration of the matters in that paragraph.
The Dehsabzis noted that cl 129C(2) permits a council or an accredited certifier who is not the certifying authority in relation to the issue of the complying development certificate, to carry out the inspection of the site of the development instead of the certifying authority, although if this occurs, the council or accredited certifier must, within two days of carrying out inspection, provide a copy of the record of inspection to the certifying authority. The Dehsabzis noted that Mr Smith's evidence is that Mr O'Neil did provide a copy of the record of inspection, being the two documents of the Checklist and the Pre-site inspection document to Mr Smith who was the certifying authority within this time period.
The Dehsabzis submitted that, in these circumstances, cl 129C of the EPA Regulation was satisfied.
The Dehsabzis submitted that cl 129B does not require the certifying authority to consider any of the information on or be satisfied about the matters in cl 129C(3) before being able to issue a complying development certificate. The only requirement in cl 129B(1) is that the certifying authority has carried out an inspection or otherwise been provided with a record of inspection by the council or accredited certifier who did undertake the inspection. The certifying authority is not required to look behind the record of inspection provided under cl 129C(2). This occurred in this case. Mr O'Neil provided Mr Smith with a record of inspection, so that the condition in cl 129B(1) was satisfied and Mr Smith was able to issue the CDC.
In the alternative, if cl 129B(1) requires the certifying authority to consider the matters in cl 129C(1) before issuing a complying development certificate, Mr Smith in this case did so by considering the record of inspection provided to him by Mr O'Neil, being the Checklist and Pre-site inspection documents.
Mr Smith adopted the Dehsabzis' submissions. He emphasised that the inspection of the site of the development was carried out by Mr O'Neil; Mr O'Neil completed a record of inspection in the form of the Checklist and Pre-site inspection documents; this record of inspection was provided by Mr O'Neil to Mr Smith; and Mr Smith considered this record of inspection before issuing the CDC. Mr Smith's evidence on these matters should be accepted by the Court.
I find that there was not an inspection or a record of inspection that complied with cl 129B and cl 129C of the EPA Regulation, so that the prohibition on the issue of a complying development certificate under cl 129B(1) was not relaxed. The consequence was that the certifying authority, Mr Smith, issued the CDC in breach of cl 129B(1) of the EPA Regulation.
The documents of the "Pre-site inspection" and the "Checklist Results for Sighting Stage", both individually and together, do not comply with the requirements of cl 129C so as to be a record of inspection for the purposes of that clause.
At the outset, the requirement of cl 129C for the certifier to make a record of inspection is not a bureaucratic formality of record-keeping; it informs and directs the inspection that is required to be carried out for the purposes of cl 129B. This is plain from the terms of cl 129C(1). The council or accredited certifier who undertakes the inspection must make a record of the inspection "for the purposes of cl 129B". This links the record of inspection required by cl 129C to the inspection required by cl 129B.
The inspection required to be carried out by cl 129B(1) is of "the site of the development". This is the development the subject of the application for the complying development certificate. If the development affects an existing building that is of a certain class of building, including of relevance here, class 6, inspection of the site of the development must include an inspection of the parts of the building affected by the development and the egress routes from those parts of the building: cl 129B(1A) of the EPA Regulation. In this circumstance, the record of inspection required by cl 129C(1) would need to include a record of the inspection of these parts of the building and the egress routes from those parts of the building.
The matters required by cl 129C(3) to be included in the record of inspection also inform and direct the inspection that needs to be carried out for the purposes of cl 129B. The council or accredited certifier cannot include in the record of inspection the information required to be included by paragraphs (h) to (j) unless the council or accredited certifier identifies and records during the inspection the required details of the current fire safety measures in the existing building on the site and whether they will be affected by the proposed development (paragraph (h)); the existing site conditions and whether the plans and specifications for the proposed development adequately and accurately depict the existing site conditions (paragraph (i)); and any features of the site or of any building on the site that would result in the proposed development not being complying development or not complying with the Building Code of Australia (paragraph (j)).
In this case, the documents said by Mr Smith to be the record of inspection, being the Pre-site inspection and the Checklist, do not record that Mr O'Neil carried out the inspection required by cl 129B(1) and (1A) and cl 129C(1) and (3) of the EPA Regulation.
The "Pre-site inspection" document, as entitled, purports to be a document prepared before ("pre") a site inspection is undertaken and does not purport to be a record of the site inspection once it is undertaken. Perhaps for this reason, the Pre-site inspection document is silent as to what Mr O'Neil inspected on the site of the development. The only inspection result recorded in the document is that "work has not started on site". In terms, this statement is not necessarily an observation on a site inspection but could also be a statement of fact communicated by the applicant for the complying development certificate. In any event, it is not a matter required by cl 129B or cl 129C of the EPA Regulation.
The other information recorded in the Pre-site inspection document did not concern what was observed on any inspection of the site, but rather described the formalities of where and when the inspection occurred (or was to occur), who carried out (or was to carry out) the inspection, and their accreditation number (being some of the information required by cl 129C(3)(a) to (g)). There is no information in the document on any of the matters required to be recorded in a record of inspection in cl 129B(1) or cl 129C(3)(h) to (j). The Pre-site inspection document is not in itself, therefore, a record of inspection for the purposes of cl 129C of the EPA Regulation.
