Woollahra Municipal Council v Cameron

JUDGMENT Introduction Issues Outcome Factual background The assessment report Approval of the construction management plan The modified development consent The construction certificate, the architectural plans, and the structural plans Proposed 'cellar' level and associated excavation Construction void level approved by the construction certificate Uploading of the construction certificate Enforcement action in relation to the site Discussions between Council and the first respondent Current state of excavation at the site Commencement of proceedings Relevant legislation and legislative history (1) Whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate Council's submissions in relation to an extension of time First and second respondents' submissions in relation to an extension of time Council's reply in relation to an extension of time Conclusion in relation to whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate (2) Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes Council's submissions First and second respondents' submissions Council's reply Conclusion in relation to whether the modified development consent, properly construed, prohibits excavation within the area identified as the 'cellar' level for all purposes (3) Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent Council's submissions First and second respondents' submissions Council's reply Conclusion in relation to whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent (4) If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent Council's submissions First and second respondents' submissions Conclusion in relation to whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent (5) If the answer to (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration. Council's submissions on validity and discretion First and second respondents' submissions on validity and discretion Council's reply on validity and discretion Conclusion in relation to whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration Costs Conclusion and orders

Introduction

1. These Class 4 proceedings were commenced by summons filed 1 March 2023. By amended summons filed 1 May 2023 (the amended summons), Woollahra Municipal Council (Council) seeks judicial review of the decision of Mr Paul Aramini (the third respondent) on 31 August 2022 to issue construction certificate 21/345 (the construction certificate) as principal certifying authority for the development of 35 Suttie Road, Bellevue Hill, Lot 5 DP13285 (the site), in accordance with development consent DA 475/2020/1 (the development consent) as modified by the Woollahra Local Planning Panel (the Local Planning Panel) in DA 475/2020/3 on 16 June 2022 (the modified development consent).
2. The development consent was the subject of a modification application lodged 11 April 2022 which was recommended for approval by and subsequently approved by the Local Planning Panel on 16 June 2022, subject to condition C.1(d) requiring, inter alia, the "Deletion of the 'cellar' level and the associated excavation (imposed under DA 457/2020/3)" (the area previously identified as the 'cellar' level).
3. The matter was heard before me on 10 and 11 October 2023.
4. On 11 October 2023 at 9:13am, Council provided chambers with amended proposed orders it seeks in the proceedings (the amended proposed orders): 1 Pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005, the time for the commencement of the proceedings is extended to 1 March 2023, being the date of filing of the summons. 2 Declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect. 3 Alternatively, declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 (CC) for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect in so far as it approves below RL 18.28 in the area hatched in red on the attached plan: a. excavation; b. structures including lift, lift shafts, stairs, walls, floor, and crane base; and c. other works in that area. 4 Order that the First and Second Respondents, by themselves, their servants and agents, are restrained from carrying out any development in reliance on the CC, or alternatively on that part of the CC referred to in prayer 3 above. 5 Order that the Respondents are to pay the Council's costs of the proceedings.
5. The "attached plan", including the area hatched in red, referred to in prayer 3 of the amended proposed orders is reproduced below. The "attached plan" is from the Construction Void Marking Plan Dwg 1100 Rev C with added red hatching, which is referred to at [31(2)] below.
6. The first respondent, Mr Andrew Cameron (the first respondent) and the second respondent, Ms Vanessa Green (the second respondent), have the benefit of a development consent to demolish an existing building and construct a three-storey dwelling on the site.
7. On 31 May 2023, the third respondent filed points of defence in response to the amended summons and an affidavit of Mr Aramini, sworn 29 September 2023. The third respondent filed a submitting appearance on 6 October 2023 and did not participate in the hearing on 10 and 11 October 2023.
8. In the amended summons, Council contends that the decision of the third respondent to issue the construction certificate "was invalid because it was not reasonably open, and/or without any evident or intelligible justification for the third respondent to conclude that the design and construction of the [site], as depicted in the plans and specifications given to the [third respondent], were consistent with the [modified development consent]".

Issues

1. The issues which arise for determination are as follows: 1. Whether the Court should extend time under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate. 2. Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes. 3. Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent. 4. If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent. 5. If the answer to question (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

Outcome

1. I have determined the issues for determination as follows: 1. Pursuant to r 59.10(2) of the UCPR, time for Council to commence proceedings for judicial review of the decision of the third respondent, Mr Paul Aramini, dated 31 August 2022 to issue construction certificate 21/345 is extended to 1 March 2023. 2. The modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes. 3. The plans, specifications and standards of building work specified in the construction certificate issued 31 August 2022 are not consistent with the modified development consent to the extent that they permit excavation in the area previously identified as the 'cellar' level. 4. It was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent. 5. I will make a declaration that the construction certificate is invalid to the extent that it permits excavation in the area previously identified as the 'cellar' level.

Factual background

1. The following factual background is derived in part from the agreed statement of facts and agreed chronology tendered by the parties, and in part from the Court's consideration of the documents in evidence.
2. On 13 April 2021, pursuant to ss 4.16 and 4.17 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), Council granted development consent DA 457/2020 subject to conditions for the "[d]emolition of the existing building and construction of a new dwelling" at the site.
3. On 10 March 2022, Council determined modification application DA 457/2020/2 (the second modification to the development consent) lodged by the first and second respondents' architect Mr John Jell pursuant to s 4.55 of the EPA Act. The DA 457/2020/2 modifications are not relevant to these proceedings.
4. On 11 April 2022, Mr Jell lodged modification application DA 457/2020/3 pursuant to s 4.55 of the EPA Act (the modification application), seeking to modify the development consent by: 1. providing a basement wine cellar, store, lift, and access stairs; 2. a minor reconfiguring of the layout of the lower level media, gym, and powder rooms; and 3. deleting a window from an upper level living room.

The assessment report

1. The assessment report prepared by Council dated 16 June 2022 (the assessment report) recommended that the Local Planning Panel modify the development consent "for demolition of the existing building and construction of a new dwelling [at the site]" subject to the "deletion of the new cellar level and associated excavation". The assessment report concluded in relation to excavation as follows: ... given the amount of excavation is in excess of the volumetric control, the short-term amenity effects are not reasonable as they are likely to be greater due to the extended period of time required to excavate more material than when compared to a compliant development. Conclusion The approved development already exceeded the maximum excavation volume. The extent of variation sought under this modification is not justified. The proposal is therefore unacceptable with regard to the excavation controls in Part B3.4 of the [Woollahra Development Control Plan 2015]. Condition C.1(d) has been recommended which requires deletion of the proposed new cellar level and the associated excavation.
2. The assessment report recorded that the Local Planning Panel was the designated consent authority for the modification application because the application was a "contentious development" that was "the subject of 10 or more unique submissions by way of objection".

Approval of the construction management plan

1. On 26 May 2022, Mr Mark Smigliani, project manager/site supervisor acting on behalf of the first and second respondents, submitted documents to Council in support of the proposed construction management plan. Included in those documents was a proposed excavation plan which did not show any excavation in the area the subject of condition C.1(d) of the modified development consent.
2. On 9 June 2022, Council approved the construction management plan.

The modified development consent

1. On 16 June 2022, the Local Planning Panel approved the modification application "for the reasons set out in the assessment report".
2. The Local Planning Panel modified the development consent by: 1. including a new sub-paragraph (d) to condition C.1; and 2. approving plan DA07 (approved plan DA07), plan DA08 (approved plan DA08) and plan DA10 (approved plan DA10) that show a 'cellar' level and a notation "Cellar Level Deleted" (per condition A.8 extracted below).
3. Condition C.1(d) in the modified development consent provides as follows (emphasis added): C.1 Modification of Details of the Development (section 4.17(1)(g) of the Act) The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments: … (d) Deletion of the 'cellar' level and the associated excavation (imposed under DA 475/2020/3) To minimise excavation, the 'cellar' level including the mechanical ventilation, wine cellar, store, lift and access stairs must be deleted; and the area must remain unexcavated.
4. Other relevant conditions of the modified development consent are the following: A4 Approved Plans and Supporting Documents Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with both the architectural plans to which is affixed a Council stamp "Approved" and supporting documents listed below … [including Architectural Plans and the Geotechnical & Hydrological Report by AssetGeoEnviro dated 18 September 2020 [(the 2020 geotechnical report)] A.8 Approved Amended (section 4.55) Plans and Supporting Documents Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the approved plans and supporting documents listed in the original consent, as amended by the amended architectural approved plans to which is affixed a Council stamp "Approved" and supporting documents as submitted by the Applicant listed below otherwise than modified by further condition(s). Where the plans relate to amendments, alterations or additions only those works shown in colour or highlighted are approved. Reference Description Author/Drawn Date(s) Job No. 1903 09.05.2022 DA06, Issue F 25.03.2022 DA07, Issue E 25.03.2022 DA08, Issue E Architectural Plans All by AC + VG 25.03.2022 DA10, Issue E 09.05.2022 DA12, Issue D 25.03.2022 DA13, Issue E

D.4 Construction Management Plan As a result of the site constraints, limited space and access a Construction Management Plan (CMP) is to be submitted to Council … The CMP must … include the following information … (f) If a crane/s are to be accommodated on site, detail how the crane/s will be erected and removed, including the location, number and size of vehicles involved in the erection/removal of the crane/s, the duration of the operation and the proposed day and times, any full or partial road closures required to erect or remove the crane/s and appropriate Traffic Control Plans … E.8 Compliance with Geotechnical/ Hydrogeological Monitoring Program Excavation must be undertaken in accordance with the recommendations of the Geotechnical/Hydrogeological Monitoring Program and any oral or written direction of the supervising professional engineer … E.9 Support of Adjoining Land and Buildings A person must not do anything on or in relation to the site (the supporting land) that removes the support provided by the supporting land to any other land (the supported land) or building (the supported building) … E.13 Site Cranes Site crane(s) and hoist(s) may be erected within the boundary of the land being developed subject to compliance with Australian Standards AS 1418, AS 2549 and AS 2550 and all relevant parts to these standards …

1. The notations 'stair' and 'cellar' and "Cellar Level Deleted. Refer to Condition C.1(d)" on approved plan DA07 (Section A) are shown below:
2. The notations 'store' and 'cellar' and "Cellar Level Deleted. Refer to Condition C.1(d)" on approved plan DA08 (Section B) are shown below:
3. The notations 'cellar' and 'store' and "Cellar Level Deleted. Refer to Condition C.1(d)" on approved plan DA10 (Section E) are shown below:
4. The minutes of the public meeting of the Local Planning Panel held 16 June 2022 at 1:00pm provide the following reasons for the decision to approve the modification application: Reason for Decision The Panel has independently viewed the site, from the street and surrounding area and/or electronically, considered the submissions, and reviewed the assessment report prepared by Council officers that addresses the relevant matters detailed in Section 4.15 of the [EPA Act]. For the reasons in the assessment report, the Panel is satisfied that the application can be modified subject to the deletion of drawing reference no. DA06.5E within Condition No. A.8.
5. DA06.5E is the Cellar Level Plan dated 25 March 2022 that was submitted as part of the modification application and to which the Local Planning Panel deleted reference in Condition A.8 "Approved Amended (section 4.55) Plans and Supporting Documents" when it approved the modification application.

The construction certificate, the architectural plans, and the structural plans

1. On 14 June 2022, the first respondent lodged an application for a construction certificate into the certifier's system. The construction certificate application was initially lodged before the modified development consent was approved on 16 June 2022.
2. On 31 August 2022, the third respondent issued the construction certificate (number 21/345) for the site, listing the development consent, the second development consent and the modified development consent as the relevant consents, pursuant to Part 6 of the EPA Act. In determining the application for the construction certificate the documents provided to the third respondent included relevant building work, plans and specifications. These included architectural plans (the architectural plans) which are "stamped" approved by the third respondent, and structural plans to which have the third respondents' stamp was also affixed (the structural plans) (together, the construction certificate plans).
3. The architectural plans "stamped" by the third respondent and dated 7 June 2022 included: 1. WD2.05A Issue A, Proposed Section A (drawing 1 of 2) (architectural plan WD2.05.A) which provides for a concrete structure in the location of the formerly proposed cellar (the concrete structure) without any notations. 2. WD2.05B Issue A, Proposed Section A (drawing 2 of 2) (architectural plan WD2.05.B) which provides for: 1. the concrete structure with the notation 'CRANE BASE, REFER STRUCT ENG'S DOCS FOR DETAILS'; and 2. a further vertical structure into the ground with the notation 'CONTINUOUS PILES REFER STRUCT ENG'. 1. WD2.06 Issue A (architectural plan WD2.06.A), Proposed Section which shows continuous piles in the location of the deleted cellar. 2. WD2.09 Issue A, Proposed Section which shows: 1. a concrete structure and vertical structures; and 2. the notation 'CONTINUOUS PILED & CAVITY TO WATERPROOF BASEMENT WALLS'.
4. The structural plans "stamped" by the third respondent and dated 14 July 2022 included: 1. Dwg 1051 Rev D, Shoring Elevations Sheet 1 (Shoring Elevations Sheet 1) which shows in the area of the former cellar: 1. an apparent floor level for a construction void; 2. stairs leading into the construction void; and 3. a crane base with a notation "CRANE BASE BY OTHERS. MAXIMUM 5mx5mx1.35m DEEP"; 1. Dwg 1100 Rev C, Construction Void Marking Plan (the Construction Void Marking Plan) which shows in the area of the former cellar: 1. a concrete slab at the level of the construction void; and 2. precast concrete walls. Part of the Construction Void Marking Plan is reproduced below: 1. Dwg 1104 Rev C, Construction Void Sections Sheet 1 (the Construction Void Sections Sheet 1) which shows: 1. a crane base; and 2. a construction void. Part of the Construction Void Sections Sheet 1 is reproduced below: 1. Dwg 1200 Rev C, Lower Level Marking Plan which shows in the area of the former cellar: 1. stairs; and 2. a concrete slab with 200mm thickness; 1. Dwg 1204 Rev C, Lower Level Sections Sheet 1 which includes a marking for a construction void; and 2. Dwg 7502 Rev C, Wall Elevations - Precast Sheet 2, which shows: 1. a lift; 2. stairs; and access to the construction void.
5. The agreed statement of facts also referred to the Geotechnical & Hydrogeological Investigation produced by AssetGeoEnviro dated 30 April 2022 (the 2022 geotechnical report) which was "stamped" by the third respondent and refers to: 1. excavation up to 7.5 metres in depth for the cellar and store level finished floor level; 2. contiguous piles proposed to support the cut for the cellar and store level; and 3. there being no completed soil investigation at the crane location.

Proposed 'cellar' level and associated excavation

1. It was an agreed fact that the 'cellar' level is the area located beneath the lower level as depicted in approved plan DA07.
2. After the hearing on 11 October 2023, the Court requested that the parties provide an agreed position in relation to the RLs of the proposed 'cellar' level and associated excavation which were the subject of the modification assessment by reference to drawings and plans in evidence.
3. In the agreed note subsequently provided to the Court (the agreed note), the parties agreed that the plans approved by the modification application and which record the deletion of the 'cellar' level depict the 'cellar' level at RL 15.75. Those plans are approved plans DA07, DA08 and DA10.
4. In the agreed note, Council identified as an additional matter that the plans approved by the modification show the 'cellar' level (RL 15.75) as being at the same level as the base of the structure of the "existing pool" in approved plan DA07.

Construction void level approved by the construction certificate

1. After the hearing on 11 October 2023, the Court also requested that the parties provide an agreed position in relation to RLs for the construction void approved by the construction certificate.
2. The agreed note states that the structural plans do not expressly identify a precise level for the top of the slab in the construction void or on any of the relevant plans or elevations.
3. The agreed note refers to the following notes in Construction Notes Sheet 1 in relation to the structural plans: GENERAL G1. THESE DRAWINGS SHALL BE READ IN CONJUNCTION WITH ALL ARCHITECTURAL AND OTHER CONSULTANTS DRAWINGS … G2. DIMENSIONS SHALL NOT BE OBTAINED BY SCALING THE STRUCTURAL DRAWINGS. FIGURED DIMENSIONS ONLY SHALL BE USED. SETTING OUT DIMENSIONS SHOWN ON THE DRAWINGS SHALL BE VERIFIED BY THE BUILDER FROM ARCHITECTURAL DRAWINGS …
4. Nonetheless, it was agreed that an approximate level for the construction void of between RL 15.6 and RL 15.8 could be extrapolated from the architectural plans and structural plans: 1. the architectural plans depicting the lower level of the dwelling (being the level above the cellar or construction void level) with a finished floor level of RL 18.50; 2. the same architectural plans showing a crane base, but not depicting the level of the crane base; and 3. the structural plans showing a 2900mm socket extending: 1. from the finished floor level of the lower level of the dwelling (shown on the architectural plans as at RL 18.50); 2. to below the finished floor level of the construction void, but within the width of the floor slab above the crane base. An extract from the Shoring Elevations Sheet 1 structural plan is as follows: 1. the slab above the crane base being shown to continue beyond the crane base to the adjoining area and being variously: 1. 100mm thick; and 2. 200mm thick, depending on its location within the floor plan of the construction void.
5. The agreed effect is that the finished floor level of the top of the slab (being the construction void level) is depicted as: 1. greater than the base of the socket at RL 15.6 (18.5-2.9m); and 2. less than RL 15.8 (given that the slab is up to 200mm thick and the base of the socket sits within the width of the slab).
6. In relation to additional matters identified by the parties in the agreed note, Council said that the plans approved by the construction certificate show the level of the construction void to be the same level as the base of the structure of the "existing pool". Therefore, as the external structure of the "existing pool" is unchanged, that level remains RL 15.75.
7. The first and second respondents said that any extrapolated levels are also subject to the various requirements of the structural plans including: 1. the note in the Construction Notes Sheet 1 which provides: FOUNDATIONS F1. FOUNDATION DESIGN HAS BEEN BASED ON GEOTECHNICAL ENGINEERS REPORT No. 6211-G1 DATED 18/09/2020 BY ASSETGEOENVIRO 1. the note in the general arrangement legend of the Footing Marking Plan which provides: ALL FOOTING MATERIAL TO BE INSPECTED BY GEOTECHNICAL ENGINEER AND BEARING PRESSURE TO BE CONFIRMED 1. Note 2 in the Footing Marking Plan which provides: UNLESS NOTED OTHERWISE ALL FOUNDATIONS TO BE ON SANDSTONE WITH ALLOWABLE BEARING CAPACITY OF 1000 kPa

Uploading of the construction certificate

1. On 1 September 2022, the construction certificate was uploaded to the NSW Planning Portal (the Planning Portal).
2. On 8 September 2022, administrative staff at Council downloaded the construction certificate from the Planning Portal and uploaded the construction certificate to Council's digital records management system.

Enforcement action in relation to the site

1. On 16 January 2023, excavation works for the construction void commenced.
2. On 31 January 2023, Council received a complaint about the depth of excavation at the site.
3. On 1 February 2023, Mr Lyndal James, building and compliance officer, Council, attended the site.
4. On 6 February 2023, Mr Craig Jenner, team leader compliance, Council, issued a development control order (the development control order) to the first and second respondents pursuant to ss 9.34 to 9.36 of the EPA Act. The development control order provided as follows: Order to cease unauthorised excavation 35 Suttie Road BELLEVUE HILL 2023 LOT: 5 SEC: 3 DP: 13285 … The terms of the Development Control Order are: 1. Cease all excavation beyond the extent granted development consent under DA475/2020. Excavation for the construction of the lowest floor level of the approved dwelling at 35 Suttie Road Bellevue Hill is to be no lower than RL 18.30.
5. On 6 February 2023, Mr Jenner issued a notice of intention to give an order to the first and second respondents pursuant to ss 9.34 to 9.36 of the EPA Act: Notice of Intention to Give an Order 35 Suttie Road BELLEVUE HILL 2023 LOT: 5 SEC: 3 DP: 13285 … The terms of the Order are: 1. Comply with Condition C.1(d) of Development Consent DA2020/475/3 by backfilling the excavated area located in the middle of the subject site which was proposed in application DA2020/475/3 to be a cellar level to the subject development.
6. On 7 February 2023, the first respondent ceased excavation at the site.

Discussions between Council and the first respondent

1. On 6 February 2023, the first respondent sent an email to Mr Jenner at Council as follows: Dear Craig Thank you for your time today. To clarify the our position. A crane pad of 5 x 5 x1.35 m was required to be footed in rock. Mark Rust of Overhead Engineering determined this required the top of the pad to be at RL 15.5 based on the Geo Tech survey carried out by AssetGeoEnvrio. This requirement gave rise to the 4.55 application. We are excavating to that level. We propose to place a 22.5 Kl tank in the void, along with three smaller tanks to meet a condition of consent and avoid a similar amount of excavation adjacent to the pool to meet this condition. We have not challenged this condition, which was increased from 20 Kl in the initial approval despite our engineers concern that we would not fill such a volume, given normal usage, from our roof area even with last year's 2,000+mm of rain. This will avoid further excavation. We currently have plant in the construction void that can now only be removed by crane. We will not be able to install the crane unless we provide a suitable pad at RL 15.5. We had expected to have completed excavation by now, however we hit harder rock that expected. I believe we have another two to three days of excavation. I will be seeking advice on next steps from here, …
2. On 8 February 2023, the first respondent met with Mr Jenner and Ms Rosemary Bullmore, manager legal, compliance and enforcement, at Council.
3. On 8 February 2023, the first and second respondents lodged a Class 1 appeal against Council's development control order (proceeding number 2023/42616) (the Class 1 proceedings).
4. On 9 February 2023, the first respondent lodged modification application DA457/2020/4 seeking approval for the work in the area subject to condition C.1(d).
5. On 14 February 2023, the Class 1 proceedings were served on Council.
6. On 15 February 2023, the first respondent withdrew modification application DA457/2020/4.
7. On 15 February 2023, Council received a letter from Mills Oakley, solicitors for the first and second respondents, in which Mills Oakley: 1. sought the "immediate revocation of the development control order"; and 2. claimed that if the development control order was not revoked, the first and second respondent would have a claim for compensation "in the vicinity of $500,000".
8. On 15 February 2023, Council sought legal advice regarding the letter it received from Mills Oakley on 15 February 2023.
9. As at 11 October 2023, the development control order was still in place.

Current state of excavation at the site

1. On 20 February 2023, Mr Farshid, construction contractor representing the first respondent, provided Council with a diagram showing the extent of the excavation as at 7 February 2023, being at an approximate RL of 15.7.
2. On 20 February 2023, the solicitors for the first and second respondents wrote to Council, stating that a "total of 168m3 was required to complete the remaining excavation", comprising: 1. 83m3 for the [construction] void; 2. 45m3 for the crane base; and 3. 40m3 for the "detention bank".
3. As at the date of hearing, the development control order prevented those works from being carried out.

Commencement of proceedings

1. On 24 February 2023, Council received legal advice and instructed counsel to prepare the summons and grounds of appeal.
2. On 1 March 2023, Council filed the summons commencing these Class 4 proceedings and a notice of motion seeking expedition.
3. On 2 March 2023, Council filed an affidavit of Mr Jenner, team leader, compliance at Council, affirmed 2 March 2023, and on 8 March 2023, an affidavit of Ms Bullmore, affirmed 8 March 2023 (which was not read).
4. On 28 March 2023, the first and second respondents filed an affidavit of the first respondent, Mr Cameron affirmed 28 March 2023.
5. On 1 May 2023, Council filed an amended summons.

Relevant legislation and legislative history

1. Rule 59.10 of the UCPR provides as follows in relation to the extension of time for commencing proceedings for judicial review (emphasis added): 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following - (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
2. Section 4.16(12) of the EPA Act provides as follows in relation to the effect of issuing a construction certificate: 4.16 Determination (12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).
3. Section 6.32 of the EPA Act provides as follows in relation to the validity of certificates under Part 6 "Building and subdivision certification" (emphasis added): 6.32 Validity of certificates under this Part Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if - (a) proceedings for the order are brought within 3 months after the issue of the certificate, and (b) the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.
4. Section 6.32 of the EPA Act replaced cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (NSW) (the former EPA Regulation 2000) which provided as follows (emphasis added): 145 Compliance with development consent and Building Code of Australia (1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: … (a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent…
5. Section 6.32 of the EPA Act came into effect on 1 December 2019 under cl 18(2) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW).
6. Section 6.8(1) of the EPA Act relevantly provides that: (1) A construction certificate must not be issued with respect to the plans and specifications for any building work unless- (a) the requirements of the regulations have been complied with …
7. The relevant requirements of the regulations are contained in Part 3 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) (the Certification Regulation). This regulation commenced on 1 January 2022.
8. Section 7 of the Certification Regulation provides as follows: 7 Application for construction certificate (1) An application for a construction certificate must - (a) be in the approved form, and (b) include all the information and documents specified in the approved form or required by the Act or this Regulation, and (c) be lodged on the NSW planning portal. …
9. Section 8 of the Certification Regulation provides as follows: 8 Documents to accompany application for construction certificate (1) This section applies to an application for a construction certificate for development that involves building work. (2) The application must be accompanied by - (a) a detailed description of the development, and (b) appropriate building work plans and specifications (referred to in this Part as relevant building work plans and specifications). (3) The detailed description of the development must indicate the following matters - … (4) The appropriate building work plans and specifications must include the following - (a) detailed building work plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show the following - (i) a plan of each floor section, (ii) a plan of each elevation of the building, (iii) the levels of the lowest floor, an unbuilt yard or area that belongs to the lowest floor and the adjacent ground, (iv) the height, design, construction and provision for fire safety and fire resistance, if any, (b) building work specifications that - (i) describe the construction and the materials to be used to construct the building, and …
10. Section 12 of the Certification Regulation provides as follows: 12 Certifier may require additional information (1) A certifier may require the applicant for a construction certificate to give the certifier information about the building work or a planning agreement that the certifier considers necessary to properly consider the application. …
11. Section 13 of the Certification Regulation provides in relation to giving reasons for refusing an application for a construction certificate: 13 Determination of application for construction certificate (1) A certifier must ensure the certifier's determination of an application for a construction certificate contains the following information - (a) the date on which the application was determined, (b) whether the application is approved or refused, (c) if the application is refused - (i) the reasons for the refusal …
12. Section 19(1) of the Certification Regulation requires relevantly as follows (emphasis added): 19 Compliance with development consent and Building Code of Australia (1) A certifier must not issue a construction certificate for building work unless- (a) the relevant building work plans and specifications include the matters required by a relevant BASIX certificate, if any, and (b) the design and construction of the building, as described in the relevant building work plans and specifications and in other information given to the certifier under section 12, is consistent with the development consent, and (c) the building will comply with the relevant requirements of the Building Code of Australia as in force on the relevant date …
13. Section 20 of the Certification Regulation provides as follows: 20 Compliance with conditions of development consent A certifier must not issue a construction certificate for building work under a development consent unless the following have been complied with - (a) a condition of the development consent or an agreement referred to in the Act, section 4.17(6) requiring the provision of security before building work is carried out, (b) a condition of the development consent, referred to in the Act, section 7.11 or 7.12, requiring the payment of a monetary contribution or levy before building work is carried out, (c) a condition of the development consent that must be complied with before a construction certificate may be issued.
14. Condition C.1 of the modified development consent refers to cl 139 of the former EPA Regulation 2000 (the application for the development consent having been determined on 13 April 2021 when the former regulation was in force). Clause 139 provided as follows in relation to application for construction certificates: 139 Applications for construction certificates (1) An application for a construction certificate must - (a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and (b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and (c) be accompanied by documents that are specified in Part 3 of Schedule 1 or required by the Act and this Regulation, and (d) be lodged on the NSW planning portal. (1A) The application may only be made by a person who is eligible to appoint a principal certifier for the relevant development. (2) The applicant must be notified, by means of the NSW planning portal, that the application for a construction certificate has been lodged.
15. The first and second respondents placed particular emphasis on ss 34 and 35 of the Interpretation Act 1987 (NSW) (Interpretation Act) in relation to the use of extrinsic material in the interpretation of Acts and in relation to headings. These provide: 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material - (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision - (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes - … (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and … 35 Headings etc (1) Headings to provisions of an Act or instrument, being headings to - (a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or (b) Schedules to the Act or instrument, shall be taken to be part of the Act or instrument. (2) Except as provided by subsections (3) and (4) - (a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), (b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or (c) a marginal note, footnote or endnote in an Act or instrument, shall be taken not to be part of the Act or instrument. … (5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates.