The Checklist document is not described as a record of inspection at all. It is entitled "Checklist Results for Sighting Stage". What "sighting stage" means is unexplained. There can be many stages in the design, approval, construction and occupation of a building and all may involve "sighting" of the site, any building on the site, and their features and conditions at these various stages. Hence, the Checklist could serve many purposes, whenever a "sighting" is needed to be or is undertaken.
That the Checklist is not a record of inspection for the purposes of cl 129C is also evidenced by its content. To be a record of inspection for the purposes of cl 129C, the Checklist would need to include all of the information required by cl 129C(3). The Checklist does not do so.
Starting with the title box, Mr Smith said the information in this box was not recorded at the time of the inspection but rather was generated after the CDC was issued and the document was printed out for tender at the hearing. As a consequence, the title box does not record the information required by cl 129C(3)(a)-(g) including: the date of application for the CDC (paragraph (a)), but instead records the date of issue of the CDC that occurred after the inspection; the type of inspection (paragraph (c)), but at best only that it was a "sighting stage"; the date of the inspection (paragraph (d)); the identity and accreditation number of the individual who undertook the inspection (paragraphs (f) and (g)), but instead records only the identity of the certifying authority who issued the CDC, Mr Smith, although he was not the individual who carried out the inspection.
The Checklist's different title and lack of essential information required for a record of inspection have the consequence that the Checklist does not purport to be and in fact is not a record of inspection for the purposes of cl 129C of the EPA Regulation.
Moreover, although the Checklist document does touch upon some of the topics of a site inspection and a record of inspection required by cl 129C(3)(h) to (j), it does so in a misdirected way. This is no doubt a consequence of the inspection of the site and the Checklist's recording of aspects of the inspection being framed by the software programme that Mr Smith said generated the Checklist and the answers and comments entered in the Checklist. It was the Checklist itself and not the requirements of cl 129B and cl 129C of the EPA Regulation that directed both the inspection undertaken by Mr O'Neil and the answers and comments given by him in the Checklist.
There are four respects in which the Checklist failed to adequately address the matters required to be inspected and recorded by cl 129B and cl 129C of the EPA Regulation.
First, the inspection and the Checklist failed to identify the parts of the existing building affected by the development and the egress routes from those parts of the building, as required by cl 129B(1A). The Checklist, although it identifies Lot 12 as the part of the existing building in which the proposed development is to be carried out, does not identify what are the egress routes from that part of the building. The bare statement in the Checklist that "Exit discharge details" are "OK" and that "Exit lighting is located on site", but otherwise stating that "Exit path of travel" and "Exit/directional signage" are not applicable ("N/A"), is inadequate to record the inspection of egress routes required by cl 129C(1A).
Secondly, the inspection failed to identify and the Checklist failed to provide details of the current fire safety measures in the existing building, as required by cl 129C(1)(h). The Checklist failed to identify what are or provide any details as to the current fire safety measures for the existing building, let alone for the part of the building affected by the development, being Lot 12. The Checklist asks questions about whether the fire extinguishers, fire hose reels or sprinklers were installed, but the certifier did not answer these questions either yes or no but instead said "N/A", not only for these general questions but also for the particular questions concerning fire extinguishers, fire hose reels and sprinklers. The only potential safety measure that was addressed was fire hydrants. The certifier answered that fire hydrants are located on site, but failed to identify how many fire hydrants are in the building, the parts of the building for which the fire hydrants have coverage or where the fire hydrants are located on site. The Checklist never addressed the question raised by paragraph (h) of whether the current fire safety measures (whatever they might be) will be affected by the proposed development of the fitout and use of Lot 12 as a pizza shop.
Thirdly, the inspection failed to identify and the Checklist failed to provide details of the existing site conditions and an evaluation of whether the plans and specifications accompanying the application for the complying development certificate adequately and accurately depicted the existing site conditions, as required by cl 129C(3)(i). The Checklist failed to identify what are or provide any details as to the existing site conditions or the plans and specifications accompanying the application for the complying development certificate. As I have earlier noted, it is not clear what plans and specifications accompanied the application for the CDC. One date recorded on the application for the CDC as the date of receipt of the application was 19 September 2019. Other dates, however, are also recorded on the application, including a date of receipt and payment of a fee on 4 May 2020 and a date of 5 May 2020 beside the initials "BS", presumably Mr Ben Smith, the certifying authority. The plans and specifications that were certified by Mr Smith when issuing the CDC on 22 April 2020 were dated 16 April 2020. These were Revision D. The plans do record that there were earlier revisions, being Revision A For Construction 7.8.2017; Revision B Décor and Customer Area Revised 10.10.2018; and Revision C Customer Seating Revised 20.5.2019. There is no evidence that any of these earlier revisions of the plans accompanied the application for the CDC. The only plans and specifications identified as being the plans and specifications accompanying the application for the CDC are the Revision D plans that were approved by Mr Smith in issuing the CDC. The Revisions D plans, dated 16 April 2020, evidently post-dated the site inspection on 24 September 2019 by some seven months.
In circumstances where the Checklist did not identify any existing site conditions or plans and specifications, the only plans and specifications identified as accompanying the application for the CDC post-dated the inspection by seven months, and the comment in the Checklist that "the plans and specifications provided adequate and accurately depict the existing site conditions" was autogenerated by the software programme and did not record any observation of the certifier who carried out the inspection, both the inspection and the Checklist fail to comply with cl 129C(3)(i).