(1) Whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate

1. The first issue is whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate.

Council's submissions in relation to an extension of time

1. Council submitted that in considering whether to allow an extension of time under r 59.10, the Court may consider the matters under r 59.10(3) as well as other relevant matters, including the length of delay, the reasons for the delay and whether an applicant has a fairly arguable case. [1]
2. In relation to "any relevant public interest" (r 59.10(3)(d)), Council submitted that "Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act", citing Bankstown City Council v Ramahi (Ramahi) at [75] (Preston CJ of LEC). That includes ensuring that development is carried out in accordance with the terms of any development consent granted by a local planning panel.
3. Council accepted that limitation periods such as that in r 59.10 benefit the public by providing finality in decisions, citing Katter v Melhem [2] at [123]. There is also, however, Council submitted, a strong public interest in the enforcement of planning law, citing Warringah Shire Council v Sedevcic [3] (Sedevcic) at 339-340. That includes ensuring that construction certificates are issued within power. Council submitted that its interest closely aligns with the public interest and is not diminished by any delay in commencing the proceedings.
4. In relation to "possible prejudice" (r 59.10(3)(b)), Council submitted that the relevant prejudice, being expenses on building work incurred up to the expiry of the three month period to commence the proceedings, is not connected to any delay: citing Ramahi at [86]-[87] (Preston CJ of LEC).
5. The three month period for commencing the proceedings expired on 1 December 2022, and a development control order ordering the cessation of unauthorised excavation below RL 18.30 was issued on 6 February 2023. At some time during that two month period, the first and second respondents carried out excavation in the area of the 'cellar' level.
6. Council submitted that there was no evidence as to what other works (if any) were carried out, nor the potential costs in order to quantify any prejudice. The first and second respondents chose not to put on any evidence as to prejudice. Mr Lazarus SC for Council submitted as follows in relation to the first and second respondents' failure to call any evidence directed to prejudice: … we submit, a powerful Ferrcom [Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332] inference that arises from the failure of the respondents to call any evidence in chief specifically directed to the question of prejudice. The only evidence in chief that they've put on are uncontroversial matters that have all been agreed as part of the agreed statement of facts. … What those authorities establish, quite clearly, is that the failure to call evidence on a particular topic where one would expect such evidence to be called - so, if the respondent in this case wishes to submit that there's prejudice, it's obvious what the source of that evidence ought to be. That an inference arises that the evidence that could have been given would not be favourable to the respondent's case. That is an extension of the principle in Jones v Dunkel [(1959) 101 CLR 298].
7. Further, Council submitted that potential prejudice to the first and second respondents needs to be considered in the context that they (at least the first respondent), knowing that the Local Planning Panel "had essentially refused consent to a cellar level, submitted plans to the principal certifying authority that showed a cellar level."
8. In similar circumstances, in relation to a complying development certificate, the chief judge said in Ramahi at [85]: I am not satisfied that any prejudice that Ms Ramahi might suffer is sufficient to not extend the time for commencing the Council's proceedings. First, Ms Ramahi and her builder, UBA, bear primary responsibility for proposing and applying for the issue of a complying development certificate for development that was not complying development. Ms Ramahi, by her agent, UBA, proposed a secondary dwelling for the land that substantially breaches the development standards for floor area and side and rear setbacks under the applicable ARH SEPP. Ms Ramahi, by her agent, UBA, applied to a private certifier to have development that did not comply with these development standards certified as complying development. It is true that Mr Kayellou, on no less than three occasions, did issue [complying development certificates] for development that was not complying development. However, that conduct does not absolve Ms Ramahi of responsibility for proposing and then carrying out development that was not and could not be complying development.
9. That is, Council said that it was not aware of the inconsistency between the plans, specifications and standards of building work specified in the construction certificate, and the modified development consent, nor did it have cause to examine one of many construction certificates posted on the Planning Portal for its local government area, until it received a complaint on 31 January 2023.
10. In relation to the reasons for delay (r 59.10(3)(a)), Council referred to the following chronology: Council first attended the site on 27 October 2022 to investigate a complaint about a lack of sediment control measures. At that time, excavation work for the construction void had not commenced. Therefore, there were no physical indications which would cause Council to examine the construction certificate. Those indications first emerged when excavation work for the construction void was carried out in January 2023, and Council received a complaint on 31 January 2023. Council reviewed the construction certificate, attended the site the following day, and on 6 February 2023 issued a development control order requiring the cessation of all excavation works below RL 18.30. Council sought advice, attempted to resolve the issue with the first and second respondents, and commenced the proceedings within the month.
11. This was submitted not to be unreasonable. For 2022 alone, 514 construction certificates, and 200 complying development certificates were issued in the Woollahra local government area. Council does not have the resources, it was submitted, nor is it required to review every one of those certificates to ensure that the relevant certifier has complied with their obligations.
12. Mr Lazarus SC for Council said as follows: LAZARUS SC: In terms of the delay of three months, there is no obligation on a council, statutory or otherwise, to review construction certificates for any purpose and certainly not for the purpose of ascertaining consistency with-- HER HONOUR: Or to undertake site inspections in order to ascertain compliance. LAZARUS: That's so. There's no obligation … upon a council to ensure compliance with the law [referring to Ryde City Council v Echt (2000) 107 LGERA 317; [2000] NSWCA 108] … Mr Jenner's … unchallenged evidence, is that the council receives hundreds of construction certificates a year and that there are simply no resources to carry out the time consuming activity that would be required to assess each and every one of those for consistency with the consent, and every condition that has been imposed as part of the consent. That evidence remains unchallenged, and your Honour should accept it.
13. And in Ramahi, the chief judge said at [95] in relation to complying development certificates: I do not accept Ms Ramahi's submission that the Council acted unreasonably in not checking the complying development certificates at the time it received them. The statutory scheme regulating complying development certificates requires the accredited certifier to ensure and to certify that the development is complying development under the EPA Act and that it will comply with all relevant development standards. There are criminal sanctions if the certifier incorrectly certifies. The Council is entitled to presume that the complying development certificates have been issued in compliance with the EPA Act, the EPA Regulation and the applicable environmental planning instrument and development standards.
14. Council submitted that the situation is no different in relation to construction certificates.
15. The length of the delay, that is, three months, Council submitted was not "undue". It was less than that in Ramahi (9 months and 6.5 months), Yves Deyris v Elizabeth Jones [4] (8 months), Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [5] (6 months), and the same as that in Syncept Chatham Pty Ltd v Council of the City of Ryde (No 2) [6] (3 months). All were cases in which the delay was found not to be undue, and an extension of time for commencing the proceedings was granted.

First and second respondents' submissions in relation to an extension of time

1. The first and second respondents submitted that the Court would find "underwhelming" the evidence relied upon by Council to justify an extension of time to commence the proceedings, referring to the following matters: 1. The proceedings were not commenced until 1 March 2023. 2. The construction certificate was issued on 31 August 2022, and the expiry date of the three month period to commence proceedings was said by the first and second respondents to be 31 November 2022. (However, as there is no 31st day of November, I proceed on the basis that the expiry date was 30 November 2022 pursuant to the definition of "calendar month" in Schedule 4 Dictionary to the Interpretation Act). 3. By 30 November 2022, the construction certificate had been uploaded to the Planning Portal and downloaded by Council, and been on Council's digital records management system for over ten weeks. 4. Mr Jenner attended the site on 27 October 2022 to respond to a complaint about materials being placed on adjoining land and sediment controls (although no further enforcement action was taken). Mr Jenner did not say whether he was aware of the construction certificate by that date, or explain why he did not have regard to the construction certificate in investigating that issue. 5. In any event, by that date, 27 October 2022, Council was in possession of the construction certificate and could have, as part of the "due diligence" contemplated by r 59.10(3)(c), reviewed it as part of responding to the complaint.
2. The first and second respondents submitted that it was "otherwise problematic for Council to rely on subjective and self serving matters of resourcing, discrete staff responsibilities", and merely to take a "reactive approach" to enforcement activities before checking a construction certificate. Apart from being difficult evidence to test, such approach ignored the statutory provisions and the prejudice to those carrying out development in accordance with a construction certificate after the expiry of the three month period for commencing proceedings. In this case, the excavation works continued beyond the 30 November 2022 expiry date up until 6 February 2023 when the development control order was issued. Although the first and second respondents had not quantified how much work was carried out in the period after 30 November 2022, the evidence relied upon by Council allows the Court to infer that the work carried out during this period was "continuous and substantial".
3. Even accepting Council's evidence in relation to its limited resources at its highest, the first and second respondents submitted that Council's argument for an extension of time was "unpersuasive" citing Drenovac at [180], and Gindurra Road at [233]-[234]. [7] Further, Ramahi must be considered in context. It was a decision made in 2015 in which the Court did not consider s 4.31 of the EPA Act which was introduced on 1 March 2018 to provide for a three month period within which to challenge a complying development certificate on the basis that it was not authorised to be issued. The first and second respondents submitted that the time period specified in s 4.31 "must have some work to do".
4. In oral submissions, Mr Hemmings SC for the first and second respondents said as follows: Preston CJ's approach in Ramahi … is to be contrasted with the approach … in two proceedings that post date the introduction of either [s] 4.31 and [s] 6.32. The first of those is the decision of Pain J in Gindurra. Her Honour, ultimately in that case, did allow a partial setting aside of orders that were reflective of partial invalidity… in part … because of her dissatisfaction with the timely manner or the untimely manner in which the proceedings were commenced. … your Honour will see that the council [in Gindurra Road] submitted that it didn't delay, but it clearly has. Her Honour, ultimately, was not satisfied that the resources excused the delay and so it resulted in the only partial relief that her Honour granted. An approach to the resources dispute that was made after the relevant change, we say, to the statutory scheme. … [In Drenovac] [a]t 179 … they had not been restrained and there had not been an order issued, and they carried out the works. "Had the proceedings...commenced the work", and talks about the significant sum. "The oral evidence of Mr Woods", who was the relevant council officer, … said that they don't have the resources, "who could explain these matters". And ultimately, her Honour therefore was unwilling to extend time. In our submission, to the extent there is apparently conflicting authority about this consideration of resources of councils, firstly, considered at large, the Court would prefer those that have addressed the question after the change to the legislative scheme that, in our submission, has highlighted the importance of the three month period. So, that is the more recent of Pain and Duggan JJ.
5. The first and second respondents submitted that any public interest in enforcing planning laws must be balanced against the public interest in certainty and finality of decisions and, in the circumstances of this case, the Court would not extend time for commencing proceedings under r 59.10 of the UCPR. Mr Hemmings said as follows in relation to r 59.10: … The [Council] staff do not review construction certificates for consistency with any development consent. And that's a fact, but not, in our submission, an excuse. … It used to be that only councils could be the certifier … but as we would understand the reason for that separation, it was not to alleviate the burden on council of having to determine the construction certificates, it was because of dissatisfaction in the marketplace with the only person one could go to to get the construction certificate was the council, rather than some private process. … it is apparent that the council has made a decision based upon a lack of resources to not avail itself of the … [s] 6.32 route, and also appears to have deliberately embarked upon a course where the only way … it will … respond to the 59.10 limitation is if they actually become aware of a breach of inconsistency … It has the effect … [of] setting the limitation in 59.10 at nought.

Council's reply in relation to an extension of time

1. In reply, Council submitted that insofar as the first and second respondents rely on the decisions of Pain J in Gindurra Road and Duggan J in Drenovac, in neither case was the Court referred to the decision of the chief judge in Ramahi. In both cases, Council submitted, the Court "did not reject outright that Council's role was not to proactively monitor certificates issued by private certifiers." The rejection of that submission in Drenovac turned on the inadequacies of Council's evidence: [180]. In Gindurra Road, Pain J emphasised that Council had delayed for over one year: [234].
2. Council submitted that it is entitled to presume that certificates are issued by certifiers in compliance with the law: Ramahi at [85]. Council again emphasised that it was not aware of the discrepancies between the construction certificate and the modified development consent until after the excavation works for the construction road "commence[d]" on 16 January 2023. Council commenced the proceedings within one month of becoming aware of that excavation and identifying the inconsistency. There was no undue delay.

Conclusion in relation to whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate

1. I have determined to extend time under r 59.10 of the UCPR for Council to commence the proceedings. My reasons are as follows: 1. Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act: Ramahi at [75]. That includes ensuring that development is carried out in accordance with the terms of any development consent granted by a local planning panel. 2. As held by Kirby P in Sedevcic at 339-340: in exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. 1. In relation to prejudice, I accept Council's submission that any relevant prejudice, being expenses on building work incurred up to the expiry of the three month period for commencing the proceedings, is not connected to any delay on the part of Council in commencing the proceedings: Ramahi at [86]-[87]. The three month period for commencing the proceedings expired on 30 November 2022, and the development control order ordering the cessation of unauthorised excavation below RL 18.30 was issued on 6 February 2023. While not entirely clear from the evidence, I infer that during that two month period, the first and second respondents carried out some excavation in the area of the 'cellar' level. 2. There was no evidence as to what other works (if any) were carried out during that period, nor the potential costs of any such works, to enable a quantification of prejudice. The first and second respondents elected not to put on any evidence as to prejudice. 3. Further, I accept Council's submission that any prejudice to the first and second respondents needs to be considered in the context that they (at least the first respondent), knew that the Local Planning Panel "had essentially refused consent to a cellar level, submitted plans to the principal certifying authority that showed a cellar level". As the chief judge held in Ramahi at [85] in the context of a complying development certificate, the respondents applied to a private certifier to have certified a development that did not comply with the development consent. That conduct does not absolve the first and second respondents of responsibility for proposing and then carrying out development that was not consistent with the modified development consent. 4. As to the reasons for Council's delay, I accept Council's submission, based on the evidence, that it was not aware of the inconsistency between the modified development consent and the plans, specifications and standards of building work specified in the construction certificate until it received a complaint on 31 January 2023. There was no cause for Council to examine the construction certificate until work for the construction void was commenced in January 2023, and Council received the complaint on 31 January 2023. Council, having reviewed the construction certificate, attended the site the following day and on 6 February 2023 issued the development control order requiring the cessation of all excavation works below RL 18.30. Having sought advice, and attempting to resolve the issue with the first and second respondents, Council commenced proceedings within one month. Council submitted, and I accept, that such delay was not "undue". Council referred to numerous cases, including Ramahi, in which the delay was found not to be undue and an extension of time for commencing the proceedings was granted. 5. There was unchallenged evidence in relation to the number of construction certificates and complying development certificates issued in the Woollahra local government area each year. I accept, as submitted by Council and deposed to by Mr Jenner, that Council does not have the resources, nor is it obliged to review every one of those certificates to ensure that the relevant certifier has complied with their obligations. As the chief judge said in Ramahi at [95], albeit in the context of a complying development certificate, a Council is entitled to presume that certificates have been issued in compliance with the EPA Act, the relevant regulations, and the applicable environmental planning instrument and development standards. As a matter of principle, I do not consider there to be any relevant difference in relation to the statutory obligations of Council in relation to the issuing of construction certificates, and the issuing of complying development certificates by certifiers. 6. It is correct, as submitted by the first and second respondents, that the proceedings were not commenced until 1 March 2023, the construction certificate having been issued on 31 August 2022 and the three month period within which to commence proceedings having expired on 30 November 2022. However, I do not accept the first and second respondents' submission that the evidence relied upon Council to justify an extension of time to commence the proceedings was "underwhelming". I have accepted Council's evidence in relation to delay. 7. Neither Drenovac nor Gindurra Road is authority for the proposition that Council's role is to proactively monitor certificates issued by private certifiers. The rejection of that submission in Drenovac turned on the inadequacies of Council's evidence ([180]), and in Gindurra Road, Pain J emphasised that Council had delayed for over one year ([234]). 8. Nor do I accept the first and second respondents' submission that Council's approach has the effect of setting the limitation in r 59.10 of the UCPR to nought. As the chief judge said in Ramahi at [95] in rejecting Ms Ramahi's submission that Bankstown City Council acted unreasonably in not checking the complying development certificates at the time it received them: The statutory scheme regulating complying development certificates requires the accredited certifier to ensure and to certify that the development is complying development under the EPA Act and that it will comply with all relevant development standards. There are criminal sanctions if the certifier incorrectly certifies. The Council is entitled to presume that the complying development certificates have been issued in compliance with the EPA Act, the EPA Regulation and the applicable environmental planning instrument and development standards.
2. In all the circumstances, I do not consider there to have been undue delay on the part of Council in commencing the proceedings. Accordingly, I extend time under r 59(10) of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate to 1 March 2023.

(2) Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes

1. The second issue is whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes.

Council's submissions

1. In relation to the construction of the modified development consent, Council referred to J.K. Williams Staff Pty Ltd v Sydney Water Corporation (J.K. Williams Staff), [8] where the chief judge at [59]-[62] summarised the principles relating to the construction of development consents. Council identified for present purposes the following (uncontroversial) propositions emerging from the authorities as of present relevance: 1. The meaning of the language used in a development consent is to be determined objectively having regard to the context in which the development consent was issued and taking into account the fact that, unlike a contract between parties, the development consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant. 2. It is permissible to look at the application seeking consent or approval and the documents and plans accompanying the application in order to determine the scope and operation of the consent or approval and the development or activity for which consent or approval was sought. 3. The meaning of a consent or approval is to be determined in accordance with the same principles of statutory interpretation that are applicable to interpretation of other legal documents, and there is no general principle requiring laxity or flexibility in construing development consents or approvals. Nor do practical considerations permit a rewriting of delegated legislation or statutory instruments to meet what the Court thinks is a permissible and practical outcome. 4. A condition of consent or approval is to be interpreted by asking "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole". That is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the modified development consent, any other conditions which cast light on the purpose of the relevant words, and common sense.
2. Council submitted that the question for the Court here is not whether a particular construction of the development consent is open; rather, "it is whether it was open for the certifier to conclude that the plans and specifications shown in the plans were consistent with the development consent as properly construed".
3. Council submitted that the words in condition C.1(d) are clear (emphasis added): 1. the plans and specifications given to the certifier were to include the "deletion of the 'cellar' level and the associated excavation"; and 2. "[t]o minimise excavation, the 'cellar level' including the mechanical ventilation[,] wine cellar, store, lift and access stairs must be deleted; and the area must remain unexcavated".
4. Prefacing "area" with "the" in condition C.1(d), it was submitted, calls up the area previously identified in the condition; that is, the 'cellar' level. The condition was imposed in the context of a development application that sought approval for excavation below the ground level, and the installation of a cellar and storeroom (as shown in approved plan DA08). The condition, expressed in clear terms, and considered in the context of the application itself (regard to which is permissible), [9] could only have one meaning: there was to be no excavation in the area that was proposed to be the 'cellar' level. Further, consideration of conditions D4, E8, E9, or E13 "should not produce a different conclusion". None of those conditions requires excavation. Nor does any of them require the installation of a crane, "let alone in the precise location of the 'cellar' level". Each is a general condition which must yield to the more specific condition that there be no excavation, that is, condition C.1(d). [10]
5. This interpretation was submitted to be "even more so when it is considered that a development consent is a document that has an 'in rem' quality", citing Bardsley-Smith v Penrith City Council [11] at [66] (Sackville AJA); Winn v Director-General of National Parks and Wildlife and Ors [12] at [4] (Powell JA). Further, Council submitted, documents created after the grant of development consent, such as a construction management plan or directions given by an engineer, can have "little relevance to the legal meaning of the development consent": Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [13] (Bunderra Holdings) at [65]-[66] (Leeming JA).
6. Ultimately, Council submitted, the first and second respondents' position appears to be that "generic conditions, in some cases requiring things to be done after development consent is granted, have the effect of permitting the owners to do the very thing that condition C.1(d) says they should not". Council submitted that that would not only be contrary to established principle, but would also render the express prohibition on excavation of the 'cellar' level inutile, citing Project Blue Sky Inc v Australian Broadcasting Authority [14] (Project Blue Sky) at [71] (McHugh, Gummow, Kirby and Hayne JJ). The ordinary meaning of the words in condition C.1(d), considered in the context of the development application and "the more generic provisions that do not in terms qualify it", is that excavation in the area of the 'cellar' level was prohibited.

First and second respondents' submissions

1. The first and second respondents contended that Council's submission that "a statutory instrument has only one legal meaning to be determined by applying the accepted principles of construction" was problematic for the following reasons: 1. It ignores the fact that a condition of development consent can be ambiguous, or have more than one meaning. In Gough and Gilmour Holdings Pty Limited v The Council of the City of Holroyd, [15] Talbot J recognised that a condition of development consent can be ambiguous and found that that any ambiguity is to be read against the interests of Council. Else-Mitchell J said the same in Ryde Municipal Council v Royal Ryde Homes [16] at 324: … the legal qualities a consent possesses, or which flow from a consent, are so important care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject. [17] 1. In issuing a construction certificate, the interpretation task is carried out by the certifier, not the Court. Unless the certifier's interpretation of a condition is "perverse or devoid of plausible justification", review for manifest unreasonableness is not available.
2. In relation to Council's submission that the modified development consent, and condition C.1(d) have only one meaning, the first and second respondents submitted that "close review of the [modified] development consent yields a more nuanced position and demonstrates that there was permissible scope for deviation within the conditions of the [modified] development consent to grant the construction certificate in the form it was issued, particularly for the purposes of construction."
3. In oral submissions, Mr Hemmings SC drew attention to Payne JA's remarks in Bunderra Holdings at [158] "for the correct approach to the interpretation of the consent in these proceedings". There, Payne JA said: The principles relating to the construction of development consents were not controversial on the appeal. Those principles were explained by the primary judge at [62]-[63]. In particular, it was common ground that the following principles applied: (1) the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 per Hope JA; (2) a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23]; Winn v Director-General of National Parks and Wildlife … at [4]: The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace at [41]; (3) a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160, at [105]; and (4) as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [44]; Shell Co of Australia at 637.
4. Mr Hemmings submitted said: … for C.1(d) … it does appear that the first line and a bit of (d) is a heading. … the heading of the condition is the deletion of the cellar level and the associated excavation. Obviously, that's the excavation associated with the cellar level. … … it should not be interpreted in a manner that it prohibits … the ability to install a crane in the location where the cellar … might have been so long as … that excavation is not being carried out for the purposes of the cellar or the cellar level. … The council's referred in their written submissions to s 35 of the [Interpretation Act]. … So taking a strict approach to the interpretation of these instruments as if they are statutory instruments and the saying the headings do not form part of the Act, therefore the headings do not form part of the consent, and that might be accepted but … s 35(5) provides that the section which says the heading does not form part of the Act does not limit the application of s 34 [of the Interpretation Act] in relation to the use of any heading in the interpretation … the heading is "Deletion of the cellar level". It's clear it requires deletion. It's silent as to any possible alternative … other than for the purposes that would otherwise be available under the consent. … Next you go to the operative provision of the condition and it starts with an explanation … to minimise excavation and plainly excavation is minimised if the cellar level is deleted. … The next part, which is the cellar level including mechanical ventilation, wine cellar, store, lift and access stairs must be deleted. This is … consistent with the heading for the deletion of the cellar level and it's making it clearer by use of the inclusive list … … There is no doubt that there has been excavation in the area that the cellar would have been, but that's a given, and that's where we say that in that last phrase, "and the area must remain unexcavated" … there is ambiguity that needs to be resolved because it has one of two meanings. It either means what the council says, that the area of the cellar can never be excavated for any purpose whereas we read it that the area must remain unexcavated …, and we get that because it's available on the reading of the operative provision itself. It's entirely consistent … to the extent there is now any ambiguity in the drafting of … the operative part of the condition, it's entirely consistent with the heading because the heading is focusing itself upon the associated excavation.
5. At the hearing on 11 October 2023, the Court asked the first and second respondents about the use of inverted commas around 'cellar' in condition C.1(d). Mr Hemmings said as follows: … it really appears to us that the council's real concern is that there will be a future unlawful use of this land because they appear to be concerned that the area that's been excavated as a construction void and as a crane base will … be used for purposes whether it's cellar purposes or whatever, residential purposes. That would be to use the land unlawfully for a use that it can't be put to at the moment because … all we're doing is … we're in the process of and been stopped - undergoing construction. So, it's a distraction, it appears to us, in the council's case to have focused upon this is the cellar and it's in the same area of the cellar, et cetera. … in our submission, the certifier was entirely open to him to be satisfied that the cellar level, … was deleted. All of the things that were related to the cellar level use have been deleted. … It's only noted as a construction void. It's not on the architectural plans at all. There is no cellar level or any of the materials for it. It cannot be used for any purpose other than during the purposes of construction the provision of a void and the availability of the crane base.
6. In relation to condition C.1(d), the first and second respondents submitted as follows: 1. it contains no express prohibition on structural or construction works within the relevant "area", including piling, shoring or the construction of a crane base; and 2. the excavation referred to in the condition is excavation "associated" with the construction of the 'cellar' level. The word "associated" in the condition must be given some work to do. It is excavation for the purposes of a "cellar" that is prohibited, "not necessarily excavation for all purposes."
7. Further, conditions D.4, E.8, E.9, or E.13 "are clear on their face and provide for flexibility in the carrying out of the construction of the development". This includes permission for: 1. the erection of cranes (conditions D.4 and E.13); 2. excavation to be carried out in accordance with oral or written directions of a supervising professional engineer (condition E.8); and 3. a requirement to support surrounding land.
8. In relation to the approved plans and construction certificate plans and specification referred to in condition C.1 of the modified development consent and required to be submitted to the certifying authority pursuant to cl 139 of the former EPA Regulation 2000, the approved plans depict a "lower level" at RL 18.50 on which a gym, living room, media room, kitchen, terrace and pool area is to be located. The 'cellar' level is at RL 15.75 and the sections depict a cellar, a store room, and a staircase accessing this level.
9. Although the "store and cellar levels are marked as 'to be deleted'", approved plan DA08 includes a notation that provides: "continuous piles and cavity to waterproof basement walls". There was no requirement in the conditions of the modified development consent or marked on the approved plans that these piles be reduced in depth. The piling extends, it was submitted, "to a depth well below RL15.75".
10. The first and second respondents referred to the following aspects of the 2020 geotechnical report: 1. "inferred bedrock" was found at a depth of 2.8 - 3.65 metres; 2. contemplation of "deeper excavation" which "may locally encounter sandstone bedrock"; 3. key geotechnical constraints to the development including variable excavation conditions, temporary shoring, permanent retaining, and foundation conditions; 4. recommendations for subgrade preparation for earthworks, pavements, slab-on-ground construction, and minor structures as follows: • Where rock is exposed at footing invert level, it should be free of loose, "drummy" and softened material before concrete is poured. 1. the recommendation that "where some footings are taken to bedrock, that all footings are founded on bedrock to reduce the risk of differential settlement due to variable founding conditions"; 2. allowable bearing pressure for footings and related structures on Class 5 sandstone of 1,000 kilopascals (kpa); and 3. the conclusion that "if the development is designed and constructed in accordance with the recommendations given, these effects are anticipated to have negligible impact and be within acceptable limits".
11. The first and second respondents submitted that the third respondent was "required to read these conditions and approved documents with condition C.1(d) and E[.]9 of the [development] [c]onsent".

Council's reply

1. In reply to the first and second respondents' submissions concerning ambiguity and the proper construction of condition C.1(d), Council submitted that there is no general principle requiring laxity in the construction of a development consent: J.K. Williams Staff at [61] (Preston CJ of LEC). Any ambiguity in a condition is to be determined by application of the accepted principles of statutory construction which identify its "true legal meaning". The suggestion that it is a matter for the certifier to determine what that meaning is fails to recognise that a person exercising administrative power (like a certifier) and not judicial power has no authority to determine questions of law: Craig v South Australia [18] at [14] (Brennan, Deane, Toohey, Gaudron and McHugh JJ). The proper construction of the development consent is a matter for the Court alone. Where the exercise of a power requires a decision maker to form an opinion of some matter, "the power is treated as referring to an opinion that can be formed by a reasonable decision-maker that correctly understands the meaning of the law under which the decision-maker acts": Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [19] at [154] (Preston CJ of LEC).
2. In any event, Council submitted, there is no ambiguity in condition C.1(d). It required the deletion of everything that had previously been proposed to be included within the 'cellar' level, and prohibited all excavation in that spatial area. The condition was submitted to be in two substantive parts: 1. deletion of the 'cellar' level, including mechanical ventilation, wine cellar, store, lift and access stairs; and 2. the requirement that "the area must remain unexcavated".
3. The first part was submitted to be directed in terms towards the amendment of proposed plans, as identified in the chapeau to the condition, and not only to require the deletion of what had previously been proposed as the 'cellar' level, but specifically the deletion of specific items that had been proposed within that level, including the lift and access stairs.
4. The second part was submitted to be broader, the limitation not being identified by reference to the purpose of the excavation, the only qualification being "the area", a reference back to the "spatial area" of the 'cellar' level. Council submitted that "[i]t is a directive that the spatial area previously occupied by the cellar level must remain unexcavated." The ordinary meaning of "remain" was submitted to be to stay in the same condition or to continue to exist when other parts no longer do: "[b]oth require a continuation of a pre-existing condition", and "[a]n area does not continue to be unexcavated if it is excavated and then filled." To construe the condition in the manner contended for by the first and second respondents "would render the condition meaningless with effectively no work to do", the only purpose of excavation in the case of the subject dwelling being to remove soil to go to a lower level "to enable something to be constructed in the void or hole thereby constructed". The key to understanding the purpose of the condition is in the opening words: "to minimise excavation". To permit excavation and then filling of the void thereby created would be "contrary to that clearly expressed purpose".
5. The first and second respondents' submissions were also contrary to the commonly understood meaning of "excavation". In Kirkpatrick v Kotis [20] Campbell J, after referring to dictionary definitions, said at [64]: In its ordinary meaning, 'excavate' is capable of referring to the entire process by which a hole in the ground of significant size is achieved. It is capable of referring to not only the process which actually cuts solid rock or digs up previously undisturbed soil - as well it can include some activities incidental to those matters, which are part of the entire process of achieving an excavated site. See also Cohen v Double Bay Bowling Club [21] at [130]-[135].
6. Further, Council said that the first and second respondents' submission that the excavation referred to in condition C.1(d) is only that "associated" with the construction of the 'cellar' level, and not excavation for all purposes, should be rejected. The words "the associated excavation" are part of the heading to the condition and therefore do not form part of the instrument. In any event, the word "associated" in context is not referable to the purpose of the excavation, but rather its physical location. That is, whatever excavation was proposed as part of the 'cellar' level is prohibited by the condition, irrespective of whether the excavation is in order to construct a 'cellar' level or otherwise. That is made clear in the operative part of the condition which prohibits any excavation in the "area".
7. In oral submissions, Mr Lazarus for Council said as follows: Council's construction is entirely consistent with a literal reading of the condition. It's the respondent's construction that not only places an unnecessary gloss on the language, but indeed, introduces a purposive requirement that is simply not found in the condition. So, when one is applying the statements of principle in the authorities, that is one applies ordinary statements or general principles of statutory construction, and there's no special rules regarding statutory instruments, that includes … implying words into the provision.
8. Mr Lazarus referred to Taylor v The Owners - Strata Plan No 11564 and Others [22] at [37]-[38] where French CJ, Crennan and Bell JJ said as follows: 37. Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot. 38. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
9. Mr Lazarus said that "[t]here is in fact nothing ambiguous about this condition … There is no in-built ambiguity". The argument of the first and second respondents' counsel was said to: … stem[s] from the use of the heading which he accepts comprises the opening two lines of C(1)(d). So, he accepts that's the heading, but he says, "Well, just because s 35 doesn't make it part of the Act, it's nevertheless extrinsic material that is being an instrument under the [Interpretation Act], s 35 would allow regard to be had to assuming there is ambiguity. Now that's the important qualification, he has sought to create an ambiguity by reference to the extrinsic material. The ambiguity is not found, your Honour, in the operative condition. The ambiguity is only found, if there is to be any, in the heading.

Conclusion in relation to whether the modified development consent, properly construed, prohibits excavation within the area identified as the 'cellar' level for all purposes

1. For the following reasons, I have determined that the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes: 1. The principles in relation to the construction of development consents referred to by the parties were largely uncontroversial. These are set out above at [110], [116] and [118]. 2. The question is whether it was open for the certifier, the third respondent, to conclude that the relevant building work plans and specifications were consistent with the modified development consent, properly construed. 3. The words in condition C.1(d) are clear: "the approved plans and the Construction Certificate plans and specification, required to be submitted to the [certifier]" by the first respondent were to include the "[d]eletion of the cellar level and the associated excavation", and required that in order to minimise excavation, the 'cellar' level, including the mechanical ventilation, wine cellar, store, lift and access stairs, was to be deleted, and "the area" to "remain unexcavated". 4. It is relevant to recall that condition C.1(d) was imposed in the context of a development application that sought approval for excavation below the ground level, and the installation of a cellar and store room as shown in approved plans DA07, DA08 and DA10. None of conditions D.4, E.8, E.9 or E.13 required excavation or the installation of a crane, let alone, as submitted by Council, in the location of the 'cellar' level. Each of conditions D.4, E.8, E.9 and E.15 is a general condition and must yield to the more specific condition that there be no excavation, that is condition C.1(d). As submitted by Council, documents created after the grant of development consent, such as a construction management plan or a construction certificate, can have little (if any) relevance to the legal meaning of the development consent in circumstances where the development consent is a document that has an "in rem" quality. 5. The ordinary meaning of the words in condition C.1(d) considered in the context of the modified development application and the more general provisions of the modified development consent that do not qualify condition C.1(d) is that excavation in the area of the 'cellar' level was prohibited; that is that any excavation below RL 18.28 in the area hatched red in the amended proposed orders on the Construction Void Marking Plan Dwg No. 1100 Rev C stamped by the third respondent on 31 August 2022. 6. It is undoubtedly correct that a condition of a development consent can be ambiguous or have more than one meaning, as the first and second respondents submitted. However, here, I do not consider that the relevant condition, condition C.1(d), is ambiguous. I do not accept that there was permissible scope within the modified development consent for deviations, particularly for the purposes of construction, or that the decision of Payne JA in Bunderra Holdings suggests, let alone requires, a different conclusion. 7. As recorded above, the first and second respondents accepted that there has been excavation in the area where the cellar would have been, but submitted that the words "and the area must remain unexcavated" are ambiguous, presenting one of two meanings: that is, either as submitted by Council, that the area of the cellar can never be excavated for any purpose or, as submitted by the first and second respondents, that the area must remain unexcavated for the cellar. I do not accept that the construction for which the first and second respondents contend is available. Applying uncontroversial principles to the statutory construction of condition C.1(d), there was to be no excavation at all in the area of the 'cellar' level. That any such excavation was prohibited is clear from the use of the words "[d]eletion of the 'cellar' level and the associated excavation" in condition C.1(d) and the use of inverted commas around 'cellar' as a descriptor to identify the level to remain unexcavated. 8. It is true that conditions D.4 and E.13 of the modified development consent provide for the erection of cranes. However, it is plain that the 'cellar' level (including mechanical ventilation, wine cellar, store, lift and access stairs) was to be deleted and the area to remain unexcavated. There is no ambiguity in condition C.1(d). It prohibited all excavation in the spatial level below RL 18.28 referred to by the descriptor as the 'cellar' level. The purpose of the condition is to be found in the opening words: "to minimise excavation". The words "the associated excavation" are part of the heading to the condition and, in context, are plainly referrable to the location, and not the purpose, of the excavation.
2. Accordingly, I find that there is nothing ambiguous in the language of condition C.1(d) and that, properly construed, the modified development consent prohibits excavation in the area identified in condition C.1(d) by the descriptor 'cellar' level; that is, excavation below RL 18.28 in the area hatched red on the Construction Void Marking Plan (Dwg No. 1100 Rev C) attached to Council's amended proposed orders. That includes excavation and works in that area for all purposes, including for structures such as a lift, lift shaft, stairs, walls, floors and a crane base.

(3) Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

1. Having decided issue two in the affirmative, the third issue is whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent.

Council's submissions

1. Council submitted that once the modified development consent is properly construed, the issue becomes whether "it was not reasonably open to the certifier, or did the certifier have no evident or intelligible justification, to conclude that the plans and specifications depicted on the plans supplied to him were consistent with a consent that prohibited excavation in the area previously occupied by the 'cellar' level."
2. Section 19(1) of the Certification Regulation (extracted above at [80]) imposes a positive requirement that the design and construction of the building, as described in the relevant building work plans and specifications and other information given to the third respondent, is "consistent with" the modified development consent. The former EPA Regulation 2000 used in cl 145(1)(a) the phrase "not inconsistent with" the development consent (extracted above at [72]). Council submitted that under the previous formulation, "not inconsistent with" was to be given its natural meaning, being a want of consistency or congruity, lack of accordance or harmony or incompatibility, contrariety, or opposition with it. [23] However, Council submitted, irrespective of the difference between the old and new tests, the focus is on whether the modified development consent and the plans and specifications the subject of the construction certificate can work together, citing Duggan J in Sader v Elgammal [24] at [79].

First and second respondents' submissions

1. The first and second respondents submitted that the Court must find "as a secondary step" that the plans and specifications or standards of building work specified in the construction certificate are "not consistent" with the modified development consent. They referred to the architectural plans stamped by the third respondent as part of the construction certificate which show a "lower level" at RL 18.50 on which a gym, living room, media room, kitchen, terrace and pool area are to be located (architectural plans WD2.05.B and WD2.06.A).
2. Critically, the first and second respondents submitted, the 'cellar' level, a store room, and a staircase accessing the lower level have been deleted, and to that extent, condition C.1(d) has been complied with. Notably, the structural detail below the lower level remains in the same form as the approved plans, being continuous piles and cavity to waterproof basement walls deeper than RL 15.75. In architectural plan WD2.05.B there is a notation which provides "crane base, refer struct eng's docs for details".
3. The first and second respondents also relied on the structural plans prepared by Sellick Consultants dated 14 July 2022, Revision D also "stamped" as part of the construction certificate. The Shoring Marking Plan and the footing marking plan show the location of a crane base. The footing marking plan depicts piers, and notes that "unless noted otherwise all foundations beyond sandstone with allowable bearing capacity of 1000 kpa." The crane base is also depicted in the shoring elevations, noted as being 5m x 5m x 1.35m deep. The structural plans also depict excavation below the "lower level".
4. Further, the first and second respondents referred to the requirement of condition D.4 of the modified development consent for a construction management plan. The construction plan approved by Council on 9 June 2022 and "stamped" as approved by the third respondent on 31 August 2022 referred to a site crane as follows: A permanent crane (Potain) will be installed at site, the concrete crane base will be completed as per Engineers details/requirements. All relevant [c]ouncil forms will be submitted and approved before installing the crane at site following the DA Consent requirements. Traffic control will be in place for crane install and we will follow Traffic control plan.
5. Condition E.13 of the modified development consent made provision for site cranes to be erected within the boundaries of the land subject to compliance with the relevant Australian Standards. There was no requirement in the modified development consent that any crane plans be included in the construction certificate. The first and second respondents submitted that nonetheless, crane plans entitled "Potain MCT88 Tower Crane 35 Suttie Rd, Bellevue Hill" were prepared by Overhead Engineering for the development. Those plans, dated 13 July 2022, pre-dated the construction certificate by two weeks. Those plans were not in evidence before me.
6. In summary, the first and second respondents submitted that any excavation below the lower level proposed as part of the construction certificate plans would be: 1. for the purposes of construction, being shoring, piers and the construction of a crane base at an allowable bearing pressure for Class 5 sandstone; 2. limited in footprint to the area necessary to accommodate the installation and operation of the crane base (being the area shown in the structural plans); 3. responsive to condition E.9 of the modified development consent which contemplated a site crane; 4. in accordance with condition D.4 of the modified development consent which required a construction management plan which referred to a Potain crane; and 5. temporary only, considering that the construction void is to be filled as shown in the architectural plans and therefore the area would in the long term "remain unexcavated".
7. Accordingly, the plans and specifications or standards of building work specified in the construction certificate were consistent with the requirements of the modified development consent "or at least, it was not unreasonable for the certifier to decide that that they were consistent with the requirements of the [modified] development consent". Further, the only condition of the modified development consent relied on by Council as the basis of a finding of inconsistency is condition C.1(d) which, the first and second respondents submitted, is ambiguous. Accordingly, it was not manifestly unreasonable for the third respondent to conclude that the documents "stamped" by the construction certificate, when read as a whole, "breached" the modified development consent, including condition C.1(d).
8. In oral submissions, Mr Hemmings said the following in relation to the statutory scheme for development consents and construction certificates in the EPA Act and the Certification Regulation: … the statutory scheme of development consent followed by construction certificate is actually to anticipate … that the construction certificate plans and specifications can be, in fact probably will be different to the development consent, that they are allowed to be different, it's just that they in being different cannot be inconsistent. and in relation to s 4.16(12) of the EPA Act: The provision serves two purposes. The first is that it allowed for differences between the development consent and the CC without the need to have to amend the development consent to reflect the differences that are in the CC. … If [s] 4.16(12) did not form part of the Act, in order to actually build something in a manner that was buildable … there would have to be a modification of the development consent every time there was to be that consistent difference from the consent. … The second purpose … is that it provides paramountcy to the construction certificate ... So, it has the effect that if one is carrying out a development in accordance with the construction certificate … you therefore are not carrying out development in breach of the Act because the operation of [s] 4.16(12) is that the construction certificate is taken to form part of the consent.

Council's reply

1. Council submitted that central to the first and second respondents' case in relation to the crane base is the proposition that the modified development consent permitted excavation for a crane base, and that any excavation was limited, in footprint and purpose, to being for shoring, piers, and the construction of a crane base. Even if that construction of the modified development consent be correct (which Council denied), the contention ignored the structural plans "stamped" approved. The structural plans "stamped" approved by the third respondent, Council submitted, show far greater excavation than for a crane base: 1. the crane base occupies an area 5m x 5m x 1.35m deep; 2. the Construction Void Marking Plan and associated sections approved by the construction certificate show; 1. a concrete slab 120mm deep outside the area of the crane base, and occupying most of the floor level of the construction void; 2. wall petitions between that slab and the crane base; 3. a lift shaft; 4. stairs; 1. as further reflected in: 1. the Wall Elevations - Precast Sheet 2 which shows lift and stair access to the construction void; and 2. the Shoring Elevations Sheet 1 which also shows the stairs.
2. Council also referred to the concrete slab outside of the crane base in the area shown as "mechanical ventilation to cellar" on DA06.5, being the Cellar Level Plan which was submitted with the modification application, and reference to which was deleted by the Local Planning Panel in condition A.8 of the modified development consent (extracted above at [22]). The lift and stairs are shown in the same location in the Construction Void Marking Plan and DA06.5.
3. Moreover, the first and second respondents' contention that the 'cellar' level, store room, and staircase accessing that level have been deleted was without foundation in the structural plans which show that the excavation approved by the construction certificate "goes beyond the purposes of a crane base and shoring to create a broader accessible space." The construction certificate structural plans do not delete the lift and access stairs, as required by the first part of condition C.1(d). In those circumstances, no reasonable certifier could have determined that the structural plans were consistent with the modified development consent.
4. In reply to the first and second respondents' contention that "any excavation below the lower level proposed as part of the CC plans is temporary only", considering that the construction void is to be filled as shown in the architectural plans, Council submitted that the "inclusion of a lift and stairs to the construction void indicates that the excavation of the construction void was permanent." Further, even if the construction void were to be filled, "the space occupied by the slabs, stairs, and lift could not be." Council submitted that it "defies common sense for fill to occupy the same space as a structure". Those areas would remain excavated. That is directly contrary to (and therefore inconsistent with) the modified development consent.

Conclusion in relation to whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

1. In relation to issue 3, I have found that the relevant building work plans and specifications are not consistent with the modified development consent for the following reasons: 1. The modified development consent did not permit excavation for a crane base in the 'cellar' level limited in footprint and purpose to shoring, piers, and the construction of a crane base. 2. Properly construed, the modified development consent prohibited excavation of the "spatial area" previously occupied by the 'cellar' level. The "stamped" construction certificate plans show excavation of that same area. That was plainly not consistent with the clear words of the modified development consent. 3. In any event, the structural plans "stamped" by the third respondent show far greater excavation in that area than for a crane base. 4. The Cellar Level Plan submitted with the modification application, and deleted by condition A.8 of the modified development consent, shows the lift and stairs in the same location as in the Construction Void Marking Plan. 5. The structural plans show that the excavation approved by the construction certificate, or purportedly approved by the construction certificate, goes beyond the purposes of a crane base and shoring to create a broader accessible space, not deleting the lift and access stairs as required by the first part of condition C.1(d). In those circumstances, I find as submitted by Council, that no reasonable certifier could have determined that the structural plans were consistent with the modified development consent. 6. Further, the inclusion of a lift and stairs to the construction void as shown in the architectural plans indicates that the excavation of the void was to be permanent. Even if the construction void were to be filled (about which there was no evidence), the space occupied by the slab, stairs and lift could not be. As submitted by Council, it defies common sense for fill to occupy the same area as a structure. Accordingly, I infer that the areas occupied by the slab, stairs and lift would remain excavated, and would be directly contrary to and therefore not consistent with the modified development consent.
2. Accordingly, I have determined that the answer to question (3) is no, namely that the plans and specifications or standards of building work specified in the construction certificate certificate are not consistent with the modified development consent.

(4) If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

1. The fourth issue is whether, if the answer to question (3) is no (which I have determined it is), it was legally unreasonable for the third respondent to determine that the relevant building work plans and specifications specified in the construction certificate were consistent with the modified development consent.

Council's submissions

1. In relation to the availability of review for unreasonableness, Council's case was that the decision to issue the construction certificate was legally unreasonable because it was not reasonably open to or there was no evident or intelligible basis for the third respondent to conclude: 1. that the design and construction of the building as shown in the construction certificate plans was consistent with the modified development consent; and 2. therefore, that the construction certificate could and should be issued.
2. Such review, Council submitted, was not excluded by Burwood Council v Ralan Burwood Pty Ltd (No 3) (Ralan) [25] and Bunderra Holdings. In similar circumstances, the Court of Appeal held in Trives v Hornsby Shire Council (Trives) [26] that the issue of whether development is complying development is not a jurisdictional fact, breach of which alone results in invalidity. In forming a view as to whether or not development is complying development "the certifier must act according to the law, and must act rationally and not unreasonably". [27]
3. Council submitted that as in relation to a certifier's decision to grant a complying development certificate, in determining to grant a construction certificate, the certifier must form a view that certain preconditions are met. Here, those were that: 1. the relevant building work plans and specifications include the matters required by a relevant BASIX certificate: s 19(1)(a) of the Certification Regulation; 2. the design and construction of the building, as described in the relevant building work plans and specifications, was consistent with the modified development consent: s 19(1)(b) of the Certification Regulation; 3. the resulting building would comply with relevant provisions of the Building Code of Australia: s 19(1)(c) of the Certification Regulation; and 4. certain conditions of modified development consent have been satisfied: s 20 of the Certification Regulation.
4. To contend that whether each of those preconditions was not met premised on the certifier's "satisfaction" was beside the point. Each was a precondition to the exercise of power (albeit one the breach of which does not result in invalidity), as exemplified by the language of ss 19 and 20 of the Certification Regulation that "a certifier must not issue a construction certificate" unless each of those provisions is satisfied. Referring to the reasons of Leeming JA in Dansar Pty Ltd v Byron Shire Council, Council submitted that it "is trite that anybody exercising public power must first satisfy itself that the preconditions have been satisfied". [28] The certifier must form a view as to whether the design and construction of the building are consistent with the modified development consent. As in Trives, that view must not be legally unreasonable and must have an evident and intelligible basis.
5. Further, Council submitted, the statutory scheme does not suggest a different conclusion. The requirement of legal reasonableness is derived from implication from the legislative scheme. [29] That requirement is presumed unless there is an affirmative basis in the statutory power, or the nature and statutory context of that power, for its exclusion or modification. [30] Trives makes clear that exclusion does not arise merely because satisfaction of a statutory provision is not itself a jurisdictional fact. Indications that the power to issue a construction certificate is to be exercised reasonably and not capriciously include that a certifier has an obligation to give reasons when refusing an application for a construction certificate: s 13(1)(c)(i) of the Certification Regulation. That has been held in other circumstances to give rise to an obligation of reasonableness in relation to steps in a decision-maker's reasoning process. [31] To the extent that the first and second respondents submit that there is an implied exclusion of review of a certifier's decision, the Court would be slow to reach a conclusion that involves the exclusion of review by this Court for jurisdictional error. [32]
6. As to whether the third respondent's decision was legally unreasonable, Council submitted that a decision will be legally unreasonable if it is lacking an evident or intelligible justification, irrational or illogical, or is plainly unjust, arbitrary, capricious, or lacking common sense: Minister for Immigration and Citizenship v Li (Li) [33] at [25], [28] (French CJ), [72], [76] (Hayne, Kiefel, and Bell JJ). And that although the threshold is undoubtedly a high one, it has been met in other cases regarding decisions of certifiers: see, for example Bankstown City Council v Ramahi (No 2) (Ramahi (No 2)). [34] Here, Council submitted, the question of the consistency of the plans provided to the third respondent and the modified development consent, properly construed, was not one on which reasonable minds could differ, only one conclusion being open. The architectural plans provided to the third respondent: 1. showed on architectural plan WD2.05.A a concrete structure underground in the area that was previously the 'cellar' level; 2. that concrete structure also shown on architectural plan WD2.05.B and identifying continuous piles under the ground level, and the concrete structure as "CRANE BASE, REFER STRUCT ENG'S DOCS FOR DETAILS"; and 3. the same concrete structure as well as the piles being shown on architectural plan WD2.09.A (Section E) a further "Proposed Section", the piles identified by a marking "CONTINUOUS PILES & CAVITY TO WATERPROOF BASEMENT WALLS".
7. The structural plans provided more detail, Council submitted, as follows: 1. the Shoring Elevations Sheet 1 showing: 1. a level below the lower level identified as "construction void"; 2. the concrete structure below the floor level of the construction void identified as "CRANE BASE BY OTHERS MAXIMUM 5mx5m51.35m DEEP"; and 3. between Section B and Section C in Elevation S4, stairs to the construction void; 1. the Construction Void Marking Plan, aside from depicting a basement level, showing a concrete slab 120 thick, identified on Construction Void Sections Sheet 1 as "crane base"; and 2. the Wall Elevations-Precast Sheet 2 showing lift and stair access to the construction void.
8. Council submitted that installation of a concrete crane base substantially below the surface of the ground presupposes excavation, as does the description in the plans of the area immediately above it as a "void", and that a "simple comparison of the stamped plans approved by the modified development consent, and the structural plans clearly shows that the construction void is in the same area as the cellar level".
9. Accordingly, Council submitted, it "begs the question how any person could conclude that plans requiring certain excavation could work together with a modified development consent that prohibited that very excavation".
10. Finally, Council submitted that whilst the third respondent's reasons for decision are not available, the result itself "bespeaks error". There was "no rational process of reasoning that could have produced the conclusion that the plans provided to the certifier could work with the [modified] development consent." Only one conclusion was reasonably open: so far as the construction certificate plans proposed works and excavation within the area previously occupied by the 'cellar' level, they were not consistent with the modified development consent. Accordingly, the decision of the third respondent as to consistency was legally unreasonable, a decision that was material to the ultimate decision to issue the construction certificate. Had the third respondent arrived at the one opinion that was open to him, s 19(1) of the Certification Regulation required him to refuse to issue the construction certificate. The decision to issue the construction certificate was therefore affected by jurisdictional error.
11. In oral submissions, Mr Lazarus explained why "first there is a requirement of reasonableness, and secondly why the statutory scheme does not exclude it." Mr Lazarus referred to Li, where at [24]-[27] French CJ said as follows (footnotes omitted): 24. Every discretion has to be exercised, as Kitto J put it in R v Anderson; Ex parte Ipec-Air Pty Ltd, according to "the rules of reason". His Honour, paraphrasing Sharp v Wakefield, said: "a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself". Mason J in FAI Insurances Ltd v Winneke quoted Kitto J and linked his words to the general rule "that the extent of ... discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment". 25. As Professor Galligan wrote in 1986 in Discretionary Powers: A Legal Study of Official Discretion, the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those canons also attract requirements of impartiality and "a certain continuity and consistency in making decisions." They were reflected in the powers of the English Court of Chancery to control public bodies "if they proceed to exercise their powers in an unreasonable manner; whether induced to do so from improper motives or from error of judgment." They were acknowledged in the earliest years of this Court. 26. The rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account. 27. In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters: "If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'."
12. Mr Lazarus also referred to the reasons of Hayne, Kiefel and Bell JJ in Li at [63], [66], [68], [72], [76] and those of Gageler J at [90], [92] and [105]. At [90] and [92] in Li, Gageler J said: 90. Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute. … 92. Like procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed.
13. Mr Lazarus also referred to the joint reasons in Minister for Immigration and Border Protection v Singh [35] (Singh) of Allsop CJ, Robertson and Mortimer JJ where their Honours said at [44]-[45]: 44. ... In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls "an area of decisional freedom": it has the character of a choice that is arbitrary, capricious or without "common sense". See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking "an evident and intelligible justification". Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]): "It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason": Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47]. 45. In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law.
14. Mr Lazarus responded to "the legal issue" raised by the first and second respondents which seemed to be "based … on a misunderstanding" of the Court of Appeal's decisions in Ralan and Bunderra Holdings that Council is precluded from bringing a challenge to the construction certificate on grounds of jurisdictional error including "for a decision that we submit was unreasonable in the requisite sense." Mr Lazarus referred to the decision of the Court of Appeal in Lesnewski v Mosman Municipal Council (Lesnewski) [36] where the Court considered the question of the validity of a construction certificate, and submitted as follows: [w]hat the Court of Appeal accepted is Lesnewski is that a challenge to the issue of a construction certificate under what was then cl 145 was available, or that there was availability for a challenge to be made on the basis of, as it then was, Wednesbury unreasonableness. It's not to the point that Wednesbury wasn't found in that case, but the Court found that the challenge on that basis was available. We ask the question what has changed since the decision of the Court of Appeal in Lesnewski in terms of the statutory scheme that bears directly on that question? The only change that was made relevant to this question was, as I described earlier, to make the test for inconsistency purely objective rather than subjective by deleting those words "it is satisfied". One would have thought that converting a subjective test to an objective one would make judicial review of a decision to issue a CC easier not harder.
15. Mr Lazarus referred to "a change in the legislation" in 2006. The Second Reading Speech for the Environmental Planning Legislation Amendment Bill read by the Minister for Planning on 24 October 2006 providing as follows: … the bill will make clear that in issuing occupation, construction, subdivision and compliance certificates under the Environmental Planning and Assessment Act 1979, accredited certifiers and councils must have regard to an objective test that is based on reasonableness rather than the current subjective tests.
16. Mr Lazarus said: It's blindingly apparent … that not only is there within the statutory scheme not an exclusion of the concept of reasonableness, there's an express embracing both in the language of the regulation and in the Second Reading Speech that the concept of reasonableness is part and parcel, the standard of reasonableness is part and parcel of the determination of a certifier's duty to consider the consistency requirement that is now found in s 19 of the regulations.
17. At the hearing on 10 October 2023, in response to a request by the Court, Council handed up a short list of cases where the Court has found decisions of certifiers to be legally unreasonable in the Li sense. The cases included Hornsby Shire Council v Trives (No 3) [37] (Trives No 3), Ramahi (No 2), North Sydney Council v Harris Farm Markets Pty Limited (North Sydney Council v Harris Farm), [38] Gindurra Road and Wollondilly Shire Council v Kennedy. [39]

First and second respondents' submissions

1. The first and second respondents submitted that a Court may review an administrative decision if that decision was so unreasonable that no reasonable authority could ever have come to it, [40] noting that following Minister for Immigration and Citizenship v SZMDS (SZMDS) [41] and Li, the test has evolved to a broader test of unreasonableness, illogicality and irrationality. However, they submitted, the concept of unreasonableness is derived from the framework of rationality imposed by a given statute (Li at [28]). Vitiating unreasonableness arises from an implied legislative intention (Li at [29]).
2. In response to Council's submissions in relation to the availability of review for unreasonableness, the first and second respondents submitted that the test of unreasonableness is subject to the following principles. 1. As with any form of judicial review, the party seeking to establish jurisdictional error bears the onus of proof. [42] 2. In "granting" a construction certificate, the certifier does not give reasons and, accordingly, any inference of unreasonableness must be drawn on the basis of the outcome itself, from an objective consideration of the matters in issue before the certifier and the actual decision reached. [43] 3. In order for the challenge to be successful, the matter must not be one on which reasonable minds may differ. [44] In Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia, [45] the chief judge writing extracurially cited Lord Brighton in Puhlhofer v Hillingdon London Borough Council [46] as follows (at 31): where the existence or non-existence of a fact is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously is acting perversely. 1. The threshold required to set aside a decision is high. [47] It is not for those seeking to quash administrative decisions to challenge the soundness of the decision. Whether it is sound or not is not a question for decision by the reviewing court. [48] Manifest unreasonableness does not depend on the court's own subjective notions of unreasonableness. What the Court may consider unreasonable is a "different thing from the requirement for something overwhelming such that the decision is one that no reasonable body could have come to." [49] A decision may be unreasonable if it lacks an evident and intelligible justification or is so devoid of plausible justification that no reasonable person could have taken that course. [50]
3. The first and second respondents submitted that Council's submissions showed "a complete misunderstanding" of the construction certificate plans when it submitted that the first and second respondents "submitted plans to the principal certifying authority that showed a cellar level". That submission "could not be made out on any reading of the CC or the stamped documents."
4. There was otherwise a problem with the logic in Council's submissions, its case being that if the construction certificate was inconsistent with the modified development consent, it must follow that it was legally unreasonable to issue the construction certificate. Such an approach did not allow for reasonable minds differing, or ambiguities in conditions of consent, or matters of fact and degree in plans and specifications. The Court would reject this approach: "in order to demonstrate legal unreasonableness, perversity or something more than mere inconsistency is required". Put simply, it was reasonably open for the third respondent to conclude that the plans and specifications did not breach condition C.1(d) because the 'cellar' level was deleted, the relevant excavation was temporary and required by other conditions of the modified development consent and supporting documents, and the area would in the long term "remain unexcavated" because the construction void is shown as being filled in the architectural plans.
5. If the Court rejects the first and second respondents' primary submission and decided that unreasonableness leads to invalidity, "this is not sufficient: it must find there was no evident or intelligible justification to issue the construction certificate or that the decision was perverse." Ultimately, there was "an evident and intelligible justification" to issue the construction certificate. That reasonable certifiers may differ on the question is sufficient for a finding that manifest unreasonableness is not made out, citing the chief judge in Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [51] at [119].
6. In relation to the list of cases in which the Court has found decisions of certifiers to be unreasonably handed up by Council on 10 October 2023, Mr Hemmings for the first and second respondents said the following: Can I just note one thing … when your Honour raises the examples of cases that have been handed up. … just to remind your Honour that each of those are cases in relation to challenges to complying development certificates. … Not to construction certificates. … [Sader v Elgammal] is the only decision that we've found post Ralan and the introduction of the responsive provisions, 6.32, where there has been a successful challenge to a construction certificate.