Fourthly, the inspection failed to identify and the Checklist failed to provide details of the features of the site or of any building on the site and an evaluation of whether any features of the site or of any building on the site would result in the proposed development not being complying development or not complying with the Building Code of Australia, as required by cl 129C(3)(j). The Checklist fails to identify what are or provide any details as to the features of the site or of any building on the site. The Checklist does ask questions concerning whether "Site features compatible with CDC" and "Site features compatible with the BCA", but both of these questions do not ask the correct questions required by paragraph (h).
First, the question is not one of compatibility between the site features and the CDC or the Building Code of Australia respectively. The correct question is whether the site features result in the proposed development not being complying development or not complying with the Building Code of Australia. This is in substance, and not just in form, a different question to the question raised by the Checklist of whether the site features are compatible with the CDC or BCA.
Second, the Checklist question of whether the site features are compatible with the CDC uses the wrong referent, being the CDC rather than the criteria for complying development. The question required to be addressed by subparagraph (i) of paragraph (j) is whether there are any site features that result in the proposed development not being complying development. That question can only be answered by reference to the criteria generally for complying development and particularly for the specified complying development that the proposed development purports to be. These are the criteria in the EPA Act, EPA Regulation and the Exempt and Complying Development Codes SEPP for development generally to be complying development as well as to be the specified complying development and the development standards for that development. Answering the question involves, first, identifying what specified complying development the proposed development purports to be; secondly, identifying the criteria for development generally to be complying development (such as are in the EPA Act and EPA Regulation) and for the development particularly to be the specified complying development that the proposed development purports to be and the development standards specified for that development; thirdly, identifying the features of the site or of any building on the site; and fourthly, evaluating whether any of those features of the site or of any building on the site would result in the proposed development not being complying development, by reason of noncompliance with the general criteria for complying development or the particular criteria for the specified complying development or the development standards for that development. Unless such analysis is undertaken the question required to be addressed by cl 129C(3)(j)(i) cannot be answered. The Checklist did not undertake this analysis, failing to identify and provide information on any of these four components of the question.
Third, the Checklist question of whether the site features are compatible with the Building Code of Australia fails to identify what are the criteria in the Building Code of Australia with which the site features need to be compatible. There are many criteria in the Building Code of Australia, only some of which are relevant and applicable to certain specified complying development. Isolating the relevant criteria in the Building Code of Australia involves, amongst other matters, identifying what is the proposed development, whether it involves erection of a new building or alteration or change of use of an existing building, whether the development involves the whole or only part of the building, the class of the building, and the features of the whole and the relevant part of the building. Answering the question raised by subparagraph (ii) of paragraph (j) involves, first, so identifying the relevant criteria of the Building Code of Australia; secondly, identifying the features of the site or of any building on the site; and thirdly, evaluating whether any of those features of the site or of any building on the site would result in the development not complying with the Building Code of Australia, by reason of noncompliance with the relevant criteria of the Building Code of Australia. Unless that analysis is undertaken, the question required to be addressed by cl 129C(j)(ii) cannot be answered. The Checklist did not undertake this analysis, failing to identify and provide information on any of these three components of the question.
For these reasons, the inspection of the site of the development failed to comply with the requirements of cl 129B and cl 129C and the two documents of the Pre-site inspection and the Checklist failed to comply with the requirements of cl 129C for a record of inspection.
The consequence is that the prohibition in cl 129B(1) on the certifying authority not issuing a complying development certificate remained in force. That prohibition could only be relaxed if an inspection of the site of the development that complied with the requirements of cl 129B and cl 129C had been carried out.
The prohibition in cl 129B(1) is on a "certifying authority" issuing a complying development certificate. In this case, Mr Smith was the certifying authority. Relaxation of the prohibition under cl 129B(1) requires "a council or an accredited certifier" carrying out an inspection of the site of the development. The council or accredited certifier who carries out the inspection does not necessarily need to be the same person as the "certifying authority," as is made plain by cl 129C(2). A council or accredited certifier who is not the certifying authority can carry out the inspection of the site of the development for the purposes of cl 129B, but in which event, the person must provide, within two days of carrying out the inspection, a copy of the record of inspection to the certifying authority. The inspection and the record of inspection carried out by a council or an accredited certifier must comply with the requirements of cl 129B and cl 129C. Otherwise, the inspection will not be an inspection for the purposes of cl 129B.
The inspection and record of inspection by Mr O'Neill in this case did not comply with the requirements of cl 129B and cl 129C, so that there was not an inspection for the purposes of cl 129B. The prohibition in cl 129B(1), therefore, remained, and Mr Smith as the certifying authority had no power to issue the CDC.
I uphold the inadequate record of site inspection ground.