Conclusion in relation to whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

1. I have concluded that the plans, specifications and standards of building work specified in the construction certificate are not consistent with the modified development consent. In relation to the availability of review for reasonableness, I have concluded that the decision of the third respondent to issue the construction certificate was legally unreasonable: 1. I do not consider that it was reasonably open or that there was an evident or intelligible basis for the third respondent to conclude that the design and the construction of the building as shown in the construction certificate plans was consistent with the modified development consent. In summary: any opinion that excavation was not required to install the crane base defies common sense about how the crane base could be installed; any opinion that the area of the construction void was in a different area than that of the 'cellar' level is not rationally open from a simple comparison of the plans; and any opinion that the architectural plans took precedence over the structural plans such that there was no "void" fails to recognise that both sets of plans showed the crane base in the same location which required excavation. 2. As the Court of Appeal held in Trives in relation to a complying development certificate, in forming a view as to whether or not a development is complying development a certifier must act according to the law, and must act rationally and not unreasonably: Basten JA at [14] and also at [26], [27]-[31] and [34]. In Trives, Basten JA at [14] said: Before considering the relevant statutory provisions, a further qualification on the significance of the principle should be noted. If it were thought that the validity of the certificate turned on the state of satisfaction of the accredited certifier, that would not place the certificate beyond challenge. The certifier must act according to the law, and must act rationally and not unreasonably. Whether these requirements permit close scrutiny of the certifier's decision, or whether a challenger will bear a heavy burden in seeking to establish unreasonableness, is not a matter which needs to be considered in this case. It may, however, be noted that the certifier does not give reasons and, accordingly, any inference of unreasonableness will need to be drawn from an objective consideration of the matters in issue before the certifier and the actual decision reached. It is true as Basten JA said in Trives at [14] that a challenger seeking scrutiny of the certifier's decision will bear a "heavy burden in seeking to establish unreasonableness". It is also clear that the certifier does not give reasons in the case of a decision to approve a construction certificate. Accordingly, any inference of unreasonableness will need to be drawn from an objective consideration of the matters in issue before the third respondent and the actual decision reached. 1. The requirement of legal reasonableness is derived from implication from the legislative scheme: Minister for Home Affairs and DUA16 at [26] (Kiefel CJ and Steward J). Trives makes clear that the requirement of legal reasonableness is not excluded merely because the state of satisfaction of the certifier is not itself a jurisdictional fact. I am satisfied that the power to issue a construction certificate is to be exercised reasonably and not capriciously, in particular having regard to the obligation of a certifier to give reasons when refusing an application for a construction certificate in s 13(1)(c)(i) of the Certification Regulation. As submitted by Council, the Court would be slow to reach a conclusion that involves exclusion of review by this Court for jurisdictional error. At the same time, as to whether the decision of the certifier, the third respondent, was legally unreasonable, the threshold is undoubtedly a high one. It has, however, been met in other cases regarding decisions of certifiers: see for example Rahami (No 2). 2. Here, the third respondent was required to form a view that certain preconditions were met in determining to issue the construction certificate. Of particular relevance here is that the design and construction of the building as described in the relevant building work plans and specifications was to be consistent with the modified development consent: s 19(1)(b) of the Certification Regulation. 3. I have concluded that the question of the consistency of the relevant building work plans and specifications provided to the third respondent and the modified development consent, properly construed, is not one on which reasonable minds could differ. Only one conclusion was open to the third respondent, having regard to the architectural plans provided to him, as well as the structural plans which provided more detail. It is clear from any review of the documents that the installation of a concrete crane base substantially below the surface of the ground presupposes excavation, as does the description in the plans of the area immediately above it as a "void". As submitted by Council, a simple comparison of the plans approved by the modified development consent and the structural plans and architectural plans "stamped" by the third respondent clearly shows that the construction void is in the same area as the 'cellar' level. I accept Council's submission that it begs the question how any person could conclude that the construction certificate plans requiring certain excavation work could work together with the modified development consent that prohibited that same excavation. 4. Whilst the third respondent's reasons for decision are not available (and the third respondent's affidavit sworn 29 September 2023 was not read), I find that the result itself bespeaks error and an absence of a rational process of reasoning that could have produced the conclusion that the relevant building work plans and specifications provided to the third respondent could work with the modified development consent. The only conclusion reasonably open is that to the extent that the construction certificate plans, proposed works and excavation within an area previously occupied by the 'cellar' level, they were not consistent with the modified development consent. Where, as here, the certifier is not required to give reasons for deciding to issue a construction certificate, in Singh the Full Court said at [45]: In circumstances where no reasons for the exercise of power, or a decision produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. 1. Had the third respondent arrived at the one opinion that was open to him, s 19(1) of the Certification Regulation required him to refuse to issue the construction certificate. The decision to issue the construction certificate was affected by jurisdictional error. As French CJ said in Li at [26], the rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. And a decision made for a purpose not authorised by statute or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. As French CJ said, it falls outside the framework of rationality provided by the statute. See also the reasons of Hayne, Kiefel and Bell JJ in Li at [63], [66], [68], [72] and [76]. And as Gageler J (as he then was) said in Li at [92] the common law principle of construction by reference to which reasonableness is implied establishes a condition of reasonableness as a default position: "absent an affirmative basis for exclusion or modification, a condition of reasonableness is presumed". 2. In Lesnewski, the Court of Appeal found that a challenge to a construction certificate issued under cl 145 of the former EPA Regulation 2000 was available for Wednesbury unreasonableness (although unreasonableness was not found in that case). Since Lesnewski, the test in cl 145(1)(a) of the former EPA Regulation 2000 has been changed to an objective one in s 19(1) of the Certification Regulation by deleting the words "it is satisfied" thereby converting a subjective test to an objective one. That makes, as Mr Lazarus submitted, judicial review of a decision to issue a construction certificate easier, not harder, than the situation which applied in Lesnewski in 2005 where the challenge to the construction certificate was made when the former cl 145 provided the test for inconsistency. That such result was intended is made clear from the second reading speech for the Environmental Planning Legislation Amendment Bill read by the Minister for Planning on 24 October 2006 which provided that the Bill would make clear that in issuing, inter alia, construction certificates, accredited certifiers and Councils must have regard to "an objective test that is based on a reasonable rather than a current subjective test" (emphasis added). 3. There is nothing in the articulation of relevant principles by the first and second respondents that is inconsistent with that of Council. Rather, the first and second respondents' submissions were that Council's submissions showed "a complete misunderstanding" of the construction certificate plans as showing a 'cellar' level. I have found for the reasons above at [136]-[137] that the construction certificate plans plainly show excavation in the 'cellar' area the subject of condition C.1(d) of the modified development consent. 4. Nor do I accept the first and second respondents' submissions concerning "a problem with the logic" in Council's submissions. I do not consider that Council's approach to the unreasonableness of issuing the construction certificate is one which does not allow for reasonable minds to differ, or ambiguities in conditions of consent, or matters of fact and degree in plans and specifications. Based on consideration of the events leading to the issue of the construction certificate and the construction certificate plans, I find that there was no evident and intelligible justification for the third respondent to issue the construction certificate, nor that reasonable certifiers might differ on that question. 5. It is true that in only one case since the Court of Appeal's decision in Ralan and the introduction of s 6.32 of the EPA Act which came into effect on 1 December 2019, Sader v Elgammal, has there been a successful legal unreasonableness challenge to a construction certificate. In Sader v Elgammal (decided in 2022), Duggan J at [51] observed that to the extent that the construction certificate permitted demolition of a wall, it was inconsistent with the development consent as the relevant provisions in the development consent and the construction certificate "could not be undertaken harmoniously". In Sader v Elgammal, the development consent did not authorise the demolition of the wall, and in fact expressly required its retention. At [79], her Honour concluded that the construction certificate was inconsistent with the development consent, and that the two instruments could not operate consistently with each other. With respect, her Honour's reasons for concluding that the construction certificate was not consistent with the development consent were compelling. And no persuasive submission was made on behalf of the first and second respondents as to why I would not follow her Honour's approach here. 6. As to Council's list of cases where the Court has found decisions of certifiers to be legally unreasonable - Trives (No 3), Ramahi (No 2), North Sydney Council v Harris Farm, Gindurra Road, Wollondilly Shire Council v Kennedy - it is true that each of those cases is an example of Li unreasonableness in issuing a complying development certificate: Trives (No 3) at [57]-[59]; Ramahi (No 2) at [154]; North Sydney Council v Harris Farm at [194]; Gindurra Road at [151]; and Wollondilly Shire Council v Kennedy at [83]-[84]). However, I do not consider that anything turns on the fact that none of those cases was concerned with a challenge to a construction certificate. The reasoning in each case is apposite to the resolution of the question of consistency between a development consent and a construction certificate which arises here.
2. Accordingly, the answer in relation to issue 4 is yes. The decision of the third respondent to issue the construction certificate was legally unreasonable.

(5) If the answer to (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

1. Having decided that the answer to issue 4 is in the affirmative, the fifth issue is whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

Council's submissions on validity and discretion

1. Council submitted that a declaration of invalidity usually flows from a finding of jurisdictional error: May v Northern Beaches Council. [52] That is because a decision that involves jurisdictional error is a decision that "lacks legal foundation and is properly regarded, in law, as no decision at all", citing Minister for Immigration and Multicultural Affairs v Bhardwaj [53] and Hossain v Minister for Immigration and Border Protection. [54] Council said that the first and second respondents had adduced no evidence as to detriment or otherwise that could justify a refusal of relief.
2. Alternatively, Council submitted, any prejudice to the first and second respondents from the carrying out of works (other than excavation) in reliance upon the construction certificate could be addressed by a more limited declaration that the construction certificate is invalid only to the extent that it purports to approve excavation and works within the "space" previously proposed as the 'cellar' level.

First and second respondents' submissions on validity and discretion

1. The first and second respondents submitted that if the Court finds that "the issue of the CC was affected by jurisdictional error", the exercise of the Court's discretion in s 9.46 of the EPA Act arises. [55] Section 9.46(1) provides that "where the Court is satisfied that a breach of the [EPA] Act has been committed or that a breach of the [EPA] Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach". At its highest, the first and second respondents submitted, Council's complaint is that a crane base (expressly contemplated by a condition of modified development consent) is proposed at a depth which does not minimise excavation in accordance with another condition of modified development consent.
2. The first and second respondents submitted that the evidence before the Court was that: 1. any excavation was for construction purposes only; and 2. the depth of the crane base was dictated by the depth of RL 14.10 to provide for allowable bearing pressure for Class 5 sandstone, and that there was no evidence before the Court of environmental harm or amenity impacts associated with the excavation below the lower level. Nor would the Court make the more limited orders sought, there being no evidence that the crane base would be appropriately located at a higher level.
3. Overall, the first and second respondents submitted, at the completion of the development, there would be no perceivable difference in the development approved by the modified development consent when compared with the construction certificate. Any change in the development would be de minimus. Applying Ralan, the Court would find that even if the decision of the certifier was manifestly unreasonable, the consequence is not invalidity. In Ralan, the construction certificates issued by accredited certifiers involved substantial departures from the development consent such that the façade of a major residential and commercial development in Burwood bore little relationship to the plans and specifications the subject of the development consent. Burwood Council accepted that the façade conformed to plans and specifications provided by, or on behalf of, Ralan Burwood Pty Ltd to the accredited certifiers. However, Burwood Council contended that the construction certificates incorrectly stated that the plans and specifications provided to the certifiers were consistent with the development consent and, accordingly, that they were void. Council alleged that the construction certificate plans did not satisfy the requirement that they be "not inconsistent" with the development consent plans under cl 145(1)(a) of the former EPA Regulation 2000. Here, the first and second respondents said that this provision was in similar terms to s 19(1) of the Certification Regulation.
4. The first and second respondents submitted that on the assumption that the plans and specifications provided to the third respondent were inconsistent with the development consent ("in violation" of cl 145(1)(a) of the former EPA Regulation 2000), the Court of Appeal in Ralan determined (at [154]-[193]) that the construction certificate was valid, despite any breach of cl 145.
5. The first and second respondents also referred to Bunderra Holdings where the Court of Appeal at [77]-[78] confirmed "the application" of Ralan. The Court said that Ralan is not confined to cases where a construction certificate is "generally consistent" with a development consent. To the contrary, Ralan applies where a construction certificate is inconsistent with a consent: per McColl JA at [50] and per Leeming J at [78]. The first and second respondents submitted that there was a parliamentary response to Ralan which resulted in the enactment of s 6.32 of the EPA Act (extracted above at [71]), and which commenced on 1 December 2019.

Council's reply on validity and discretion

1. In reply, Council submitted that Part B3.4 of the Woollahra Development Control Plan 2015 (dated 30 August 2021) (the DCP) adopts maximum volumes of excavation for sites of various sizes. For the subject site, the maximum volume of excavation is 190m3. In Part B3.4 of the DCP, objective O1 d) provides: "ensure noise, vibration, dust and other amenity impacts to surrounding properties during construction are reasonable". The Local Planning Panel approved 509.6m3 as the maximum volume of excavation at the site. Excavation of the 'cellar' level requires an additional 281m3 of excavation.
2. Council submitted that the associated noise, vibration, dust, and other amenity impacts from jackhammering, rock breaking, and truck movements associated with that additional excavation was "the very reason" for the imposition of condition C.1(d) by the Local Planning Panel. And irrespective of those impacts, there is a strong public interest in ensuring compliance with the law and the maintenance of the integrity of the planning system: Sedevcic at 339-340 (Kirby P). That includes ensuring that certificates are issued by private certifiers within power: Randwick City Council v Belle Living Pty Ltd (No 2) [56] at [105].
3. Mr Lazarus submitted that the maximum volume of excavation permitted by the DCP is "no greater than the volume shown in figure 14A" of the DCP "which involves a straight line calculation depending upon site area", namely "190 cubic metres". Figure 14A of the DCP is reproduced below:
4. Further, Mr Lazarus submitted: An additional 281 cubic metres of excavation is proposed under the modification application to accommodate a new cellar and storage which is considered to be unnecessary in this instance, given that the approved dwelling already … has - ample storage space. The proposal does not concur with objective O2 with its intent to minimise excavation. And then objective O5: excavation works are considered to be temporary in nature, therefore minimising associated noise, vibration, dust, and other amenity impacts arising from jackhammering, rock-breaking, truck movements, and the like to the short-term. However, given the amount of excavation is in excess of the volumetric control - and we would say substantially in excess of the volumetric control … the short-term amenity effects are not reasonable as they are likely to be greater due to the extended period of time required to excavate more material than when compared to a compliant development. … The extent of variation sought under this modification is not justified. The proposal is therefore unacceptable with regard to the excavation controls in part B(3.4) of the [DCP] and condition C(1)(d) as being recommended which requires deletion of et cetera.
5. Further, Council submitted, Ralan dealt with a different issue, being whether the breach of an express statutory requirement would result in invalidity. In Ralan, the Court of Appeal expressly eschewed dealing with "the constitutional entrenchment of the Supreme Court's jurisdiction to intervene in cases of jurisdictional error": at [171] (Sackville AJA). It is that jurisdiction to review for legal unreasonableness which was being invoked by Council in this case. Mr Lazarus submitted that the analysis in Ralan was: … purely directed to a Project Blue Sky analysis, as to whether breach leads to invalidity. The Court was not dealing with a claim for jurisdictional error. The Court was not dealing with a claim for legal unreasonableness. So the ratio … is irrelevant to these proceedings.
6. Mr Lazarus submitted that "the consequence of [the first and second respondents'] submission is … that an irrational decision by a certifier, even one that meets the lunacy standard … can never be invalid", and that "legal unreasonableness is a species of jurisdictional error, as the law is now understood since Li". Accordingly, Council submitted that "[a] declaration of invalidity usually flows from a finding of jurisdictional error".

Conclusion in relation to whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration

1. In relation to invalidity, I conclude as follows. 1. As Council submitted, a declaration of invalidity usually follows a finding of jurisdictional error. In May v Northern Beaches Council Meagher and Payne JJA said at [23]: A declaration of invalidity usually flows from a finding of jurisdictional error. That is because a decision that involves jurisdictional error is a decision that "lacks legal foundation and is properly regarded, in law, as no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj … at [51]; Hossain v Minister for Immigration and Border Protection … at [24]. 1. Here, the first and second respondents adduced no evidence in relation to the detriment or otherwise capable of justifying a refusal of declaratory relief. 2. However, as in Carriage v Stockland Development Pty Ltd & Ors [No 7] [57] and Sader v Elgammal, I do not propose to make a declaration that the construction certificate is invalid in its entirety, rather only to the extent that it purports to approve excavation works within the area previously identified as the 'cellar' level. Such a declaration would leave the balance of the construction certificate operational, and thereby minimise the cost and delay to the first and second respondents as a consequence of work undertaken other than in the 'cellar' level which does not comply with condition C.1(d) of the modified development consent. 3. I do not consider it relevant in the exercise of my discretion to have regard to the submission of the first and second respondents as to "there being no evidence that the crane base would be appropriately located at a higher level". The onus was on the first and second respondents to adduce any evidence that the crane base could not be appropriately located at a higher level. They adduced no such evidence. 4. The proposed excavation was significantly in excess of the volumetric control in the DCP: for the subject site the maximum volume of excavation being 190m3, the Local Planning Panel approving 509.6m3 as the maximum volume of excavation at the site, and excavation of the 'cellar' level requiring an additional 281m3 of excavation. 5. Excavation of the 'cellar' level requires an additional 281m3 of excavation beyond the 509.6m3 approved by the Local Planning Panel as the maximum volume of excavation at the site. Such excavation is contrary to objective O2 of the DCP, the intent of which is to minimise excavation, and objective O5 which seeks to minimise associated noise, vibration, dust and other amenity impacts arising from jack hammering, rock-breaking, truck movements, and the like in the short term. Accordingly, I accept Council's submission that the extent of variation sought in the modification application was not justified. 6. As to the reliance placed by the first and second respondents on the Court of Appeal's decision in Ralan, cl 145(1)(a) of the former EPA Regulation 2000 with which the Court was there concerned, was in different terms to s 19(1) of the Certification Regulation. Further, the Court in Ralan did not foreclose the possibility that a construction certificate issued by a certifier that is "in fact inconsistent with a development consent" might (emphasis added) require that the construction certificate be held void and of no effect. In Ralan, Sackville AJA (with whom Barrett and McColl JJA agreed) said at [165] (emphasis added): The legislative history referred to at [157]-[164] above is consistent with Parliament simply intending to make it clear that an accredited certifier who issues a construction certificate which is in fact inconsistent with a development consent, breaches cl 145(1) of the EPA Regulation and s 109F(1)(a) of the EPA Act. The introduction of the objective standard means that disciplinary or even criminal sanctions might be imposed on an accredited certifier who issues a construction certificate which is inconsistent with a development consent, regardless of whether the certifier was satisfied in his or her own mind that there was no inconsistency. The purpose of ensuring that accredited certifiers adhere to minimum standards does not require that a construction certificate issued by a certifier who breaches those standards must be held void and of no effect. At [202] Sackville AJA said as follows: The legislation accommodates the possibility that an accredited certifier will issue a construction certificate in breach of cl 145(1) and s 109F(1) [Restriction on issue of construction certificates] by according paramountcy to the plans and specifications referred to in the construction certificate.
2. Moreover, as Council submitted, Ralan dealt with a different issue to that which arises here, being whether the breach of an express statutory requirement results in invalidity. In Ralan, the Court expressly eschewed dealing with the constitutional entrenchment of the Supreme Court's jurisdiction to intervene in cases of jurisdictional error (at [171]). It is that jurisdiction to review for legal unreasonableness which is invoked by Council in this case, and an analysis of Sackville AJA's reasons in Ralan at [171] makes clear that jurisdictional error played no part in the Court's decision. There Sackville AJA said: I leave to one side complications introduced by the constitutional entrenchment of the Supreme Court's jurisdiction to intervene in cases of "jurisdictional error": Kirk v Industrial Court (NSW).
3. Accordingly, I will make a declaration of invalidity, having found jurisdictional error: May v Northern Beaches Council at [23]. However, as previously indicated, I will make a declaration of invalidity only to the extent of excavation in the 'cellar' level.
4. In making a declaration, the Court should pay "[c]lose attention to the form of declarations proposed": Rural Press Ltd v Australian Competition and Consumer Commission at [90]. [58] Further, "[d]eclarations need not be lengthy, nor seek to reproduce the reasons for judgment, but to have any utility they must explain the declared contravention of the law": Director, Consumer Affairs Victoria v Vic Solar Pty Ltd (No 3) [59] at [5].
5. An appropriate form of declaration may be prayer 3 of the amended proposed orders provided to chambers by Council on 11 October 2023 at 9:13am. Prayer 3 is in the following form: Alternatively, declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 (CC) for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect in so far as it approves below RL 18.28 in the area hatched in red on the attached plan: a. excavation; b. structures including lift, lift shafts, stairs, walls, floor, and crane base; and c. other works in that area. The attached plan referred to in prayer 3 is extracted above at [4].
6. I will direct the parties to confer in light of these reasons for decision in relation to an appropriate form of declaration and injunction, and to provide chambers with a list of mutual dates so that I can list the matter for further mention.

Costs

1. At the hearing on 10 October 2023, Council foreshadowed an application for costs arising from the first and second respondents' belated abandonment of reliance on expert evidence.
2. The question of costs thrown away by the first and second respondents' abandonment of reliance on expert evidence, and costs in the proceedings generally, is reserved. I will hear from the parties in relation to a timetable for the filing of submissions in relation to costs.

Conclusion and orders

1. I will make a declaration that construction certificate 21/345 issued by the third respondent on 31 August 2022 is invalid and of no effect to the extent that it incorporates plans authorising excavation of any of the spatial area occupied by what was previously proposed as the 'cellar' level.
2. I will also order that the first and second respondents, by themselves, their servants and agents, be restrained from carrying out any development in reliance on the construction certificate in the spatial area occupied by what was previously proposed as the 'cellar' level.
3. I will list the matter for mention before me at a time and a date to be fixed in order to hear from the parties in relation to an appropriate form of declaration and injunction in light of these reasons for decision, and in relation to the question of costs.
4. The Court makes the following orders: 1. Pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the date for the commencement of the proceedings is extended to 1 March 2023, being the date of filing of the summons. 2. Costs reserved. 3. The matter is listed for further mention before me at a time and date to be fixed in order to hear from the parties in relation to an appropriate form of declaration and injunction in light of these reasons, for decision and in relation to the question of costs.

Endnotes

1. Bankstown City Council v Ramahi [2015] NSWLEC 74 (Ramahi) at [74] (Preston CJ of LEC) citing Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA) and Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA) (Barrett and Gleeson JJA agreeing). See also Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34] (Pepper J).
2. (2015) 90 NSWLR 164; [2015] NSWCA 213 (JC Campbell AJA) (McColl and Leeming JJA agreeing).
3. (1987) 10 NSWLR 335; (1987) 63 LGRA 361 (Kirby P, Mahoney and Clarke JJA).
4. [2017] NSWLEC 165 (Robson J).
5. [2017] NSWLEC 97 (Molesworth AJ).
6. [2019] NSWLEC 128 (Robson J).
7. The Hills Shire Council v Drenovac [2022] NSWLEC 139 (Drenovac) at [180] (Duggan J); Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171 (Gindurra Road) at [233]-[234] (Pain J).
8. (2021) 249 LGERA 109; [2021] NSWLEC 23 (Preston CJ of LEC).
9. Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; (2019) 241 LGERA 321; [2019] NSWCA 147 at [62] (Basten JA) and [311] (Preston CJ of LEC).
10. Nader v Sutherland Shire Council [2008] NSWCA 265 [35]-[36] (Young CJ in Eq) (Beazley JA and Sackville AJA agreeing); Smith v The Queen (1994) 181 CLR 338 at 348; [1994] HCA 60 (Mason CJ, Dawson, Gaudron and McHugh JJ).
11. (2013) 195 LGERA 34; [2013] NSWCA 200 at [66] (Sackville AJA), (McColl JA and Barrett JA agreeing).
12. (2001) 130 LGERA 508; [2001] NSWCA 17 at [4] (Powell JA).
13. (2017) 96 NSWLR 434; (2017) 226 LGERA 54; [2017] NSWCA 263 (Leeming JA).
14. (1998) 194 CLR 355; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ).
15. [2002] NSWLEC 108 at [19], [24]-[25] (Talbot J).
16. [1970] 1 NSWR 227; (1970) 19 LGRA 321 (Else-Mitchell J).
17. See also Hitchcock v Reed [2022] NSWLEC 81 at [63] (Robson J) and Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220 at [102]-[107] (Preston CJ of LEC) (Brereton JA and Chen J agreeing).
18. (1995) 184 CLR 163; [1995] HCA 58 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
19. [2015] NSWLEC 40 (Preston CJ of LEC).
20. (2004) 62 NSWLR 567; [2004] NSWSC 1265 (Campbell J).
21. Cohen v Double Bay Bowling Club [2019] NSWSC 1625 at [130]-[135] (Henry J).
22. (2014) 253 CLR 531; [2014] HCA 9 (French CJ, Crennan and Bell JJ).
23. Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 331 (Kirby P), approved in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 [41]-[42] and [55] (Tobias JA, Bell J agreeing); see also Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 at [94]-[96] (Biscoe J).
24. [2022] NSWLEC 107 at [79] (Duggan J).
25. (2014) 206 LGERA 40; [2014] NSWCA 404 (McColl, Barrett JJA and Sackville AJA).
26. (2015) 89 NSWLR 268; (2015) 208 LGERA 361; [2015] NSWCA 158 (Basten JA, Macfarlan and Meagher JJA agreeing).
27. Trives at [14] (Basten JA), see also [26], [27]-[31] and [34].
28. (2014) 89 NSWLR 1; [2014] NSWCA 364 at [187] (Leeming JA).
29. Minister for Home Affairs v DUA 16 (2020) 271 CLR 550; [2020] HCA 46 at [26] (Kiefel CJ and Steward J).
30. Li at [63] (Hayne, Kiefel, and Bell JJ) and at [92] (Gageler J); Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Singh at [43] (Allsop CJ, Robertson and Mortimer JJ).
31. ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [128] (Edelman J).
32. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 (Preston CJ of LEC); Lu v Walding (No 2) (2021) 249 LGERA 1; [2021] NSWLEC 21 (Pain J): A matter Sackville AJA "[left] to one side" in Ralan at [171].
33. (2013) 249 CLR 332; [2013] HCA 18.
34. (2016) LGERA 385; [2016] NSWLEC 34 (Craig J).
35. (2014) 231 FCR 437; (2014) 308 ALR 280; [2014] FCAFC 1 (Allsop CJ, Robertson and Mortimer JJ).
36. (2005) 138 LGERA 207; [2005] NSWCA 99 (Hodgson, Ipp and Tobias JJA).
37. [2015] NSWLEC 190 (Biscoe J).
38. [2017] NSWLEC 67 (Sheahan J).
39. [2023] NSWLEC 53 (Pain J).
40. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233 (Wednesbury) (Lord Greene MR, Somervell LJ and Singleton J).
41. (2010) 240 CLR 611; [2010] HCA 16 (Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ).
42. Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1; at [67] (Gummow J).
43. Trives at [14] (Basten JA).
44. Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110 at [119] (Preston CJ of LEC).
45. B Preston "Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia" (2006) 28 ABR 17.
46. [1986] AC 484 at 518; [1986] 1 All ER 467 (Lord Brighton).
47. Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at 188 [27] (Mason P).
48. Parramatta City Council v Pestell (1972) 128 CLR 305 at 323; (1972) 27 LGRA 72 (Barwick CJ, McTiernan, Menzies, Gibbs and Stephen JJ).
49. B Preston, Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia (2006) 28 ABR 17 at 32.
50. Li at [76] (French CJ) and [91] (Gageler J); Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 at [57] (Preston CJ of LEC).
51. (2021) 252 LGERA 221; [2021] NSWLEC 110 (Preston CJ of LEC).
52. [2023] NSWCA 205 at [23] (Meagher and Payne JJA).
53. (2002) 209 CLR 597; [2002] HCA 11 at [51] (Gaudron and Gummow JJ).
54. (2018) 264 CLR 123; 359 ALR 1; [2018] HCA 34 at [24] (Kiefel CJ, Gageler and Keane JJ).
55. Sedevcic at 339-340 (Kirby P).
56. [2023] NSWLEC 100 (Pritchard J).
57. [2004] NSWLEC 148 (Pain J).
58. (2003) 216 CLR 53; [2003] HCA 75 at [90] (Gummow, Hayne and Heydon JJ).
59. [2021] FCA 171 at [5] (O'Bryan J). 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: 28 March 2024

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110

Nader v Sutherland Shire Council [2008] NSWCA 265

North Sydney Council v Harris Farm Markets Pty Limited [2017] NSWLEC 67

Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305; (1972) 27 LGRA 27

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 at 518; [1986] UKHL 1; [1986] 1 All ER 467

Randwick City Council v Belle Living Pty Ltd (No 2) [2023] NSWLEC 100

Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75

Ryde City Council v Echt & Anor (2000) 107 LGERA 317; [2000] NSWCA 108

Sader v Elgammal [2022] NSWLEC 107

Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60

Syncept Chatham Pty Ltd v Council of the City of Ryde (No 2) [2019] NSWLEC 128

Taylor v The Owners - Strata Plan No 11564 and Others (2014) 253 CLR 531; [2014] HCA 9

The Hills Shire Council v Drenovac [2022] NSWLEC 139

Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

Trives v Hornsby Shire Council (2015) 89 NSWLR 268; (2015) 208 LGERA 361; [2015] NSWCA 158

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146

Winn v Director-General of National Parks and Wildlife and Ors (2001) 130 LGERA 508; [2001] NSWCA 17

Wollondilly Shire Council v Kennedy [2023] NSWLEC 53

Yves Deyris v Elizabeth Jones [2017] NSWLEC 165

B Preston, Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia (2006) 28 ABR 17

I Hemmings SC with J Farrell (First and Second Respondents)

Factual background

The assessment report

Approval of the construction management plan

The modified development consent

The construction certificate, the architectural plans, and the structural plans

Proposed 'cellar' level and associated excavation

Construction void level approved by the construction certificate

Uploading of the construction certificate

Enforcement action in relation to the site

Discussions between Council and the first respondent

Current state of excavation at the site

Commencement of proceedings

Relevant legislation and legislative history

(1) Whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate

Council's submissions in relation to an extension of time

First and second respondents' submissions in relation to an extension of time

Council's reply in relation to an extension of time

Conclusion in relation to whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate

(2) Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes

Council's submissions

First and second respondents' submissions

Council's reply

Conclusion in relation to whether the modified development consent, properly construed, prohibits excavation within the area identified as the 'cellar' level for all purposes

(3) Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

Council's submissions

First and second respondents' submissions

Council's reply

Conclusion in relation to whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

(4) If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

Council's submissions

First and second respondents' submissions

Conclusion in relation to whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

(5) If the answer to (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

Council's submissions on validity and discretion

First and second respondents' submissions on validity and discretion

Council's reply on validity and discretion

Conclusion in relation to whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration

Conclusion and orders

1. These Class 4 proceedings were commenced by summons filed 1 March 2023. By amended summons filed 1 May 2023 (the amended summons), Woollahra Municipal Council (Council) seeks judicial review of the decision of Mr Paul Aramini (the third respondent) on 31 August 2022 to issue construction certificate 21/345 (the construction certificate) as principal certifying authority for the development of 35 Suttie Road, Bellevue Hill, Lot 5 DP13285 (the site), in accordance with development consent DA 475/2020/1 (the development consent) as modified by the Woollahra Local Planning Panel (the Local Planning Panel) in DA 475/2020/3 on 16 June 2022 (the modified development consent).
2. The development consent was the subject of a modification application lodged 11 April 2022 which was recommended for approval by and subsequently approved by the Local Planning Panel on 16 June 2022, subject to condition C.1(d) requiring, inter alia, the "Deletion of the 'cellar' level and the associated excavation (imposed under DA 457/2020/3)" (the area previously identified as the 'cellar' level).
3. The matter was heard before me on 10 and 11 October 2023.
4. On 11 October 2023 at 9:13am, Council provided chambers with amended proposed orders it seeks in the proceedings (the amended proposed orders):

1 Pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005, the time for the commencement of the proceedings is extended to 1 March 2023, being the date of filing of the summons.