The estoppel ground

The Owners Corporation contended that, by reason of a judgment of NCAT in proceedings between the Owners Corporation and the Dehsabzis, the Dehsabzis were estopped from relying on the CDC to carry out the development authorised by the CDC. This argument only arises if the CDC is otherwise valid and able to be relied upon by the Dehsabzis.
I have determined above that three of the Owners Corporation's challenges to the validity of the CDC should be upheld. Subject to my consideration of the Dehsabzis' argument that I should not declare the CDC invalid, which follows later in the judgment, this has the consequence that it is unnecessary to determine whether the Dehsabzis are estopped from being able to rely on the CDC. It is unnecessary, therefore, to determine the estoppel ground.

The development without consent ground

Apart from its judicial review challenge to the validity of the CDC, the Owners Corporation also claimed that the building works undertaken in basement B1, being part of the common property, if they were not authorised by the CDC, were carried out in breach of s 4.2 of the EPA Act.
The building works concerned included the installation of the grease trap and arrester and associated piping; utility services, including gas, electricity, water and waste water drainage with associated pipes, conduits and wires; and a compressor for the coldroom with associated pipes, wires, conduits and structural supports. These building works on the common property were an integral part of the development carried out on Lot 12, enabling the fitout and use of the pizza shop to be functional and operational. The building works on the common property are therefore "development" within the meaning of that term in s 1.5 of the EPA Act.
As the building works on the common property are an integral part of the development for the purpose of food and drink premises that was carried out on Lot 12, the building works are also for that purpose. Development for the purpose of food and drink premises (being part of retail premises and in turn part of commercial premises) can only be carried out on land in the B2 Local Centre zone with development consent. The building works on the common property therefore also needed development consent, in the form of either a development consent or a complying development certificate. The Dehsabzis obtained neither.
The building works on the common property were therefore carried out in breach of s 4.2 of the EPA Act.
The Dehsabzis contended that the building works undertaken in basement B1 were either not "development" within the meaning of that term in the EPA Act or were exempt development.
Starting with the first argument, the Dehsabzis submitted that the installation of the various pipes for the grease trap and arrester, utility services and compressor did not involve "development" within the meaning in s 1.5 of the EPA Act. The Dehsabzis sought to rely on the decision in Conomos v Chryssochoides (1997) 97 LGERA 113. Sheahan J held that water and sewage pipes constructed on the external walls of a house constituted a structure or part of a structure, and therefore a building: at 120-121. The construction of the pipes involved the erection of a building and the carrying out of development. The Dehsabzis submitted that the ratio of this decision is that pipes will be a structure if they are external rather than internal to a building. In this case, the various pipes for the grease trap and arrester, utility services and compressor are all internal to the building, hence, they are not structures or parts of structures, and their installation did not involve the erection of a building.
Turning to the second argument, the Dehsabzis submitted that the grease trap and arrester and the compressor are exempt development under the Exempt and Complying Development Codes SEPP. Clause 1.15(1) provides that: "Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy."
One of the exempt development codes is the General Exempt Development Code. Clause 2.5 of that Code specifies as exempt development "the construction or installation of an air-conditioning unit." The Dehsabzis submitted that the compressor for the coldroom was an air-conditioning unit. The Dehsabzis noted that the term "air-conditioning unit" is not defined in the Policy and there is no reason to conclude that the term is limited to air-conditioning units which keep buildings and their occupants cool as opposed to keeping food and drink stored within a coldroom in a building cool. The latter is the purpose of the compressor in this case, to keep the food and drink stored in the coldroom in Lot 12 cool for use in the pizza shop.
Clause 2.51(1) specifies as exempt development certain minor internal building alternations, including "a minor internal building alteration for the replacement or renovation of…(e) an existing sanitary fixture such as a grease trap or the like." The Dehsabzis asserted that there was an existing grease trap in the building to service the four commercial units, including Lot 12. The purpose of the new grease trap and arrester was to service only Lot 12 in its use as a pizza shop, with the result that Lot 12 would no longer be connected to and use the existing grease trap but rather use the new grease trap and arrester. In this sense, the Dehsabzis argued, the new grease trap and arrester involved the "replacement" of the existing grease trap.
I find that the carrying out of the building works in the common property was development, was not exempt development, and needed development consent. The carrying out of the building works in the common property without first obtaining development consent was in breach of s 4.2 of the EPA Act.
I will start with the installation of various piping and associated wiring, conduits and structural supports for the grease trap and arrester, different utility services, including gas, electricity, water and waste water drainage, and the compressor. This piping was an integral part of carrying out the development of the fitout and use of Lot 12 as a pizza shop. The pizza shop cannot function and operate as a pizza shop without installation of the piping and the connection of the grease trap and arrester, utility services and compressor to the facilities, fixtures, fittings and equipment in Lot 12. The development of the fitout and use of a pizza shop needs to be looked at as a whole, not by breaking down the development into its component parts and asking whether each part is and of itself development as defined in s 1.5 of the EPA Act. It matters not, for the purpose of ascertaining whether the parts of the development involving the building works on the common property are development as defined, that these parts of the development are carried out in the common property rather than in Lot 12. That issue mattered for ascertaining whether owner's consent was required for the making of the application for a complying development certificate. It does not matter for determining whether the building works on the common property are part of the development as defined. In the circumstances of this case, by reason of their integral connection to the fitout and use of Lot 12 as a pizza shop, the building works on the common property are part of development as defined.
The decision in Conomos v Chryssochoides is irrelevant. It matters not that in that case the piping was external to the dwelling house, rather than internal. This is not a relevant distinction in the present case. All of the works in the common property and in Lot 12 are internal. But this does not mean that the works cannot be development as defined in s 1.5 of the EPA Act. What is important is the nature and extent of the works, not whether the works are external or internal to the building.
I next deal with the argument that the compressor and the grease trap and arrester are exempt development. I find that neither the compressor or the grease trap and arrester fall within the exempt development specified in cl 2.5 or 2.51 of the General Exempt Development Code.
An air conditioner is "an apparatus for air-conditioning a room, house, car, etc". Air conditioning as a noun is "a system of treating air in buildings or vehicles to assure temperature, humidity, dustlessness, and movement at levels most conducive to personal comfort, manufacturing processes, or preservation of items stored, as books etc" and as an adjective is "denoting or pertaining to such a system": Macquarie Dictionary. Both of the words air conditioner and air conditioning, stand in contrast to refrigerator and refrigeration. A refrigerator is "a box, room or cabinet in which food, drinks, etc are kept cool, as by means of ice or mechanical refrigeration" and "the element of the refrigeration system consisting of the space or medium to be cooled". Refrigeration is "the process of producing low temperatures, usually throughout an appreciable volume" and "the resulting state": Macquarie Dictionary.
The mechanical equipment or unit by which the air is cooled will bear a different name depending on the purpose of the cooling. If the purpose is air conditioning, the mechanical equipment or unit will be termed an air conditioning unit, but if the purpose is refrigeration, it will be a component of the refrigeration system.
In this case, the coldroom is a refrigerator, being the element of the refrigeration system consisting of the space to be cooled. The compressor is the mechanical equipment in the refrigeration system by which that space - the coldroom - is cooled. The compressor is not an air-conditioning unit.
The new grease trap and arrester, whilst they might be sanitary fixtures, are not a replacement or renovation of the existing grease trap in the building. They are an additional sanitary fixture to the existing sanitary fixture. The existing sanitary fixture of the grease trap will continue to be used by the other commercial units in the building. Only the pizza shop in Lot 12 will use the additional grease trap and arrester. They are not a replacement or renovation of the existing grease trap as the existing grease trap will continue to be used. There will now be two grease traps, not a replacement of the existing grease trap by a new grease trap. Accordingly, the new grease trap and arrester is not the exempt development specified in cl 2.51.
I uphold the development without consent ground. The carrying out of the building works in the common property was in breach of s 4.2 of the EPA Act.

The relief that should be granted

The Owners Corporation submitted that, if the Court were to find that the CDC has been issued in breach of the EPA Act, EPA Regulation and Exempt and Complying Development Code SEPP, the Court should declare the CDC to be invalid. The Owners Corporation contested the Dehsabzis' submission that a declaration of invalidity of the CDC is not appropriate in the circumstances of this case.
The Owners Corporation submitted that the Court should make injunctive orders. The first type of orders concerns the works carried out in Lot 12 in reliance on the CDC. There should be a prohibitory injunction to restrain the Dehsabzis from carrying out any works the subject of the CDC (insofar as there are still any works to be undertaken) and otherwise relying on the CDC for any purpose (such as using Lot 12 for a pizza shop). There should be a mandatory injunction to rectify the works carried out in Lot 12 in reliance on the CDC. The second type of order concerns the works carried out in the common property. There should be a mandatory injunction to rectify the works carried out in the common property.
The Owners Corporation submitted that the Court should make these injunctive orders to remedy the past breaches and to restrain the future breaches of the EPA Act. It would not be appropriate to decline injunctive relief, as the Dehsabzis urge, as that would leave the Dehsabzis' breaches of the EPA Act unremedied and allow them to benefit from their blatant disregard of the law.
With regard to the works in the common property, the Owners Corporation referred to the Dehsabzis' knowledge of the need for the Owners Corporation's consent as owner of the common property before carrying out works in the common property, by reason of the prior litigation between the parties in NCAT and the Supreme Court, and the correspondence between the parties' solicitors. The Dehsabzis carried out the works in the common property knowing that the Owners Corporation did not consent to the works in the common property.
With respect to the works carried out in Lot 12, the Owners Corporation submitted that the Dehsabzis went ahead with carrying out the works after the issue of the CDC with the knowledge that the Owners Corporation considered the CDC to have been invalidly issued. In these circumstances, the Dehsabzis took the risk that if the Court were to find that the CDC had been invalidly issued, the Dehsabzis may be ordered to rectify the works that they had undertaken and they would thereby suffer wasted expenditure in carrying out the original works and incur further expenditure in rectifying the works.
The Owners Corporation referred to the evidence of members of the Strata Committee of the Owners Corporation warning Mr Dehsabzi not to carry out works in the common property or Lot 12, and his decision to carry out the works despite these warnings.
On 7 May 2020, after receiving a copy of the CDC from the Dehsabzis, the Owners Corporation's solicitor wrote to the certifier, Mr Smith, asserting that the CDC was issued invalidly, giving reasons for the invalidity, and requesting the CDC be cancelled, otherwise judicial review proceedings would be commenced in the Land and Environment Court challenging the validity of the CDC.
The Owners Corporation's solicitor wrote again on 2 July 2020 to Mr Smith's employer, Professional Certification Group, noting that the Dehsabzis have commenced the fitout of Lot 12 as a pizza shop, again asserting that the CDC was invalidly issued, and requesting the CDC be cancelled, otherwise the foreshadowed judicial review proceedings would be commenced. On the same day, the Owners Corporation's solicitor wrote to Willoughby City Council, with a copy to the Professional Certification Group and the Dehsabzis' solicitor, asserting that the CDC was invalidly issued and giving reasons for the invalidity.
Mr Smith emailed Mr Dehsabzi on 3 July 2020, attaching the Owners Corporation's solicitor's letters of 7 May and 2 July 2020, and saying that the CDC did not approve "any construction outside of your tenancy eg common property".
Mr Fowler, the Chairman of the Strata Committee of the Owners Corporation, gave evidence that he observed work had commenced on Lot 12 on 16 July 2020.
On 21 July 2020, the Owners Corporation's solicitor served on the Dehsabzis' solicitor the summons for judicial review of the CDC, seeking both interlocutory and final relief. The solicitor advised that if the Dehsabzis were to give an undertaking that no further work will be done at the premises, the application for interlocutory relief would not be pressed.
On 23 July 2020, the Dehsabzis' solicitor advised that Mr Dehsabzi has assured him that no further work will be done at this time. The Owners Corporation's solicitor responded the same day saying, "with the undertaking, which is given on behalf of your clients, there is no longer need for interlocutory application to the Court" and that further directions could be made on return of the summons on 19 August 2020.
Ms Cave, the Secretary of the Strata Committee of the Owners Corporation give evidence that on 8 August 2020, Mr Dehsabzi told her that he was going to undertake works through the concrete floor of Lot 12 down to the B1 carparking area below. She observed Mr Dehsabzi and workmen sectioning off with tape two areas of common property in basement in B1 and undertaking work in the basement, including plumbing works. Ms Cave asserted to Mr Dehsabzi that the CDC was invalid and that the work in the common property would be illegal.
Ms Pearson, a member of the Strata Committee of the Owners Corporation, also observed Mr Dehsabzi and workmen undertaking work in basement B1 on 8 August 2020. She said to Mr Dehsabzi that she was under the impression, from what his solicitor had said, that Mr Dehsabzi had undertaken not to do any more work at this time. Mr Dehsabzi replied that that "was only valid for 7 days. That has passed now. So I can now do the work".
On 10 August 2020, the Owners Corporation's solicitor wrote to the Dehsabzis' solicitor referring to the "confrontation" on 8 August 2020 where Mr Dehsabzi had resiled from the undertaking not to do any further work, saying that it had only been given for 7 days and, as this period had passed, he was going to go ahead with the work. The Owners Corporation's solicitor asked for an unconditional undertaking that no further work of any kind would be carried out on the property, otherwise application would be made for an urgent interlocutory injunction to restrain further work and maintain the status quo.
On 13 August 2020, Ms Pearson observed tradesmen welding frames in basement B1 which they said were to be used to install the compressor for the refrigeration unit in Lot 12. On 18 August 2020, Mr Cave observed Mr Dehsabzi and workmen continuing to carry out work in the common property. Ms Cave took photographs of the compressor unit for Mr Dehsabzi's refrigeration system that had been affixed to common property in basement B1 and PVC piping that had been fixed into place on the underside of the ceiling to basement B1.
On 1 September 2020, Ms Pearson observed a tradesman working in basement B1. The tradesman advised that he was Mr Dehsabzi's plumber and he was installing a gas line. He also said he needed to access the grease trap in basement B2 and he later did so, notwithstanding Mr Pearson's advice that basement B2 was reserved for residents only. Ms Pearson observed Mr Dehsabzi's workmen carrying out other work in basement B1 on 2 and 4 September 2020 in the fire hydrant room. On 14 September 2020, Ms Pearson observed Mr Dehsabzi's plumber attaching additional fittings to the ceiling of basement B1.