2 Declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect.

3 Alternatively, declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 (CC) for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect in so far as it approves below RL 18.28 in the area hatched in red on the attached plan:

a. excavation;

b. structures including lift, lift shafts, stairs, walls, floor, and crane base; and

c. other works in that area.

4 Order that the First and Second Respondents, by themselves, their servants and agents, are restrained from carrying out any development in reliance on the CC, or alternatively on that part of the CC referred to in prayer 3 above.

5 Order that the Respondents are to pay the Council's costs of the proceedings.

1. The "attached plan", including the area hatched in red, referred to in prayer 3 of the amended proposed orders is reproduced below. The "attached plan" is from the Construction Void Marking Plan Dwg 1100 Rev C with added red hatching, which is referred to at [31(2)] below.

1. The first respondent, Mr Andrew Cameron (the first respondent) and the second respondent, Ms Vanessa Green (the second respondent), have the benefit of a development consent to demolish an existing building and construct a three-storey dwelling on the site.
2. On 31 May 2023, the third respondent filed points of defence in response to the amended summons and an affidavit of Mr Aramini, sworn 29 September 2023. The third respondent filed a submitting appearance on 6 October 2023 and did not participate in the hearing on 10 and 11 October 2023.
3. In the amended summons, Council contends that the decision of the third respondent to issue the construction certificate "was invalid because it was not reasonably open, and/or without any evident or intelligible justification for the third respondent to conclude that the design and construction of the [site], as depicted in the plans and specifications given to the [third respondent], were consistent with the [modified development consent]".

1. The issues which arise for determination are as follows:

(1) Whether the Court should extend time under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate.

(2) Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes.

(3) Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent.

(4) If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent.

(5) If the answer to question (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

1. I have determined the issues for determination as follows:

(1) Pursuant to r 59.10(2) of the UCPR, time for Council to commence proceedings for judicial review of the decision of the third respondent, Mr Paul Aramini, dated 31 August 2022 to issue construction certificate 21/345 is extended to 1 March 2023.

(2) The modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes.

(3) The plans, specifications and standards of building work specified in the construction certificate issued 31 August 2022 are not consistent with the modified development consent to the extent that they permit excavation in the area previously identified as the 'cellar' level.

(4) It was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent.

(5) I will make a declaration that the construction certificate is invalid to the extent that it permits excavation in the area previously identified as the 'cellar' level.

1. The following factual background is derived in part from the agreed statement of facts and agreed chronology tendered by the parties, and in part from the Court's consideration of the documents in evidence.
2. On 13 April 2021, pursuant to ss 4.16 and 4.17 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), Council granted development consent DA 457/2020 subject to conditions for the "[d]emolition of the existing building and construction of a new dwelling" at the site.
3. On 10 March 2022, Council determined modification application DA 457/2020/2 (the second modification to the development consent) lodged by the first and second respondents' architect Mr John Jell pursuant to s 4.55 of the EPA Act. The DA 457/2020/2 modifications are not relevant to these proceedings.
4. On 11 April 2022, Mr Jell lodged modification application DA 457/2020/3 pursuant to s 4.55 of the EPA Act (the modification application), seeking to modify the development consent by:

(1) providing a basement wine cellar, store, lift, and access stairs;

(2) a minor reconfiguring of the layout of the lower level media, gym, and powder rooms; and

(3) deleting a window from an upper level living room.

1. The assessment report prepared by Council dated 16 June 2022 (the assessment report) recommended that the Local Planning Panel modify the development consent "for demolition of the existing building and construction of a new dwelling [at the site]" subject to the "deletion of the new cellar level and associated excavation". The assessment report concluded in relation to excavation as follows:

... given the amount of excavation is in excess of the volumetric control, the short-term amenity effects are not reasonable as they are likely to be greater due to the extended period of time required to excavate more material than when compared to a compliant development.

Conclusion

The approved development already exceeded the maximum excavation volume. The extent of variation sought under this modification is not justified.

The proposal is therefore unacceptable with regard to the excavation controls in Part B3.4 of the [Woollahra Development Control Plan 2015]. Condition C.1(d) has been recommended which requires deletion of the proposed new cellar level and the associated excavation.

1. The assessment report recorded that the Local Planning Panel was the designated consent authority for the modification application because the application was a "contentious development" that was "the subject of 10 or more unique submissions by way of objection".

1. On 26 May 2022, Mr Mark Smigliani, project manager/site supervisor acting on behalf of the first and second respondents, submitted documents to Council in support of the proposed construction management plan. Included in those documents was a proposed excavation plan which did not show any excavation in the area the subject of condition C.1(d) of the modified development consent.
2. On 9 June 2022, Council approved the construction management plan.

1. On 16 June 2022, the Local Planning Panel approved the modification application "for the reasons set out in the assessment report".
2. The Local Planning Panel modified the development consent by:

(1) including a new sub-paragraph (d) to condition C.1; and

(2) approving plan DA07 (approved plan DA07), plan DA08 (approved plan DA08) and plan DA10 (approved plan DA10) that show a 'cellar' level and a notation "Cellar Level Deleted" (per condition A.8 extracted below).

1. Condition C.1(d) in the modified development consent provides as follows (emphasis added):

C.1 Modification of Details of the Development (section 4.17(1)(g) of the Act)

The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments:

...

(d) Deletion of the 'cellar' level and the associated excavation (imposed under DA 475/2020/3)

To minimise excavation, the 'cellar' level including the mechanical ventilation, wine cellar, store, lift and access stairs must be deleted; and the area must remain unexcavated.

1. Other relevant conditions of the modified development consent are the following:

Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with both the architectural plans to which is affixed a Council stamp "Approved" and supporting documents listed below ... [including Architectural Plans and the Geotechnical & Hydrological Report by AssetGeoEnviro dated 18 September 2020 [(the 2020 geotechnical report)]

A.8 Approved Amended (section 4.55) Plans and Supporting Documents

Those acting upon or under this amended consent must carry out all work and maintain the use and works in accordance with the approved plans and supporting documents listed in the original consent, as amended by the amended architectural approved plans to which is affixed a Council stamp "Approved" and supporting documents as submitted by the Applicant listed below otherwise than modified by further condition(s).

Where the plans relate to amendments, alterations or additions only those works shown in colour or highlighted are approved.

As a result of the site constraints, limited space and access a Construction Management Plan (CMP) is to be submitted to Council ...

The CMP must ... include the following information ...

(f) If a crane/s are to be accommodated on site, detail how the crane/s will be erected and removed, including the location, number and size of vehicles involved in the erection/removal of the crane/s, the duration of the operation and the proposed day and times, any full or partial road closures required to erect or remove the crane/s and appropriate Traffic Control Plans ...

E.8 Compliance with Geotechnical/ Hydrogeological Monitoring Program

Excavation must be undertaken in accordance with the recommendations of the Geotechnical/Hydrogeological Monitoring Program and any oral or written direction of the supervising professional engineer ...

A person must not do anything on or in relation to the site (the supporting land) that removes the support provided by the supporting land to any other land (the supported land) or building (the supported building) ...

Site crane(s) and hoist(s) may be erected within the boundary of the land being developed subject to compliance with Australian Standards AS 1418, AS 2549 and AS 2550 and all relevant parts to these standards ...

1. The notations 'stair' and 'cellar' and "Cellar Level Deleted. Refer to Condition C.1(d)" on approved plan DA07 (Section A) are shown below:

1. The notations 'store' and 'cellar' and "Cellar Level Deleted. Refer to Condition C.1(d)" on approved plan DA08 (Section B) are shown below:

1. The notations 'cellar' and 'store' and "Cellar Level Deleted. Refer to Condition C.1(d)" on approved plan DA10 (Section E) are shown below:

1. The minutes of the public meeting of the Local Planning Panel held 16 June 2022 at 1:00pm provide the following reasons for the decision to approve the modification application:

Reason for Decision

The Panel has independently viewed the site, from the street and surrounding area and/or electronically, considered the submissions, and reviewed the assessment report prepared by Council officers that addresses the relevant matters detailed in Section 4.15 of the [EPA Act].

For the reasons in the assessment report, the Panel is satisfied that the application can be modified subject to the deletion of drawing reference no. DA06.5E within Condition No. A.8.

1. DA06.5E is the Cellar Level Plan dated 25 March 2022 that was submitted as part of the modification application and to which the Local Planning Panel deleted reference in Condition A.8 "Approved Amended (section 4.55) Plans and Supporting Documents" when it approved the modification application.

The construction certificate, the architectural plans, and the structural plans

1. On 14 June 2022, the first respondent lodged an application for a construction certificate into the certifier's system. The construction certificate application was initially lodged before the modified development consent was approved on 16 June 2022.
2. On 31 August 2022, the third respondent issued the construction certificate (number 21/345) for the site, listing the development consent, the second development consent and the modified development consent as the relevant consents, pursuant to Part 6 of the EPA Act. In determining the application for the construction certificate the documents provided to the third respondent included relevant building work, plans and specifications. These included architectural plans (the architectural plans) which are "stamped" approved by the third respondent, and structural plans to which have the third respondents' stamp was also affixed (the structural plans) (together, the construction certificate plans).
3. The architectural plans "stamped" by the third respondent and dated 7 June 2022 included:

(1) WD2.05A Issue A, Proposed Section A (drawing 1 of 2) (architectural plan WD2.05.A) which provides for a concrete structure in the location of the formerly proposed cellar (the concrete structure) without any notations.

(2) WD2.05B Issue A, Proposed Section A (drawing 2 of 2) (architectural plan WD2.05.B) which provides for:

(a) the concrete structure with the notation 'CRANE BASE, REFER STRUCT ENG'S DOCS FOR DETAILS'; and

(b) a further vertical structure into the ground with the notation 'CONTINUOUS PILES REFER STRUCT ENG'.

(3) WD2.06 Issue A (architectural plan WD2.06.A), Proposed Section which shows continuous piles in the location of the deleted cellar.

(4) WD2.09 Issue A, Proposed Section which shows:

(a) a concrete structure and vertical structures; and

(b) the notation 'CONTINUOUS PILED & CAVITY TO WATERPROOF BASEMENT WALLS'.

1. The structural plans "stamped" by the third respondent and dated 14 July 2022 included:

(1) Dwg 1051 Rev D, Shoring Elevations Sheet 1 (Shoring Elevations Sheet 1) which shows in the area of the former cellar:

(a) an apparent floor level for a construction void;

(b) stairs leading into the construction void; and

(c) a crane base with a notation "CRANE BASE BY OTHERS. MAXIMUM 5mx5mx1.35m DEEP";

(2) Dwg 1100 Rev C, Construction Void Marking Plan (the Construction Void Marking Plan) which shows in the area of the former cellar:

(a) a concrete slab at the level of the construction void; and

(b) precast concrete walls.

Part of the Construction Void Marking Plan is reproduced below:

(3) Dwg 1104 Rev C, Construction Void Sections Sheet 1 (the Construction Void Sections Sheet 1) which shows:

(a) a crane base; and

(b) a construction void.

Part of the Construction Void Sections Sheet 1 is reproduced below:

(4) Dwg 1200 Rev C, Lower Level Marking Plan which shows in the area of the former cellar:

(a) stairs; and

(b) a concrete slab with 200mm thickness;

(5) Dwg 1204 Rev C, Lower Level Sections Sheet 1 which includes a marking for a construction void; and

(6) Dwg 7502 Rev C, Wall Elevations - Precast Sheet 2, which shows:

1. The agreed statement of facts also referred to the Geotechnical & Hydrogeological Investigation produced by AssetGeoEnviro dated 30 April 2022 (the 2022 geotechnical report) which was "stamped" by the third respondent and refers to:

(1) excavation up to 7.5 metres in depth for the cellar and store level finished floor level;

(2) contiguous piles proposed to support the cut for the cellar and store level; and

(3) there being no completed soil investigation at the crane location.

Proposed 'cellar' level and associated excavation

1. It was an agreed fact that the 'cellar' level is the area located beneath the lower level as depicted in approved plan DA07.
2. After the hearing on 11 October 2023, the Court requested that the parties provide an agreed position in relation to the RLs of the proposed 'cellar' level and associated excavation which were the subject of the modification assessment by reference to drawings and plans in evidence.
3. In the agreed note subsequently provided to the Court (the agreed note), the parties agreed that the plans approved by the modification application and which record the deletion of the 'cellar' level depict the 'cellar' level at RL 15.75. Those plans are approved plans DA07, DA08 and DA10.
4. In the agreed note, Council identified as an additional matter that the plans approved by the modification show the 'cellar' level (RL 15.75) as being at the same level as the base of the structure of the "existing pool" in approved plan DA07.

Construction void level approved by the construction certificate

1. After the hearing on 11 October 2023, the Court also requested that the parties provide an agreed position in relation to RLs for the construction void approved by the construction certificate.
2. The agreed note states that the structural plans do not expressly identify a precise level for the top of the slab in the construction void or on any of the relevant plans or elevations.
3. The agreed note refers to the following notes in Construction Notes Sheet 1 in relation to the structural plans:

GENERAL

G1. THESE DRAWINGS SHALL BE READ IN CONJUNCTION WITH ALL ARCHITECTURAL AND OTHER CONSULTANTS DRAWINGS ...

G2. DIMENSIONS SHALL NOT BE OBTAINED BY SCALING THE STRUCTURAL DRAWINGS. FIGURED DIMENSIONS ONLY SHALL BE USED. SETTING OUT DIMENSIONS SHOWN ON THE DRAWINGS SHALL BE VERIFIED BY THE BUILDER FROM ARCHITECTURAL DRAWINGS ...

1. Nonetheless, it was agreed that an approximate level for the construction void of between RL 15.6 and RL 15.8 could be extrapolated from the architectural plans and structural plans:

(1) the architectural plans depicting the lower level of the dwelling (being the level above the cellar or construction void level) with a finished floor level of RL 18.50;

(2) the same architectural plans showing a crane base, but not depicting the level of the crane base; and

(3) the structural plans showing a 2900mm socket extending:

(a) from the finished floor level of the lower level of the dwelling (shown on the architectural plans as at RL 18.50);

(b) to below the finished floor level of the construction void, but within the width of the floor slab above the crane base.

An extract from the Shoring Elevations Sheet 1 structural plan is as follows:

(4) the slab above the crane base being shown to continue beyond the crane base to the adjoining area and being variously:

depending on its location within the floor plan of the construction void.

1. The agreed effect is that the finished floor level of the top of the slab (being the construction void level) is depicted as:

(1) greater than the base of the socket at RL 15.6 (18.5-2.9m); and

(2) less than RL 15.8 (given that the slab is up to 200mm thick and the base of the socket sits within the width of the slab).

1. In relation to additional matters identified by the parties in the agreed note, Council said that the plans approved by the construction certificate show the level of the construction void to be the same level as the base of the structure of the "existing pool". Therefore, as the external structure of the "existing pool" is unchanged, that level remains RL 15.75.
2. The first and second respondents said that any extrapolated levels are also subject to the various requirements of the structural plans including:

(1) the note in the Construction Notes Sheet 1 which provides:

FOUNDATIONS

F1. FOUNDATION DESIGN HAS BEEN BASED ON GEOTECHNICAL ENGINEERS REPORT No. 6211-G1 DATED 18/09/2020 BY ASSETGEOENVIRO

(2) the note in the general arrangement legend of the Footing Marking Plan which provides:

ALL FOOTING MATERIAL TO BE INSPECTED BY GEOTECHNICAL ENGINEER AND BEARING PRESSURE TO BE CONFIRMED

(3) Note 2 in the Footing Marking Plan which provides:

UNLESS NOTED OTHERWISE ALL FOUNDATIONS TO BE ON SANDSTONE WITH ALLOWABLE BEARING CAPACITY OF 1000 kPa

1. On 1 September 2022, the construction certificate was uploaded to the NSW Planning Portal (the Planning Portal).
2. On 8 September 2022, administrative staff at Council downloaded the construction certificate from the Planning Portal and uploaded the construction certificate to Council's digital records management system.

1. On 16 January 2023, excavation works for the construction void commenced.
2. On 31 January 2023, Council received a complaint about the depth of excavation at the site.
3. On 1 February 2023, Mr Lyndal James, building and compliance officer, Council, attended the site.
4. On 6 February 2023, Mr Craig Jenner, team leader compliance, Council, issued a development control order (the development control order) to the first and second respondents pursuant to ss 9.34 to 9.36 of the EPA Act. The development control order provided as follows:

Order to cease unauthorised excavation 35 Suttie Road BELLEVUE HILL 2023 LOT: 5 SEC: 3 DP: 13285

...

The terms of the Development Control Order are:

1. Cease all excavation beyond the extent granted development consent under DA475/2020. Excavation for the construction of the lowest floor level of the approved dwelling at 35 Suttie Road Bellevue Hill is to be no lower than RL 18.30.

1. On 6 February 2023, Mr Jenner issued a notice of intention to give an order to the first and second respondents pursuant to ss 9.34 to 9.36 of the EPA Act:

Notice of Intention to Give an Order 35 Suttie Road BELLEVUE HILL 2023 LOT: 5 SEC: 3 DP: 13285

...

The terms of the Order are:

1. Comply with Condition C.1(d) of Development Consent DA2020/475/3 by backfilling the excavated area located in the middle of the subject site which was proposed in application DA2020/475/3 to be a cellar level to the subject development.

1. On 7 February 2023, the first respondent ceased excavation at the site.

Discussions between Council and the first respondent

1. On 6 February 2023, the first respondent sent an email to Mr Jenner at Council as follows:

Dear Craig

Thank you for your time today.

To clarify the our position. A crane pad of 5 x 5 x1.35 m was required to be footed in rock. Mark Rust of Overhead Engineering determined this required the top of the pad to be at RL 15.5 based on the Geo Tech survey carried out by AssetGeoEnvrio.

This requirement gave rise to the 4.55 application.

We are excavating to that level.

We propose to place a 22.5 Kl tank in the void, along with three smaller tanks to meet a condition of consent and avoid a similar amount of excavation adjacent to the pool to meet this condition. We have not challenged this condition, which was increased from 20 Kl in the initial approval despite our engineers concern that we would not fill such a volume, given normal usage, from our roof area even with last year's 2,000+mm of rain. This will avoid further excavation.

We currently have plant in the construction void that can now only be removed by crane. We will not be able to install the crane unless we provide a suitable pad at RL 15.5.

We had expected to have completed excavation by now, however we hit harder rock that expected. I believe we have another two to three days of excavation.

I will be seeking advice on next steps from here, ...

1. On 8 February 2023, the first respondent met with Mr Jenner and Ms Rosemary Bullmore, manager legal, compliance and enforcement, at Council.
2. On 8 February 2023, the first and second respondents lodged a Class 1 appeal against Council's development control order (proceeding number 2023/42616) (the Class 1 proceedings).
3. On 9 February 2023, the first respondent lodged modification application DA457/2020/4 seeking approval for the work in the area subject to condition C.1(d).
4. On 14 February 2023, the Class 1 proceedings were served on Council.
5. On 15 February 2023, the first respondent withdrew modification application DA457/2020/4.
6. On 15 February 2023, Council received a letter from Mills Oakley, solicitors for the first and second respondents, in which Mills Oakley:

(1) sought the "immediate revocation of the development control order"; and

(2) claimed that if the development control order was not revoked, the first and second respondent would have a claim for compensation "in the vicinity of $500,000".

1. On 15 February 2023, Council sought legal advice regarding the letter it received from Mills Oakley on 15 February 2023.
2. As at 11 October 2023, the development control order was still in place.

1. On 20 February 2023, Mr Farshid, construction contractor representing the first respondent, provided Council with a diagram showing the extent of the excavation as at 7 February 2023, being at an approximate RL of 15.7.
2. On 20 February 2023, the solicitors for the first and second respondents wrote to Council, stating that a "total of 168m3 was required to complete the remaining excavation", comprising:

(1) 83m3 for the [construction] void;

(2) 45m3 for the crane base; and

(3) 40m3 for the "detention bank".

1. As at the date of hearing, the development control order prevented those works from being carried out.

1. On 24 February 2023, Council received legal advice and instructed counsel to prepare the summons and grounds of appeal.
2. On 1 March 2023, Council filed the summons commencing these Class 4 proceedings and a notice of motion seeking expedition.
3. On 2 March 2023, Council filed an affidavit of Mr Jenner, team leader, compliance at Council, affirmed 2 March 2023, and on 8 March 2023, an affidavit of Ms Bullmore, affirmed 8 March 2023 (which was not read).
4. On 28 March 2023, the first and second respondents filed an affidavit of the first respondent, Mr Cameron affirmed 28 March 2023.
5. On 1 May 2023, Council filed an amended summons.

1. Rule 59.10 of the UCPR provides as follows in relation to the extension of time for commencing proceedings for judicial review (emphasis added):

59.10 Time for commencing proceedings

(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following -

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

1. Section 4.16(12) of the EPA Act provides as follows in relation to the effect of issuing a construction certificate:

4.16 Determination

(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

1. Section 6.32 of the EPA Act provides as follows in relation to the validity of certificates under Part 6 "Building and subdivision certification" (emphasis added):

6.32 Validity of certificates under this Part

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if -

(a) proceedings for the order are brought within 3 months after the issue of the certificate, and

(b) the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.

1. Section 6.32 of the EPA Act replaced cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (NSW) (the former EPA Regulation 2000) which provided as follows (emphasis added):

145 Compliance with development consent and Building Code of Australia

(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

...

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent...

1. Section 6.32 of the EPA Act came into effect on 1 December 2019 under cl 18(2) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW).
2. Section 6.8(1) of the EPA Act relevantly provides that:

(1) A construction certificate must not be issued with respect to the plans and specifications for any building work unless-

(a) the requirements of the regulations have been complied with ...

1. The relevant requirements of the regulations are contained in Part 3 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) (the Certification Regulation). This regulation commenced on 1 January 2022.
2. Section 7 of the Certification Regulation provides as follows:

7 Application for construction certificate

(1) An application for a construction certificate must -

(a) be in the approved form, and

(b) include all the information and documents specified in the approved form or required by the Act or this Regulation, and

(c) be lodged on the NSW planning portal. ...

1. Section 8 of the Certification Regulation provides as follows:

8 Documents to accompany application for construction certificate

(1) This section applies to an application for a construction certificate for development that involves building work.

(2) The application must be accompanied by -

(a) a detailed description of the development, and

(b) appropriate building work plans and specifications (referred to in this Part as relevant building work plans and specifications).

(3) The detailed description of the development must indicate the following matters -

(4) The appropriate building work plans and specifications must include the following -

(a) detailed building work plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show the following -

(i) a plan of each floor section,

(ii) a plan of each elevation of the building,

(iii) the levels of the lowest floor, an unbuilt yard or area that belongs to the lowest floor and the adjacent ground,

(iv) the height, design, construction and provision for fire safety and fire resistance, if any,

(i) describe the construction and the materials to be used to construct the building, and ...

1. Section 12 of the Certification Regulation provides as follows:

12 Certifier may require additional information

(1) A certifier may require the applicant for a construction certificate to give the certifier information about the building work or a planning agreement that the certifier considers necessary to properly consider the application. ...

1. Section 13 of the Certification Regulation provides in relation to giving reasons for refusing an application for a construction certificate:

13 Determination of application for construction certificate

(1) A certifier must ensure the certifier's determination of an application for a construction certificate contains the following information -

(a) the date on which the application was determined,

(b) whether the application is approved or refused,

(c) if the application is refused -

1. Section 19(1) of the Certification Regulation requires relevantly as follows (emphasis added):

19 Compliance with development consent and Building Code of Australia

(1) A certifier must not issue a construction certificate for building work unless-

(a) the relevant building work plans and specifications include the matters required by a relevant BASIX certificate, if any, and

(b) the design and construction of the building, as described in the relevant building work plans and specifications and in other information given to the certifier under section 12, is consistent with the development consent, and

(c) the building will comply with the relevant requirements of the Building Code of Australia as in force on the relevant date ...

1. Section 20 of the Certification Regulation provides as follows:

20 Compliance with conditions of development consent

A certifier must not issue a construction certificate for building work under a development consent unless the following have been complied with -

(a) a condition of the development consent or an agreement referred to in the Act, section 4.17(6) requiring the provision of security before building work is carried out,

(b) a condition of the development consent, referred to in the Act, section 7.11 or 7.12, requiring the payment of a monetary contribution or levy before building work is carried out,

(c) a condition of the development consent that must be complied with before a construction certificate may be issued.

1. Condition C.1 of the modified development consent refers to cl 139 of the former EPA Regulation 2000 (the application for the development consent having been determined on 13 April 2021 when the former regulation was in force). Clause 139 provided as follows in relation to application for construction certificates:

139 Applications for construction certificates

(1) An application for a construction certificate must -

(a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by documents that are specified in Part 3 of Schedule 1 or required by the Act and this Regulation, and

(d) be lodged on the NSW planning portal.

(1A) The application may only be made by a person who is eligible to appoint a principal certifier for the relevant development.

(2) The applicant must be notified, by means of the NSW planning portal, that the application for a construction certificate has been lodged.

1. The first and second respondents placed particular emphasis on ss 34 and 35 of the Interpretation Act 1987 (NSW) (Interpretation Act) in relation to the use of extrinsic material in the interpretation of Acts and in relation to headings. These provide:

34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision -

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes -

...

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

...

35 Headings etc

(1) Headings to provisions of an Act or instrument, being headings to -

(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or

(b) Schedules to the Act or instrument,

shall be taken to be part of the Act or instrument.

(2) Except as provided by subsections (3) and (4) -

(a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)),

(b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or

(c) a marginal note, footnote or endnote in an Act or instrument,

shall be taken not to be part of the Act or instrument.

...

(5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates.