The Owners Corporation submitted that this evidence clearly reveals that Mr Dehsabzi went ahead and carried out work in the common property in the clear knowledge that the Owners Corporation asserted that such work was illegal. In these circumstances, Mr Dehsabzi took the risk and should not now be given the benefit of the Court declining to grant injunctive relief requiring him to remove the works in the common property that he had installed illegally.
The Owners Corporation rebutted the Dehsabzis' suggestion that the Court would defer granting injunctive relief to allow the Dehsabzis an opportunity to apply for a development consent or a building information certificate for the works in Lot 12 and the common property. The Owners Corporation submitted that a development consent could not be granted for the works that have already been carried out in Lot 12 and the common property as development consent could not be granted to retrospectively approve such work. The Dehsabzis would also need to obtain the consent of the Owners Corporation as owner of the common property for any application, whether for development consent or a building information certificate, with respect to the works in the common property. The Owners Corporation is not willing to give its consent to any such application.
The Dehsabzis contested that the Court should grant either declaratory or injunctive relief if the Court were to find that the CDC had been invalidly issued.
In relation to declaratory relief, the Dehsabzis submitted that the Court should not make any declaration that the works carried out in the common property required development consent but were carried out without obtaining such consent. Amongst other reasons, the Dehsabzis advanced three reasons in particular. Such a declaration would not have any constitutive effect and would not bring about any change in the rights or duties of the parties: Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 at [20]. Such a declaration is unnecessary for the Court to have jurisdiction to make injunctive orders: Great Lakes Council v Lani at [21]. The declaration would not remedy any past breach and would not restrain any future breach of the EPA Act: Great Lakes Council v Lani at [22].
In relation to the owner's consent ground, the Dehsabzis submitted that the Court would, instead of declaring the CDC invalid, make an order under s 25B(1)(b) of the Court Act specifying terms compliance with which will validate the consent, citing Adams v Great Lakes Council (No 2) [2010] NSWLEC 37. The Dehsabzis noted that development consent is defined in s 1.4(1) to include a complying development certificate. This submission was only made in relation to the lack of owner's consent ground. As I have not upheld the challenge to the validity of the CDC on the lack of owner's consent ground, I do not need to address this submission that the Court should make an order under s 25B of the Court Act.
In relation to the absence of notice ground, the Dehsabzis submitted that if the Court were to find that a failure to comply with cl 5.3(2) does give rise to invalidity of the CDC, the Court as a matter of discretion would not declare the CDC to be invalid. There is evidence from Mr Dehsabzi that works for connection to the existing water meter for the commercial lots have been carried out and that Sydney Water has issued a permit for the trade waste discharge from the premises. The Dehsabzis submitted that, notwithstanding no notice or other form of written advice was obtained from Sydney Water as to the works or other requirements that should be completed as a part of the development, some of these works have in fact been undertaken. In these circumstances, the Dehsabzis submitted there would be little utility in declaring invalid the CDC for a failure to obtain the required notice or other form of written advice from Sydney Water.
In relation to injunctive relief, the Dehsabzis submitted that the Court, in its discretion, would not make mandatory orders for the rectification of works carried out in Lot 12 in reliance on the CDC or in the common property, relying on the principles outlined in F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 at 311, 313; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341; ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 at 82.
The Dehsabzis relied on three factors: 1. Lack of environmental harm: The works are internal to the building and cause no impacts on the exterior of the building or the streetscape. Indeed, the Dehsabzis submitted, "the Domino's rather smart looking fitout with modern features and up to date furniture etc would look rather better than an empty shell with 'To Let' signs across the window." The internal building works do not cause any impact on the residents of the building. The works in Lot 12, until use as a pizza shop is commenced, will not cause any ongoing amenity impacts, such as noise or smell. So too, the static works in basement B1 do not impact on the amenity of the residents. The works are confined to basement B1 which is reserved for carparking for the commercial owners and is not used by the residential owners, who use basement B2 for carparking. The Dehsabzis submitted that no health and safety fire hazards have been identified as a result of the works, so that removal of the works would not be required on that basis. 2. Financial impact of reinstatement: Mr Dehsabzi's evidence is that the total cost of carrying out the works in Lot 12 and the common property is approximately $477,000. To require the Dehsabzis to reinstate Lot 12 and the common property would be a disproportionate response to the breaches of the EPA Act by the Dehsabzis. 3. Conduct of the parties: In relation to the lack of owner's consent ground, the Dehsabzis noted that the Owners Corporation has been obdurate in its attempts to frustrate the Dehsabzis using Lot 12, which is a commercial lot, as a pizza shop, by withholding owner's consent to any application that the Dehsabzis might make.
In the alternative, if the Court is minded to grant injunctive relief, the Dehsabzis submitted that the Court should suspend the operation of any injunctive orders for a period of 12 months to allow the Dehsabzis to regularise the use of the lot and the common property: Woollahra Municipal Council v Carr (1982) 47 LGRA 105 at 110. The Dehsabzis submitted that, although development consent cannot be granted to approve retrospectively the building works that have already been carried out on Lot 12 and the common property, development consent can be granted for the prospective use of the parts of the building in which the works have been carried out for the purpose of food and drink premises (as a pizza shop). The Dehsabzis could also apply for a building information certificate with respect to the building works in Lot 12 and in the common property.
Whilst the development application and building information certificate application can be made by the Dehsabzis with respect to Lot 12, as Mrs Dehsabzi is the owner of Lot 12, the consent of the owner of the common property, the Owners Corporation, is needed for the development application and the building information certificate application with respect to the common property. The Owners Corporation has said it will not grant that consent as owner, so the Dehsabzis will need to bring fresh proceedings in NCAT to secure the consent of the Owners Corporation to the making of these applications. This may take some time, hence the period of 12 months suggested by the Dehsabzis should be allowed to enable the Dehsabzis to bring the proceedings in NCAT and secure the Owners Corporation's consent.
The Dehsabzis noted that their earlier development application for installation of the mechanical ventilation system and extended trading hours had been refused by the Council, but the Dehsabzis said that they intended to appeal that refusal to this Court. They would also need to obtain the consent of the Owners Corporation as owner to this application as part of the mechanical ventilation system will need to be installed on common property. The Dehsabzis noted that they will also need to apply to NCAT to obtain Owners Consent for this application.
The Dehsabzis submitted that these prospective applications to NCAT to secure the Owners Corporations' consent to the various development applications and building information certificate application are not without prospects of success.
Mr Smith did not address on the orders the Court should make if it found the CDC had been invalidly issued, instead relying on the Dehsabzis' submissions.
I find that it is appropriate to make declarations that the CDC is invalid and that the building works carried out in the common property were carried out in breach of s 4.2 of the EPA Act.
Starting with the CDC, I have found that it was issued with respect to development that is not specified complying development and that did not meet the development standards for that development, in breach of ss 4.26, 4.27 and 4.28 of the EPA Act and cll 1.17, 5.1, 5.2 and 5.4 of the Exempt and Complying Development Code SEPP, and was also issued in breach of cll 129B and 129C of the EPA Regulation. The CDC, issued in breach of the statutory provisions, is invalid and should be declared so.
As to exercising the power under s 25B of the Court Act, the Dehsabzis only submitted that this would be appropriate if the owner's consent ground were to be upheld. The Dehsabzis did not submit, and having regard to the statutory breaches involved, it would not be appropriate, that the Court should make orders under s 25B of the Court Act instead of declaring the CDC invalid for the other grounds. There are no terms compliance with which could validate the CDC. The development on Lot 12 the subject of the CDC was not a relevant specified complying development and did not meet the development standards specified for that development. There are no steps that can now be carried out or other acts, matters or things that can now be done that would make the development on Lot 12 the subject of the CDC become the specified complying development or meet the development standards specified for that development.
In relation to the absence of notice ground, there is utility in declaring invalid the CDC, notwithstanding that the Dehsabzis would seem to have already connected to the water supply and obtained a trade waste discharge permit from Sydney Water. The evidence does not establish that all of the requirements of Sydney Water have been met. There still may be utility in obtaining the notice or other form of written advice required by cl 5.3(2) of the Exempt and Complying Development Codes SEPP to ensure that all requirements of Sydney Water are met. Furthermore, this is but one of the grounds on which the CDC is invalid. Declining to declare invalid the CDC on this ground does not affect the need to declare invalid the CDC on other grounds.
As to the works carried out in the common property, there is utility in declaring that the works carried out in the common property were development that needed development consent, but such consent was not obtained. This was a principal contested issue in these proceedings. The Dehsabzis submitted that the works in the common property were not development at all, or, if they were, they were exempt development and could be carried out without development consent. I have rejected these arguments. A declaration makes this finding plain, and is particularly useful having regard to the ongoing dispute between the parties. The Dehsabzis will now need to apply for development consent to use the works that they have carried out in the common property and for a building information certificate with respect to the works in the common property. The consent of the Owners Corporation as owner of the common property will be needed. Given the Owners Corporation's withholding of owner's consent, the Dehsabzis will need to apply to NCAT to obtain this consent. The Court's declaration will explain to the consent authority the reason for the Dehsabzis making the development application and building information certificate application and to NCAT the reason for the Dehsabzis applying for owner's consent to these applications.
As to injunctive relief, I consider that an injunction should be issued to restrain the Dehsabzis from using Lot 12 as a pizza shop unless and until development consent is obtained to use Lot 12 and the parts of the common property in which the works have been carried out for the purposes of food and drink premises (as a pizza shop). Although upon the Court's declaring invalid the CDC, it will become unlawful to use the premises as a pizza shop, in the current climate of disputation between the parties, there is utility in making this plain. The evidence of members of the strata committee of the Owners Corporation earlier referred to makes clear that the Dehsabzis are prepared to carry out development notwithstanding the risk that doing so might be unlawful. In these circumstances, there is a need to enjoin the Dehsabzis from carrying out development that would be unlawful.
The principles for declining injunctive relief, referred to by the Dehsabzis, do not apply with any force to the grant of a prohibitory injunction restraining the future unlawful use as a pizza shop. Different considerations apply to granting a mandatory injunction to remove the works from and to rectify Lot 12 and the common property. I consider that while there is some prospect for the Dehsabzis to regularise the use of Lot 12 and the parts of the common property in which works have been carried out by making a development application and a building information certificate application, the Dehsabzis should be given that opportunity for a limited period of time. As the Dehsabzis submitted, leaving the works in Lot 12 and the common property that have already been carried out for this limited period of time will not, in any material way, cause environmental harm or impact the amenity of the neighbourhood or of the residents of the building. The period of 12 months suggested by the Dehsabzis is a reasonable period of time. The Dehsabzis will need to obtain the consent of the Owners Corporation to the making of the application with respect to the works in the common property. This will require application being made to NCAT. The process of making, hearing and adjudicating the application to NCAT to obtain owner's consent, followed by the process of making and determining a development application and building information certificate application, are unlikely to be concluded in less than 12 months.
The appropriate course is, therefore, to issue an injunction ordering the removal of works from and the rectification of Lot 12 and the common property, but to stay the operation of the order for 12 months. Liberty to apply for an extension of the stay should be granted on sufficient cause being shown.