(1) Whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate

1. The first issue is whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate.

Council's submissions in relation to an extension of time

1. Council submitted that in considering whether to allow an extension of time under r 59.10, the Court may consider the matters under r 59.10(3) as well as other relevant matters, including the length of delay, the reasons for the delay and whether an applicant has a fairly arguable case.[1]
2. In relation to "any relevant public interest" (r 59.10(3)(d)), Council submitted that "Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act", citing Bankstown City Council v Ramahi (Ramahi) at [75] (Preston CJ of LEC). That includes ensuring that development is carried out in accordance with the terms of any development consent granted by a local planning panel.
3. Council accepted that limitation periods such as that in r 59.10 benefit the public by providing finality in decisions, citing Katter v Melhem[2] at [123]. There is also, however, Council submitted, a strong public interest in the enforcement of planning law, citing Warringah Shire Council v Sedevcic[3] (Sedevcic) at 339-340. That includes ensuring that construction certificates are issued within power. Council submitted that its interest closely aligns with the public interest and is not diminished by any delay in commencing the proceedings.
4. In relation to "possible prejudice" (r 59.10(3)(b)), Council submitted that the relevant prejudice, being expenses on building work incurred up to the expiry of the three month period to commence the proceedings, is not connected to any delay: citing Ramahi at [86]-[87] (Preston CJ of LEC).
5. The three month period for commencing the proceedings expired on 1 December 2022, and a development control order ordering the cessation of unauthorised excavation below RL 18.30 was issued on 6 February 2023. At some time during that two month period, the first and second respondents carried out excavation in the area of the 'cellar' level.
6. Council submitted that there was no evidence as to what other works (if any) were carried out, nor the potential costs in order to quantify any prejudice. The first and second respondents chose not to put on any evidence as to prejudice. Mr Lazarus SC for Council submitted as follows in relation to the first and second respondents' failure to call any evidence directed to prejudice:

... we submit, a powerful Ferrcom [Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd [1993] HCA 5; (1993) 176 CLR 332] inference that arises from the failure of the respondents to call any evidence in chief specifically directed to the question of prejudice. The only evidence in chief that they've put on are uncontroversial matters that have all been agreed as part of the agreed statement of facts. ...

What those authorities establish, quite clearly, is that the failure to call evidence on a particular topic where one would expect such evidence to be called - so, if the respondent in this case wishes to submit that there's prejudice, it's obvious what the source of that evidence ought to be. That an inference arises that the evidence that could have been given would not be favourable to the respondent's case. That is an extension of the principle in Jones v Dunkel [(1959) [1959] HCA 8; 101 CLR 298].

1. Further, Council submitted that potential prejudice to the first and second respondents needs to be considered in the context that they (at least the first respondent), knowing that the Local Planning Panel "had essentially refused consent to a cellar level, submitted plans to the principal certifying authority that showed a cellar level."
2. In similar circumstances, in relation to a complying development certificate, the chief judge said in Ramahi at [85]:

I am not satisfied that any prejudice that Ms Ramahi might suffer is sufficient to not extend the time for commencing the Council's proceedings. First, Ms Ramahi and her builder, UBA, bear primary responsibility for proposing and applying for the issue of a complying development certificate for development that was not complying development. Ms Ramahi, by her agent, UBA, proposed a secondary dwelling for the land that substantially breaches the development standards for floor area and side and rear setbacks under the applicable ARH SEPP. Ms Ramahi, by her agent, UBA, applied to a private certifier to have development that did not comply with these development standards certified as complying development. It is true that Mr Kayellou, on no less than three occasions, did issue [complying development certificates] for development that was not complying development. However, that conduct does not absolve Ms Ramahi of responsibility for proposing and then carrying out development that was not and could not be complying development.

1. That is, Council said that it was not aware of the inconsistency between the plans, specifications and standards of building work specified in the construction certificate, and the modified development consent, nor did it have cause to examine one of many construction certificates posted on the Planning Portal for its local government area, until it received a complaint on 31 January 2023.
2. In relation to the reasons for delay (r 59.10(3)(a)), Council referred to the following chronology: Council first attended the site on 27 October 2022 to investigate a complaint about a lack of sediment control measures. At that time, excavation work for the construction void had not commenced. Therefore, there were no physical indications which would cause Council to examine the construction certificate. Those indications first emerged when excavation work for the construction void was carried out in January 2023, and Council received a complaint on 31 January 2023. Council reviewed the construction certificate, attended the site the following day, and on 6 February 2023 issued a development control order requiring the cessation of all excavation works below RL 18.30. Council sought advice, attempted to resolve the issue with the first and second respondents, and commenced the proceedings within the month.
3. This was submitted not to be unreasonable. For 2022 alone, 514 construction certificates, and 200 complying development certificates were issued in the Woollahra local government area. Council does not have the resources, it was submitted, nor is it required to review every one of those certificates to ensure that the relevant certifier has complied with their obligations.
4. Mr Lazarus SC for Council said as follows:

LAZARUS SC: In terms of the delay of three months, there is no obligation on a council, statutory or otherwise, to review construction certificates for any purpose and certainly not for the purpose of ascertaining consistency with--

HER HONOUR: Or to undertake site inspections in order to ascertain compliance.

LAZARUS: That's so. There's no obligation ... upon a council to ensure compliance with the law [referring to Ryde City Council v Echt (2000) 107 LGERA 317; [2000] NSWCA 108] ...

Mr Jenner's ... unchallenged evidence, is that the council receives hundreds of construction certificates a year and that there are simply no resources to carry out the time consuming activity that would be required to assess each and every one of those for consistency with the consent, and every condition that has been imposed as part of the consent. That evidence remains unchallenged, and your Honour should accept it.

1. And in Ramahi, the chief judge said at [95] in relation to complying development certificates:

I do not accept Ms Ramahi's submission that the Council acted unreasonably in not checking the complying development certificates at the time it received them. The statutory scheme regulating complying development certificates requires the accredited certifier to ensure and to certify that the development is complying development under the EPA Act and that it will comply with all relevant development standards. There are criminal sanctions if the certifier incorrectly certifies. The Council is entitled to presume that the complying development certificates have been issued in compliance with the EPA Act, the EPA Regulation and the applicable environmental planning instrument and development standards.

1. Council submitted that the situation is no different in relation to construction certificates.
2. The length of the delay, that is, three months, Council submitted was not "undue". It was less than that in Ramahi (9 months and 6.5 months), Yves Deyris v Elizabeth Jones[4] (8 months), Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[5] (6 months), and the same as that in Syncept Chatham Pty Ltd v Council of the City of Ryde (No 2)[6] (3 months). All were cases in which the delay was found not to be undue, and an extension of time for commencing the proceedings was granted.

First and second respondents' submissions in relation to an extension of time

1. The first and second respondents submitted that the Court would find "underwhelming" the evidence relied upon by Council to justify an extension of time to commence the proceedings, referring to the following matters:

(1) The proceedings were not commenced until 1 March 2023.

(2) The construction certificate was issued on 31 August 2022, and the expiry date of the three month period to commence proceedings was said by the first and second respondents to be 31 November 2022. (However, as there is no 31st day of November, I proceed on the basis that the expiry date was 30 November 2022 pursuant to the definition of "calendar month" in Schedule 4 Dictionary to the Interpretation Act).

(3) By 30 November 2022, the construction certificate had been uploaded to the Planning Portal and downloaded by Council, and been on Council's digital records management system for over ten weeks.

(4) Mr Jenner attended the site on 27 October 2022 to respond to a complaint about materials being placed on adjoining land and sediment controls (although no further enforcement action was taken). Mr Jenner did not say whether he was aware of the construction certificate by that date, or explain why he did not have regard to the construction certificate in investigating that issue.

(5) In any event, by that date, 27 October 2022, Council was in possession of the construction certificate and could have, as part of the "due diligence" contemplated by r 59.10(3)(c), reviewed it as part of responding to the complaint.

1. The first and second respondents submitted that it was "otherwise problematic for Council to rely on subjective and self serving matters of resourcing, discrete staff responsibilities", and merely to take a "reactive approach" to enforcement activities before checking a construction certificate. Apart from being difficult evidence to test, such approach ignored the statutory provisions and the prejudice to those carrying out development in accordance with a construction certificate after the expiry of the three month period for commencing proceedings. In this case, the excavation works continued beyond the 30 November 2022 expiry date up until 6 February 2023 when the development control order was issued. Although the first and second respondents had not quantified how much work was carried out in the period after 30 November 2022, the evidence relied upon by Council allows the Court to infer that the work carried out during this period was "continuous and substantial".
2. Even accepting Council's evidence in relation to its limited resources at its highest, the first and second respondents submitted that Council's argument for an extension of time was "unpersuasive" citing Drenovac at [180], and Gindurra Road at [233]-[234].[7] Further, Ramahi must be considered in context. It was a decision made in 2015 in which the Court did not consider s 4.31 of the EPA Act which was introduced on 1 March 2018 to provide for a three month period within which to challenge a complying development certificate on the basis that it was not authorised to be issued. The first and second respondents submitted that the time period specified in s 4.31 "must have some work to do".
3. In oral submissions, Mr Hemmings SC for the first and second respondents said as follows:

Preston CJ's approach in Ramahi ... is to be contrasted with the approach ... in two proceedings that post date the introduction of either [s] 4.31 and [s] 6.32. The first of those is the decision of Pain J in Gindurra. Her Honour, ultimately in that case, did allow a partial setting aside of orders that were reflective of partial invalidity... in part ... because of her dissatisfaction with the timely manner or the untimely manner in which the proceedings were commenced.

...

your Honour will see that the council [in Gindurra Road] submitted that it didn't delay, but it clearly has. Her Honour, ultimately, was not satisfied that the resources excused the delay and so it resulted in the only partial relief that her Honour granted. An approach to the resources dispute that was made after the relevant change, we say, to the statutory scheme.

...

[In Drenovac] [a]t 179 ... they had not been restrained and there had not been an order issued, and they carried out the works. "Had the proceedings...commenced the work", and talks about the significant sum. "The oral evidence of Mr Woods", who was the relevant council officer, ... said that they don't have the resources, "who could explain these matters". And ultimately, her Honour therefore was unwilling to extend time.

In our submission, to the extent there is apparently conflicting authority about this consideration of resources of councils, firstly, considered at large, the Court would prefer those that have addressed the question after the change to the legislative scheme that, in our submission, has highlighted the importance of the three month period. So, that is the more recent of Pain and Duggan JJ.

1. The first and second respondents submitted that any public interest in enforcing planning laws must be balanced against the public interest in certainty and finality of decisions and, in the circumstances of this case, the Court would not extend time for commencing proceedings under r 59.10 of the UCPR. Mr Hemmings said as follows in relation to r 59.10:

... The [Council] staff do not review construction certificates for consistency with any development consent. And that's a fact, but not, in our submission, an excuse.

... It used to be that only councils could be the certifier ... but as we would understand the reason for that separation, it was not to alleviate the burden on council of having to determine the construction certificates, it was because of dissatisfaction in the marketplace with the only person one could go to to get the construction certificate was the council, rather than some private process.

... it is apparent that the council has made a decision based upon a lack of resources to not avail itself of the ... [s] 6.32 route, and also appears to have deliberately embarked upon a course where the only way ... it will ... respond to the 59.10 limitation is if they actually become aware of a breach of inconsistency ... It has the effect ... [of] setting the limitation in 59.10 at nought.

Council's reply in relation to an extension of time

1. In reply, Council submitted that insofar as the first and second respondents rely on the decisions of Pain J in Gindurra Road and Duggan J in Drenovac, in neither case was the Court referred to the decision of the chief judge in Ramahi. In both cases, Council submitted, the Court "did not reject outright that Council's role was not to proactively monitor certificates issued by private certifiers." The rejection of that submission in Drenovac turned on the inadequacies of Council's evidence: [180]. In Gindurra Road, Pain J emphasised that Council had delayed for over one year: [234].
2. Council submitted that it is entitled to presume that certificates are issued by certifiers in compliance with the law: Ramahi at [85]. Council again emphasised that it was not aware of the discrepancies between the construction certificate and the modified development consent until after the excavation works for the construction road "commence[d]" on 16 January 2023. Council commenced the proceedings within one month of becoming aware of that excavation and identifying the inconsistency. There was no undue delay.

Conclusion in relation to whether the Court should extend time under r 59.10 of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate

1. I have determined to extend time under r 59.10 of the UCPR for Council to commence the proceedings. My reasons are as follows:

(1) Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act: Ramahi at [75]. That includes ensuring that development is carried out in accordance with the terms of any development consent granted by a local planning panel.

(2) As held by Kirby P in Sedevcic at 339-340:

in exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment.

(3) In relation to prejudice, I accept Council's submission that any relevant prejudice, being expenses on building work incurred up to the expiry of the three month period for commencing the proceedings, is not connected to any delay on the part of Council in commencing the proceedings: Ramahi at [86]-[87]. The three month period for commencing the proceedings expired on 30 November 2022, and the development control order ordering the cessation of unauthorised excavation below RL 18.30 was issued on 6 February 2023. While not entirely clear from the evidence, I infer that during that two month period, the first and second respondents carried out some excavation in the area of the 'cellar' level.

(4) There was no evidence as to what other works (if any) were carried out during that period, nor the potential costs of any such works, to enable a quantification of prejudice. The first and second respondents elected not to put on any evidence as to prejudice.

(5) Further, I accept Council's submission that any prejudice to the first and second respondents needs to be considered in the context that they (at least the first respondent), knew that the Local Planning Panel "had essentially refused consent to a cellar level, submitted plans to the principal certifying authority that showed a cellar level". As the chief judge held in Ramahi at [85] in the context of a complying development certificate, the respondents applied to a private certifier to have certified a development that did not comply with the development consent. That conduct does not absolve the first and second respondents of responsibility for proposing and then carrying out development that was not consistent with the modified development consent.

(6) As to the reasons for Council's delay, I accept Council's submission, based on the evidence, that it was not aware of the inconsistency between the modified development consent and the plans, specifications and standards of building work specified in the construction certificate until it received a complaint on 31 January 2023. There was no cause for Council to examine the construction certificate until work for the construction void was commenced in January 2023, and Council received the complaint on 31 January 2023. Council, having reviewed the construction certificate, attended the site the following day and on 6 February 2023 issued the development control order requiring the cessation of all excavation works below RL 18.30. Having sought advice, and attempting to resolve the issue with the first and second respondents, Council commenced proceedings within one month. Council submitted, and I accept, that such delay was not "undue". Council referred to numerous cases, including Ramahi, in which the delay was found not to be undue and an extension of time for commencing the proceedings was granted.

(7) There was unchallenged evidence in relation to the number of construction certificates and complying development certificates issued in the Woollahra local government area each year. I accept, as submitted by Council and deposed to by Mr Jenner, that Council does not have the resources, nor is it obliged to review every one of those certificates to ensure that the relevant certifier has complied with their obligations. As the chief judge said in Ramahi at [95], albeit in the context of a complying development certificate, a Council is entitled to presume that certificates have been issued in compliance with the EPA Act, the relevant regulations, and the applicable environmental planning instrument and development standards. As a matter of principle, I do not consider there to be any relevant difference in relation to the statutory obligations of Council in relation to the issuing of construction certificates, and the issuing of complying development certificates by certifiers.

(8) It is correct, as submitted by the first and second respondents, that the proceedings were not commenced until 1 March 2023, the construction certificate having been issued on 31 August 2022 and the three month period within which to commence proceedings having expired on 30 November 2022. However, I do not accept the first and second respondents' submission that the evidence relied upon Council to justify an extension of time to commence the proceedings was "underwhelming". I have accepted Council's evidence in relation to delay.

(9) Neither Drenovac nor Gindurra Road is authority for the proposition that Council's role is to proactively monitor certificates issued by private certifiers. The rejection of that submission in Drenovac turned on the inadequacies of Council's evidence ([180]), and in Gindurra Road, Pain J emphasised that Council had delayed for over one year ([234]).

(10) Nor do I accept the first and second respondents' submission that Council's approach has the effect of setting the limitation in r 59.10 of the UCPR to nought. As the chief judge said in Ramahi at [95] in rejecting Ms Ramahi's submission that Bankstown City Council acted unreasonably in not checking the complying development certificates at the time it received them:

The statutory scheme regulating complying development certificates requires the accredited certifier to ensure and to certify that the development is complying development under the EPA Act and that it will comply with all relevant development standards. There are criminal sanctions if the certifier incorrectly certifies. The Council is entitled to presume that the complying development certificates have been issued in compliance with the EPA Act, the EPA Regulation and the applicable environmental planning instrument and development standards.

1. In all the circumstances, I do not consider there to have been undue delay on the part of Council in commencing the proceedings. Accordingly, I extend time under r 59(10) of the UCPR for Council to commence proceedings for judicial review of the third respondent's decision of 31 August 2022 to issue the construction certificate to 1 March 2023.

(2) Whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes

1. The second issue is whether the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes.

1. In relation to the construction of the modified development consent, Council referred to J.K. Williams Staff Pty Ltd v Sydney Water Corporation (J.K. Williams Staff),[8] where the chief judge at [59]-[62] summarised the principles relating to the construction of development consents. Council identified for present purposes the following (uncontroversial) propositions emerging from the authorities as of present relevance:

(1) The meaning of the language used in a development consent is to be determined objectively having regard to the context in which the development consent was issued and taking into account the fact that, unlike a contract between parties, the development consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant.

(2) It is permissible to look at the application seeking consent or approval and the documents and plans accompanying the application in order to determine the scope and operation of the consent or approval and the development or activity for which consent or approval was sought.

(3) The meaning of a consent or approval is to be determined in accordance with the same principles of statutory interpretation that are applicable to interpretation of other legal documents, and there is no general principle requiring laxity or flexibility in construing development consents or approvals. Nor do practical considerations permit a rewriting of delegated legislation or statutory instruments to meet what the Court thinks is a permissible and practical outcome.

(4) A condition of consent or approval is to be interpreted by asking "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole". That is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the modified development consent, any other conditions which cast light on the purpose of the relevant words, and common sense.

1. Council submitted that the question for the Court here is not whether a particular construction of the development consent is open; rather, "it is whether it was open for the certifier to conclude that the plans and specifications shown in the plans were consistent with the development consent as properly construed".
2. Council submitted that the words in condition C.1(d) are clear (emphasis added):

(1) the plans and specifications given to the certifier were to include the "deletion of the 'cellar' level and the associated excavation"; and

(2) "[t]o minimise excavation, the 'cellar level' including the mechanical ventilation[,] wine cellar, store, lift and access stairs must be deleted; and the area must remain unexcavated".

1. Prefacing "area" with "the" in condition C.1(d), it was submitted, calls up the area previously identified in the condition; that is, the 'cellar' level. The condition was imposed in the context of a development application that sought approval for excavation below the ground level, and the installation of a cellar and storeroom (as shown in approved plan DA08). The condition, expressed in clear terms, and considered in the context of the application itself (regard to which is permissible),[9] could only have one meaning: there was to be no excavation in the area that was proposed to be the 'cellar' level. Further, consideration of conditions D4, E8, E9, or E13 "should not produce a different conclusion". None of those conditions requires excavation. Nor does any of them require the installation of a crane, "let alone in the precise location of the 'cellar' level". Each is a general condition which must yield to the more specific condition that there be no excavation, that is, condition C.1(d).[10]
2. This interpretation was submitted to be "even more so when it is considered that a development consent is a document that has an 'in rem' quality", citing Bardsley-Smith v Penrith City Council[11] at [66] (Sackville AJA); Winn v Director-General of National Parks and Wildlife and Ors[12] at [4] (Powell JA). Further, Council submitted, documents created after the grant of development consent, such as a construction management plan or directions given by an engineer, can have "little relevance to the legal meaning of the development consent": Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement)[13] (Bunderra Holdings) at [65]-[66] (Leeming JA).
3. Ultimately, Council submitted, the first and second respondents' position appears to be that "generic conditions, in some cases requiring things to be done after development consent is granted, have the effect of permitting the owners to do the very thing that condition C.1(d) says they should not". Council submitted that that would not only be contrary to established principle, but would also render the express prohibition on excavation of the 'cellar' level inutile, citing Project Blue Sky Inc v Australian Broadcasting Authority[14] (Project Blue Sky) at [71] (McHugh, Gummow, Kirby and Hayne JJ). The ordinary meaning of the words in condition C.1(d), considered in the context of the development application and "the more generic provisions that do not in terms qualify it", is that excavation in the area of the 'cellar' level was prohibited.

1. The first and second respondents contended that Council's submission that "a statutory instrument has only one legal meaning to be determined by applying the accepted principles of construction" was problematic for the following reasons:

(1) It ignores the fact that a condition of development consent can be ambiguous, or have more than one meaning. In Gough and Gilmour Holdings Pty Limited v The Council of the City of Holroyd,[15] Talbot J recognised that a condition of development consent can be ambiguous and found that that any ambiguity is to be read against the interests of Council. Else-Mitchell J said the same in Ryde Municipal Council v Royal Ryde Homes[16] at 324:

... the legal qualities a consent possesses, or which flow from a consent, are so important care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.[17]

(2) In issuing a construction certificate, the interpretation task is carried out by the certifier, not the Court. Unless the certifier's interpretation of a condition is "perverse or devoid of plausible justification", review for manifest unreasonableness is not available.

1. In relation to Council's submission that the modified development consent, and condition C.1(d) have only one meaning, the first and second respondents submitted that "close review of the [modified] development consent yields a more nuanced position and demonstrates that there was permissible scope for deviation within the conditions of the [modified] development consent to grant the construction certificate in the form it was issued, particularly for the purposes of construction."
2. In oral submissions, Mr Hemmings SC drew attention to Payne JA's remarks in Bunderra Holdings at [158] "for the correct approach to the interpretation of the consent in these proceedings". There, Payne JA said:

The principles relating to the construction of development consents were not controversial on the appeal. Those principles were explained by the primary judge at [62]-[63]. In particular, it was common ground that the following principles applied:

(1) the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 per Hope JA;

(2) a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23]; Winn v Director-General of National Parks and Wildlife ... at [4]: The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace at [41];

(3) a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160, at [105]; and

(4) as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [44]; Shell Co of Australia at 637.

... for C.1(d) ... it does appear that the first line and a bit of (d) is a heading. ... the heading of the condition is the deletion of the cellar level and the associated excavation. Obviously, that's the excavation associated with the cellar level. ...

... it should not be interpreted in a manner that it prohibits ... the ability to install a crane in the location where the cellar ... might have been so long as ... that excavation is not being carried out for the purposes of the cellar or the cellar level. ... The council's referred in their written submissions to s 35 of the [Interpretation Act]. ... So taking a strict approach to the interpretation of these instruments as if they are statutory instruments and the saying the headings do not form part of the Act, therefore the headings do not form part of the consent, and that might be accepted but ... s 35(5) provides that the section which says the heading does not form part of the Act does not limit the application of s 34 [of the Interpretation Act] in relation to the use of any heading in the interpretation

... the heading is "Deletion of the cellar level". It's clear it requires deletion. It's silent as to any possible alternative ... other than for the purposes that would otherwise be available under the consent. ...

Next you go to the operative provision of the condition and it starts with an explanation ... to minimise excavation and plainly excavation is minimised if the cellar level is deleted. ... The next part, which is the cellar level including mechanical ventilation, wine cellar, store, lift and access stairs must be deleted. This is ... consistent with the heading for the deletion of the cellar level and it's making it clearer by use of the inclusive list ...

...

There is no doubt that there has been excavation in the area that the cellar would have been, but that's a given, and that's where we say that in that last phrase, "and the area must remain unexcavated" ... there is ambiguity that needs to be resolved because it has one of two meanings. It either means what the council says, that the area of the cellar can never be excavated for any purpose whereas we read it that the area must remain unexcavated ..., and we get that because it's available on the reading of the operative provision itself. It's entirely consistent ... to the extent there is now any ambiguity in the drafting of ... the operative part of the condition, it's entirely consistent with the heading because the heading is focusing itself upon the associated excavation.

1. At the hearing on 11 October 2023, the Court asked the first and second respondents about the use of inverted commas around 'cellar' in condition C.1(d). Mr Hemmings said as follows:

... it really appears to us that the council's real concern is that there will be a future unlawful use of this land because they appear to be concerned that the area that's been excavated as a construction void and as a crane base will ... be used for purposes whether it's cellar purposes or whatever, residential purposes.

That would be to use the land unlawfully for a use that it can't be put to at the moment because ... all we're doing is ... we're in the process of and been stopped - undergoing construction. So, it's a distraction, it appears to us, in the council's case to have focused upon this is the cellar and it's in the same area of the cellar, et cetera. ...

in our submission, the certifier was entirely open to him to be satisfied that the cellar level, ... was deleted. All of the things that were related to the cellar level use have been deleted. ... It's only noted as a construction void. It's not on the architectural plans at all. There is no cellar level or any of the materials for it. It cannot be used for any purpose other than during the purposes of construction the provision of a void and the availability of the crane base.

1. In relation to condition C.1(d), the first and second respondents submitted as follows:

(1) it contains no express prohibition on structural or construction works within the relevant "area", including piling, shoring or the construction of a crane base; and

(2) the excavation referred to in the condition is excavation "associated" with the construction of the 'cellar' level. The word "associated" in the condition must be given some work to do. It is excavation for the purposes of a "cellar" that is prohibited, "not necessarily excavation for all purposes."

1. Further, conditions D.4, E.8, E.9, or E.13 "are clear on their face and provide for flexibility in the carrying out of the construction of the development". This includes permission for:

(1) the erection of cranes (conditions D.4 and E.13);

(2) excavation to be carried out in accordance with oral or written directions of a supervising professional engineer (condition E.8); and

(3) a requirement to support surrounding land.

1. In relation to the approved plans and construction certificate plans and specification referred to in condition C.1 of the modified development consent and required to be submitted to the certifying authority pursuant to cl 139 of the former EPA Regulation 2000, the approved plans depict a "lower level" at RL 18.50 on which a gym, living room, media room, kitchen, terrace and pool area is to be located. The 'cellar' level is at RL 15.75 and the sections depict a cellar, a store room, and a staircase accessing this level.
2. Although the "store and cellar levels are marked as 'to be deleted'", approved plan DA08 includes a notation that provides: "continuous piles and cavity to waterproof basement walls". There was no requirement in the conditions of the modified development consent or marked on the approved plans that these piles be reduced in depth. The piling extends, it was submitted, "to a depth well below RL15.75".
3. The first and second respondents referred to the following aspects of the 2020 geotechnical report:

(1) "inferred bedrock" was found at a depth of 2.8 - 3.65 metres;

(2) contemplation of "deeper excavation" which "may locally encounter sandstone bedrock";

(3) key geotechnical constraints to the development including variable excavation conditions, temporary shoring, permanent retaining, and foundation conditions;

(4) recommendations for subgrade preparation for earthworks, pavements, slab-on-ground construction, and minor structures as follows:

• Where rock is exposed at footing invert level, it should be free of loose, "drummy" and softened material before concrete is poured.

(5) the recommendation that "where some footings are taken to bedrock, that all footings are founded on bedrock to reduce the risk of differential settlement due to variable founding conditions";

(6) allowable bearing pressure for footings and related structures on Class 5 sandstone of 1,000 kilopascals (kpa); and

(7) the conclusion that "if the development is designed and constructed in accordance with the recommendations given, these effects are anticipated to have negligible impact and be within acceptable limits".

1. The first and second respondents submitted that the third respondent was "required to read these conditions and approved documents with condition C.1(d) and E[.]9 of the [development] [c]onsent".

1. In reply to the first and second respondents' submissions concerning ambiguity and the proper construction of condition C.1(d), Council submitted that there is no general principle requiring laxity in the construction of a development consent: J.K. Williams Staff at [61] (Preston CJ of LEC). Any ambiguity in a condition is to be determined by application of the accepted principles of statutory construction which identify its "true legal meaning". The suggestion that it is a matter for the certifier to determine what that meaning is fails to recognise that a person exercising administrative power (like a certifier) and not judicial power has no authority to determine questions of law: Craig v South Australia[18] at [14] (Brennan, Deane, Toohey, Gaudron and McHugh JJ). The proper construction of the development consent is a matter for the Court alone. Where the exercise of a power requires a decision maker to form an opinion of some matter, "the power is treated as referring to an opinion that can be formed by a reasonable decision-maker that correctly understands the meaning of the law under which the decision-maker acts": Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd[19] at [154] (Preston CJ of LEC).
2. In any event, Council submitted, there is no ambiguity in condition C.1(d). It required the deletion of everything that had previously been proposed to be included within the 'cellar' level, and prohibited all excavation in that spatial area. The condition was submitted to be in two substantive parts:

(1) deletion of the 'cellar' level, including mechanical ventilation, wine cellar, store, lift and access stairs; and

(2) the requirement that "the area must remain unexcavated".

1. The first part was submitted to be directed in terms towards the amendment of proposed plans, as identified in the chapeau to the condition, and not only to require the deletion of what had previously been proposed as the 'cellar' level, but specifically the deletion of specific items that had been proposed within that level, including the lift and access stairs.
2. The second part was submitted to be broader, the limitation not being identified by reference to the purpose of the excavation, the only qualification being "the area", a reference back to the "spatial area" of the 'cellar' level. Council submitted that "[i]t is a directive that the spatial area previously occupied by the cellar level must remain unexcavated." The ordinary meaning of "remain" was submitted to be to stay in the same condition or to continue to exist when other parts no longer do: "[b]oth require a continuation of a pre-existing condition", and "[a]n area does not continue to be unexcavated if it is excavated and then filled." To construe the condition in the manner contended for by the first and second respondents "would render the condition meaningless with effectively no work to do", the only purpose of excavation in the case of the subject dwelling being to remove soil to go to a lower level "to enable something to be constructed in the void or hole thereby constructed". The key to understanding the purpose of the condition is in the opening words: "to minimise excavation". To permit excavation and then filling of the void thereby created would be "contrary to that clearly expressed purpose".
3. The first and second respondents' submissions were also contrary to the commonly understood meaning of "excavation". In Kirkpatrick v Kotis[20] Campbell J, after referring to dictionary definitions, said at [64]:

In its ordinary meaning, 'excavate' is capable of referring to the entire process by which a hole in the ground of significant size is achieved. It is capable of referring to not only the process which actually cuts solid rock or digs up previously undisturbed soil - as well it can include some activities incidental to those matters, which are part of the entire process of achieving an excavated site.

See also Cohen v Double Bay Bowling Club[21] at [130]-[135].