Costs

The Owners Corporation has been successful in establishing that the CDC was invalidly issued and in obtaining declaratory and injunctive relief. In these Class 4 proceedings, costs follow the event.
The Dehsabzis did not contest that, in the event the Owners Corporation was successful, it was entitled to an order of costs in its favour.
Mr Smith also did not contest that the Owners Corporation should be entitled to an order for costs in its favour, if it is successful. He submitted, however, that the Dehsabzis should be ordered to pay the Owners Corporation's costs but that Mr Smith should not. Mr Smith submitted that the invalidity found by the Court might not reflect on any default or shortcoming by Mr Smith as the certifying authority who issued the CDC.
I find that an order for costs should be made in favour of the Owners Corporation. It has been successful in establishing numerous grounds of invalidity of the CDC and a breach of the EPA Act in the Dehsabzis carrying out works in the common property without first obtaining development consent, and also in securing appropriate declaratory and injunctive relief to remedy and restrain these breaches.
The Dehsabzis certainly should be ordered to pay the Owners Corporation's costs. The question is, should Mr Smith also be ordered to pay the Owners Corporation's costs?
Mr Smith, as the certifying authority who exercised statutory power under the EPA Act to issue the CDC, could have entered a submitting appearance in the proceedings. That is often appropriate. The role of a certifying authority whose decision to issue a complying development certificate is under challenge is not that of a protagonist but is limited to providing assistance to the Court as to relevant statutory powers and procedures and, where appropriate, and not readily ascertainable without the certifying authority's assistance, facts as to what occurred in the exercise of the power to issue the complying development certificate: see, for example, Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 at [64]-[67].
Mr Smith did not enter a submitting appearance. He joined with the Dehsabzis in acting as an adversary to the Owners Corporation in defending the validity of the CDC that he had issued. At the hearing, Mr Smith's participation was still active, giving evidence himself and tendering documents, and making his own submissions in addition to adopting the submissions of the Dehsabzis. The grounds upon which the Owners Corporation have succeeded in establishing that the CDC was issued invalidly do involve matters reflecting on the default of Mr Smith. The inadequate record of inspection ground is an obvious one, but equally the absence of notice ground and the noncompliance with the Australian Standard ground also involve shortcomings in Mr Smith's conduct in issuing the CDC in circumstances where he had no power to do so.
In these circumstances, I consider there is no good reason for excluding Mr Smith, as one of the unsuccessful respondents who actively defended the Owners Corporation's challenge to the CDC that Mr Smith had issued, from also having to pay the Owners Corporation's costs. Mr Smith and the Dehsabzis can decide between themselves as to how they should apportion the liability to pay the Owners Corporation's costs.

Orders

The Court: 1. Declares that complying development certificate number 00064397 issued by Professional Certification Group on 22 April 2020 for tenancy fitout of pizza shop at Shop 1, 154-156 Sailors Bay Road, Northbridge NSW 2063 (the site) is invalid. 2. Declares that Pamir Dehsabzi and Anita Dehsabzi have breached s 4.2 of the Environmental Planning and Assessment Act 1979 in carrying out the following works in basement B1 of the building on the site, being part of the common property in Strata Plan 83556, without first obtaining development consent: 1. installation of a grease trap and arrester with associated piping; 2. installation of utility services, including gas, electricity, water and waste water drainage with associated pipes, conduits and wires; 3. installation of a compressor and associated pipes, wires, conduits and structural supports (the common property works). 1. Orders Pamir Dehsabzi and Anita Dehsabzi to refrain from using Lot 12 in Strata Plan 83556 for the purpose of food and drink premises, including as a pizza shop, unless and until development consent is obtained to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop, and a building information certificate is obtained with respect to the works carried out in Lot 12 in reliance on the complying development certificate and the common property works. 2. Orders Pamir Dehsabzi and Anita Dehsabzi to remove the works carried out in Lot 12 in reliance on the complying development certificate and the common property works and to reinstate Lot 12 and the common property to the condition or state that Lot 12 and the common property were in immediately before the carrying out of the works in Lot 12 and the common property works. 3. Suspends order (4) for 12 months from the date of the order to allow Pamir Dehsabzi and Anita Dehsabzi to make: 1. a development application seeking development consent to use Lot 12 and the common property works for the purpose of food and drink premises, including as a pizza shop; and 2. an application for a building information certificate with respect to the works carried out in Lot 12 in reliance upon the complying development certificate and the common property works. 1. Grants all parties liberty to apply to vary orders (4) or (5), including to extend the period of suspension of order (4). 2. Orders the respondents to pay the applicant's costs of the proceedings.

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: 15 December 2020

comply with AS 4674-200 - works on lot will not comply - if internal building alteration, whether complied with criteria for specified complying development - need for building to have consent for use - CDC will give consent for use - need for inspection of site of development before CDC issued - inspection and record of inspection non-compliant with regulatory requirements - works on common property without consent - relief - declarations and injunctions granted Legislation Cited: Environmental Planning and Assessment Act 1979 ss 1.4, 4.2, 4.26, 4.27, 4.28 Environmental Planning and Assessment Regulation 2000 cll 129B, 129C State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.17, 5.1, 5.2, 5.3, 5.4 Land and Environment Court Act 1979 s 25B Willoughby Local Environmental Plan 2012 Cases Cited: ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Cooper and Wilton v Maitland City Council (1992) 130 LGERA 217 Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 King v Great Lakes Shire Council (1986) 58 LGRA 366 Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 Woollahra Municipal Council v Carr (1982) 47 LGRA 105 Category: Principal judgment Parties: Strata Plan 83556 trading as Aspect Apartments (Applicant) Pamir Dehsabzi (First Respondent) Anita Dehsabzi (Second Respondent) Ben Smith (Third Respondent) Representation: Counsel: Mr M Astill (Applicant) Mr R White (First and Second Respondent) Mr R de Meyrick (Third Respondent)

(2018) 233 LGERA 170

(2019) 243 LGERA 338

(1992) 130 LGERA 217

(2003) 129 LGERA 223

(2019) 238 LGERA 295

(2017) 220 LGERA 181

The Owners Strata Plan 83556 trading as Aspect Apartments v Dehsabzi

At a glance

Court

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Judgment (13 paragraphs)

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Cases Cited (29)

Cited By (1)