1. Further, Council said that the first and second respondents' submission that the excavation referred to in condition C.1(d) is only that "associated" with the construction of the 'cellar' level, and not excavation for all purposes, should be rejected. The words "the associated excavation" are part of the heading to the condition and therefore do not form part of the instrument. In any event, the word "associated" in context is not referable to the purpose of the excavation, but rather its physical location. That is, whatever excavation was proposed as part of the 'cellar' level is prohibited by the condition, irrespective of whether the excavation is in order to construct a 'cellar' level or otherwise. That is made clear in the operative part of the condition which prohibits any excavation in the "area".
2. In oral submissions, Mr Lazarus for Council said as follows:

Council's construction is entirely consistent with a literal reading of the condition. It's the respondent's construction that not only places an unnecessary gloss on the language, but indeed, introduces a purposive requirement that is simply not found in the condition.

So, when one is applying the statements of principle in the authorities, that is one applies ordinary statements or general principles of statutory construction, and there's no special rules regarding statutory instruments, that includes ... implying words into the provision.

1. Mr Lazarus referred to Taylor v The Owners - Strata Plan No 11564 and Others[22] at [37]-[38] where French CJ, Crennan and Bell JJ said as follows:

37. Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot.

38. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".

1. Mr Lazarus said that "[t]here is in fact nothing ambiguous about this condition ... There is no in-built ambiguity". The argument of the first and second respondents' counsel was said to:

... stem[s] from the use of the heading which he accepts comprises the opening two lines of C(1)(d). So, he accepts that's the heading, but he says, "Well, just because s 35 doesn't make it part of the Act, it's nevertheless extrinsic material that is being an instrument under the [Interpretation Act], s 35 would allow regard to be had to assuming there is ambiguity. Now that's the important qualification, he has sought to create an ambiguity by reference to the extrinsic material. The ambiguity is not found, your Honour, in the operative condition. The ambiguity is only found, if there is to be any, in the heading.

Conclusion in relation to whether the modified development consent, properly construed, prohibits excavation within the area identified as the 'cellar' level for all purposes

1. For the following reasons, I have determined that the modified development consent, properly construed, prohibits excavation within the area previously identified as the 'cellar' level for all purposes:

(1) The principles in relation to the construction of development consents referred to by the parties were largely uncontroversial. These are set out above at [110], [116] and [118].

(2) The question is whether it was open for the certifier, the third respondent, to conclude that the relevant building work plans and specifications were consistent with the modified development consent, properly construed.

(3) The words in condition C.1(d) are clear: "the approved plans and the Construction Certificate plans and specification, required to be submitted to the [certifier]" by the first respondent were to include the "[d]eletion of the cellar level and the associated excavation", and required that in order to minimise excavation, the 'cellar' level, including the mechanical ventilation, wine cellar, store, lift and access stairs, was to be deleted, and "the area" to "remain unexcavated".

(4) It is relevant to recall that condition C.1(d) was imposed in the context of a development application that sought approval for excavation below the ground level, and the installation of a cellar and store room as shown in approved plans DA07, DA08 and DA10. None of conditions D.4, E.8, E.9 or E.13 required excavation or the installation of a crane, let alone, as submitted by Council, in the location of the 'cellar' level. Each of conditions D.4, E.8, E.9 and E.15 is a general condition and must yield to the more specific condition that there be no excavation, that is condition C.1(d). As submitted by Council, documents created after the grant of development consent, such as a construction management plan or a construction certificate, can have little (if any) relevance to the legal meaning of the development consent in circumstances where the development consent is a document that has an "in rem" quality.

(5) The ordinary meaning of the words in condition C.1(d) considered in the context of the modified development application and the more general provisions of the modified development consent that do not qualify condition C.1(d) is that excavation in the area of the 'cellar' level was prohibited; that is that any excavation below RL 18.28 in the area hatched red in the amended proposed orders on the Construction Void Marking Plan Dwg No. 1100 Rev C stamped by the third respondent on 31 August 2022.

(6) It is undoubtedly correct that a condition of a development consent can be ambiguous or have more than one meaning, as the first and second respondents submitted. However, here, I do not consider that the relevant condition, condition C.1(d), is ambiguous. I do not accept that there was permissible scope within the modified development consent for deviations, particularly for the purposes of construction, or that the decision of Payne JA in Bunderra Holdings suggests, let alone requires, a different conclusion.

(7) As recorded above, the first and second respondents accepted that there has been excavation in the area where the cellar would have been, but submitted that the words "and the area must remain unexcavated" are ambiguous, presenting one of two meanings: that is, either as submitted by Council, that the area of the cellar can never be excavated for any purpose or, as submitted by the first and second respondents, that the area must remain unexcavated for the cellar. I do not accept that the construction for which the first and second respondents contend is available. Applying uncontroversial principles to the statutory construction of condition C.1(d), there was to be no excavation at all in the area of the 'cellar' level. That any such excavation was prohibited is clear from the use of the words "[d]eletion of the 'cellar' level and the associated excavation" in condition C.1(d) and the use of inverted commas around 'cellar' as a descriptor to identify the level to remain unexcavated.

(8) It is true that conditions D.4 and E.13 of the modified development consent provide for the erection of cranes. However, it is plain that the 'cellar' level (including mechanical ventilation, wine cellar, store, lift and access stairs) was to be deleted and the area to remain unexcavated. There is no ambiguity in condition C.1(d). It prohibited all excavation in the spatial level below RL 18.28 referred to by the descriptor as the 'cellar' level. The purpose of the condition is to be found in the opening words: "to minimise excavation". The words "the associated excavation" are part of the heading to the condition and, in context, are plainly referrable to the location, and not the purpose, of the excavation.

1. Accordingly, I find that there is nothing ambiguous in the language of condition C.1(d) and that, properly construed, the modified development consent prohibits excavation in the area identified in condition C.1(d) by the descriptor 'cellar' level; that is, excavation below RL 18.28 in the area hatched red on the Construction Void Marking Plan (Dwg No. 1100 Rev C) attached to Council's amended proposed orders. That includes excavation and works in that area for all purposes, including for structures such as a lift, lift shaft, stairs, walls, floors and a crane base.

(3) Whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

1. Having decided issue two in the affirmative, the third issue is whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent.

1. Council submitted that once the modified development consent is properly construed, the issue becomes whether "it was not reasonably open to the certifier, or did the certifier have no evident or intelligible justification, to conclude that the plans and specifications depicted on the plans supplied to him were consistent with a consent that prohibited excavation in the area previously occupied by the 'cellar' level."
2. Section 19(1) of the Certification Regulation (extracted above at [80]) imposes a positive requirement that the design and construction of the building, as described in the relevant building work plans and specifications and other information given to the third respondent, is "consistent with" the modified development consent. The former EPA Regulation 2000 used in cl 145(1)(a) the phrase "not inconsistent with" the development consent (extracted above at [72]). Council submitted that under the previous formulation, "not inconsistent with" was to be given its natural meaning, being a want of consistency or congruity, lack of accordance or harmony or incompatibility, contrariety, or opposition with it.23 H[23]ever, Council submitted, irrespective of the difference between the old and new tests, the focus is on whether the modified development consent and the plans and specifications the subject of the construction certificate can work together, citing Duggan J in _Sader v Elgammal_24 a[24][79].

1. The first and second respondents submitted that the Court must find "as a secondary step" that the plans and specifications or standards of building work specified in the construction certificate are "not consistent" with the modified development consent. They referred to the architectural plans stamped by the third respondent as part of the construction certificate which show a "lower level" at RL 18.50 on which a gym, living room, media room, kitchen, terrace and pool area are to be located (architectural plans WD2.05.B and WD2.06.A).
2. Critically, the first and second respondents submitted, the 'cellar' level, a store room, and a staircase accessing the lower level have been deleted, and to that extent, condition C.1(d) has been complied with. Notably, the structural detail below the lower level remains in the same form as the approved plans, being continuous piles and cavity to waterproof basement walls deeper than RL 15.75. In architectural plan WD2.05.B there is a notation which provides "crane base, refer struct eng's docs for details".
3. The first and second respondents also relied on the structural plans prepared by Sellick Consultants dated 14 July 2022, Revision D also "stamped" as part of the construction certificate. The Shoring Marking Plan and the footing marking plan show the location of a crane base. The footing marking plan depicts piers, and notes that "unless noted otherwise all foundations beyond sandstone with allowable bearing capacity of 1000 kpa." The crane base is also depicted in the shoring elevations, noted as being 5m x 5m x 1.35m deep. The structural plans also depict excavation below the "lower level".
4. Further, the first and second respondents referred to the requirement of condition D.4 of the modified development consent for a construction management plan. The construction plan approved by Council on 9 June 2022 and "stamped" as approved by the third respondent on 31 August 2022 referred to a site crane as follows:

A permanent crane (Potain) will be installed at site, the concrete crane base will be completed as per Engineers details/requirements. All relevant [c]ouncil forms will be submitted and approved before installing the crane at site following the DA Consent requirements. Traffic control will be in place for crane install and we will follow Traffic control plan.

1. Condition E.13 of the modified development consent made provision for site cranes to be erected within the boundaries of the land subject to compliance with the relevant Australian Standards. There was no requirement in the modified development consent that any crane plans be included in the construction certificate. The first and second respondents submitted that nonetheless, crane plans entitled "Potain MCT88 Tower Crane 35 Suttie Rd, Bellevue Hill" were prepared by Overhead Engineering for the development. Those plans, dated 13 July 2022, pre-dated the construction certificate by two weeks. Those plans were not in evidence before me.
2. In summary, the first and second respondents submitted that any excavation below the lower level proposed as part of the construction certificate plans would be:

(1) for the purposes of construction, being shoring, piers and the construction of a crane base at an allowable bearing pressure for Class 5 sandstone;

(2) limited in footprint to the area necessary to accommodate the installation and operation of the crane base (being the area shown in the structural plans);

(3) responsive to condition E.9 of the modified development consent which contemplated a site crane;

(4) in accordance with condition D.4 of the modified development consent which required a construction management plan which referred to a Potain crane; and

(5) temporary only, considering that the construction void is to be filled as shown in the architectural plans and therefore the area would in the long term "remain unexcavated".

1. Accordingly, the plans and specifications or standards of building work specified in the construction certificate were consistent with the requirements of the modified development consent "or at least, it was not unreasonable for the certifier to decide that that they were consistent with the requirements of the [modified] development consent". Further, the only condition of the modified development consent relied on by Council as the basis of a finding of inconsistency is condition C.1(d) which, the first and second respondents submitted, is ambiguous. Accordingly, it was not manifestly unreasonable for the third respondent to conclude that the documents "stamped" by the construction certificate, when read as a whole, "breached" the modified development consent, including condition C.1(d).
2. In oral submissions, Mr Hemmings said the following in relation to the statutory scheme for development consents and construction certificates in the EPA Act and the Certification Regulation:

... the statutory scheme of development consent followed by construction certificate is actually to anticipate ... that the construction certificate plans and specifications can be, in fact probably will be different to the development consent, that they are allowed to be different, it's just that they in being different cannot be inconsistent.

The provision serves two purposes. The first is that it allowed for differences between the development consent and the CC without the need to have to amend the development consent to reflect the differences that are in the CC. ...

If [s] 4.16(12) did not form part of the Act, in order to actually build something in a manner that was buildable ... there would have to be a modification of the development consent every time there was to be that consistent difference from the consent. ...

The second purpose ... is that it provides paramountcy to the construction certificate ... So, it has the effect that if one is carrying out a development in accordance with the construction certificate ... you therefore are not carrying out development in breach of the Act because the operation of [s] 4.16(12) is that the construction certificate is taken to form part of the consent.

1. Council submitted that central to the first and second respondents' case in relation to the crane base is the proposition that the modified development consent permitted excavation for a crane base, and that any excavation was limited, in footprint and purpose, to being for shoring, piers, and the construction of a crane base. Even if that construction of the modified development consent be correct (which Council denied), the contention ignored the structural plans "stamped" approved. The structural plans "stamped" approved by the third respondent, Council submitted, show far greater excavation than for a crane base:

(1) the crane base occupies an area 5m x 5m x 1.35m deep;

(2) the Construction Void Marking Plan and associated sections approved by the construction certificate show;

(a) a concrete slab 120mm deep outside the area of the crane base, and occupying most of the floor level of the construction void;

(b) wall petitions between that slab and the crane base;

(c) a lift shaft;

(d) stairs;

(3) as further reflected in:

(a) the Wall Elevations - Precast Sheet 2 which shows lift and stair access to the construction void; and

(b) the Shoring Elevations Sheet 1 which also shows the stairs.

1. Council also referred to the concrete slab outside of the crane base in the area shown as "mechanical ventilation to cellar" on DA06.5, being the Cellar Level Plan which was submitted with the modification application, and reference to which was deleted by the Local Planning Panel in condition A.8 of the modified development consent (extracted above at [22]). The lift and stairs are shown in the same location in the Construction Void Marking Plan and DA06.5.
2. Moreover, the first and second respondents' contention that the 'cellar' level, store room, and staircase accessing that level have been deleted was without foundation in the structural plans which show that the excavation approved by the construction certificate "goes beyond the purposes of a crane base and shoring to create a broader accessible space." The construction certificate structural plans do not delete the lift and access stairs, as required by the first part of condition C.1(d). In those circumstances, no reasonable certifier could have determined that the structural plans were consistent with the modified development consent.
3. In reply to the first and second respondents' contention that "any excavation below the lower level proposed as part of the CC plans is temporary only", considering that the construction void is to be filled as shown in the architectural plans, Council submitted that the "inclusion of a lift and stairs to the construction void indicates that the excavation of the construction void was permanent." Further, even if the construction void were to be filled, "the space occupied by the slabs, stairs, and lift could not be." Council submitted that it "defies common sense for fill to occupy the same space as a structure". Those areas would remain excavated. That is directly contrary to (and therefore inconsistent with) the modified development consent.

Conclusion in relation to whether the plans, specifications and standards of building work specified in the construction certificate are consistent with the modified development consent

1. In relation to issue 3, I have found that the relevant building work plans and specifications are not consistent with the modified development consent for the following reasons:

(1) The modified development consent did not permit excavation for a crane base in the 'cellar' level limited in footprint and purpose to shoring, piers, and the construction of a crane base.

(2) Properly construed, the modified development consent prohibited excavation of the "spatial area" previously occupied by the 'cellar' level. The "stamped" construction certificate plans show excavation of that same area. That was plainly not consistent with the clear words of the modified development consent.

(3) In any event, the structural plans "stamped" by the third respondent show far greater excavation in that area than for a crane base.

(4) The Cellar Level Plan submitted with the modification application, and deleted by condition A.8 of the modified development consent, shows the lift and stairs in the same location as in the Construction Void Marking Plan.

(5) The structural plans show that the excavation approved by the construction certificate, or purportedly approved by the construction certificate, goes beyond the purposes of a crane base and shoring to create a broader accessible space, not deleting the lift and access stairs as required by the first part of condition C.1(d). In those circumstances, I find as submitted by Council, that no reasonable certifier could have determined that the structural plans were consistent with the modified development consent.

(6) Further, the inclusion of a lift and stairs to the construction void as shown in the architectural plans indicates that the excavation of the void was to be permanent. Even if the construction void were to be filled (about which there was no evidence), the space occupied by the slab, stairs and lift could not be. As submitted by Council, it defies common sense for fill to occupy the same area as a structure. Accordingly, I infer that the areas occupied by the slab, stairs and lift would remain excavated, and would be directly contrary to and therefore not consistent with the modified development consent.

1. Accordingly, I have determined that the answer to question (3) is no, namely that the plans and specifications or standards of building work specified in the construction certificate certificate are not consistent with the modified development consent.

(4) If the answer to question (3) is no, whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

1. The fourth issue is whether, if the answer to question (3) is no (which I have determined it is), it was legally unreasonable for the third respondent to determine that the relevant building work plans and specifications specified in the construction certificate were consistent with the modified development consent.

1. In relation to the availability of review for unreasonableness, Council's case was that the decision to issue the construction certificate was legally unreasonable because it was not reasonably open to or there was no evident or intelligible basis for the third respondent to conclude:

(1) that the design and construction of the building as shown in the construction certificate plans was consistent with the modified development consent; and

(2) therefore, that the construction certificate could and should be issued.

1. Such review, Council submitted, was not excluded by Burwood Council v Ralan Burwood Pty Ltd (No 3) (Ralan)[25] and Bunderra Holdings. In similar circumstances, the Court of Appeal held in Trives v Hornsby Shire Council (Trives)[26] that the issue of whether development is complying development is not a jurisdictional fact, breach of which alone results in invalidity. In forming a view as to whether or not development is complying development "the certifier must act according to the law, and must act rationally and not unreasonably".[27]
2. Council submitted that as in relation to a certifier's decision to grant a complying development certificate, in determining to grant a construction certificate, the certifier must form a view that certain preconditions are met. Here, those were that:

(1) the relevant building work plans and specifications include the matters required by a relevant BASIX certificate: s 19(1)(a) of the Certification Regulation;

(2) the design and construction of the building, as described in the relevant building work plans and specifications, was consistent with the modified development consent: s 19(1)(b) of the Certification Regulation;

(3) the resulting building would comply with relevant provisions of the Building Code of Australia: s 19(1)(c) of the Certification Regulation; and

(4) certain conditions of modified development consent have been satisfied: s 20 of the Certification Regulation.

1. To contend that whether each of those preconditions was not met premised on the certifier's "satisfaction" was beside the point. Each was a precondition to the exercise of power (albeit one the breach of which does not result in invalidity), as exemplified by the language of ss 19 and 20 of the Certification Regulation that "a certifier must not issue a construction certificate" unless each of those provisions is satisfied. Referring to the reasons of Leeming JA in Dansar Pty Ltd v Byron Shire Council, Council submitted that it "is trite that anybody exercising public power must first satisfy itself that the preconditions have been satisfied".[28] The certifier must form a view as to whether the design and construction of the building are consistent with the modified development consent. As in Trives, that view must not be legally unreasonable and must have an evident and intelligible basis.
2. Further, Council submitted, the statutory scheme does not suggest a different conclusion. The requirement of legal reasonableness is derived from implication from the legislative scheme.[29] That requirement is presumed unless there is an affirmative basis in the statutory power, or the nature and statutory context of that power, for its exclusion or modification.[30] Trives makes clear that exclusion does not arise merely because satisfaction of a statutory provision is not itself a jurisdictional fact. Indications that the power to issue a construction certificate is to be exercised reasonably and not capriciously include that a certifier has an obligation to give reasons when refusing an application for a construction certificate: s 13(1)(c)(i) of the Certification Regulation. That has been held in other circumstances to give rise to an obligation of reasonableness in relation to steps in a decision-maker's reasoning process.[31] To the extent that the first and second respondents submit that there is an implied exclusion of review of a certifier's decision, the Court would be slow to reach a conclusion that involves the exclusion of review by this Court for jurisdictional error.[32]
3. As to whether the third respondent's decision was legally unreasonable, Council submitted that a decision will be legally unreasonable if it is lacking an evident or intelligible justification, irrational or illogical, or is plainly unjust, arbitrary, capricious, or lacking common sense: Minister for Immigration and Citizenship v Li (Li)[33] at [25], [28] (French CJ), [72], [76] (Hayne, Kiefel, and Bell JJ). And that although the threshold is undoubtedly a high one, it has been met in other cases regarding decisions of certifiers: see, for example Bankstown City Council v Ramahi (No 2) (Ramahi (No 2)).[34] Here, Council submitted, the question of the consistency of the plans provided to the third respondent and the modified development consent, properly construed, was not one on which reasonable minds could differ, only one conclusion being open. The architectural plans provided to the third respondent:

(1) showed on architectural plan WD2.05.A a concrete structure underground in the area that was previously the 'cellar' level;

(2) that concrete structure also shown on architectural plan WD2.05.B and identifying continuous piles under the ground level, and the concrete structure as "CRANE BASE, REFER STRUCT ENG'S DOCS FOR DETAILS"; and

(3) the same concrete structure as well as the piles being shown on architectural plan WD2.09.A (Section E) a further "Proposed Section", the piles identified by a marking "CONTINUOUS PILES & CAVITY TO WATERPROOF BASEMENT WALLS".

1. The structural plans provided more detail, Council submitted, as follows:

(1) the Shoring Elevations Sheet 1 showing:

(a) a level below the lower level identified as "construction void";

(b) the concrete structure below the floor level of the construction void identified as "CRANE BASE BY OTHERS MAXIMUM 5mx5m51.35m DEEP"; and

(c) between Section B and Section C in Elevation S4, stairs to the construction void;

(2) the Construction Void Marking Plan, aside from depicting a basement level, showing a concrete slab 120 thick, identified on Construction Void Sections Sheet 1 as "crane base"; and

(3) the Wall Elevations-Precast Sheet 2 showing lift and stair access to the construction void.

1. Council submitted that installation of a concrete crane base substantially below the surface of the ground presupposes excavation, as does the description in the plans of the area immediately above it as a "void", and that a "simple comparison of the stamped plans approved by the modified development consent, and the structural plans clearly shows that the construction void is in the same area as the cellar level".
2. Accordingly, Council submitted, it "begs the question how any person could conclude that plans requiring certain excavation could work together with a modified development consent that prohibited that very excavation".
3. Finally, Council submitted that whilst the third respondent's reasons for decision are not available, the result itself "bespeaks error". There was "no rational process of reasoning that could have produced the conclusion that the plans provided to the certifier could work with the [modified] development consent." Only one conclusion was reasonably open: so far as the construction certificate plans proposed works and excavation within the area previously occupied by the 'cellar' level, they were not consistent with the modified development consent. Accordingly, the decision of the third respondent as to consistency was legally unreasonable, a decision that was material to the ultimate decision to issue the construction certificate. Had the third respondent arrived at the one opinion that was open to him, s 19(1) of the Certification Regulation required him to refuse to issue the construction certificate. The decision to issue the construction certificate was therefore affected by jurisdictional error.
4. In oral submissions, Mr Lazarus explained why "first there is a requirement of reasonableness, and secondly why the statutory scheme does not exclude it." Mr Lazarus referred to Li, where at [24]-[27] French CJ said as follows (footnotes omitted):

24. Every discretion has to be exercised, as Kitto J put it in R v Anderson; Ex parte Ipec-Air Pty Ltd, according to "the rules of reason". His Honour, paraphrasing Sharp v Wakefield, said:

"a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself".

Mason J in FAI Insurances Ltd v Winneke quoted Kitto J and linked his words to the general rule "that the extent of ... discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment".

25. As Professor Galligan wrote in 1986 in Discretionary Powers: A Legal Study of Official Discretion, the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those canons also attract requirements of impartiality and "a certain continuity and consistency in making decisions." They were reflected in the powers of the English Court of Chancery to control public bodies "if they proceed to exercise their powers in an unreasonable manner; whether induced to do so from improper motives or from error of judgment." They were acknowledged in the earliest years of this Court.

26. The rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.

27. In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:

"If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'."

1. Mr Lazarus also referred to the reasons of Hayne, Kiefel and Bell JJ in Li at [63], [66], [68], [72], [76] and those of Gageler J at [90], [92] and [105]. At [90] and [92] in Li, Gageler J said:

90. Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.

...

92. Like procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed.

1. Mr Lazarus also referred to the joint reasons in Minister for Immigration and Border Protection v Singh[35] (Singh) of Allsop CJ, Robertson and Mortimer JJ where their Honours said at [44]-[45]:

44. ... In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]- [28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls "an area of decisional freedom": it has the character of a choice that is arbitrary, capricious or without "common sense". See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking "an evident and intelligible justification". Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):

"It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason": Giris Pty Ltd v FCT [1969] HCA 5; (1969) 119 CLR 365 at 383-384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].

45. In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law.

1. Mr Lazarus responded to "the legal issue" raised by the first and second respondents which seemed to be "based ... on a misunderstanding" of the Court of Appeal's decisions in Ralan and Bunderra Holdings that Council is precluded from bringing a challenge to the construction certificate on grounds of jurisdictional error including "for a decision that we submit was unreasonable in the requisite sense." Mr Lazarus referred to the decision of the Court of Appeal in Lesnewski v Mosman Municipal Council (Lesnewski)[36] where the Court considered the question of the validity of a construction certificate, and submitted as follows:

[w]hat the Court of Appeal accepted is Lesnewski is that a challenge to the issue of a construction certificate under what was then cl 145 was available, or that there was availability for a challenge to be made on the basis of, as it then was, Wednesbury unreasonableness. It's not to the point that Wednesbury wasn't found in that case, but the Court found that the challenge on that basis was available. We ask the question what has changed since the decision of the Court of Appeal in Lesnewski in terms of the statutory scheme that bears directly on that question?

The only change that was made relevant to this question was, as I described earlier, to make the test for inconsistency purely objective rather than subjective by deleting those words "it is satisfied". One would have thought that converting a subjective test to an objective one would make judicial review of a decision to issue a CC easier not harder.

1. Mr Lazarus referred to "a change in the legislation" in 2006. The Second Reading Speech for the Environmental Planning Legislation Amendment Bill read by the Minister for Planning on 24 October 2006 providing as follows:

... the bill will make clear that in issuing occupation, construction, subdivision and compliance certificates under the Environmental Planning and Assessment Act 1979, accredited certifiers and councils must have regard to an objective test that is based on reasonableness rather than the current subjective tests.

It's blindingly apparent ... that not only is there within the statutory scheme not an exclusion of the concept of reasonableness, there's an express embracing both in the language of the regulation and in the Second Reading Speech that the concept of reasonableness is part and parcel, the standard of reasonableness is part and parcel of the determination of a certifier's duty to consider the consistency requirement that is now found in s 19 of the regulations.

1. At the hearing on 10 October 2023, in response to a request by the Court, Council handed up a short list of cases where the Court has found decisions of certifiers to be legally unreasonable in the Li sense. The cases included Hornsby Shire Council v Trives (No 3)[37] (Trives No 3), Ramahi (No 2), North Sydney Council v Harris Farm Markets Pty Limited (North Sydney Council v Harris Farm),[38] Gindurra Road and Wollondilly Shire Council v Kennedy.[39]

1. The first and second respondents submitted that a Court may review an administrative decision if that decision was so unreasonable that no reasonable authority could ever have come to it,[40] noting that following Minister for Immigration and Citizenship v SZMDS (SZMDS)[41] and Li, the test has evolved to a broader test of unreasonableness, illogicality and irrationality. However, they submitted, the concept of unreasonableness is derived from the framework of rationality imposed by a given statute (Li at [28]). Vitiating unreasonableness arises from an implied legislative intention (Li at [29]).
2. In response to Council's submissions in relation to the availability of review for unreasonableness, the first and second respondents submitted that the test of unreasonableness is subject to the following principles.

(1) As with any form of judicial review, the party seeking to establish jurisdictional error bears the onus of proof.[42]

(2) In "granting" a construction certificate, the certifier does not give reasons and, accordingly, any inference of unreasonableness must be drawn on the basis of the outcome itself, from an objective consideration of the matters in issue before the certifier and the actual decision reached.[43]

(3) In order for the challenge to be successful, the matter must not be one on which reasonable minds may differ.[44] In Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia,[45] the chief judge writing extracurially cited Lord Brighton in Puhlhofer v Hillingdon London Borough Council[46] as follows (at 31):

where the existence or non-existence of a fact is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously is acting perversely.

(4) The threshold required to set aside a decision is high.[47] It is not for those seeking to quash administrative decisions to challenge the soundness of the decision. Whether it is sound or not is not a question for decision by the reviewing court.[48] Manifest unreasonableness does not depend on the court's own subjective notions of unreasonableness. What the Court may consider unreasonable is a "different thing from the requirement for something overwhelming such that the decision is one that no reasonable body could have come to."[49] A decision may be unreasonable if it lacks an evident and intelligible justification or is so devoid of plausible justification that no reasonable person could have taken that course.[50]

1. The first and second respondents submitted that Council's submissions showed "a complete misunderstanding" of the construction certificate plans when it submitted that the first and second respondents "submitted plans to the principal certifying authority that showed a cellar level". That submission "could not be made out on any reading of the CC or the stamped documents."
2. There was otherwise a problem with the logic in Council's submissions, its case being that if the construction certificate was inconsistent with the modified development consent, it must follow that it was legally unreasonable to issue the construction certificate. Such an approach did not allow for reasonable minds differing, or ambiguities in conditions of consent, or matters of fact and degree in plans and specifications. The Court would reject this approach: "in order to demonstrate legal unreasonableness, perversity or something more than mere inconsistency is required". Put simply, it was reasonably open for the third respondent to conclude that the plans and specifications did not breach condition C.1(d) because the 'cellar' level was deleted, the relevant excavation was temporary and required by other conditions of the modified development consent and supporting documents, and the area would in the long term "remain unexcavated" because the construction void is shown as being filled in the architectural plans.
3. If the Court rejects the first and second respondents' primary submission and decided that unreasonableness leads to invalidity, "this is not sufficient: it must find there was no evident or intelligible justification to issue the construction certificate or that the decision was perverse." Ultimately, there was "an evident and intelligible justification" to issue the construction certificate. That reasonable certifiers may differ on the question is sufficient for a finding that manifest unreasonableness is not made out, citing the chief judge in Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd[51] at [119].
4. In relation to the list of cases in which the Court has found decisions of certifiers to be unreasonably handed up by Council on 10 October 2023, Mr Hemmings for the first and second respondents said the following:

Can I just note one thing ... when your Honour raises the examples of cases that have been handed up.

... just to remind your Honour that each of those are cases in relation to challenges to complying development certificates. ... Not to construction certificates. ...

[Sader v Elgammal] is the only decision that we've found post Ralan and the introduction of the responsive provisions, 6.32, where there has been a successful challenge to a construction certificate.

Conclusion in relation to whether it was legally unreasonable for the third respondent to determine that the plans, specifications and standards of building work specified in the construction certificate were consistent with the modified development consent

1. I have concluded that the plans, specifications and standards of building work specified in the construction certificate are not consistent with the modified development consent. In relation to the availability of review for reasonableness, I have concluded that the decision of the third respondent to issue the construction certificate was legally unreasonable:

(1) I do not consider that it was reasonably open or that there was an evident or intelligible basis for the third respondent to conclude that the design and the construction of the building as shown in the construction certificate plans was consistent with the modified development consent. In summary: any opinion that excavation was not required to install the crane base defies common sense about how the crane base could be installed; any opinion that the area of the construction void was in a different area than that of the 'cellar' level is not rationally open from a simple comparison of the plans; and any opinion that the architectural plans took precedence over the structural plans such that there was no "void" fails to recognise that both sets of plans showed the crane base in the same location which required excavation.

(2) As the Court of Appeal held in Trives in relation to a complying development certificate, in forming a view as to whether or not a development is complying development a certifier must act according to the law, and must act rationally and not unreasonably: Basten JA at [14] and also at [26], [27]-[31] and [34]. In Trives, Basten JA at [14] said:

Before considering the relevant statutory provisions, a further qualification on the significance of the principle should be noted. If it were thought that the validity of the certificate turned on the state of satisfaction of the accredited certifier, that would not place the certificate beyond challenge. The certifier must act according to the law, and must act rationally and not unreasonably. Whether these requirements permit close scrutiny of the certifier's decision, or whether a challenger will bear a heavy burden in seeking to establish unreasonableness, is not a matter which needs to be considered in this case. It may, however, be noted that the certifier does not give reasons and, accordingly, any inference of unreasonableness will need to be drawn from an objective consideration of the matters in issue before the certifier and the actual decision reached.

It is true as Basten JA said in Trives at [14] that a challenger seeking scrutiny of the certifier's decision will bear a "heavy burden in seeking to establish unreasonableness". It is also clear that the certifier does not give reasons in the case of a decision to approve a construction certificate. Accordingly, any inference of unreasonableness will need to be drawn from an objective consideration of the matters in issue before the third respondent and the actual decision reached.

(3) The requirement of legal reasonableness is derived from implication from the legislative scheme: Minister for Home Affairs and DUA16 at [26] (Kiefel CJ and Steward J). Trives makes clear that the requirement of legal reasonableness is not excluded merely because the state of satisfaction of the certifier is not itself a jurisdictional fact. I am satisfied that the power to issue a construction certificate is to be exercised reasonably and not capriciously, in particular having regard to the obligation of a certifier to give reasons when refusing an application for a construction certificate in s 13(1)(c)(i) of the Certification Regulation. As submitted by Council, the Court would be slow to reach a conclusion that involves exclusion of review by this Court for jurisdictional error. At the same time, as to whether the decision of the certifier, the third respondent, was legally unreasonable, the threshold is undoubtedly a high one. It has, however, been met in other cases regarding decisions of certifiers: see for example Rahami (No 2).

(4) Here, the third respondent was required to form a view that certain preconditions were met in determining to issue the construction certificate. Of particular relevance here is that the design and construction of the building as described in the relevant building work plans and specifications was to be consistent with the modified development consent: s 19(1)(b) of the Certification Regulation.

(5) I have concluded that the question of the consistency of the relevant building work plans and specifications provided to the third respondent and the modified development consent, properly construed, is not one on which reasonable minds could differ. Only one conclusion was open to the third respondent, having regard to the architectural plans provided to him, as well as the structural plans which provided more detail. It is clear from any review of the documents that the installation of a concrete crane base substantially below the surface of the ground presupposes excavation, as does the description in the plans of the area immediately above it as a "void". As submitted by Council, a simple comparison of the plans approved by the modified development consent and the structural plans and architectural plans "stamped" by the third respondent clearly shows that the construction void is in the same area as the 'cellar' level. I accept Council's submission that it begs the question how any person could conclude that the construction certificate plans requiring certain excavation work could work together with the modified development consent that prohibited that same excavation.

(6) Whilst the third respondent's reasons for decision are not available (and the third respondent's affidavit sworn 29 September 2023 was not read), I find that the result itself bespeaks error and an absence of a rational process of reasoning that could have produced the conclusion that the relevant building work plans and specifications provided to the third respondent could work with the modified development consent. The only conclusion reasonably open is that to the extent that the construction certificate plans, proposed works and excavation within an area previously occupied by the 'cellar' level, they were not consistent with the modified development consent. Where, as here, the certifier is not required to give reasons for deciding to issue a construction certificate, in Singh the Full Court said at [45]:

In circumstances where no reasons for the exercise of power, or a decision produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law.

(7) Had the third respondent arrived at the one opinion that was open to him, s 19(1) of the Certification Regulation required him to refuse to issue the construction certificate. The decision to issue the construction certificate was affected by jurisdictional error. As French CJ said in Li at [26], the rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. And a decision made for a purpose not authorised by statute or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. As French CJ said, it falls outside the framework of rationality provided by the statute. See also the reasons of Hayne, Kiefel and Bell JJ in Li at [63], [66], [68], [72] and [76]. And as Gageler J (as he then was) said in Li at [92] the common law principle of construction by reference to which reasonableness is implied establishes a condition of reasonableness as a default position: "absent an affirmative basis for exclusion or modification, a condition of reasonableness is presumed".

(8) In Lesnewski, the Court of Appeal found that a challenge to a construction certificate issued under cl 145 of the former EPA Regulation 2000 was available for Wednesbury unreasonableness (although unreasonableness was not found in that case). Since Lesnewski, the test in cl 145(1)(a) of the former EPA Regulation 2000 has been changed to an objective one in s 19(1) of the Certification Regulation by deleting the words "it is satisfied" thereby converting a subjective test to an objective one. That makes, as Mr Lazarus submitted, judicial review of a decision to issue a construction certificate easier, not harder, than the situation which applied in Lesnewski in 2005 where the challenge to the construction certificate was made when the former cl 145 provided the test for inconsistency. That such result was intended is made clear from the second reading speech for the Environmental Planning Legislation Amendment Bill read by the Minister for Planning on 24 October 2006 which provided that the Bill would make clear that in issuing, inter alia, construction certificates, accredited certifiers and Councils must have regard to "an objective test that is based on a reasonable rather than a current subjective test" (emphasis added).

(9) There is nothing in the articulation of relevant principles by the first and second respondents that is inconsistent with that of Council. Rather, the first and second respondents' submissions were that Council's submissions showed "a complete misunderstanding" of the construction certificate plans as showing a 'cellar' level. I have found for the reasons above at [136]-[137] that the construction certificate plans plainly show excavation in the 'cellar' area the subject of condition C.1(d) of the modified development consent.

(10) Nor do I accept the first and second respondents' submissions concerning "a problem with the logic" in Council's submissions. I do not consider that Council's approach to the unreasonableness of issuing the construction certificate is one which does not allow for reasonable minds to differ, or ambiguities in conditions of consent, or matters of fact and degree in plans and specifications. Based on consideration of the events leading to the issue of the construction certificate and the construction certificate plans, I find that there was no evident and intelligible justification for the third respondent to issue the construction certificate, nor that reasonable certifiers might differ on that question.

(11) It is true that in only one case since the Court of Appeal's decision in Ralan and the introduction of s 6.32 of the EPA Act which came into effect on 1 December 2019, Sader v Elgammal, has there been a successful legal unreasonableness challenge to a construction certificate. In Sader v Elgammal (decided in 2022), Duggan J at [51] observed that to the extent that the construction certificate permitted demolition of a wall, it was inconsistent with the development consent as the relevant provisions in the development consent and the construction certificate "could not be undertaken harmoniously". In Sader v Elgammal, the development consent did not authorise the demolition of the wall, and in fact expressly required its retention. At [79], her Honour concluded that the construction certificate was inconsistent with the development consent, and that the two instruments could not operate consistently with each other. With respect, her Honour's reasons for concluding that the construction certificate was not consistent with the development consent were compelling. And no persuasive submission was made on behalf of the first and second respondents as to why I would not follow her Honour's approach here.

(12) As to Council's list of cases where the Court has found decisions of certifiers to be legally unreasonable - Trives (No 3), Ramahi (No 2), North Sydney Council v Harris Farm, Gindurra Road, Wollondilly Shire Council v Kennedy - it is true that each of those cases is an example of Li unreasonableness in issuing a complying development certificate: Trives (No 3) at [57]-[59]; Ramahi (No 2) at [154]; North Sydney Council v Harris Farm at [194]; Gindurra Road at [151]; and Wollondilly Shire Council v Kennedy at [83]-[84]). However, I do not consider that anything turns on the fact that none of those cases was concerned with a challenge to a construction certificate. The reasoning in each case is apposite to the resolution of the question of consistency between a development consent and a construction certificate which arises here.

1. Accordingly, the answer in relation to issue 4 is yes. The decision of the third respondent to issue the construction certificate was legally unreasonable.

(5) If the answer to (4) is yes, whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

1. Having decided that the answer to issue 4 is in the affirmative, the fifth issue is whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration.

1. Council submitted that a declaration of invalidity usually flows from a finding of jurisdictional error: May v Northern Beaches Council.[52] That is because a decision that involves jurisdictional error is a decision that "lacks legal foundation and is properly regarded, in law, as no decision at all", citing Minister for Immigration and Multicultural Affairs v Bhardwaj[53] and Hossain v Minister for Immigration and Border Protection.[54] Council said that the first and second respondents had adduced no evidence as to detriment or otherwise that could justify a refusal of relief.
2. Alternatively, Council submitted, any prejudice to the first and second respondents from the carrying out of works (other than excavation) in reliance upon the construction certificate could be addressed by a more limited declaration that the construction certificate is invalid only to the extent that it purports to approve excavation and works within the "space" previously proposed as the 'cellar' level.

First and second respondents' submissions on validity and discretion

1. The first and second respondents submitted that if the Court finds that "the issue of the CC was affected by jurisdictional error", the exercise of the Court's discretion in s 9.46 of the EPA Act arises.[55] Section 9.46(1) provides that "where the Court is satisfied that a breach of the [EPA] Act has been committed or that a breach of the [EPA] Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach". At its highest, the first and second respondents submitted, Council's complaint is that a crane base (expressly contemplated by a condition of modified development consent) is proposed at a depth which does not minimise excavation in accordance with another condition of modified development consent.
2. The first and second respondents submitted that the evidence before the Court was that:

(1) any excavation was for construction purposes only; and

(2) the depth of the crane base was dictated by the depth of RL 14.10 to provide for allowable bearing pressure for Class 5 sandstone, and that there was no evidence before the Court of environmental harm or amenity impacts associated with the excavation below the lower level. Nor would the Court make the more limited orders sought, there being no evidence that the crane base would be appropriately located at a higher level.

1. Overall, the first and second respondents submitted, at the completion of the development, there would be no perceivable difference in the development approved by the modified development consent when compared with the construction certificate. Any change in the development would be de minimus. Applying Ralan, the Court would find that even if the decision of the certifier was manifestly unreasonable, the consequence is not invalidity. In Ralan, the construction certificates issued by accredited certifiers involved substantial departures from the development consent such that the façade of a major residential and commercial development in Burwood bore little relationship to the plans and specifications the subject of the development consent. Burwood Council accepted that the façade conformed to plans and specifications provided by, or on behalf of, Ralan Burwood Pty Ltd to the accredited certifiers. However, Burwood Council contended that the construction certificates incorrectly stated that the plans and specifications provided to the certifiers were consistent with the development consent and, accordingly, that they were void. Council alleged that the construction certificate plans did not satisfy the requirement that they be "not inconsistent" with the development consent plans under cl 145(1)(a) of the former EPA Regulation 2000. Here, the first and second respondents said that this provision was in similar terms to s 19(1) of the Certification Regulation.
2. The first and second respondents submitted that on the assumption that the plans and specifications provided to the third respondent were inconsistent with the development consent ("in violation" of cl 145(1)(a) of the former EPA Regulation 2000), the Court of Appeal in Ralan determined (at [154]-[193]) that the construction certificate was valid, despite any breach of cl 145.
3. The first and second respondents also referred to Bunderra Holdings where the Court of Appeal at [77]-[78] confirmed "the application" of Ralan. The Court said that Ralan is not confined to cases where a construction certificate is "generally consistent" with a development consent. To the contrary, Ralan applies where a construction certificate is inconsistent with a consent: per McColl JA at [50] and per Leeming J at [78]. The first and second respondents submitted that there was a parliamentary response to Ralan which resulted in the enactment of s 6.32 of the EPA Act (extracted above at [71]), and which commenced on 1 December 2019.

1. In reply, Council submitted that Part B3.4 of the Woollahra Development Control Plan 2015 (dated 30 August 2021) (the DCP) adopts maximum volumes of excavation for sites of various sizes. For the subject site, the maximum volume of excavation is 190m3. In Part B3.4 of the DCP, objective O1 d) provides: "ensure noise, vibration, dust and other amenity impacts to surrounding properties during construction are reasonable". The Local Planning Panel approved 509.6m3 as the maximum volume of excavation at the site. Excavation of the 'cellar' level requires an additional 281m3 of excavation.
2. Council submitted that the associated noise, vibration, dust, and other amenity impacts from jackhammering, rock breaking, and truck movements associated with that additional excavation was "the very reason" for the imposition of condition C.1(d) by the Local Planning Panel. And irrespective of those impacts, there is a strong public interest in ensuring compliance with the law and the maintenance of the integrity of the planning system: Sedevcic at 339-340 (Kirby P). That includes ensuring that certificates are issued by private certifiers within power: Randwick City Council v Belle Living Pty Ltd (No 2)[56] at [105].
3. Mr Lazarus submitted that the maximum volume of excavation permitted by the DCP is "no greater than the volume shown in figure 14A" of the DCP "which involves a straight line calculation depending upon site area", namely "190 cubic metres". Figure 14A of the DCP is reproduced below:

An additional 281 cubic metres of excavation is proposed under the modification application to accommodate a new cellar and storage which is considered to be unnecessary in this instance, given that the approved dwelling already ... has - ample storage space. The proposal does not concur with objective O2 with its intent to minimise excavation. And then objective O5: excavation works are considered to be temporary in nature, therefore minimising associated noise, vibration, dust, and other amenity impacts arising from jackhammering, rock-breaking, truck movements, and the like to the short-term.

However, given the amount of excavation is in excess of the volumetric control - and we would say substantially in excess of the volumetric control ... the short-term amenity effects are not reasonable as they are likely to be greater due to the extended period of time required to excavate more material than when compared to a compliant development. ... The extent of variation sought under this modification is not justified. The proposal is therefore unacceptable with regard to the excavation controls in part B(3.4) of the [DCP] and condition C(1)(d) as being recommended which requires deletion of et cetera.

1. Further, Council submitted, Ralan dealt with a different issue, being whether the breach of an express statutory requirement would result in invalidity. In Ralan, the Court of Appeal expressly eschewed dealing with "the constitutional entrenchment of the Supreme Court's jurisdiction to intervene in cases of jurisdictional error": at [171] (Sackville AJA). It is that jurisdiction to review for legal unreasonableness which was being invoked by Council in this case. Mr Lazarus submitted that the analysis in Ralan was:

... purely directed to a Project Blue Sky analysis, as to whether breach leads to invalidity. The Court was not dealing with a claim for jurisdictional error. The Court was not dealing with a claim for legal unreasonableness. So the ratio ... is irrelevant to these proceedings.

1. Mr Lazarus submitted that "the consequence of [the first and second respondents'] submission is ... that an irrational decision by a certifier, even one that meets the lunacy standard ... can never be invalid", and that "legal unreasonableness is a species of jurisdictional error, as the law is now understood since Li". Accordingly, Council submitted that "[a] declaration of invalidity usually flows from a finding of jurisdictional error".

Conclusion in relation to whether the Court should make a declaration of invalidity in respect of all or part of the modified development consent having regard to any relevant discretionary consideration

1. In relation to invalidity, I conclude as follows.

(1) As Council submitted, a declaration of invalidity usually follows a finding of jurisdictional error. In May v Northern Beaches Council Meagher and Payne JJA said at [23]:

A declaration of invalidity usually flows from a finding of jurisdictional error. That is because a decision that involves jurisdictional error is a decision that "lacks legal foundation and is properly regarded, in law, as no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj ... at [51]; Hossain v Minister for Immigration and Border Protection ... at [24].

(2) Here, the first and second respondents adduced no evidence in relation to the detriment or otherwise capable of justifying a refusal of declaratory relief.

(3) However, as in Carriage v Stockland Development Pty Ltd & Ors [No 7][57] and Sader v Elgammal, I do not propose to make a declaration that the construction certificate is invalid in its entirety, rather only to the extent that it purports to approve excavation works within the area previously identified as the 'cellar' level. Such a declaration would leave the balance of the construction certificate operational, and thereby minimise the cost and delay to the first and second respondents as a consequence of work undertaken other than in the 'cellar' level which does not comply with condition C.1(d) of the modified development consent.

(4) I do not consider it relevant in the exercise of my discretion to have regard to the submission of the first and second respondents as to "there being no evidence that the crane base would be appropriately located at a higher level". The onus was on the first and second respondents to adduce any evidence that the crane base could not be appropriately located at a higher level. They adduced no such evidence.

(5) The proposed excavation was significantly in excess of the volumetric control in the DCP: for the subject site the maximum volume of excavation being 190m3, the Local Planning Panel approving 509.6m3 as the maximum volume of excavation at the site, and excavation of the 'cellar' level requiring an additional 281m3 of excavation.

(6) Excavation of the 'cellar' level requires an additional 281m3 of excavation beyond the 509.6m3 approved by the Local Planning Panel as the maximum volume of excavation at the site. Such excavation is contrary to objective O2 of the DCP, the intent of which is to minimise excavation, and objective O5 which seeks to minimise associated noise, vibration, dust and other amenity impacts arising from jack hammering, rock-breaking, truck movements, and the like in the short term. Accordingly, I accept Council's submission that the extent of variation sought in the modification application was not justified.

(7) As to the reliance placed by the first and second respondents on the Court of Appeal's decision in Ralan, cl 145(1)(a) of the former EPA Regulation 2000 with which the Court was there concerned, was in different terms to s 19(1) of the Certification Regulation. Further, the Court in Ralan did not foreclose the possibility that a construction certificate issued by a certifier that is "in fact inconsistent with a development consent" might (emphasis added) require that the construction certificate be held void and of no effect. In Ralan, Sackville AJA (with whom Barrett and McColl JJA agreed) said at [165] (emphasis added):

The legislative history referred to at [157]-[164] above is consistent with Parliament simply intending to make it clear that an accredited certifier who issues a construction certificate which is in fact inconsistent with a development consent, breaches cl 145(1) of the EPA Regulation and s 109F(1)(a) of the EPA Act. The introduction of the objective standard means that disciplinary or even criminal sanctions might be imposed on an accredited certifier who issues a construction certificate which is inconsistent with a development consent, regardless of whether the certifier was satisfied in his or her own mind that there was no inconsistency. The purpose of ensuring that accredited certifiers adhere to minimum standards does not require that a construction certificate issued by a certifier who breaches those standards must be held void and of no effect.

The legislation accommodates the possibility that an accredited certifier will issue a construction certificate in breach of cl 145(1) and s 109F(1) [Restriction on issue of construction certificates] by according paramountcy to the plans and specifications referred to in the construction certificate.

1. Moreover, as Council submitted, Ralan dealt with a different issue to that which arises here, being whether the breach of an express statutory requirement results in invalidity. In Ralan, the Court expressly eschewed dealing with the constitutional entrenchment of the Supreme Court's jurisdiction to intervene in cases of jurisdictional error (at [171]). It is that jurisdiction to review for legal unreasonableness which is invoked by Council in this case, and an analysis of Sackville AJA's reasons in Ralan at [171] makes clear that jurisdictional error played no part in the Court's decision. There Sackville AJA said:

I leave to one side complications introduced by the constitutional entrenchment of the Supreme Court's jurisdiction to intervene in cases of "jurisdictional error": Kirk v Industrial Court (NSW).

1. Accordingly, I will make a declaration of invalidity, having found jurisdictional error: May v Northern Beaches Council at [23]. However, as previously indicated, I will make a declaration of invalidity only to the extent of excavation in the 'cellar' level.
2. In making a declaration, the Court should pay "[c]lose attention to the form of declarations proposed": Rural Press Ltd v Australian Competition and Consumer Commission at [90].[58] Further, "[d]eclarations need not be lengthy, nor seek to reproduce the reasons for judgment, but to have any utility they must explain the declared contravention of the law": Director, Consumer Affairs Victoria v Vic Solar Pty Ltd (No 3)[59] at [5].
3. An appropriate form of declaration may be prayer 3 of the amended proposed orders provided to chambers by Council on 11 October 2023 at 9:13am. Prayer 3 is in the following form:

Alternatively, declare that construction certificate 21/345, issued by the Third Respondent, Paul Aramini, on 31 August 2022 (CC) for the demolition of the existing dwelling and the construction of a new dwelling at 35 Suttie Road, Bellevue Hill, is invalid and of no effect in so far as it approves below RL 18.28 in the area hatched in red on the attached plan:

a. excavation;

b. structures including lift, lift shafts, stairs, walls, floor, and crane base; and

c. other works in that area.

The attached plan referred to in prayer 3 is extracted above at [4].

1. I will direct the parties to confer in light of these reasons for decision in relation to an appropriate form of declaration and injunction, and to provide chambers with a list of mutual dates so that I can list the matter for further mention.

1. At the hearing on 10 October 2023, Council foreshadowed an application for costs arising from the first and second respondents' belated abandonment of reliance on expert evidence.
2. The question of costs thrown away by the first and second respondents' abandonment of reliance on expert evidence, and costs in the proceedings generally, is reserved. I will hear from the parties in relation to a timetable for the filing of submissions in relation to costs.

1. I will make a declaration that construction certificate 21/345 issued by the third respondent on 31 August 2022 is invalid and of no effect to the extent that it incorporates plans authorising excavation of any of the spatial area occupied by what was previously proposed as the 'cellar' level.
2. I will also order that the first and second respondents, by themselves, their servants and agents, be restrained from carrying out any development in reliance on the construction certificate in the spatial area occupied by what was previously proposed as the 'cellar' level.
3. I will list the matter for mention before me at a time and a date to be fixed in order to hear from the parties in relation to an appropriate form of declaration and injunction in light of these reasons for decision, and in relation to the question of costs.
4. The Court makes the following orders:

(1) Pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the date for the commencement of the proceedings is extended to 1 March 2023, being the date of filing of the summons.

(2) Costs reserved.

(3) The matter is listed for further mention before me at a time and date to be fixed in order to hear from the parties in relation to an appropriate form of declaration and injunction in light of these reasons, for decision and in relation to the question of costs.

[1] Bankstown City Council v Ramahi [2015] NSWLEC 74 (Ramahi) at [74] (Preston CJ of LEC) citing Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA) and Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA) (Barrett and Gleeson JJA agreeing). See also Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34] (Pepper J).

[2] (2015) 90 NSWLR 164; [2015] NSWCA 213 (JC Campbell AJA) (McColl and Leeming JJA agreeing).

[3] (1987) 10 NSWLR 335; (1987) 63 LGRA 361 (Kirby P, Mahoney and Clarke JJA).

[4] [2017] NSWLEC 165 (Robson J).

[5] [2017] NSWLEC 97 (Molesworth AJ).

[6] [2019] NSWLEC 128 (Robson J).

[7] The Hills Shire Council v Drenovac [2022] NSWLEC 139 (Drenovac) at [180] (Duggan J); Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171 (Gindurra Road) at [233]-[234] (Pain J).

[8] (2021) 249 LGERA 109; [2021] NSWLEC 23 (Preston CJ of LEC).

[9] Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; (2019) 241 LGERA 321; [2019] NSWCA 147 at [62] (Basten JA) and [311] (Preston CJ of LEC).

[10] Nader v Sutherland Shire Council [2008] NSWCA 265 [35]-[36] (Young CJ in Eq) (Beazley JA and Sackville AJA agreeing); Smith v The Queen (1994) 181 CLR 338 at 348; [1994] HCA 60 (Mason CJ, Dawson, Gaudron and McHugh JJ).

[11] (2013) 195 LGERA 34; [2013] NSWCA 200 at [66] (Sackville AJA), (McColl JA and Barrett JA agreeing).

[12] (2001) 130 LGERA 508; [2001] NSWCA 17 at [4] (Powell JA).

[13] (2017) 96 NSWLR 434; (2017) 226 LGERA 54; [2017] NSWCA 263 (Leeming JA).

[14] (1998) 194 CLR 355; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ).

[15] [2002] NSWLEC 108 at [19], [24]-[25] (Talbot J).

[16] [1970] 1 NSWR 227; (1970) 19 LGRA 321 (Else-Mitchell J).

[17] See also Hitchcock v Reed [2022] NSWLEC 81 at [63] (Robson J) and Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220 at [102]- [107] (Preston CJ of LEC) (Brereton JA and Chen J agreeing).

[18] (1995) 184 CLR 163; [1995] HCA 58 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[19] [2015] NSWLEC 40 (Preston CJ of LEC).

[20] (2004) 62 NSWLR 567; [2004] NSWSC 1265 (Campbell J).

[21] Cohen v Double Bay Bowling Club [2019] NSWSC 1625 at [130]- [135] (Henry J).

[22] (2014) 253 CLR 531; [2014] HCA 9 (French CJ, Crennan and Bell JJ).

[23] Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 331 (Kirby P), approved in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 [41]-[42] and [55] (Tobias JA, Bell J agreeing); see also Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 at [94]- [96] (Biscoe J).

[24] [2022] NSWLEC 107 at [79] (Duggan J).

[25] (2014) 206 LGERA 40; [2014] NSWCA 404 (McColl, Barrett JJA and Sackville AJA).

[26] (2015) 89 NSWLR 268; (2015) 208 LGERA 361; [2015] NSWCA 158 (Basten JA, Macfarlan and Meagher JJA agreeing).

[27] Trives at [14] (Basten JA), see also [26], [27]-[31] and [34].

[28] (2014) 89 NSWLR 1; [2014] NSWCA 364 at [187] (Leeming JA).

[29] Minister for Home Affairs v DUA 16 (2020) 271 CLR 550; [2020] HCA 46 at [26] (Kiefel CJ and Steward J).

[30] Li at [63] (Hayne, Kiefel, and Bell JJ) and at [92] (Gageler J); Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Singh at [43] (Allsop CJ, Robertson and Mortimer JJ).

[31] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [128] (Edelman J).

[32] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 (Preston CJ of LEC); Lu v Walding (No 2) (2021) 249 LGERA 1; [2021] NSWLEC 21 (Pain J): A matter Sackville AJA "[left] to one side" in Ralan at [171].

[33] (2013) 249 CLR 332; [2013] HCA 18.

[34] (2016) LGERA 385; [2016] NSWLEC 34 (Craig J).

[35] (2014) 231 FCR 437; (2014) 308 ALR 280; [2014] FCAFC 1 (Allsop CJ, Robertson and Mortimer JJ).

[36] (2005) 138 LGERA 207; [2005] NSWCA 99 (Hodgson, Ipp and Tobias JJA).

[37] [2015] NSWLEC 190 (Biscoe J).

[38] [2017] NSWLEC 67 (Sheahan J).

[39] [2023] NSWLEC 53 (Pain J).

[40] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233 (Wednesbury) (Lord Greene MR, Somervell LJ and Singleton J).

[41] (2010) 240 CLR 611; [2010] HCA 16 (Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ).

[42] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1; at [67] (Gummow J).

[44] Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110 at [119] (Preston CJ of LEC).

[45] B Preston "Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia" (2006) 28 ABR 17.

[46] [1986] UKHL 1; [1986] AC 484 at 518; [1986] UKHL 1; [1986] 1 All ER 467 (Lord Brighton).

[47] Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at 188 [27] (Mason P).

[48] Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 323; [1972] HCA 59; (1972) 27 LGRA 72 (Barwick CJ, McTiernan, Menzies, Gibbs and Stephen JJ).

[49] B Preston, Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia (2006) 28 ABR 17 at 32.

[50] Li at [76] (French CJ) and [91] (Gageler J); Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 at [57] (Preston CJ of LEC).

[51] (2021) 252 LGERA 221; [2021] NSWLEC 110 (Preston CJ of LEC).

[52] [2023] NSWCA 205 at [23] (Meagher and Payne JJA).

[53] (2002) 209 CLR 597; [2002] HCA 11 at [51] (Gaudron and Gummow JJ).

[54] (2018) 264 CLR 123; 359 ALR 1; [2018] HCA 34 at [24] (Kiefel CJ, Gageler and Keane JJ).

[56] [2023] NSWLEC 100 (Pritchard J).

[57] [2004] NSWLEC 148 (Pain J).

[58] (2003) 216 CLR 53; [2003] HCA 75 at [90] (Gummow, Hayne and Heydon JJ).

[59] [2021] FCA 171 at [5] (O'Bryan J).